Ref. Ares(2017)4563233 - 19/09/2017
EUROPEAN COMMISSION
LEGAL SERVICE
Brussels, 18 September 2017
Sj.h(2017) 5134843
TO THE PRESIDENT AND MEMBERS OF THE COURT OF JUSTICE
OBSERVATIONS
Submitted, by the
EUROPEAN COMMISSION, represented by Christoph HERMES
and Emmanuel MANHAEVE, both members of its Legal Service, acting as agents, with
an address for service at the Legal Service, Greffe contentieux, BERL 1/169, 1049
Brussels, and consenting to service by e Curia, in
Case C-323/17
People Over Wind and Sweetman
on a request for a preliminary ruling pursuant to Article 267 TFEU by the Irish High
Court concerning the interpretation of Article 6(3) of Council Directive 92/43/EEC of
21 May 1992 on the conservation of natural habitats and of wild fauna and flora.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
2
I.
LEGAL CONTEXT
1.
EU law
1.
Article 6(3) of Directive 92/43/EEC on the conservation of natural habitats and of
wild fauna and flora1 (hereinafter "the Habitats Directive") provides.
"Any plan or project not directly connected with or necessary to the management
of the site but likely to have a significant effect thereon, either individually or in
combination with other plans or projects, shall be subject to appropriate
assessment of its implications for the site in view of the site's conservation
objectives. In the light of the conclusions of the assessment of the implications for
the site and subject to the provisions of paragraph 4, the competent national
authorities shall agree to the plan or project only after having ascertained that it
will not adversely affect the integrity of the site concerned and, if appropriate,
after having obtained the opinion of the general public."
2.
Irish law
2.
According to the national court, development consent in Ireland is largely regulated
by the Planning and Development Acts and regulations made under these acts. The
competent authority is the local planning authority. Its decisions can be appealed to
An Bord Pleanala, the national planning appeals board.
3.
Certain types of development are classified as "exempted development", and do not
require consent under the Planning and Development Acts.
4.
An example of exempted development is
"[t]he carrying out by any undertaker
authorised to provide an electricity service of development consisting of the laying
underground of mains, pipes, cables or other apparatus for the purposes of the
undertaking."
5.
The national court sets out that, by way of exception, a development which comes
within the categories of "exempted development" may nevertheless require consent
under the Planning and Development Acts where an appropriate assessment under
Article 6(3) of the Habitats Directive is required. In the view of the Commission,
this statement seems to refer to Section 4(4) of the Planning and Development Act2
which provides in relevant part that
1 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild
fauna and flora (OJ L 206, 22.7.1992, p. 7).
2 Planning and Development Act 2000 (updated to 9 August 2017), available at
http://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/pdf?annotations=true .
3
"(…) development shall not be exempted development if (…) an appropriate
assessment of the development is required".
6.
The national court then quotes inter alia Article 42(6) of the European Communities
(Birds and Natural Habitats) Regulations 20113 which states:
"The public authority shall determine that an Appropriate Assessment of a plan
or project is required where the plan or project is not directly connected with or
necessary to the management of the site as a European Site and if it cannot be
excluded, on the basis of objective scientific information following screening
under this Regulation, that the plan or project, individually or in combination
with other plans or projects, will have a significant effect on a European site."
II. DISPUTE IN THE MAIN PROCEEDINGS AND QUESTION REFERRED
7.
The national court gives the following account of facts and procedure.
8.
The proceedings before the national court concern grid connection cable works for a
proposed windfarm.
9.
