(Conservation of natural habitats and of wild fauna and flora Decision of a Member State to agree to a draft list of sites of Community importance drawn up by the Commission Interests to be taken into account Legitimate expectations)
- The municipality of Papenburg ('Stadt Papenburg') is a port city on the river Ems in Lower Saxony, Germany. It is known for its large shipyard, the Meyer-Werft, which was founded in 1795 and currently specialises in building cruise liners. (2)
- Each time before a ship with a deep draught is navigated from the shipyard to the North Sea, special dredging operations have to be carried out. Pursuant to a planning decision of the Wasser- und Schiffahrtsdirektion Nordwest (Waterways and Navigation Directorate for the North-West Region) of 31 May 1994, Stadt Papenburg, Landkreis Emsland (the district of Emsland), and the Wasser- und Schiffahrtsamt Emden (Emden Waterways and Navigation Office) were granted permission to dredge the Ems where required. The river is naturally suited only for ships with a draught of up to 6.3 metres. The dredging is designed to enable ships with a draught of 7.3 metres to reach the sea.
- This planning decision replaces all necessary further authorisations required under German public law and cannot be legally contested. (3) The actual dredging operation in each individual case does not therefore require further permission or authorisation.
- Parts of the river situated downriver from Stadt Papenburg's local authority area were notified by Germany to the Commission on 17 February 2006 under the description 'Lower Ems and Outer Ems (DE 2507-331)' as a possible site of Community importance within the meaning of Directive 92/43/EEC (the 'Habitats Directive'). (4)
- The Commission included the site in its draft list of sites of Community importance in the Atlantic region and requested the Federal Government to agree thereto pursuant to the first subparagraph of Article 4(2) of the Habitats Directive. Germany wishes to give its agreement. Stadt Papenburg fears that, if the Lower Ems and Outer Ems were included in the list of site of Community importance, an assessment pursuant to Article 6(3) and (4) of the Habitats Directive would in the future be required before every dredging operation. The outcome of such an assessment would be completely uncertain; and the expenditure and costs involved would increase considerably.
- On 20 February 2008, Stadt Papenburg brought an action before the Verwaltungsgericht Oldenburg (Administrative Court, Oldenburg), requesting that the Bundesrepublik Deutschland ('the Federal Government') be ordered not to give that agreement. In this reference for a preliminary ruling, the Administrative Court, Oldenburg asks the Court for clarification on the interpretation of Articles 2(3), 4(2), and 6(3) and (4) of the Habitats Directive. (5)
Legal framework
The Habitats Directive
- The third recital in the preamble to the Habitats Directive states:
'... the main aim of this Directive being to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements, this Directive makes a contribution to the general objective of sustainable development; ... the maintenance of such biodiversity may in certain cases require the maintenance, or indeed the encouragement, of human activities'.
- Article 1 contains a number of definitions:
'For the purpose of this Directive:
...
(k) site of Community importance ['SCI'] means a site which, in the biogeographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II and may also contribute significantly to the coherence of Natura 2000 referred to in Article 3, and/or contributes significantly to the maintenance of biological diversity within the biogeographic region or regions concerned.
...;
(l) special area of conservation ['SAC'] means a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated;
...'
- Article 2(3) states:
'Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics.'
- Article 3 provides:
'1. A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species' habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.
The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to Directive 79/409/EEC.
2. Each Member State shall contribute to the creation of Natura 2000 in proportion to the representation within its territory of the natural habitat types and the habitats of species referred to in paragraph 1. To that effect each Member State shall designate, in accordance with Article 4, sites as special areas of conservation taking account of the objectives set out in paragraph 1.
...'
- Article 4 provides:
'1. On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host.
...
The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information on each site.
...
2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the seven biogeographical regions referred to in Article 1(c)(iii) and of the whole of the territory referred to in Article 2(1), the Commission shall establish, in agreement with each Member State, a draft list of [SCIs] drawn from the Member States' lists identifying those which host one or more priority natural habitat types or priority species.
Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be applied more flexibly in selecting all the [SCIs] in their territory.
The list of sites selected as [SCIs], identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21. [(6)]
...
4. Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall designate that site as a [SAC] as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.
5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph2 it shall be subject to Article 6(2), (3) and (4).'
- Article 6 provides:
'1. For [SACs], Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
2. Member States shall take appropriate steps to avoid, in the [SACs], the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. 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.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.'
