European Commission v Federal Republic of Germany.
Date: 2017-04-26
29


It should be noted at the outset that the fact that the project to which the environmental assessment being challenged relates is not situated in the Natura 2000 areas concerned, but rather at a considerable distance from them, upstream of the Elbe, in no way precludes the applicability of the requirements laid down in Article 6(3) of the Habitats Directive. It is clear from the wording of that provision 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’ is subject to the environmental protection mechanism it prescribes.
30


In the present case, it is apparent from the file submitted to the Court that the cooling mechanism of the Moorburg plant is likely to have a significant effect on certain fish species listed in Annex II to the Habitats Directive and protected in the Natura 2000 areas concerned.
33


As the Court has previously held, competent national authorities may authorise an activity subject to an assessment only if they have made certain that it will not adversely affect the integrity of the protected site. This is so when there is no reasonable doubt from a scientific point of view as to the absence of such adverse effects (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 42 and the case-law cited).
34


In order to ensure that the construction of the Moorburg plant would not adversely affect the integrity of the Natura 2000 areas concerned, it was the responsibility of the German authorities to take account of the protective measures included in that construction project. In that regard, it is settled case-law that the application of the precautionary principle in the context of the implementation of Article 6(3) of the Habitats Directive requires the competent national authority to take into account, inter alia, the protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects on the site, in order to ensure that it does not adversely affect the integrity of the protected site (judgments of 15 May 2014, Briels and Others, C‑521/12, EU:C:2014:330, paragraph 28, and 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 54).
38


It must therefore be held that, at the time the authorisation was granted, the fish ladder, even though it was intended to reduce direct significant effects on the Natura 2000 areas situated upstream of the Moorburg plant, could not guarantee beyond all reasonable doubt, together with the other measures referred to in paragraph 35 of the present judgment, that that plant would not adversely affect the integrity of the site, within the meaning of Article 6(3) of the Habitats Directive.
40


According to the case-law, the authorisation criterion laid down in the second sentence of Article 6(3) of the Habitats Directive integrates the precautionary principle and makes it possible effectively to prevent adverse effects on the integrity of protected sites as the result of plans or projects. 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 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 53 and the case-law cited).
42


In that regard, it should be noted that it is at the date of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question (judgment of 26 October 2006, Commission v Portugal, C‑239/04, EU:C:2006:665, paragraph 24 and the case-law cited).
50


The Federal Republic of Germany contends, first, as regards the Geesthacht pumped-storage power plant, that it did not have to be taken into account in the impact assessment, since that plant was already in operation on the date of the adoption of the Habitats Directive. In support of that argument it refers to the Court’s judgment of 14 January 2016 in Grüne Liga Sachsen and Others (C‑399/14, EU:C:2016:10, paragraphs 58 and 59).
57


According to settled case-law, the appropriate assessment of the implications of the plan or project for the site concerned that must be carried out pursuant to Article 6(3) of the Habitats Directive requires that all the aspects of the plan or project which could, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified in the light of the best scientific knowledge in the field (judgment of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 49 and the case-law cited).
59


On the one hand, as was stated in paragraph 42 above, it is the date of adoption of the decision authorising implementation of a project that must be taken into account when the cumulative effects resulting from that project in combination with another project which is likely to have a significant effect on a site are assessed (see, to that effect, judgment of 26 October 2006, Commission v Portugal, C‑239/04, EU:C:2006:665, paragraph 24 and the case-law cited).
71


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 that directive, and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.