Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College van gedeputeerde staten van Limburg and College van gedeputeerde staten van Gelderland.
Date: 2018-11-07
60


In the first place, it must be noted that, while the Habitats Directive does not define the concept of ‘project’, it is apparent from the Court’s case‑law that the definition of ‘project’ within the meaning of Article 1(2)(a) of the EIA Directive is relevant to defining the concept of project as provided for in the Habitats Directive (see, to that effect, judgment of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 38 and the case-law cited).
65


In the same vein, it follows from the Court’s case-law that, in so far as the definition of the concept of ‘project’ stemming from Directive 85/337 is more restrictive than that stemming from the Habitats Directive, if an activity is covered by Directive 85/337, it must, a fortiori, be covered the Habitats Directive (see, to that effect, judgment of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraphs 26 and 27).
66


It follows that, if an activity is regarded as a ‘project’ within the meaning of the EIA Directive, it may constitute a ‘project’ within the meaning of the Habitats Directive. However, the mere fact that an activity may not be classified as a ‘project’ within the meaning of the EIA Directive does not suffice, in itself, to infer therefrom that the activity may not be covered by the concept of ‘project’ within the meaning of the Habitats Directive.
68


The 10th recital of the Habitats Directive states that an appropriate assessment must be made of any plan or programme likely to have a significant effect on the conservation objectives of a site which has been designated or is designated in future. That recital finds expression in Article 6(3) of the directive, which provides, inter alia, that a plan or project likely to have a significant effect on the site concerned cannot be authorised without a prior assessment of its implications for that site (judgment of 12 April 2018, People Over Wind and Sweetman, C‑323/17, EU:C:2018:244, paragraph 28 and the case-law cited).
77


In that regard, the Court has previously held that such a fact does not in itself constitute an obstacle to considering such an activity, at the time of each subsequent intervention, as a distinct project within the meaning of that directive, at the risk of automatically excluding that activity from any prior assessment of its implications for the site concerned within the meaning of Article 6(3) (see, to that effect, judgment of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraphs 41 and 42).
78


However, if, having regard in particular to their regularity or nature or the conditions under which they are carried out, certain activities must be regarded as constituting a single operation, those activities can be considered to be one and the same project within the meaning of Article 6(3) of the Habitats Directive (see, to that effect, judgment of 14 January 2010, Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 47).
82


In that regard, 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 (judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 118 and the case-law cited). Thus, according to the Court’s settled case-law, recalled in paragraph 68 of the present judgment, the decisive criterion for establishing whether a new project requires an appropriate assessment of its implications to be carried out is whether there is a possibility that that project will have a significant effect on a protected site.
83


Consequently, where there is no continuity and, inter alia, the location and the conditions in which it carried out are not the same, the recurring activity of applying fertilisers on the surface of land or below its surface cannot be classified as one and the same project for the purposes of Article 6(3) of the Habitats Directive. It might be a case of new projects requiring an appropriate assessment within the meaning of that provision, the decision as to the obligation to conduct such an assessment depending, in each case, on the criterion relating to the risk of a significant adverse effect on the protected site on account of the changes thus brought about by such an activity.
85


It must also be added 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. More specifically, 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. The very existence of a probability or risk that an activity on a protected site might cause significant disturbances is capable of constituting an infringement of that provision (see, to that effect, judgment of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraphs 33, 41 and 42 and the case-law cited).
87


As a preliminary point, it should be recalled that, while Article 6(2) and Article 6(3) are designed to ensure the same level of protection (judgment of 12 April 2018, People Over Wind and Sweetman, C‑323/17, EU:C:2018:244, paragraph 24 and the case-law cited), the subject matter of those two provisions is different, in that the first is intended to introduce preventive measures whereas the second establishes an assessment 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 integrity of that site (judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 108 and the case-law cited).
92


The first stage of the assessment procedure, envisaged in the provision’s first sentence, requires the Member States to carry out an appropriate assessment of the implications for a protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on that site (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 44 and the case-law cited).
93


Having regard to the precautionary principle, where a plan or project not directly connected with or necessary to the management of a site may undermine the site’s conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project (judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 112 and the case-law cited).
95