- Annex III, Stage 2, entitled 'Assessment of the Community importance of the sites included on the national lists', provides as follows:
'1. All the sites identified by the Member States in Stage 1 which contain priority natural habitat types and/or species will be considered as [SCIs].
2. The assessment of the Community importance of other sites on Member States' lists, i.e. their contribution to maintaining or re-establishing, at a favourable conservation status, a natural habitat in Annex I or a species in Annex II and/or to the coherence of Natura 2000 will take account of the following criteria:
(a) relative value of the site at national level;
(b) geographical situation of the site in relation to migration routes of species in Annex II and whether it belongs to a continuous ecosystem situated on both sides of one or more internal Community frontiers;
(c) total area of the site;
(d) number of natural habitat types in Annex I and species in Annex II present on the site;
(e) global ecological value of the site for the biogeographical regions concerned and/or for the whole of the territory referred to in Article 2, as regards both the characteristic or unique aspect of its features and the way they are combined.'
The German Basic Law
- Article 28(2) of the Grundgesetz (Basic Law or 'GG') reads as follows: (7)
'Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by the laws. Within the limits of their functions designated by ... law, associations of municipalities shall also have the right [to administrative autonomy] according to the laws. The guarantee of [administrative autonomy] shall extend to the [basic elements] of financial autonomy; these [basic elements] shall include the right of municipalities to a source of tax revenues based upon economic ability and the right to establish the rates at which these sources shall be taxed.'
- As interpreted by the referring court, the right of local self-administration guaranteed under this provision also includes the right for municipalities to have their interests taken into account where measures going beyond the local level have a lasting effect upon the development of the municipality or cause lasting interference with plans of the municipality which are sufficiently concrete and established. That also applies to measures outside its local authority area, in so far as the municipality, notwithstanding the geographical distance, is clearly and particularly affected.
The main proceedings and the questions referred
- Before the referring court, Stadt Papenburg argued that its right to self-government, which is protected under Article 28(2) GG, would be infringed by Germany agreeing, pursuant to the first subparagraph of Article 4(2) of the Habitats Directive, to the draft list of SCIs in the Atlantic region drawn up by the Commission.
- It argued that, as a seaport and shipyard location, its planning and investments and its economic development depend on ensuring that the Ems remains navigable for large seagoing ships.
- The Federal Government contends that the action should be dismissed. It is of the opinion that to take into account the interests asserted by the applicant when deciding whether to give its agreement to the draft list of SCIs would contravene Community law. Under the first subparagraph of Article 4(2) of the Habitats Directive, a Member State is permitted to take the decision whether to give its agreement only on grounds of nature conservation. The Federal Government argues in the alternative that, if the Habitats Directive did allow local authority interests to be taken into account, the applicant could go to court to claim that they had been disregarded even after the list had been adopted. There would therefore be no need for 'preventive' prohibition of the Federal Government's agreement to the draft list.
- The Administrative Court, Oldenburg, granted Stadt Papenburg interim relief by a decision of 31 March 2008. The Federal Government is thereby prohibited from giving its agreement until judgment is delivered on the action in the main proceedings.
- The Administrative Court, Oldenburg, has decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
'(1) Does the first subparagraph of Article 4(2) of [the Habitats Directive] allow a Member State to refuse to agree to the Commission's draft list of [SCIs], in relation to one or more sites, on grounds other than nature conservation?
(2) If Question 1 is answered in the affirmative: Do those grounds include the interests of municipalities and associations of municipalities, in particular their plans, planning intentions and other interests with regard to the further development of their area?
(3) If Questions 1 and 2 are answered in the affirmative: Do the third recital in the preamble to Directive 92/43/EEC, Article 2(3) of the directive or other provisions of Community law even require that such grounds be taken into account by the Member States and the Commission when giving agreement and establishing the list of [SCIs]?
(4) If Question 3 is answered in the affirmative: Would it be possible under Community law for a municipality which is affected by the inclusion of a particular site in the list to claim in legal proceedings after final adoption of the list that the list infringes Community law, because its interests were not, or not sufficiently, taken into account?
(5) Must ongoing maintenance works in the navigable channels of estuaries, which were definitively authorised under national law before the expiry of the time-limit for transposition of Directive 92/43/EEC, undergo an assessment of their implications pursuant to Article 6(3) or (4) of the directive where they are continued after inclusion of the site in the list of [SCIs]?'
- Written observations have been submitted by Stadt Papenburg and by the Commission.
- A hearing was held on 26 March 2009 at which Stadt Papenburg, the Federal Government, and the Commission made oral submissions.
