Bund Naturschutz in Bayern e.V. v Landkreis Rosenheim.

• Jurisdiction: European Union
• Date: 22 February 2022
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

22 February 2022 (*)

(Reference for a preliminary ruling – Environment – Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Article 2(a) – Concept of ‘plans and programmes’ – Article 3(2)(a) – Measures prepared for certain sectors and setting a framework for future development consent of projects listed in Annexes I and II to Directive 2011/92/EU – Article 3(4) – Measures setting a framework for future development consent of projects – Landscape conservation regulation adopted by a local authority)

In Case C‑300/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Germany), made by decision of 4 May 2020, received at the Court on 7 July 2020, in the proceedings

Bund Naturschutz in Bayern eV

v

Landkreis Rosenheim,

intervening parties:

Landesanwaltschaft Bayern,

Vertreter des Bundesinteresses beim Bundesverwaltungsgericht,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, A. Prechal, K. Jürimäe, C. Lycourgos, E. Regan, S. Rodin, I. Jarukaitis and J. Passer (Rapporteur), Presidents of Chambers, M. Ilešič, F. Biltgen, P.G. Xuereb, N. Piçarra and L.S. Rossi, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 7 June 2021,

after considering the observations submitted on behalf of:

– Bund Naturschutz in Bayern eV, by F. Heß, Rechtsanwältin,

– Landkreis Rosenheim, by Q. Zallinger, acting as Agent,

– Landesanwaltschaft Bayern, by M. Egner, J. Vogel and M. Höfler, acting as Agents,

– the German Government, initially by J. Möller, D. Klebs and S. Heimerl, and subsequently by J. Möller and D. Klebs, acting as Agents,

– the Czech Government, by M. Smolek, J. Vláčil and L. Dvořáková, acting as Agents,

– Ireland, by M. Browne, J. Quaney, M. Lane and A. Joyce, acting as Agents, and by S. Kingston, Senior Counsel, and A. Carroll, Barrister-at-Law,

– the European Commission, by C. Hermes and M. Noll-Ehlers, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 September 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3(2)(a) and (4) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).

2 The request has been made in proceedings between Bund Naturschutz in Bayern eV (‘Bund Naturschutz’) and Landkreis Rosenheim (Rural District of Rosenheim, Germany) concerning the legality of a regulation relating to a landscape conservation area.

Legal context

European Union law

3 Article 1 of Directive 2001/42, entitled ‘Objectives’, provides:

‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’

4 Article 2 of that directive is worded as follows:

‘For the purposes of this Directive:

(a) “plans and programmes” shall mean plans and programmes, including those co-financed by [the European Union], as well as any modifications to them:

– which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and

– which are required by legislative, regulatory or administrative provisions;

…’

5 Article 3 of that directive, entitled ‘Scope’, provides, in paragraphs 1 to 4 thereof:

‘1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.

2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,

(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [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)], or

(b) which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7)].

3. Plans and programmes referred to in paragraph 2 which determine the use of small areas at local level and minor modifications to plans and programmes referred to in paragraph 2 shall require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects.

4. Member States shall determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework for future development consent of projects, are likely to have significant environmental effects.’

6 Annex II to Directive 2001/42, which lays down the ‘criteria for determining the likely significance of effects referred to in Article 3(5)’, includes among those criteria, in point 1 thereof, ‘the characteristics of plans and programmes’, including, in the first indent of that point, ‘the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources’.

7 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), which entered into force on 17 February 2012, repealed and replaced Directive 85/337.

8 According to Article 1(2)(a) of Directive 2011/92, for the purposes of that directive, ‘project’ means ‘the execution of construction works or of other installations or schemes’, as well as ‘other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources’.

9 According to the second paragraph of Article 14 of Directive 2011/92, ‘references to [Directive 85/337] shall be construed as references to [Directive 2011/92]’.

German law

The BNatSchG

10 Paragraph 20(2) of the Gesetz über Naturschutz und Landschaftspflege (Bundesnaturschutzgesetz) (Law on Nature Conservation and Landscape Management (Federal Law on Nature Conservation)) of 29 July 2009 (BGBl. 2009 I, p. 2542), in the version applicable to the dispute in the main proceedings (‘the BNatSchG’), provides:

‘Parts of nature and the landscape may be protected

…

4. in accordance with Paragraph 26, as landscape conservation areas,

…’

11 Paragraph 26 of the BNatSchG, entitled ‘Landscape conservation areas’, provides:

‘(1) Landscape conservation areas are areas the designation of which as such is legally binding and in which special protection for nature and the landscape is required

1. to assist the conservation, development or restoration of the productive and functional capacity of the ecosystem or of the regenerative capacity and sustainable use of natural assets, including the protection of biotopes and habitats of certain species of wild fauna and flora,

2. on account of the diversity, distinctiveness and beauty or the special cultural and historical significance of the landscape, or

3. on account of their special significance for recreational purposes.

(2) In the light in particular of Paragraph 5(1) and in accordance with more detailed provisions, any activity within a landscape conservation area which alters the character of that area or which runs counter to the special conservation objective pursued shall be prohibited.’

The BayNatSchG

12 Article 12(1) of the Bayerisches Gesetz über den Schutz der Natur, die Pflege der Landschaft und die Erholung in der freien Natur (Bayerisches Naturschutzgesetz) (Bavarian Law on Nature Conservation, Landscape Management and Outdoor Recreation (Bavarian Law on Nature Conservation)) of 23 February 2011 (GVBl. p. 82), in the version applicable to the dispute in the main proceedings (‘the BayNatSchG’), provides:

‘Parts of nature and the landscape shall be placed under protection, in accordance with Paragraph 20(2), points 1, 2, 4, 6 and 7, of the BNatSchG, by means of a regulation, unless this Law provides otherwise. …’

13 Under Article 51(1) of the BayNatSchG:

‘The bodies below shall be competent to do as follows:

…

3. Landkreise (rural districts) and independent authorities, to adopt regulations on landscape conservation areas within the meaning of Paragraph 26 of the BNatSchG

…’

The Inntal Süd Regulation

14 Paragraph 1 of the Verordnung des Landkreises Rosenheim über das Landschaftsschutzgebiet ‘Inntal Süd’ (Regulation of the Rural District of Rosenheim on the ‘Inntal Süd’ landscape conservation area) of 10 April 2013 (‘the Inntal Süd Regulation’), entitled ‘Object of protection’, provides:

‘The landscape to the east and west of the River Inn between the State border with Austria in the municipality of Kiefersfelden and the border of the town of Rosenheim shall be protected as a landscape conservation area under the name “Inntal Süd”.

This protection shall cover the course of the River Inn, including its basin and alluvial plains.’

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