European Commission v Kingdom of Spain.
Date: 2011-11-24
57. With regard to the request, which is framed in the alternative, to have the oral procedure reopened, it is appropriate to note that the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, Case C‑210/06 Cartesio  [2008] ECR I‑9641, paragraph 46, and Case C‑306/08 Commission  v Spain  [2011] ECR I‑0000, paragraph 60).
58. However, neither the Statute of the Court of Justice of the European Union nor its Rules of Procedure make provision for the parties to submit observations in response to the Advocate General’s Opinion (see, in particular, Commission  v Spain , paragraph 61).
74. That is all the more so as certain amendments introduced by Directive 97/11 are directly relevant for assessing whether this complaint is well founded. That applies in particular to the insertion, in point 19 of Annex I to Directive 85/337, of the reference to open-cast mining projects with a surface area larger than 25 hectares, which implies that the latter do not have to form the subject-matter of an assessment pursuant to Article 4(1) of Directive 85/337 as amended unless they concern applications for authorisation submitted after 14 March 1999.
78. The scope of that obligation to assess impacts on the environment follows from the provision contained in Article 3 of Directive 85/337 as amended, according to which the environmental impact assessment is to identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11 of that directive, the direct and indirect effects of a project on human beings, fauna and flora, soil, water, air, climate and the landscape, material assets and the cultural heritage, and the interaction between those factors.
79. Given the extended scope and very broad objective of Directive 85/337 as amended, which are apparent from Articles 1(2), 2(1) and 3 of the latter (see, to that effect, Case C‑72/95 Kraaijeveld and Others  [1996] ECR I‑5403, paragraphs 30 and 31), the mere fact that there may have been uncertainty as to the exact meaning of the use of the conditional in the expression ‘[t]his description should cover’ used in a note to point 4 of Annex IV to Directive 85/337 as amended, even if that also appears in other language versions of that directive, cannot prevent a broad interpretation from being given to Article 3 of the latter.
97. It follows from Article 7 of the Habitats Directive that Article 6(2) to (4) of that directive replaces the first sentence of Article 4(4) of the Birds Directive as from the date of implementation of the Habitats Directive or the date of classification by a Member State under the Birds Directive, where the latter date is later (see, in particular, Case C‑418/04 Commission  v Ireland  [2007] ECR I‑10947, paragraph 173).
99. Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects (see, in particular, Commission  v Ireland , at paragraph 243).
100. An assessment made under Article 6(3) of the Habitats Directive cannot be regarded as appropriate if it contains gaps and lacks complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the SPA concerned (see, to that effect, Case C‑304/05 Commission v Italy  [2007] ECR I‑7495, paragraph 69).
104. Moreover, the 2005 report cannot make up for those deficiencies, since it was drawn up after the authorisation of those projects and cannot therefore be regarded as relevant in the context of Article 6(3) of the Habitats Directive (see, to that effect, Commission  v Italy , paragraph 72).
109. The Kingdom of Spain, which has invoked the importance of mining activities for the local economy, needs to be reminded that, whilst that consideration is capable of constituting an imperative reason of overriding public interest within the meaning of Article 6(4) of the Habitats Directive, that provision can apply only after the implications of a plan or project have been studied in accordance with Article 6(3) of that directive. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for application of Article 6(4) since, in the absence thereof, no condition for 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 ( Commission  v Italy , paragraph 83).
121. In that regard, concerning first the ‘Nueva Julia’ operation, since it has been held in the context of the first part of the second complaint that authorisation for that project was granted without complying with Article 6(3) of the Habitats Directive, the case-law shows that a breach of Article 6(2) may be found where deterioration of a habitat or disturbance of the species for which the area in question was designated has been established ( Commission  v Italy , paragraph 94).
122. Next, as regards the ‘Ampliación de Feixolín’ operation, it should be recalled that the fact that a plan or project has been authorised according to the procedure laid down in Article 6(3) of the Habitats Directive renders superfluous, as regards the action to be taken on the protected site under the plan or project, a concomitant application of the rule of general protection laid down in Article 6(2) ( Commission  v Ireland , paragraph 250).