Analysis
First question
- Article 4 of the Habitats Directive sets out the procedure for classifying natural sites as SACs, divided into several stages with corresponding legal effects, which is intended in particular to enable the Natura 2000 network to be realised, as provided for by Article 3(2) of the directive. (8)
- Under Stage 1 of that procedure, on the basis of the applicable criteria set out in Annex III to the Habitats Directive together with relevant scientific information, each Member State is to propose and transmit to the Commission a list of sites, indicating which natural habitat types in Annex I and native species in Annex II are to be found there (Article 4(1)). Under Stage 2, the Commission is to establish, on the basis of the applicable criteria set out in Annex III and in agreement with each Member State, a draft list of SCIs drawn from the Member States' lists. The list of sites selected as SCIs, identifying those which host one or more priority natural habitat types or priority species, is adopted by the Commission (Article 4(2)). Once a SCI has been so adopted, the Member State concerned must designate that site as a SAC (Article 4(4)). As soon as a site is placed on the list adopted by the Commission in accordance with the third subparagraph of Article 4(2), it is subject to Article 6(2), (3) and (4) (Article 4(5)).
- The first question seeks to ascertain whether grounds other than nature conservation can be relied on by Germany in Stage 2 of that procedure to refuse its agreement to the Commission's draft list of SCIs.
- In First Corporate Shipping, (9) the Court was asked whether a Member State was entitled or obliged to take account of economic, social and cultural requirements and regional and local characteristics when deciding which sites to propose to the Commission under Stage 1. The Court noted that the criteria as regards Stage 1 set out in Annex III are 'defined exclusively in relation to the objective of conserving the natural habitats or the wild fauna and flora listed in Annexes I and II respectively. It follows that Article 4(1) of the Habitats Directive does not as such provide for requirements other than those relating to the conservation of natural habitats and of wild fauna and flora to be taken into account when choosing, and defining the boundaries of, the sites to be proposed to the Commission as eligible for identification as [SCIs].' (10)
- The Court further held that to produce a draft list of SCIs capable of leading to the creation of a coherent European ecological network of SACs, the Commission must have available 'an exhaustive list of the sites which, at national level, have an ecological interest which is relevant from the point of view of the Habitats Directive's objective of conservation of natural habitats and wild fauna and flora. To that end, that list is drawn up on the basis of the criteria laid down in Annex III (Stage 1) to the directive'. The Court stressed that only in that way 'is it possible to realise the objective, in the first subparagraph of Article 3(1) of the Habitats Directive, of maintaining or restoring the natural habitat types and the species' habitats concerned at a favourable conservation status in their natural range, which may lie across one or more frontiers inside the Community'. When a Member State draws up the national list of sites, it is not in a position to have precise detailed knowledge of the situation of habitats in the other Member States. It cannot therefore 'of its own accord, whether because of economic, social or cultural requirements or because of regional or local characteristics, delete sites which at national level have an ecological interest relevant from the point of view of the objective of conservation without jeopardising the realisation of that objective at Community level'. If the Member States were allowed to do so, 'the Commission could not be sure of having available an exhaustive list of sites eligible as SACs, with the risk that the objective of bringing them together into a coherent European ecological network might not be achieved'. (11)
- The Court therefore concluded that 'on a proper construction of Article 4(1) of the Habitats Directive, a Member State may not take account of economic, social and cultural requirements or regional and local characteristics, as mentioned in Article 2(3) of that directive, when selecting and defining the boundaries of the sites to be proposed to the Commission as eligible for identification as [SCIs]'. (12)
- Does the same reasoning apply to Stage 2 of the procedure?
- In his Opinion in First Corporate Shipping, Advocate General Léger considered 'that it is not excluded that in the second stage, at the time of concertation between the Member States and the Commission on the selection of the SCIs, economic and social requirements may justify a site which hosts one of the natural habitat types in Annex I or native species in Annex II not being selected as an SCI, and consequently not being designated as an SAC'. (13)
- Contrary to what Stadt Papenburg submits, I do not believe that the judgment in First Corporate Shipping adopted that point of view. (14) Be that as it may, the question remains whether what the Court held as regards Stage 1 applies equally to Stage 2.
- I believe that it does.
