Case C-538/09
European Commission
v
Kingdom of Belgium
(Failure of a Member State to fulfil obligations – Environment – Directive 92/43/EEC – Article 6(3) – Special areas of conservation – Appropriate assessment of the implications of a plan or project which is likely to have a significant effect on a protected site – Exemption from assessment of plans or projects which are subject to a declaratory scheme – Incorrect transposition)
Summary of the Judgment
1.Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation – Obligations of the Member States
(Council Directive 92/43, Art. 6(3))
2.Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation – Obligations of the Member States
(Council Directive 92/43, Art. 6(3))
3.Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation – Obligations of the Member States
(Council Directive 92/43, Art. 6(3))
1.Article 6(3) of Directive 92/43, on the conservation of natural habitats and of wild fauna and flora, makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that it will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned.
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.
(see paras 39-40)
2.The condition governing the need to undertake an assessment of the implications of a plan or a project on a particular site, in accordance with which such an assessment must be carried out where there are doubts as to the existence of significant effects, does not permit that assessment to be avoided, in respect of certain categories of projects, on the basis of criteria which do not adequately ensure that those projects are not likely to have a significant effect on the protected sites.
The option of generally exempting certain activities, in accordance with the rules in force in a Member State, from the need for an assessment of the implications for the site concerned is not such as to guarantee that those activities do not adversely affect the integrity of the protected site.
Thus, Article 6(3) of Directive 92/43, on the conservation of natural habitats and of wild fauna and flora, does not authorise a Member State to enact national legislation which allows the environmental impact assessment obligation for a development plan to benefit from a general waiver because of the low costs entailed or the particular type of work planned. Similarly, by systematically exempting works and development programmes and projects which are subject to a declaratory scheme from the procedure for assessing their implications for a site, a Member State fails to fulfil its obligations under Article 6(3) of Directive 92/43.
(see paras 41-44)
3.When a Member State introduces a declaratory scheme, under which there is accordingly no provision for a risk assessment depending inter alia on the characteristics and specific environmental conditions of the site concerned, that Member State must show that the provisions which it has adopted enable it to be excluded, on the basis of objective information, that any plan or project subject to that declaratory scheme will have a significant effect on a Natura 2000 site, whether individually or in combination with other plans or projects.
It can be inferred from Article 6(3) of Directive 92/43, on the conservation of natural habitats and of wild fauna and flora, that competent national authorities may refrain from carrying out an impact assessment of any plan or project which is not directly connected with, or necessary to, the management of a Natura 2000 site only where it can be excluded, on the basis of objective information, that that plan or project will have a significant effect, whether individually or in combination with other plans or projects.
(see paras 52-53)