Case C‑141/14
European Commission
v
Republic of Bulgaria
(Failure of a Member State to fulfil obligations— Directive 2009/147/EC— Conservation of wild birds— Kaliakra and Belite Skali special protection areas— Directive 92/43/EEC— Conservation of natural habitats and wild species— Kompleks Kaliakra site of Community importance— Directive 2011/92/EU— Assessment of the effects of certain projects on the environment— Temporal applicability of the system of protection— Deterioration of natural habitats of species and disturbance of species— Wind power— Tourism)
Summary— Judgment of the Court (Third Chamber), 14January 2016
1.Environment— Conservation of wild birds— Directive 2009/147— Selection and delimitation of special protection areas— Member States' discretion— Limits
(European Parliament and Council Directive 2009/147, Art.4(1), and 2)
2.Environment— Conservation of natural habitats and of wild fauna and flora— Directive 92/43— Special protection areas— Obligation of Member States to avoid the deterioration of natural habitats and the habitats of species— Scope— Temporal applicability of the system of protection
(Council Directive 92/43, Art.6(2))
3.Environment— Conservation of natural habitats and of wild fauna and flora— Directive 92/43— Special protection areas— Obligation of Member States to avoid the deterioration of natural habitats and the habitats of species— Failure to fulfil obligations— Burden of proof on the Commission— Scope
(Council Directive 92/43, Art.6(2))
4.Environment— Conservation of wild birds— Directive 2009/147— Special conservation measures— Obligation of Member States to avoid the deterioration of natural habitats and the habitats of species— Failure to fulfil obligations— Burden of proof on the Commission— Scope
(European Parliament and Council Directive 2009/147, Art.4(4))
5.Environment— Conservation of wild birds— Directive 2009/147— Special conservation measures— Obligation of Member States to avoid pollution and the deterioration of habitats— Non designation of the area in question as a special protection area— No effect
(European Parliament and Council Directive 2009/147, Art.4(4))
6.Actions for failure to fulfil obligations— Examination of the merits by the Court— Situation to be taken into consideration— Situation on expiry of the period laid down in the reasoned opinion
(Art.258 TFEU)
7.Environment— Assessment of the effects of certain projects on the environment— Directive 2011/92— Making the projects listed in AnnexII to the Directive subject to assessment— Discretion of the Member States— Limits— Taking account of the cumulative effect of a project with other projects
(European Parliament and Council Directive 2011/92, Art.4(2) and (3), and AnnexesII, and III, point1(b); Council Directive 85/337, as amended by Directive 2003/35, Arts2(1), and 4(2)(b))
1.See the text of the decision.
(see paras27-30)
2.Article6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora 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. 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 Directive 92/43, their implementation nevertheless falls within the scope of Article6(2) of that directive.
The implementation of a wind-power-installation construction project and the activity generated by the installations resulting from those projects are therefore covered by Article6(2) of Directive 92/43, even though they were authorised before the accession of the Member State in question and before Directive 92/43, and Directive 2009/147 on the conservation of wild birds, applied to those authorisations.
(see paras51, 52, 55)
3.An activity complies with Article6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora 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. However, in order to establish failure to comply with that provision, 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 that institution to establish that there is a probability or risk that that operation might cause such disturbances.
(see paras56, 58)
4.As regards Article4(4) of Directive 2009/147 on the conservation of wild birds, which requires Member States to take appropriate steps to avoid, within special protection areas, pollution or deterioration of habitats or any disturbances affecting the birds, breach of that provision must 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.
In that regard, where it is established that the operation of wind-power installations may lead to significant disturbances and deterioration of the habitats of protected bird species, the fact that such birds 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 paras66, 70, 75, 76)
5.See the text of the decision.
(see para 67)
6.See the text of the decision.
(see para 88)
7.As regards the setting of thresholds or criteria in order to make it possible to determine whether projects listed in AnnexII to Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment are to be made subject to an environmental impact assessment, it is true that Article4(2)(b) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, indeed confers a measure of discretion on the Member States. However, that discretion is limited by the obligation, set out in Article2(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. Thus, the criteria and thresholds referred to in Article4(2)(b) of Directive 85/337 are designed to facilitate the 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. It follows that the competent national authorities, when they receive a request for development consent for a project relating to AnnexII to that directive, must carry out a specific evaluation as to whether, taking account of the criteria set out in AnnexIII to that directive, an environmental impact assessment should be carried out.
Furthermore, 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. Having regard to the combined application of Article4(2) and (3) of Directive 2011/92 and of point1(b) of AnnexIII thereto, the characteristics of a project must be assessed, inter alia, in relation to its cumulative effects with other projects.
(see paras91-96)