The proposed windfarm development lies upstream from the River Barrow and
River Nore Special Area of Conservation (SAC). One of the qualifying interests for
the River Barrow and River Nore SAC is the Nore freshwater pearl mussel
(
Margaritifera Durrovensis) which is listed in Annex II and Annex V of the
Habitats Directive. The Nore freshwater pearl mussel is a critically endangered
species. It is found only in a stretch of the River Nore. The extant adult population
of the Nore freshwater pearl mussel is estimated to be as low as 300, having been as
high as 20.000 individual mussels in 1991. The life span of each mussel is
somewhere between 70 to 100 years, but the Nore freshwater pearl mussel is not
known to have reproduced itself in the River Nore since 1970. There is general
agreement that the habitat of the species is currently unsuitable by reason of the high
sedimentation of the river stratum to which the creature is distinctly vulnerable. All
recent mussel monitoring surveys have confirmed the high level of sedimentation at
the relevant stretch of the River Nore. According to a Court of Appeal judgment in
previous proceedings which did not concern the grid connection works but the wind
farm as such, 68% of the windfarm site drains to the Nore freshwater pearl mussel
population which creates the concern that run-off from the construction activities
would contain high levels of sediment which would ultimately seep into the Nore,
3 S.I. No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011, available
at
http://www.irishstatutebook.ie/eli/2011/si/477/made/en/print .
4
thereby placing further pressure on any already endangered species located with the
SAC.
10. The windfarm developer obtained a screening report for the planned grid connection
works which concluded inter alia:
a) In the absence of protective measures, there is potential for the release of
suspended solids into waterbodies along the proposed route, including
directional drilling locations.
b)
With regards to Freshwater Pearl Mussel (FPM), if the construction of the
proposed cable works was to result in the release of silt or pollutants such as
concrete into the pearl mussel population area of river through the pathway of
smaller streams or rivers, there would be a negative impact on the pearl mussel
population. Sedimentation of gravels can prevent sufficient water flow through
the gravels, starving juvenile FPM of oxygen. (see para. 26 of the referral)
11. On the basis of the rather succinct description by the national court, it seems that the
screening report went on to analyse certain "protective measures". The national
court does not set out precisely what these protective measures are but indicates that
"[t]he protective measures are not as stringent as those required by condition 17(k)
of the planning permission for the wind farm" (see para. 27 of the referral).
12. The planning permission for the wind farm had been granted subject to conditions.
One of these, condition 17(k), provides:
"The construction of the development shall be managed in accordance with a
Construction Management Plan, which shall be submitted to, and agreed in
writing with, the planning authority prior to commencement of development. This
plan shall provide details of intended construction practice for the development,
including ... (k) means to ensure that surface water run-off is controlled such that
no silt or other pollutants enter water courses... " (see para. 10 of the referral)
13. Based on the aforementioned screening report, a "programme manager" made the
following recommendation to the developer of the wind farm with regard to the grid
connection works:
"As set out in detail in the RPS appropriate assessment screening report, on the
basis of the findings of that report and in light of the best scientific knowledge,
the grid connection works will not have a significant effect on the relevant
European sites in light of the conservation objectives of the European sites, alone
or in combination with the Cullenagh wind farm and other plans or projects, and
an appropriate assessment is not required. This conclusion was reached on the
basis of the distance between the proposed Cullenagh grid connection and the
European sites, and the protective measures that have been built into the works
design of the project." (see para. 28 of the referral)
14. The developer endorsed this recommendation and determined, on the basis of the
"protective measures" referred to in the screening assessment, that an appropriate
5
assessment was not required. Consequently, the developer contends in front of the
national court that the grid connection works are exempted development under the
Planning and Development Act so that there is no need to obtain a planning
permission from the local planning authority.
15. The High Court seeks the opinion of the Court of Justice on the following question:
Whether, or in what circumstances, mitigation measures can be considered when
carrying out screening for appropriate assessment under Article 6(3) of the
Habitats Directive?
III. CONSIDERATION OF THE QUESTION REFERRED
16. With its question, the national court asks in essence whether Article 6(3) of the
Habitats Directive can be interpreted as meaning that the determination of whether a
plan or project must be subject to appropriate assessment of its implications for the
relevant site (in practice often referred to as "screening"4) can take into account
protective measures which aim at avoiding or reducing adverse effects on the site (in
practice often referred to as "mitigation measures").
