Hilde Orleans and Others v Vlaams Gewest.
Date: 2016-07-21
31


As a preliminary point, it must be recalled that Article 6 of the Habitats Directive imposes upon the Member States a series of specific obligations and procedures designed, as is clear from Article 2(2) of that directive, to maintain, or as the case may be restore, at a favourable conservation status natural habitats and, in particular, special areas of conservation (see, to that effect, judgment of 11 April 2013 in Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 36 and the case-law cited).
32


The provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by that directive. Thus, Article 6(2) and (3) are designed to ensure the same level of protection of natural habitats and habitats of species, whilst Article 6(4) constitutes merely a provision derogating from the second sentence of Article 6(3) (see, to that effect, judgment of 14 January 2016 in Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 52 and the case-law cited).
36


In that context, the Court has already held that the Habitats Directive has the aim that the Member States take appropriate protective measures to preserve the ecological characteristics of sites which host natural habitat types (judgment of 11 April 2013 in Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 38 and the case-law cited).
38


It should therefore be observed that, first, the findings of fact made by that court show that the measures at issue in the main proceedings envisage, inter alia, the disappearance of a part of that site. It follows that such measures cannot constitute measures ensuring the conservation of that site.
39


Second, as regards preventive measures, the Court has already held that the provisions of Article 6(2) of the Habitats Directive make it possible to satisfy the fundamental objective of preservation and protection of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, and establish a general obligation of protection consisting in avoiding deterioration and disturbance which could have significant effects in the light of the directive’s objectives (judgment of 14 January 2010 in Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraph 49 and the case-law cited).
40


Accordingly, a preventive measure 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 (judgment of 14 January 2016 in Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 41 and the case-law cited).
43


Article 6(3) of the Habitats Directive 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 11 April 2013 in Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 28 and the case-law cited).
44


That provision thus prescribes two stages. The first, 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 11 April 2013 in Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 29 and the case-law cited).
45


In particular, where a plan or project not directly connected with or necessary to the management of a site is likely to 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 15 May 2014 in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 20 and the case-law cited).
46


The second stage, which is envisaged in the second sentence of Article 6(3) of the Habitats Directive and occurs following the aforesaid appropriate assessment, allows such a plan or project to be authorised on condition that it will not adversely affect the integrity of the site concerned, subject to the provisions of Article 6(4) of that directive.
47


The Court has thus held that in order for the integrity of a site as a natural habitat not to be adversely affected for the purposes of the second sentence of Article 6(3) of the Habitats Directive the site needs to be preserved at a favourable conservation status; this entails the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site in the list of sites of Community importance, in accordance with the directive (judgment of 15 May 2014 in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 21 and the case-law cited).
48


As regards, more specifically, the answer to be given to the question referred, it must, in the first place, be recalled that, in paragraph 29 of the judgment of 15 May 2014 in Briels and Others (C‑521/12, EU:C:2014:330), the Court held that protective measures provided for in a project which are aimed at compensating for the negative effects of the project on a Natura 2000 site cannot be taken into account in the assessment of the implications of the project provided for in Article 6(3).
50


However, the Court’s case-law emphasises the fact that the assessment carried out under Article 6(3) of the Habitats Directive may not 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 works proposed on the protected site concerned (judgment of 14 January 2016 in Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 50 and the case-law cited).
51


In this connection, 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) 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 in the light of the best scientific knowledge in the field (judgment of 14 January 2016 in Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 49 and the case-law cited).
52


Moreover, it must be noted that, as a rule, any positive effects of a future creation of a new habitat, which is aimed at compensating for the loss of area and quality of that same habitat type on a protected site, are highly difficult to forecast with any degree of certainty and, in any event, will be visible only several years into the future (see, to that effect, judgment of 15 May 2014 in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 32).
53


In the second place, Article 6(3) of the Habitats Directive also 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. A less stringent authorisation criterion than that set out in that provision could not ensure as effectively the fulfilment of the objective of site protection intended under that provision (see, to that effect, judgment of 14 January 2016 in Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 48 and the case-law cited).
54


The application of that principle in the context of the implementation of Article 6(3) of the Habitats Directive requires the competent national authority to assess the implications of the project for the site concerned in view of the site’s conservation objectives and taking into account 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 site (judgment of 15 May 2014 in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 28).
56


Consequently, the circumstances of the cases in the main proceedings and those that gave rise to the judgment of 15 May 2014 in Briels and Others (C‑521/12, EU:C:2014:330) are similar in so far as they involve, at the time of assessing the implications of the plan or project for the site concerned, the identical premise that future benefits will mitigate the significant adverse effects on that site, even though the development measures in question have not been completed.
57


In the third place, it should be pointed out, as noted in paragraph 33 above, that the wording of Article 6 of the Habitats Directive contains no reference to any concept of ‘mitigating measure’.
58


In this connection, as the Court has already observed, the effectiveness of the protective measures provided for in Article 6 of Directive 92/43 is intended to avoid a situation where competent national authorities allow so-called ‘mitigating’ measures — which are in reality compensatory measures — in order to circumvent the specific procedures provided for in Article 6(3) and authorise projects which adversely affect the integrity of the site concerned (judgment of 15 May 2014 in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 33).
60


As regards Article 6(4) of the Habitats Directive, it must be recalled that, as an exception to the criterion for authorisation laid down in the second sentence of Article 6(3) of the Habitats Directive, Article 6(4) must be interpreted strictly (judgment of 14 January 2016 in Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 73 and the case-law cited) and can be applied only after the implications of a plan or project have been analysed in accordance with Article 6(3) (see, to that effect, judgment of 15 May 2014 in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 35 and the case-law cited).
61


In order to determine the nature of any compensatory measures, the damage to the site concerned must be precisely identified. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for the application of Article 6(4) of the Habitats Directive, since, in the absence of those elements, no condition for the 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 (see, to that effect, judgment of 14 January 2016 in Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 57 and the case-law cited)
62


Under 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, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, and there are no alternative solutions, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.
63


Therefore, in such a situation, the competent national authorities may grant an authorisation under Article 6(4) of the Habitats Directive only in so far as the conditions set out therein are satisfied (see, to that effect, judgment of 15 May 2014 in Briels and Others, C‑521/12, EU:C:2014:330, paragraph 37 and the case-law cited).