Nonetheless, the appropriate assessment of the implications of the plan or project for the site concerned implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified (judgment of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 40 and the case-law cited).
98


The assessment carried out under the first sentence of Article 6(3) of the Habitats Directive cannot 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 plans or the projects proposed on the protected site concerned (judgment of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 39 and the case-law cited).
99


Furthermore, the second stage of the assessment procedure, which is envisaged in the second sentence of Article 6(3) of the Habitats Directive and occurs following the appropriate assessment of the implications of the plan or project for the site concerned, allows such a plan or project to be authorised only if it will not adversely affect the integrity of the site concerned (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 115 and the case-law cited).
100


Article 6(3) of the Habitats Directive thus 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 envisaged. 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 of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 118 and the case-law cited).
109


The Court has held that, where a Member State introduces an authorisation scheme, under which there is 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 authorisation scheme will have a significant effect on a Natura 2000 site, whether individually or in combination with other plans or projects. 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, judgment of 26 May 2011, Commission v Belgium, C‑538/09, EU:C:2011:349, paragraphs 52 and 53 and the case-law cited).
114


According to the Court’s case-law, 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 plans or 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. The option of generally exempting certain activities, in accordance with the rules in force, from the need for an assessment of their implications for the site concerned is not such as to guarantee that those activities do not adversely affect the integrity of the protected site. 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 certain types of plans or projects to benefit from a general waiver (see, to that effect, judgment of 26 May 2011, Commission v Belgium, C‑538/09, EU:C:2011:349, paragraphs 41 to 43 and the case-law cited).
115


It follows that, as the Advocate General noted in point 144 of her Opinion, should the grazing of cattle and the application of fertilisers on the surface of land or below its surface constitute ‘projects’ within the meaning of Article 6(3) of the Habitats Directive, dispensing with the appropriate assessment of the implications of those projects for the site concerned may be compatible with the requirements stemming from that provision only if it is ensured that those activities cause no disturbance likely significantly to affect the objectives of that directive (see, to that effect, judgment of 4 March 2010, Commission v France, C‑241/08, EU:C:2010:114, paragraph 32).
123


In that regard, it should be noted that it would be contrary to the effectiveness of Article 6(1) and (2) of the Habitats Directive for the effects of necessary measures under those provisions to be invoked in order to grant, under paragraph 3 of that article, the authorisation of a plan or project which has implications for the site concerned before they are actually implemented (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 213).
125


Furthermore, it must be added that, as follows from the judgments of 15 May 2014, Briels and Others (C‑521/12, EU:C:2014:330), and of 21 July 2016, Orleans and Others (C‑387/15 and C‑388/15, EU:C:2016:583), the case-law relating to Article 6 of the Habitats Directive requires a distinction to be drawn between protective measures forming part of the plan or project at issue and intended to avoid or reduce any direct adverse effects caused by it, in order to ensure that that plan or project does not adversely affect the integrity of the sites concerned, which are covered by Article 6(3), and measures which, in accordance with Article 6(4), are aimed at compensating for the negative effects of the plan or project on that site and cannot be taken into account in the assessment of the implications of that plan or project on that site (see, to that effect, judgment of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 47 and the case‑law cited).
126


Moreover, according to the Court’s case-law, it is only when it is sufficiently certain that a measure will make an effective contribution to avoiding harm to the integrity of the site concerned, by guaranteeing beyond all reasonable doubt that the plan or project at issue will not adversely affect the integrity of that site, that such a measure may be taken into consideration in the ‘appropriate assessment’ within the meaning of Article 6(3) of the Habitats Directive (see, to that effect, judgments of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 38, and of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 51).
131


It must be added that the ‘appropriate assessment’ within the meaning of Article 6(3) of the Habitats Directive must include not only the anticipated positive effects of those ‘measures’ but also the certain or potential adverse effects which may result from them (see, to that effect, judgment of 25 July 2018, Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 53).
134


In that regard, the Court has previously held that national legislation including procedures for intervention by the competent authorities that were merely reactive and not also preventive disregarded the scope of the obligations stemming from Article 6(2) of the Habitats Directive (see, to that effect, judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraphs 207 and 208).