17. The question appears relevant for the main proceedings and therefore admissible. If
Article 6(3) of the Habitat Directive had to be interpreted as not allowing taking into
account mitigation measures at the screening stage, Section 4(4) of the Planning and
Development Act and Section 42 of the European Communities (Birds and Natural
Habitats) Regulations 2011, which are relevant for the main proceedings, would
need to be interpreted in conformity with this meaning. In that case, the condition
under Section 4(4) of the Planning and Development Act that
"an appropriate
assessment of the development is required" could not be excluded on the basis of the
argument that the screening denies the need of an appropriate assessment because of
mitigation measures. Equally, Section 42 of the European Communities (Birds and
Natural Habitats) Regulations 2011 would need to be interpreted such that consent
for a plan or project cannot be given if the requirement of an appropriate assessment
is denied because of mitigation measures.
18. Before addressing the question of the relationship of mitigation measures and
screening, the Commission will first set out the structure of Article 6(3) of the
Habitats Directive and the concepts of screening and appropriate assessment.
4 See e.g. Commission guidance document "Assessment of plans and projects significantly affecting
Natura
2000
sites",
available
at
http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/natura_2000_assess_en.pdf, p. 17-23.
6
Structure of Article 6(3) of the Habitats Directive
19. Article 6(3) of the Habitats Directive provides.
"Any plan or project not directly connected with or necessary to the management
of the site but likely to have a significant effect thereon, either individually or in
combination with other plans or projects, shall be subject to appropriate
assessment of its implications for the site in view of the site's conservation
objectives. In the light of the conclusions of the assessment of the implications for
the site and subject to the provisions of paragraph 4, the competent national
authorities shall agree to the plan or project only after having ascertained that it
will not adversely affect the integrity of the site concerned and, if appropriate,
after having obtained the opinion of the general public."
20. The Court observed that this provision 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 (see, to this effect, Waddenvereniging and
Vogelbeschermingsvereniging, paragraphs 41 and 43).
(…)
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)."5
21. The present case only concerns the first stage. Within this first stage, one needs to
distinguish two questions, i.e.
whether an appropriate assessment must be carried
out (this is the so-called "screening") and
how any necessary appropriate assessment
has to be carried out. The present case concerns the first question and, more
particularly, the question which role mitigation measures can play at the screening
stage.
Screening
22. Article 6(3) of the Habitats Directive and the case-law of the Court interpreting this
provision do not explicitly use the term "screening". However, Article 6(3) of the
Habitats Directive clearly stipulates that the requirement for an appropriate
assessment depends on two conditions, one negative and one positive.
5 Case C-258/11,
Peter Sweetman, EU:C:2013:220, paras. 29-31.
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23. The negative condition is that the plan or project in question is "not directly
connected with or necessary to the management of the site". If a plan or project is
directly connected with or necessary to the management of the relevant site, there is
no need for an appropriate assessment. In the present case, it is clear that the
planned grid connection works are unrelated to the management of the site.
24. The positive condition is that the plan or project is "likely to have a significant
effect" on the site. The Court formulated this condition as follows in the
Waddenzee
judgment:
"The requirement for an appropriate assessment of the implications of a plan or
project is thus conditional on its being likely to have a significant effect on the
site".6
25. As the Court clarified in the same judgment, the "likelihood" of such significant
effects does not presume certainty as to the existence of such effects but rather
"that
there be a probability or a risk that [the plan or project] will have significant effects
on the site concerned ".7
26. The Court went on to state that, in the light of the precautionary principle and the
purpose of the Habitats Directive,
"such a risk exists if it cannot be excluded on the
basis of objective information that the plan or project will have significant effects on
the site concerned". According to the Court, this
"implies that in case of doubt as to
the absence of significant effects such an assessment must be carried out".8
27. The case-law of the Court gives some illustration which type of "objective
information" would be relevant for assessing significant effects of a plan or project
on a given site. Thus, the Court held that
"[w]here a plan or project (…) 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 of, in particular, the
characteristics and specific environmental conditions of the site concerned".9
28. In sum, screening of whether an appropriate assessment is required must consider
whether a plan or project is "likely to have a significant effect" on the site. This is
6 Case C-127/02,
Waddenzee, EU:C:2004:482, para. 40.