- With respect to Stage 2 of the procedure, Article 4(2) of the Habitats Directive provides for the Commission to establish, in agreement with each Member State, a draft list of SCIs on the basis of the criteria set out in Annex III (Stage 2). The assessment criteria set out for Stage 2, like those for Stage 1, are defined exclusively in relation to the objective of conserving the natural habitats or the wild fauna and flora listed in Annexes I and II respectively. (15) The only exception the Habitats Directive provides for is that Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be applied more flexibly in selecting all the SCIs in their territory (second subparagraph of Article 4(2)). That exception has not been relied on here. Moreover, even if a Member State falls into this category, the Habitats Directive still does not provide for other criteria (for example, economic and social) to be applied at this stage. It merely provides for the purely ecological criteria of Annex III to be applied more flexibly.
- A parallel can also be drawn here with Directive 79/409/EEC (the 'Birds Directive'). (16) Article 4(1) and (2) of that directive requires the Member States to take special conservation measures for certain species, and in particular to designate as Special Protection Areas ('SPAs') the most suitable territories for their conservation. Article 3(1) of the Habitats Directive provides for a coherent European ecological network of SACs to be set up under the title Natura 2000, which is to include the SPAs classified by the Member States pursuant to the Birds Directive. There is therefore a close link between the two directives. (17)
- In Royal Society for the Protection of Birds, (18) the Court was asked whether those provisions are to be interpreted as meaning that a Member State may, when designating an SPA and defining its boundaries, take account of economic requirements to the extent that they reflect imperative reasons of overriding public interest of the kind referred to in Article 6(4) of the Habitats Directive. The Court held that the imperative reasons of overriding public interest which could, pursuant to Article 6(4) of the Habitats Directive, justify a plan or project which would significantly affect an SPA may, where appropriate, include grounds of a social or economic nature. However, the Court pointed out that although Article 6(3) and (4) of the Habitats Directive, in so far as it amended the first sentence of Article 4(4) of the Birds Directive, established a procedure enabling the Member States to adopt, for imperative reasons of overriding public interest and subject to certain conditions, a plan or a project adversely affecting an SPA and so made it possible to go back on a decision classifying such an area by reducing its extent, it nevertheless did not make any amendments regarding the initial stage of classification of an area as an SPA referred to in Article 4(1) and (2) of the Birds Directive. It follows that, even under the Habitats Directive, the classification of sites as SPAs must in all circumstances be carried out in accordance with the criteria permitted under Article 4(1) and (2) of the Birds Directive and that economic requirements, as an imperative reason of overriding public interest allowing a derogation from the obligation to classify a site according to its ecological value, cannot enter into consideration at that stage. (19)
- Both the Habitats and the Birds Directives belong to the system set up to contribute to the formation of Natura 2000. It seems to me that it would be both inconsistent and contrary to the objective of the Habitats Directive to allow Member States to rely on economic criteria in order to refuse their agreement to the draft list of SCIs under the Habitats Directive itself, when the Court has made it clear that such criteria cannot enter into the equation when selecting sites under Article 4(1) and (2) of the Birds Directive as amended by the Habitats Directive.
- Moreover, as the Court held in Royal Society for the Protection of Birds, Article 6(3) and (4) of the Habitats Directive does provide for such interests to be taken into account at a later stage. (20) Indeed, Article 2(3) of the Habitats Directive announces as much by providing that measures taken pursuant to that directive are to take account of economic, social and cultural requirements and regional and local characteristics.
- However, as the Commission rightly points out, Article 2(3) is not a general derogation from the rules of the Habitats Directive. Similar wording can be found in Article 2 of the Birds Directive. (21) The Court has held that that provision does not constitute an autonomous derogation from the general system of protection under the Birds Directive, but that it none the less shows that the directive takes into consideration both the necessity for effective protection of birds and, among other things, the requirements of the economy. (22) That statement seems to me to be equally applicable, mutatis mutandis, to Article 2(3) of the Habitats Directive.
- Substantively, the provision in the Habitats Directive that allows economic interests to be taken into account is therefore Article 6(4).
- Article 6 of the Habitats Directive obliges the Member States to establish the necessary conservation measures for SACs (Article 6(1)), to avoid, in SACs, the deterioration of natural habitats and the habitats of species and disturbance of listed species (Article 6(2)) and to subject 'any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon' to an ex ante assessment of its likely impact on the SAC (Article 6(3)). Article 6(4) provides (limited) scope for a Member State to override a negative ex ante assessment and authorise the plan or project in question for imperative reasons of overriding public interest, including those of a social and economic nature. The Member State is, however, then required to take the necessary compensatory measures to ensure that the overall coherence of Natura 2000 is protected and must inform the Commission of those measures. (23)
- Article 6(4) of the Habitats Directive therefore provides, explicitly, a point in the procedure at which economic interests may be taken into account. In my view, in order not to jeopardise the objective of the Habitats Directive, it is imperative that during the selection of SCIs only nature conservation criteria are taken into account. As and when the full list of SCIs has been established in accordance with those criteria, economic interests such as the one at issue in the main proceedings may be taken into account. Exceptionally, these may mean that a plan or project that could potentially have a negative impact on the site goes ahead none the less.
