Grüne Liga Sachsen eV and Others v Freistaat Sachsen.
Date: 2016-01-14
32


According to Article 4(5) of the Habitats Directive, as interpreted by the Court, the protective measures prescribed in Article 6(2) to (4) of that directive are required only as regards sites which, in accordance with the third subparagraph of Article 4(2) of that directive, are placed on the list of sites selected as SCIs as adopted by the Commission under the procedure laid down in Article 21 of the same directive (judgments in Dragaggi and Others, C‑117/03, EU:C:2005:16, paragraph 25, and Bund Naturschutz in Bayern and Others, C‑244/05, EU:C:2006:579, paragraph 36).
33


The Court has nevertheless held that, even if a project was authorised before the system of protection laid down by the Habitats Directive became applicable to the site in question and, accordingly, such a project was not subject to the requirements relating to the procedure for prior assessment according to Article 6(3) of that directive, its implementation nevertheless falls within the scope of Article 6(2) of that directive (see, to that effect, judgments in Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraphs 48 and 49, and Commission v Spain, C‑404/09, EU:C:2011:768, paragraphs 124 and 125).
36


Unlike Article 6(3) of the Habitats Directive, which introduces, by its wording, a procedure intended to ensure, by means of a prior examination, that a plan or project not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the site’s integrity (see, to that effect, judgment in Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 28 and the case-law cited), Article 6(2) of that directive does not expressly provide for precise protective measures such as an obligation to examine or review the implications of a plan or project for natural habitats and species.
37


That provision establishes a general obligation of protection consisting of taking appropriate protective measures so as to avoid deterioration as well as disturbance which could have significant effects in the light of the directive’s objectives (see, to that effect, judgments in Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraph 38; Commission v Italy, C‑304/05, EU:C:2007:532, paragraph 92, and Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 33). As the Advocate General pointed out in point 43 of her Opinion, that obligation is ongoing in nature.
38


With regard to projects which do not meet the requirements under Article 6(3) of the Habitats Directive, the Court has already held that an obligation to carry out a subsequent review of the implications of existing plans or projects for the site in question may be based on Article 6(2) of that directive (see, to that effect, judgment in Commission v United Kingdom, C‑6/04, EU:C:2005:626, paragraphs 57 and 58).
41


It should nevertheless be recalled that an activity complies with Article 6(2) of the Habitats Directive only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives (judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 126 and the case-law cited).
42


The Court has also held that the very existence of a probability or risk that an economic activity on a protected site might cause significant disturbances for a species is capable of constituting an infringement of Article 6(2) of the Habitats Directive, without a cause and effect relationship between that activity and significant disturbance to the species having to be proved (see, to that effect, judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 142 and the case-law cited).
48


As a preliminary point, it should be noted that Article 6(3) of the Habitats Directive integrates the precautionary principle and makes it possible to prevent in an effective manner adverse effects on the integrity of protected sites as a result of the plans or projects being considered. A less stringent authorisation criterion than that in question could not ensure as effectively the fulfilment of the objective of site protection intended under that provision (judgment in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 26 and the case-law cited).
49


According to settled case-law, the appropriate assessment of the implications for the site that must be carried out pursuant to Article 6(3) implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field (see, to that effect, judgments in Commission v France, C‑241/08, EU:C:2010:114, paragraph 69; Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 99, and Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraphs 112 and 113).
50


The assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned (judgment in Briel and Others, C‑521/12, EU:C:2014:330, point 27).
52


Nevertheless, it must be stated that the provisions of Article 6(2) and (3) of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by the directive and that those provisions are designed to ensure the same level of protection of natural habitats and habitats of species (see, to that effect, judgments in Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 32, and Briels and Others, C‑521/12, EU:C:2014:330, paragraph 19).
55


In addition, it should be noted that, according to the case-law of the Court, the possibility cannot be excluded that a Member State, by analogy with the procedure in derogation provided for in Article 6(4) of the Habitats Directive, may invoke reasons of public interest and, if the conditions laid down by that provision are essentially satisfied, authorise a plan or project which could otherwise have been regarded as prohibited by Article 6(2) (see, to that effect, judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 156).
56


However, a review meeting the requirements of Article 6(3) of the Habitats Directive is necessary in every case where, by analogy with Article 6(4) of that directive, a project incompatible with the conservation objectives of the site concerned must be implemented for imperative reasons of overriding public interest (see, to that effect, judgment in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 114).
57


Article 6(4) is applicable only after the implications of a plan or project have been studied in accordance with Article 6(3) of the Habitats Directive. Thus, knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for the application of Article 6(4), since, in the absence of those elements, no condition for the application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified (judgment in Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 74).
58


With regard to the date to which a subsequent review must relate, such as that referred to in paragraph 54 of the present judgment, it should be pointed out that, according to Article 4(5) of the Habitats Directive, a site is protected under that directive only as from the date on which it was placed on the list of SCIs.
59


Therefore, any step taken on the basis of Article 6(2) of that directive cannot relate to a date going back to a period in which the site in question was not in the list of SCIs.
72


Pursuant to Article 6(4) of the Habitats Directive, if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, and there are no alternative solutions, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected (judgment in Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 72 and the case-law cited).
73


However, as the Court has repeatedly held, Article 6(4) of the Habitats Directive must, as an exception to the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly (judgment in Solvay and Others, C‑182/10, EU:C:2012:82, paragraph 73 and the case-law cited).
77


So far as concerns the economic cost of the steps that may be considered in the review of alternatives, including the demolition of the works already completed, as relied on by the referring court, it must be stated, as the Advocate General states in point 70 of her Opinion, that that is not of equal importance to the objective of conserving natural habitats and wild fauna and flora pursued by the Habitats Directive. Therefore, account being taken of the strict interpretation of Article 6(4) of that directive, as noted in paragraph 73 of the present judgment, it cannot be accepted that the economic cost of such measures alone may be a determining factor in the choice of alternative solutions under that provision.