Azienda Agro-Zootecnica Franchini sarl and Eolica di Altamura Srl v Regione Puglia.
Date: 2011-07-21
35. As a preliminary point, it must be borne in mind that, although the Court does not, in a reference for a preliminary ruling, have jurisdiction to give a ruling on the compatibility of a national measure with European Union law, it does have jurisdiction to supply the national court with a ruling on the interpretation of European Union law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see, inter alia, Case C‑124/99 Borawitz [2000] ECR I‑7293, paragraph 17; Case C‑60/05 WWF Italia and Others  [2006] ECR I‑5083, paragraph 18; and Case C‑439/06 citiworks  [2008] ECR I‑3913, paragraph 21).
40. It should be noted, first, that, as observed by the parties to the main proceedings, the system of protection afforded by the Habitats and Birds Directives to sites forming part of the Natura 2000 network does not prohibit all human activity within those sites but simply makes authorisation of such activity conditional upon a prior assessment of the environmental impact of the project concerned. Thus, the first sentence of Article 6(3) of the Habitats Directive – applicable, in accordance with Article 7 of that directive, to areas classified pursuant to Article 4(1) of the Birds Directive or similarly recognised under Article 4(2) thereof – provides that any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, is to be subject to an assessment of its implications for the site in view of the site’s conservation objectives.
41. Moreover, according to established case‑law, in order for the mechanism for the protection of the environment provided for in Article 6(3) of the Habitats Directive to be triggered, there must be a probability or a risk that a plan or project will have a significant effect on the site concerned (see, inter alia, Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging  [2004] ECR I‑7405, paragraphs 40 and 43, and Case C‑179/06 Commission v Italy  [2007] ECR I‑8131, paragraph 33).
48. It should be noted in this regard that European Union rules do not seek to effect complete harmonisation in the area of the environment (see, inter alia, Case C‑318/98 Fornasar and Others [2000] ECR I‑4785, paragraph 46, and Case C‑6/03 Deponiezweckverband Eiterköpfe  [2005] ECR I‑2753, paragraph 27).
50. There is no provision in the Habitats Directive that is equivalent to Article 14 of the Birds Directive. Nevertheless, since that directive was adopted on the basis of Article 192 TFEU, it should be noted that Article 193 TFEU provides that Member States may adopt more stringent protective measures. Under that provision, such measures are simply required to be compatible with the FEU Treaty and notified to the Commission. The Court has thus held that ‘in connection with the Community’s environmental policy, to the extent that a measure of domestic law pursues the same objectives as a directive, Article 176 EC makes provision for and authorises the minimum requirements laid down by that directive to be exceeded, in the conditions set by that article’ (see Deponiezweckverband Eiterköpfe , paragraph 58).
53. It is, admittedly, not apparent from the documents submitted to the Court that the Italian Government communicated those measures to the Commission in accordance with Article 193 TFEU. Nevertheless, it should be noted that, while that provision requires Member States to communicate to the Commission the more stringent protective measures which they intend to maintain or introduce in environmental matters, it does not make implementation of the planned measures conditional upon agreement by the Commission or its failure to object. In that context, as the Advocate General noted at point 38 of his Opinion, neither the wording nor the purpose of the provision under examination therefore provides any support for the view that failure by the Member States to comply with their notification obligation under Article 193 TFEU in itself renders unlawful the more stringent protective measures thus adopted (see, by analogy, Case 380/87 Enichem Base and Others  [1989] ECR 2491, paragraphs 20 to 23; Case C‑209/98 Sydhavnens Sten & Grus  [2000] ECR I‑3743, paragraph 100; and Case C‑159/00 Sapod Audic [2002] ECR I‑5031, paragraphs 60 to 63).
64. Next, as to whether the measure is discriminatory, it should be recalled that the prohibition of discrimination laid down in Article 6(1) of Directive 2001/77 is simply a specific expression of the principle of equality, which is one of the fundamental principles of European Union law and requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C‑280/93 Germany v Council  [1994] ECR I‑4973, paragraph 67; Case C‑303/05 Advocaten voor de Wereld  [2007] ECR I‑3633, paragraph 56; and Case C‑127/07 Arcelor Atlantique et Lorraine and Others  [2008] ECR I‑9895, paragraph 23).
69. However, as the Court has already held and in so far as Directive 2009/28 had already entered into force at the time of the facts in the main proceedings, the interpretation of that directive sought by the referring court must be regarded as being useful to that court (see, to that effect, Joined Cases C‑261/07 and C‑299/07 VTB-VAB and Galatea  [2009] ECR I‑2949, paragraphs 29 to 41).
70. First, it follows from the case-law that not only the national provisions specifically intended to transpose a directive but also, from the date of that directive’s entry into force, the pre-existing national provisions capable of ensuring that the national law is consistent with it must be considered to fall within the scope of that directive (see, to that effect, Case C‑81/05 Cordero Alonso [2006] ECR I‑7569, paragraph 29).
71. Second, in any event, it follows from established case-law that, during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Case C‑129/96 Inter‑Environnement Wallonie [1997] ECR I‑7411, paragraph 45; Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 58; and Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 67).
72. For those reasons, contrary to the Commission’s submission, it is necessary to reply to the part of the referring court’s question concerning the interpretation of Directive 2009/28, in particular in the light of the principle of proportionality which Article 13 of that directive introduces with regard to administrative procedures for the authorisation of plants producing renewable energy.
73. In this regard, the principle of proportionality referred to in Article 13 of Directive 2009/28, which is one of the general principles of European Union law, requires that measures adopted by Member States in this field do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, inter alia, Case C‑331/88 Fedesa and Others  [1990] ECR I‑4023, paragraph 13, and Joined Cases C‑133/93, C‑300/93 and C‑362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraph 41).