7 Case C-127/02,
Waddenzee, EU:C:2004:482, para. 43.
8 Case C-127/02,
Waddenzee, EU:C:2004:482, para. 44.
9 Case C-127/02,
Waddenzee, EU:C:2004:482, para. 44; Case C-258/11,
Peter Sweetman,
EU:C:2013:220, para. 30.
8
the case if such significant effects cannot be excluded on the basis of objective
information. Such objective information may include the characteristics and specific
environmental conditions of the site (e.g. the vulnerably of its habitats and species),
the site's conservation objectives or features of the plan or project, such as its
magnitude of impact, type, extent, duration, intensity, timing, probability,
cumulative effects.10
Appropriate assessment
29. If significant effects on the site cannot be excluded on the basis of objective
information, Article 6(3) 1st sentence of the Habitats Directive provides that the plan
or project "shall be subject to appropriate assessment of its implications for the site
in view of the site's conservation objectives". The context of the second sentence of
Article 6(3) of the Habitats Directive indicates that the purpose of the appropriate
assessment is to enable the relevant national authorities to "ascertain[] that [the plan
or project] will not adversely affect the integrity of the site concerned".
30. There is a large body of jurisprudence on which requirements an appropriate
assessment under Article 6(3) of the Habitats Directive has to fulfil. The Court
summarized in its judgment
Lesoochranárske zoskupenie II:
"It should be noted first of all that, under Article 6(3) of Directive 92/43, an
appropriate assessment of the implications of a plan or project for the site
concerned implies that, prior to its approval, all aspects of that plan or project
which can, by themselves or in conjunction with other plans or projects, affect the
site’s conservation objectives must be identified in the light of the best scientific
knowledge in the field. The competent national authorities are to authorise an
activity on the protected site only if they have made certain that it will not
adversely affect the integrity of that site. That is the case where no reasonable
scientific doubt remains as to the absence of such an effect (see to that effect, in
particular, judgments of 24 November 2011, Commission v Spain, C-404/09,
EU:C:2011:768, paragraph 99, and of 14 January 2016, Grüne Liga Sachsen
and Others, C-399/14, EU:C:2016:10, paragraphs 49 and 50)."11
31. The Court clarified in the
Briels judgment that the competent national authorities,
when carrying out the appropriate assessment under Article 6(3) of the Habitats
Directive, can
10 For more details, see Commission guidance document "Assessment of plans and projects significantly
affecting
Natura
2000
sites",
available
at
http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/natura_2000_assess_en.pdf,
p. 17-23.
11 Case C-243/15,
Lesoochranárske zoskupenie II, EU:C:2016:838, para. 42.
9
"tak[e] into account the protective measures forming part of that project aimed at
avoiding or reducing any direct adverse effects for the site".12
32. Whereas the Court stressed in the
Orleans judgment that
"the wording of Article 6 of
the Habitats Directive contains no reference to any concept of 'mitigating
measure'"13, the Court, for example in the following judgment in
Commission v
Germany (Moorburg), did not exclude that such protective measures can be taken
into account as part of the appropriate assessment under Article 6(3) of the Habitats
Directive. These types of protective measures are in practice often referred to as
"mitigation" or "mitigating" measures. The Court stressed that, by contrast,
protective measures "aimed at compensating for the negative effects" of a project on
the site concerned cannot be taken into account as part of the appropriate assessment
under this provision.14 This jurisprudence has been confirmed in the cases
Orleans
and
Commission v Germany (Moorburg).15
33. The Commission would like to highlight that all of these cases concern the question
whether the protective measures in question could be taken into account at the stage
of appropriate assessment. None concerned the screening stage.