124. Finally, it should be noted that Article 6(2) of the Habitats Directive applies to the ‘Feixolín’, ‘Fonfría’ and ‘Salguero-Prégame-Valdesesgadas’ open-cast mines, notwithstanding the fact that operation of the latter was authorised before the system of protection laid down by the Habitats Directive became applicable to the ‘Alto Sil’ site by reason of its classification as an SPA.
125. The Court has already held that, although such projects are not subject to the requirements relating to the procedure for prior assessment of the implications of the project for the site concerned, laid down by the Habitats Directive, their implementation nevertheless falls within the scope of Article 6(2) of that directive (see, to that effect, Case C‑226/08 Stadt Papenburg  [2010] ECR I‑131, paragraphs 48 and 49).
126. Concerning, secondly, the complaint that, in relation to the operational activities of the open-cast mines in question, the Kingdom of Spain did not comply with Article 6(2) of the Habitats Directive, it should be recalled that an activity complies with that provision 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 (see, to that effect, Case C‑241/08 Commission  v France  [2010] ECR I‑1697, paragraph 32).
127. Moreover, by virtue of Article 6(2) of the Habitats Directive, the protective legal status of SPAs must guarantee the avoidance therein of the deterioration of natural habitats and the habitats of species as well as significant disturbance of the species for which those areas have been classified (see, in particular, Case C‑535/07 Commission  v Austria  [2010] ECR I‑0000, paragraph 58 and case-law cited).
128. It follows that this complaint is well founded only if the Commission demonstrates to a sufficient legal standard that the Kingdom of Spain has not taken the appropriate protective measures, consisting in preventing the operational activities of the ‘Feixolín’, ‘Fonfría’, ‘Salguero-Prégame-Valdesegadas’, ‘Ampliación de Feixolín’ and ‘Nueva Julia’ mines, in so far as they took place after the classification of the ‘Alto Sil’ site as an SPA from the year 2000 onwards, from producing deteriorations of the habitats of the capercaillie and disturbances of that species likely to have significant effects having regard to the objective of that directive consisting in ensuring the conservation of that species.
135. In that respect, it should be recalled that the protection of SPAs is not to be limited to measures intended to avoid external anthropogenic impairment and disturbance but must also, according to the situation that presents itself, include positive measures to preserve or improve the state of the site ( Commission v Austria , paragraph 59 and case-law cited).
142. Moreover, in order to establish a failure to fulfil obligations within the meaning of Article 6(2) of the Habitats Directive, the Commission does not have to prove a cause and effect relationship between a mining operation and significant disturbance to the capercaillie. Since Article 6(2) and (3) of the Habitats Directive are designed to ensure the same level of protection, it is sufficient for the Commission to establish the existence of a probability or risk that that operation might cause significant disturbances for that species (see, to that effect, Commission  v France , paragraph 32, and Case C‑2/10 Azienda Agro-Zootecnica Franchini and Eolica di Altamura  [2011] ECR I‑0000, paragraph 41).
156. Concerning those projects, 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, in a procedure under domestic law for assessing the environmental impacts of a plan or project capable of significantly affecting the interests of conserving a site, invoke a reason of public interest and, if the conditions laid down by that provision are essentially satisfied, authorise an activity which, subsequently, is no longer prohibited by Article 6(2).
157. However, as already stated in paragraph 109 of this judgment, in order to be able to verify whether the conditions laid down by Article 6(4) of the Habitats Directive have been met, the impacts of the plan or project must first have been analysed in accordance with Article 6(3) of that directive.
163. Under the Habitats Directive, Member States must take appropriate protective measures to preserve the characteristics of sites which host priority natural habitat types and/or priority species and which have been identified by Member States with a view to their inclusion on the Community list. Member States cannot therefore authorise intervention where there is a risk that the ecological characteristics of those sites will be seriously compromised as a result. That is particularly so where there is a risk that intervention of a particular kind will bring about the extinction of priority species present on the sites concerned (Case C‑308/08 Commission  v Spain  [2010] ECR I‑0000, paragraph 21 and case-law cited).