- I therefore conclude that the first subparagraph of Article 4(2) of the Habitats Directive does not allow a Member State to refuse to agree to the Commission's draft list of SCIs on grounds other than nature conservation grounds.
- The second, third and fourth questions posed by the national court are all premissed on an affirmative answer to the first question. In view of the way in which I propose that the Court should answer the first question, there is no need to consider the second, third or fourth questions.
The fifth question
- By its fifth question, the referring court asks whether ongoing maintenance works in the navigable channels of estuaries, which were definitively authorised under national law before the expiry of the time-limit for transposition of the Habitats Directive, (24) must undergo an assessment of their implications pursuant to Article 6(3) or (4) of the directive where they are continued after inclusion of the site that they would potentially affect in the list of SCIs.
- The answer to that question depends on whether the dredging operations at issue in the main proceedings constitute a 'plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon'. Two cases may provide helpful indications in that regard.
- In Waddenvereniging and Vogelbeschermingsvereniging, (25) the Court was asked whether mechanical cockle fishing which had been carried on for many years but for which a licence was granted annually for a limited period (with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may take place) fell within the concept of 'plan' or 'project' within the meaning of Article 6(3) of the Habitats Directive. Noting that the Habitats Directive does not define the terms 'plan' or 'project', the Court referred to the definition of 'project' in Article 1(2) of the Environmental Impact Assessment Directive (26) and held that mechanical cockle fishing fell within its scope. The Court held the definition of 'project' in the Environmental Impact Assessment Directive to be relevant to defining the concept of 'plan or project' in the Habitats Directive, as these directives seek to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment. An activity such as mechanical cockle fishing was therefore covered by the concept of 'plan or project' in Article 6(3) of the Habitats Directive.
- The Court went on to rule that the fact that the activity had been carried on periodically for several years on the site concerned and that a licence had to be obtained for it every year, each new issuance of which required an assessment both of the possibility of carrying on that activity and of the site where it might be carried on, did not in itself constitute an obstacle to considering it, at the time of each application, as a distinct plan or project within the meaning of the Habitats Directive. (27)
- In infringement proceedings against Ireland, the Commission argued that, contrary to Article 6(3) and (4) of the Habitats Directive, Ireland had permitted drainage work likely to have a significant effect on the Glen Lough SPA without having previously required an appropriate assessment of that project or employed an adequate decision-making procedure. (28) In her Opinion in that case, Advocate General Kokott recalled that, for a definition of 'project' the Court had already based itself on the definition set out in Article 1(2) of the Environmental Impact Assessment Directive in Waddenvereniging and Vogelbeschermingsvereniging. (29) The Advocate General therefore considered that maintenance measures can also constitute interventions in the natural surroundings and landscape, in particular where they give rise to deterioration of a habitat most suitable for the conservation of birds. (30) That approach was adopted by the Court. (31)
- In the light of those judgments, it seems to me that the dredging at issue in the main proceedings clearly falls within the definition of 'plan or project' within the meaning of Article 6(3) of the Habitats Directive. The Court's approach seems to be to 'cast the net wide' in defining the scope of Article 6(3) of the Habitats Directive. (32)
- However, the order for reference indicates that the dredging was definitively approved by the local authorities before the expiry of the time-limit for transposition of the Habitats Directive without the need for any other future permission. Does that imply that all the dredging operations in the Ems (past and future) are to be considered as one single 'plan or project', which was definitively authorised before the expiry of the time-limit for transposition of the Habitats Directive and which therefore remains outside the scope of Article 6(3)?
