European Commission v Republic of Bulgaria.
Date: 2016-01-14
27


It should be noted, in the first place, that, according to the settled case-law of the Court, Article 4(1) and (2) of the Birds Directive requires the Member States to classify as SPAs the territories meeting the ornithological criteria specified by those provisions (judgment in Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 36 and the case-law cited).
28


In the second place, Member States are obliged to classify as SPAs all the sites which, in accordance with the ornithological criteria, appear to be the most suitable for conservation of the species in question (judgment in Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 37 and the case-law cited).
29


In the third place, the Court has held that the Member States’ margin of discretion in choosing the most suitable territories for classification as SPAs concerns not the appropriateness of classifying as SPAs the territories which appear most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species listed in Annex I to the Birds Directive (judgment in Commission v Austria, C‑209/04, EU:C:2006:195, paragraph 33 and the case-law cited).
30


Finally, in the fourth place, as regards the partial classification of certain regions, the Court has already held, first, that classification as an SPA cannot be the result of an isolated study of the ornithological value of each of the areas in question but must be carried out in the light of the natural boundaries of the territory in question, and, secondly, that the ornithological criteria which alone form the foundation of the classification must have a scientific basis (judgment in Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 142).
51


In that respect, it is clear from the Court’s case-law that Article 6(2) of the Habitats Directive also applies to installations the project for which was approved by the competent authority before the protection provided for in that directive became applicable to the protection area concerned (see, to that effect, judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 124).
52


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 (judgments in Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraphs 48 and 49, and in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 125).
56


In the second place, as regards the complaint that the Republic of Bulgaria did not take appropriate measures to prevent the deterioration of a number of habitats of species and the adverse effect on birds caused by the activity associated with the installations resulting from the implementation of the four projects in question in the Kaliakra and Belite Skali SPAs, it should be recalled that an activity 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 in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 126 and the case-law cited).
57


It follows that the present complaint is well founded only if the Commission demonstrates to a sufficient legal standard that the Republic of Bulgaria has not taken the appropriate protective measures, consisting in ensuring that the activities associated with the operation of the installations resulting from those projects, in so far as they took place after the classification of the Kaliakra and Belite Skali sites as SPAs, would not lead to deteriorations of the habitats of a number of species or cause disturbances, to the detriment of those species, likely to have significant effects having regard to the objective of the Habitats Directive of ensuring the conservation of those species (see, by analogy, judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 128).
58


None the less, in order to establish failure to fulfil obligations under Article 6(2) of the Habitats Directive, the Commission does not have to establish the existence of a cause-and-effect relationship between the operation of installations resulting from a project and significant disturbance caused to the species concerned. It is sufficient for the Commission to establish that there is a probability or risk that that operation might cause such disturbances (see, to that effect, judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 142 and the case-law cited).
67


In that respect, it should be noted, in the first place, that, according to the case-law of the Court, Member States must comply with the obligations arising under the first sentence of Article 4(4) of the Birds Directive, even where the areas in question have not been classified as SPAs, provided that they should have been so classified (see judgment in Commission v Spain, C‑186/06, EU:C:2007:813, paragraph 27 and the case-law cited).
69


In the second place, in order to establish that there has been a failure to fulfil the obligations resulting from the first sentence of Article 4(4) of the Birds Directive, as the Advocate General observed in point 115 of her Opinion, it is necessary to refer, by analogy, to the case-law of the Court relating to the failure to fulfil obligations under Article 6(2) of the Habitats Directive, since the content of the latter provision is largely the same as that of the first sentence of Article 4(4) of the Birds Directive (see, to that effect, judgment in Commission v Ireland, C‑117/00, EU:C:2002:366, paragraph 26 and the case-law cited).
70


According to that case-law, and as is apparent from paragraph 58 of the present judgment, breach of the provision in question is to be deemed to exist where the Commission establishes that there is a probability or risk that a project will cause deterioration to the habitats of protected species of birds or cause significant disturbance to those species.
76


The fact that, according to the results of observations made by the wind farm ‘AES Geo Energy’, to which the Republic of Bulgaria refers, red-breasted geese still use the areas in question and that, when the wind conditions are favourable, migratory birds are concentrated in the Kaliakra site does not stand in the way of that finding. The obligations to protect exist before any reduction in the number of birds has been observed or before the risk of a protected species becoming extinct has materialised (see, to that effect, judgment in Commission v Spain, C‑186/06, EU:C:2007:813, paragraph 36 and the case-law cited).
88


It is true that the decisions on the need for an environmental impact assessment were still valid on the date laid down by the Commission in its additional reasoned opinion, namely 22 August 2012, and only became obsolete five years after their adoption, that is to say, on 24 and 28 September 2012 respectively. According to the Court’s settled case-law, however, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, to that effect, judgment in Commission v Belgium, C‑421/12, EU:C:2014:2064, paragraph 45).
92


So far as concerns the establishment of thresholds or criteria, it must be borne in mind that Article 4(2)(b) of Directive 85/337 indeed confers a measure of discretion on the Member States. However, that discretion is limited by the obligation, set out in Article 2(1) of that directive, to make projects likely, by virtue, inter alia, of their nature, size or location, to have significant effects on the environment subject to an impact assessment (judgments in Salzburger Flughafen, C‑244/12, EU:C:2013:203, paragraph 29, and in Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 40).
93


Thus, the criteria and thresholds referred to in Article 4(2)(b) of Directive 85/337 are designed to facilitate examination of the actual characteristics of any given project in order to determine whether it is subject to the requirement to carry out an environmental impact assessment (judgments in Salzburger Flughafen, C‑244/12, EU:C:2013:203, paragraph 30, and in Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 41).
94


It follows that the competent national authorities, when they receive a request for development consent for a project relating to Annex II to that directive, must carry out a specific evaluation as to whether, taking account of the criteria set out in Annex III to that directive, an environmental impact assessment should be carried out (judgment in Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 42).
95


As regards the question whether it was necessary, having regard to the combined application of Article 4(2) and (3) of Directive 2011/92 and of point 1(b) of Annex III thereto, to examine the cumulative effect of the various wind-power projects approved in the Kaliakra IBA, the Court has already held that the characteristics of a project must be assessed, inter alia, in relation to its cumulative effects with other projects. Failure to take account of the cumulative effect of a project with other projects may mean in practice that it escapes the assessment obligation when, taken together with the other projects, it may have significant effects on the environment (judgment in Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 43 and the case-law cited).
96


It follows that a national authority, in ascertaining whether a project has to be made subject to an environmental impact assessment, must examine its potential impact jointly with other projects (judgment in Marktgemeinde Straßwalchen and Others, C‑531/13, EU:C:2015:79, paragraph 45). In the present case, it is clear from the file submitted to the Court that the decisions in question merely state that no cumulative effects were to be expected. As the Advocate General observes in point 161 of her Opinion, the mere claim, by the Republic of Bulgaria, that there will be no cumulative effects does not, however, prove that that finding was established on the basis of a detailed assessment, since that Member State has, moreover, adduced no evidence in that regard.