Commission of the European Communities v Federal Republic of Germany.
Date: 2006-01-10
27. Although it is true that the subject-matter of an action brought under Article 226 EC is delimited by the pre-litigation procedure and that, accordingly, the originating application cannot be based on provisions other than those stated in that procedure, that requirement cannot, however, go so far as to make it necessary for the national provisions mentioned in the reasoned opinion and those in the application to be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application (Case C-221/03 Commission  v Belgium [2005] ECR I-0000, paragraphs 38 and 39).
28. In this case, the provisions of the BNatSchG 2002 to which the Commission refers in its originating application are almost identical to the provisions in the BNatSchG 1998 that it criticises in its reasoned opinion.
40. The Court has already held that the requirement for an appropriate assessment of the implications of a plan or project is thus conditional on its being likely to have a significant effect on the site. 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‑6/04 Commission  v United Kingdom  [2005] ECR I-0000, paragraph 54).
41. Therefore, the condition, to which the assessment of the implications of a plan or a project on a particular site is subject, which requires such an assessment to be carried out where there are doubts as to the existence of significant effects, does not permit that assessment to be avoided, as do Paragraph 10(1)(11)(b) of the BNatSchG 2002, read in conjunction with Paragraph 18, and Paragraph 10(1)(11)(c), in respect of certain categories of projects, on the basis of criteria which do not adequately ensure that those projects will not have a significant effect on the protected sites.
43. As regards, in particular, installations not subject to authorisation under the BImSchG, the fact that that text requires verification, that serious environmental damage which may be prevented by current technology is in fact prevented, and that damage which cannot be prevented by current technology is reduced to the minimum, cannot be sufficient to ensure compliance with the duty laid down in Article 6(3) of the Directive. The duty of verification laid down by the BImSchG is not, in any event, capable of ensuring that a project relating to such an installation does not adversely affect the integrity of the protected site. In particular, the duty to verify whether serious environmental damage, which cannot be prevented by current technology, is reduced to the minimum, does not ensure that such a project will not give rise to such damage.
44. As regards the use of water not requiring an authorisation under the WHG, the fact that it concerns the use of small quantities of water does not in itself preclude the possibility that some of those uses are likely to have a significant effect on a protected site. Even assuming that such uses of water are not likely to have a significant effect on the status of a body of water, it does not follow that they are not likely to have a significant effect on neighbouring protected sites.
51. In the absence of established scientific criteria, which have not been mentioned by the German Government, which would a priori  rule out emissions affecting a protected site situated outside the area of impact of the installation concerned having a significant effect on that site, the system put in place by national law in the field in question is not, in any event, capable of ensuring that the projects or plans relating to installations causing emissions which affect protected sites situated outside their area of impact do not adversely affect the integrity of those sites, within the meaning of Article 6(3) of the Directive.
55. The Court has already held that the acts referred to in Article 12(1)(d) of the Directive include non-deliberate acts (see Commission  v United Kingdom , paragraphs 73 to 79). By not limiting the prohibition laid down in Article 12(1)(d) of the Directive to deliberate acts, which it has done in respect of acts referred to in Article 12(1)(a) to (c), the Community legislature has demonstrated its intention to give breeding grounds or resting places increased protection against acts causing their deterioration or destruction. Given the importance of the objectives of protecting biodiversity which the Directive aims to achieve, it is by no means disproportionate that the prohibition laid down in Article 12(1)(d) is not limited to deliberate acts.
59. It is clear from the 4th and 11th recitals in the preamble to the Directive that the threatened habitats and species form part of the European Community’s natural heritage and that the threats to them are often of a transboundary nature, so that the adoption of conservation measures is a common responsibility of all Member States. Accordingly, faithful transposition becomes particularly important in an instance such as the present one, where management of the common heritage is entrusted to the Member States in their respective territories (see Commission  v United Kingdom , paragraph 25)
60. It follows that, in the context of the Directive, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise (see Commission v United Kingdom , paragraph 26).
66. According to settled case-law, Articles 12, 13 and 16 of the Directive form a coherent body of provisions (see, Commission  v United Kingdom , paragraph 112). Articles 12 and 13 require Member States to establish a system of strict protection for animal and plant species.