- It is clear that Article 6(3) and (4) of the Habitats Directive cannot logically be applied retrospectively. In respect of the dredging that had already been both authorised and implemented before the expiry of the time-limit for transposition of the Habitats Directive, no ex ante assessment could therefore have been required. (33)
- However, as I suggested in my Opinion in Valloni e steppe pedegarganiche, it seems to me that '[i]f and to the extent that there are further projects, or further stages of the same global project that may be distinguished from earlier stages without artificiality, those would ... be subject to the obligation in Article 6(3). They would also be able (potentially, at least) to benefit from the override provisions of Article 6(4).' (34)
- I therefore take the view that any further dredging or maintenance works on the river Ems need to be subjected to the ex ante assessment under Article 6(3) of the Habitats Directive.
- In her Opinion in Waddenvereniging and Vogelbeschermingsvereniging, Advocate General Kokott argued that, in order effectively to avoid unintentional damage to Natura 2000 sites, all potentially harmful measures must, where possible, be subject to the procedure in Article 6(3) of the Habitats Directive; and that the terms 'plan' and 'project' should therefore be interpreted broadly. She took account of the fact that cockle fishing had already been carried on in its present form for many years, but took the view that neither the term 'plan' nor the term 'project' would preclude a measure renewed at regular intervals from being regarded on each occasion as a separate plan or project. Significantly, Advocate General Kokott noted that, precisely because the measures in question are repeated, such an interpretation of the terms 'plan' and 'project' does not lead to disproportionate harm. If the effects remain the same from year to year, it can easily be determined in the next assessment that no significant effect is likely by referring to previous assessments. Where circumstances change, the need to carry out more comprehensive new assessments cannot be ruled out and is moreover justified. (35)
- That approach is sensible.
- I add that it seems to me that the definition of 'plan or project' in Article 6(3) of the Habitats Directive must be an autonomous Community definition. It cannot depend on the nature of the administrative decision authorising an activity under national law without jeopardising that directive's objective. Suppose, for example, that long before the expiry of the time-limit for transposition of the Habitats Directive, a Member State had taken a definitive administrative decision allowing its citizens freely to shoot wolves. (36) Such blanket permission to kill wolves would not be exempt from scrutiny under the Habitats Directive merely because of the definitive nature of the national administrative decision.
- The Commission submits that the protection of legitimate expectations and of acquired rights precludes the application of procedural rules to situations that have already been authorised and that Stadt Papenburg and the Meyer-Werft have a legitimate expectation as to the navigability of the river Ems. The Commission therefore concludes that ex ante assessments under Article 6(3) of the Habitats Directive cannot be applied to dredging operations that remain within the framework of the original authorisation under German administrative law. It suggests that Article 6(2) of the Habitats Directive, which requires Member States to take appropriate steps to avoid, in SACs, the deterioration of habitats and significant disturbance of the species for which the areas have been designated, affords adequate environmental protection.
- Similarly, Stadt Papenburg relies on the judgment in Kühne & Heitz, (37) where the Court held that (under specific conditions) (38) the principle of cooperation arising from Article 10 EC imposes on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court.
- That does not seem to me to be the correct approach.
- In the present case, there is no question of the administrative body that took the decision permitting the dredging having to review that decision. Rather, the issue is whether a Community legislative act here a directive can change a legal situation settled by an administrative decision under national law which was taken before the expiry of the time-limit for transposition of the directive and which continues to have legal effects.
- As the Court stressed in VEMW and Others, the protection of legitimate expectations is unquestionably one of the fundamental principles of the Community and any trader in whom an institution has promoted reasonable expectations may rely on that principle. (39) In the present case, however, the Community institutions did nothing which suggested that the legislative situation in force before the adoption of the Habitats Directive would continue indefinitely.
- It is true that the German local authorities did indeed adopt a measure authorising future dredging of the Ems. However, that decision was adopted on 31 May 1994, (40) just over two years after the Habitats Directive was adopted (on 21 May 1992), albeit 10 days before the expiry of the time-limit for transposition of the directive (10 June 1994). (41) The Court has made it clear that if a prudent and circumspect trader could have foreseen the adoption of a Community measure likely to affect his interests, he cannot plead protection of legitimate expectations if the measure is adopted. Here, the measure in question had already been adopted. Moreover, a Member State cannot bind the Community so that the latter is unable to undertake or pursue its policy on the environment and its task, stated in Article 2 EC, to promote a high level of protection and improvement of the quality of the environment. (42)
- The principle of legal certainty requires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them. However, an individual cannot place reliance on there being no legislative amendment whatever, but can only call into question the arrangements for the implementation of such an amendment. Equally, the principle of legal certainty does not require that there be no legislative amendment. Rather, it requires that the legislature take account of the particular situations of traders and provide, where appropriate, adaptations to the application of the new legal rules. (43)
- It is, moreover, settled case-law that, in the absence of transitional provisions, new rules apply immediately to the future effects of a situation which arose under the old rules (44) and that the scope of the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules. (45)
- I am of course sensitive to the legitimate interest of Stadt Papenburg and of its shipbuilders that the river Ems should be navigable so that the ships they build may reach the sea. However, it is important to stress that the Habitats Directive contains provisions which do allow account to be taken of the special situation of cities such as Stadt Papenburg, through the derogation in Article 6(4). (46)
- The interests of Papenburg and its shipbuilders can thus be protected without interpreting Article 6(3) of the Habitats Directive in a way that is too narrow and that risks jeopardising its nature conservation objective.
