European Commission v French Republic.
Date: 2010-03-04
22. For the purposes of determining whether the complaint raised by the Commission is well founded, it should be borne in mind that, according to settled case‑law, it is incumbent upon the Commission to prove the allegation that an obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court all the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (see, inter alia, judgment of 11 December 2008 in Case C‑293/07 Commission v Greece , paragraph 32 and the case‑law cited).
30. It should be recalled, first, that, in accordance with the Court’s case‑law, Article 6(2) and (3) of the Habitats Directive seek to ensure the same level of protection (see, to that effect, Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraph 36, and Case C‑418/04 Commission v Ireland [2007] ECR I‑10947, paragraph 263).
31. Second, it should be noted that, as regards Article 6(3) of the Habitats Directive, the Court has already held that the option of exempting generally certain activities, in accordance with the rules in force, from the need for an assessment of the implications for the site concerned does not comply with that provision. Such an exemption is not such as to guarantee that those activities do not adversely affect the integrity of the protected site (see, to that effect, Case C‑98/03 Commission v Germany [2006] ECR I‑53, paragraphs 43 and 44).
32. Accordingly, taking into account the similar levels of protection required by Article 6(2) and 6(3) of the Habitats Directive, the fourth sentence of the third subparagraph of Article L. 414‑1(V) of the Code de l’environnement by providing generally that certain activities such as fishing or hunting do not cause disturbance, can be regarded as consistent with Article 6(2) of that directive only if it is ensured that those activities cause no disturbance likely significantly to affect the objectives of the directive.
59. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see judgment of 25 July 2008 in Case C‑504/06 Commission v Italy , paragraph 24 and the case‑law cited).
62. Accordingly, by systematically exempting works and development programmes and projects which are subject to a declaratory system from the procedure of assessment of their implications for the site, the French Republic has failed to fulfil its obligations under Article 6(3) of the Habitats Directive.
The third complaint: failure to examine alternative solutions
– Arguments of the parties
69. First, according to settled case‑law, the appropriate assessment of the implications for the site which 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 those objectives must be identified in the light of the best scientific knowledge in the field ( Waddenvereniging and Vogelbeschermingsvereniging , paragraph 54, and Commission v Ireland , paragraph 243). Such an assessment does not therefore involve an examination of the alternatives to a plan or project.
70. Second, it must be pointed out that the obligation to examine alternative solutions to a plan or project does not come within the scope of Article 6(3) of the Habitats Directive, but within the scope of Article 6(4) (see, to that effect, Case C‑441/03 Commission v Netherlands [2005] ECR I‑3043, paragraph 27 et seq.).
71. In accordance with Article 6(4) of the Habitats Directive, the examination referred to in that provision, which concerns, in particular, the absence of alternative solutions, can only be undertaken where the assessment required under Article 6(3) of that directive is negative and where the plan or project must nevertheless be carried out for imperative reasons of overriding public interest (see, to that effect, Commission v Netherlands , paragraphs 26 and 27).
72. Thus, following the assessment of the implications undertaken pursuant to Article 6(3) of the Habitats Directive and in the event of a negative assessment, the competent authorities have the choice of either refusing authorisation for the plan or project or of granting authorisation under Article 6(4) of that directive, provided that the conditions laid down in that provision are satisfied (see Case C‑239/04 Commission v Portugal [2006] ECR I‑10183, paragraph 25, and, to that effect, Waddenvereniging and Vogelbeschermingsvereniging , paragraphs 57 and 60).
73. In those circumstances, the examination of alternative solutions, which is a requirement set out in Article 6(4) of the Habitats Directive, cannot constitute a factor which the competent national authorities are obliged to take into account when they undertake the appropriate assessment laid down in Article 6(3) of that directive (see, to that effect, Commission v Netherlands , paragraph 28).