European Commission v Kingdom of Belgium.
Date: 2011-05-26
39. It is settled law that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that the plan or project in question will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (see Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraphs 43 and 44; Case C‑6/04 Commission v United Kingdom  [2005] ECR I-9017, paragraph 54; and Case C‑418/04 Commission  v Ireland [2007] ECR I‑10947, paragraph 226).
40. That risk must be assessed in the light, inter alia, of the characteristics and specific environmental conditions of the site concerned by that plan or project (see Waddenvereniging and Vogelbeschermingsvereniging , paragraph 49, and Case C‑179/06 Commission  v Italy  [2007] ECR I‑8131, paragraph 35).
41. Moreover, the condition governing the need to undertake an assessment of the implications of a plan or a project on a particular site, in accordance with which such an assessment must be carried out where there are doubts as to the existence of significant effects, does not permit that assessment to be avoided, in respect of certain categories of projects, on the basis of criteria which do not adequately ensure that those projects are not likely to have a significant effect on the protected sites (see, to that effect, Case C‑98/03 Commission  v Germany  [2006] ECR I‑53, paragraph 41).
42. The option of generally exempting certain activities, in accordance with the rules in force, from the need for an assessment of the implications for the site concerned is not such as to guarantee that those activities do not adversely affect the integrity of the protected site (see, to that effect, Commission  v Germany , paragraphs 43 and 44, and Case C‑241/08 Commission  v France [2010] ECR I-0000, paragraph 31).
43. Thus, Article 6(3) of the Habitats Directive does not authorise a Member State to enact national legislation which allows the environmental impact assessment obligation for development plans to benefit from a general waiver because of the low costs entailed or the particular type of work planned (see, to that effect, Case C‑256/98 Commission  v France  [2000] ECR I‑2487, paragraph 39).
44. Similarly, by systematically exempting works and development programmes and projects which are subject to a declaratory scheme from the procedure for assessing their implications for the site, a Member State fails to fulfil its obligations under Article 6(3) of the Habitats Directive (see, to that effect, Case C-241/08 Commission  v France , paragraph 62).
52. In such circumstances, where a Member State introduces a declaratory scheme, under which there is accordingly no provision for a risk assessment depending inter alia on the characteristics and specific environmental conditions of the site concerned, that Member State must show that the provisions which it has adopted enable it to be excluded, on the basis of objective information, that any plan or project subject to that declaratory scheme will have a significant effect on a Natura 2000 site, whether individually or in combination with other plans or projects (see, to that effect and by analogy, Case C-241/08 Commission  v France , paragraph 32).
53. It can be inferred from Article 6(3) of the Habitats Directive that competent national authorities may refrain from carrying out an impact assessment of any plan or project which is not directly connected with, or necessary to, the management of a Natura 2000 site only where it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on that site, whether individually or in combination with other plans or projects (see, to that effect, Waddenvereniging and Vogelbeschermingsvereniging , paragraph 45, and Commission  v Ireland , paragraph 238).
55. It should be borne in mind, however, that even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration (see, to that effect, with regard to Directive 85/337, Case C‑392/96 Commission  v Ireland  [1999] ECR I‑5901, paragraph 66).