- If dredging the Ems involves essentially the same operations that are repeated in the same manner over time, it is reasonable to suppose that the Article 6(3) ex ante assessment should not be too burdensome. If, in a particular instance, the dredging required exceeds the bounds of those repeated operations, a more thorough assessment should be carried out. (47) If, in spite of a negative assessment of the implications for the site, the dredging must nevertheless be carried out, (48) Article 6(4) allows Germany to override that negative ex ante assessment and authorise the dredging. Germany would, however, then be required to take the necessary compensatory measures to protect the overall coherence of Natura 2000 and would have to inform the Commission of the measures taken.
- The Commission suggests that only Article 6(2) should apply. However, I recall that Article 6(2) and (3) have different functions within the Habitats Directive. As the Court held in Waddenvereniging and Vogelbeschermingsvereniging, (49) the fact that a plan or project has been authorised under Article 6(3) of the Habitats Directive renders superfluous a concomitant application of the rule of general protection laid down in Article 6(2). That is because authorisation of a plan or project under Article 6(3) necessarily means that it is considered not likely adversely to affect the integrity of the site concerned and, consequently, not likely to give rise to deterioration or significant disturbances within the meaning of Article 6(2).
- The Court added, however, that 'it cannot be precluded that such a plan or project subsequently proves likely to give rise to such deterioration or disturbance, even where the competent national authorities cannot be held responsible for any error'. Under those conditions, application of Article 6(2) makes it possible to satisfy the essential objective of the preservation and protection of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora. (50)
- I therefore consider that future dredging of the river Ems will have to be subject to ex ante assessment pursuant to Article 6(3) of the Habitats Directive. Article 6(2) has a limited role to play; albeit one that is both complementary and, ultimately, important.
- In consequence, I conclude that ongoing maintenance works in the navigable channels of estuaries, which were definitively authorised under national law before the expiry of the time-limit for transposition of the Habitats Directive must undergo an assessment of their implications pursuant to Article 6(3) or (4) of the directive where they are continued after inclusion of the site in the list of SCIs.
Conclusion
- For the reasons given above, I am of the view that the questions referred by the Verwaltungsgericht Oldenburg should be answered as follows:
The first subparagraph of Article 4(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora does not allow a Member State to refuse to agree to the Commission's draft list of sites of Community importance on grounds other than nature conservation.
Ongoing maintenance works in the navigable channels of estuaries, which were definitively authorised under national law before the expiry of the time-limit for transposition of Directive 92/43, must undergo an assessment of their implications pursuant to Article 6(3) or (4) of that directive where they are continued after inclusion of the site in the list of sites of Community importance.
1 Original language: English.
2 See http://www.meyerwerft.de.
3 See Paragraph 75(1) VwVfG (Verwaltungsverfahrensgesetz Law on administrative procedures).
4 Council Directive of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).
5 See below, at point 20, for the questions referred.
6 Article 21 refers to a regulatory 'comitology' procedure in accordance with Articles 5 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23).
7 Translation by the German Bundestag, available at http://www.bundestag.de/interakt/infomat/fremdsprachiges_material/downloads/ggEn_download.pdf.
8 Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraph 20.
9 Cited in footnote 8.
10 First Corporate Shipping, cited in footnote 8, paragraphs 14 to 16.
11 First Corporate Shipping, cited in footnote 8, paragraphs 22 to 24.
12 First Corporate Shipping, cited in footnote 8, paragraph 25.
13 Point 51 of his Opinion.
14 Stadt Papenburg specifically refers to paragraph 20 of the judgment: 'Moreover, Article 4 of the Habitats Directive sets out the procedure for classifying natural sites as SACs, divided into several stages with corresponding legal effects, which is intended in particular to enable the Natura 2000 network to be realised, as provided for by Article 3(2) of the directive.' I fail to see how that paragraph can be read as saying anything at all about the Advocate General's position.