Mitigation measures and screening
34. The referring court wants to know whether mitigation measures can be taken into
account not only within the appropriate assessment, but already at the screening
stage.
35. In the view of the Commission, this question must be answered in the negative for
the following reasons.
36. First, the purpose of screening is to determine whether an appropriate assessment is
required. An appropriate assessment is not required if one can demonstrate on the
basis of objective information that significant effects on the site concerned can be
excluded with certainty. Thus, a screening would for example justify not conducting
an appropriate assessment if the distance between the plan or project and the site
and the absence of distant effects (e.g. via water bodies) allows excluding
12 Case C-521/12,
Briels, EU:C:2014:330, para. 28.
13 Joined Cases C-387/15 and C-388/15,
Orleans, EU:C:2016:583, para. 57.
14 Case C-521/12,
Briels, EU:C:2014:330, para. 29.
15 Joined Cases C-387/15 and C-388/15,
Orleans, EU:C:2016:583, para. 48; Case C-142/16,
Commission
v Germany (Moorburg), EU:C:2017:301, para.34.
10
significant effects on the site. Another example would be a project that by its nature
cannot have any significant impact on the habitats and species addressed by the
conservation objectives of the site.
37. This is very different from the situation in the present case. As the screening report
sets out, the planned grid connection works do risk releasing suspended solids into
waterbodies which could reach the pearl mussel population in question and
negatively impact these by starving juvenile pearl mussels of oxygen (at para. 26 of
the referral). In the view of the Commission, a situation in which objective
information relating to the project, the site and the possible effects identifies clear
risks for the site, the screening cannot exclude significant effects on the site and,
consequently, deny the need for an appropriate assessment.
38. In such a situation, considering mitigation measures cannot lead to a different
outcome at the screening stage. The test on whether an appropriate assessment is
necessary is the likelihood of significant effects on the site. The fact that mitigation
measures are considered implies that such significant effects are likely to occur,
hence the need for an appropriate assessment. In other words, giving consideration
to mitigation measures presupposes the existence of likely significant effects on the
site and, thus, the need for an appropriate assessment
39. Secondly, the Commission would note that the consideration of mitigation measures
requires a detailed and comprehensive analysis of the possible adverse effects and
the question whether the protective measures are able to avoid or reduce these with
certainty.16 Such analysis presupposes the precise identification of all aspects of the
plan or project which can negatively affect the site’s conservation objectives and
their assessment in the light of the best scientific knowledge in the field. Such a
comprehensive analysis can only be performed as part of an appropriate assessment,
and not at the screening stage.
40. Third, the Commission considers that taking into account mitigation measures at the
screening stage can negatively impact the operation of Article 6(3) of the Habitats
Directive in two ways.
41. If one imported the detailed and comprehensive analysis that is required within the
appropriate assessment, including but not limited to the analysis of mitigation
16 See Case C-521/12,
Briels, EU:C:2014:330, paras. 28-32.
11
measures, into the screening stage, the screening would lose its purpose. The
purpose of screening is to determine
whether an appropriate assessment is required
giving the developer or competent authority a justification
not to carry out an
appropriate assessment if significant effects on the site can be excluded
ab initio.
42. If, on the other hand, the screening denied the need for an appropriate assessment
based on an incomplete analysis of mitigation measures that does not meet the
requirements of an appropriate assessment, there would be a risk of circumventing
the appropriate assessment which is an essential procedural safeguard to achieve the
purpose of Article 6(3) of the Habitats Directive.
IV. CONCLUSION
43. For the above reasons, the Commission submits that the answer to the question
referred by the High Court should be:
Article 6(3) of the Habitats Directive must be interpreted as meaning that the
determination of whether a plan or project must be subject to appropriate
assessment of its implications for the relevant site cannot take into account
protective measures which aim at avoiding or reducing adverse effects on the
site.
Christoph HERMES
Emmanuel MANHAEVE
Agents for the Commission