15 See, as regards Stage 1, First Corporate Shipping, cited in footnote 8, paragraph 15. The criteria for Stage 2 are set out in point 13 above.
16 Council Directive of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1).
17 See also Article 7 of the Habitats Directive which forms a link between that directive and the Birds Directive by providing that the obligations under Article 6(2), (3) and (4) of the Habitats Directive replace those under Article 4(4) of the Birds Directive in respect of areas classified as SPAs pursuant to Article 4(1) or similarly recognised under Article 4(2) of the Birds Directive. See further my Opinion in Case C-388/05 Commission v Italy(Valloni e steppe pedegarganiche) [2007] ECR I-7555, point 40.
18 Case C-44/95 [1996] ECR I-3805.
19 Royal Society for the Protection of Birds, cited in footnote 18, paragraphs 38 to 41.
20 Royal Society for the Protection of Birds, cited in footnote 18, paragraph 41.
21 'Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.'
22 Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 8.
23 See my Opinion in Valloni e steppe pedegarganiche, cited in footnote 17, points 44 and 45.
24 As I noted in my Opinion in Valloni e steppe pedegarganiche, cited in footnote 17, point 16, footnote 7, determining the exact date is not as straightforward as one might assume. The Court has now determined that 10 June 1994 is the correct date: see Case C-418/04 Commission v Ireland [2007] ECR I-10947, paragraph 32.
25 Case C-127/02 [2004] ECR I-7405.
26 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). Article 1(2) provides that 'the execution of construction works or of other installations or schemes' and 'other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources' are to be considered as 'projects'.
27 Waddenvereniging and Vogelbeschermingsvereniging, cited in footnote 25, paragraphs 21 to 28.
28 Commission v Ireland, cited in footnote 24, paragraph 248.
29 Waddenvereniging and Vogelbeschermingsvereniging, cited in footnote 25, paragraph 24.
30 Opinion in Commission v Ireland, cited in footnote 24, point 175.
31 Commission v Ireland, cited in footnote 24, paragraphs 248 to 257.
32 A parallel may perhaps be drawn with Article 28 EC, for which the Court similarly casts the net wide. See, for example, Case C-142/05 Mickelsson and Roos [2009] ECR I-0000, paragraph 24, and the case-law cited there.
33 See, by analogy, my Opinion in Valloni e steppe pedegarganiche, cited in footnote 17, point 51.
34 Cited in footnote 17, point 52.
35 Opinion of Advocate General Kokott in Waddenvereniging and Vogelbeschermingsvereniging, cited in footnote 25, points 30 to 38.
36 Hunting of wolves was at issue in Case C-342/05 Commission v Finland [2007] ECR I-4713.
37 Case C-453/00 [2004] ECR I-837.
38 Namely, 'where under national law, it has the power to reopen that decision; the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance; that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC; and the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court' (Kühne & Heitz, cited in footnote 37, paragraph 28).
39 Case C-17/03 [2005] ECR I-4983, paragraphs 73 and 74 and the case-law cited there.
40 See point 2 above.
41 See footnote 24 above.
42 See further Articles 3(1)(l), 6, and 174 to 176 EC. See, by analogy, VEMW and Others, cited in footnote 39, paragraphs 74 to 75 and 79 and the case-law cited there.
43 VEMW and Others, cited in footnote 39, paragraphs 80 and 81.
44 See, inter alia, Case 62/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraph 50; and Case C-512/99 Germany v Commission [2003] ECR I-845, paragraph 46.
45 See, inter alia, Case 278/84 Germany v Commission [1987] ECR 1, paragraph 36; Case C-60/98 Butterfly Music [1999] ECR I-3939, paragraph 25; and Pokrzeptowicz-Meyer, cited in footnote 44, paragraph 55.
46 See, by analogy, VEMW and Others, cited in footnote 39, paragraph 82.
47 See also the Opinion of Advocate General Kokott in Waddenvereniging and Vogelbeschermingsvereniging, cited in footnote 25, point 38.
48 There are almost certainly no 'alternative solutions' for getting vessels from the shipyard to the sea; and 'imperative reasons of overriding public interest' include those of a social or economic character.
49 Cited in footnote 25, paragraphs 35 and 36.
50 Waddenvereniging and Vogelbeschermingsvereniging, cited in footnote 25, paragraph 37.
