European Commission v Kingdom of Spain.

• Jurisdiction: European Union
• Celex Number: 62009CJ0404
• ECLI: ECLI:EU:C:2011:768
• Court: Court of Justice (European Union)
• Docket Number: C-404/09
• Procedure Type: Recurso por incumplimiento – fundado
• Date: 24 November 2011

Case C-404/09

European Commission

v

Kingdom of Spain

(Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora – Open-cast coal mines – ‘Alto Sil’ site – Special protection area – Site of Community importance – Brown bear (Ursus arctos) – Capercaillie (Tetrao urogallus))

Summary of the Judgment

1. Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Competent authorities obliged to carry out the assessment before granting authorisation – Projects relating to open-cast mining

(Council Directive 85/337, as amended by Directive 97/11, Arts 2, 3 and 5(1) and (3))

2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas – Obligations of the Member States – Projects relating to open-cast mining in or in the immediate proximity of a site designated as a special protection area under Directive 79/409

(Council Directives 79/409, as amended by Directive 97/49 and Directive 92/43, Arts 6(2) to (4), and 7)

3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas – Obligations of the Member States – Projects relating to open-cast mining in or in the immediate proximity of a site designated as a special protection area under Directive 79/409

(Council Directives 79/409, as amended by Directive 97/49 and Directive 92/43, Art. 6(2) to (4), and 7)

4. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas – Obligations of the Member States – Projects relating to open-cast mining in or in the immediate proximity of a site of Community interest

(Council Directive 92/43, Art. 6(2); Commission Decision 2004/813)

1. A Member State that authorises open-cast mines but fails to subject the grant of the authorisations relating thereto to an assessment making it possible to identify, describe and assess appropriately the direct, indirect and cumulative effects of the existing open-cast mining projects, save, in relation to one of those mines, as regards the brown bear (Ursus arctos), fails to fulfil its obligations under Articles 2, 3 and 5(1) and (3) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11.

(see para. 197, operative part 1)

2. From the date on which a site is designated as a special protection area under Directive 79/409 on the conservation of wild birds, as amended by Directive 97/49, a Member State that authorises open-cast mining operations in or in the immediate proximity of the site concerned, without making the grant of the authorisations relating thereto subject to the carrying out of an appropriate assessment of the possible effects of those projects, and, in any event, without satisfying the conditions in which a project may be realised despite the risk posed by that project for the capercaillie (Tetrao urogallus), which constitutes one of the natural assets which motivated the classification of the site in question as a special protection area, namely the absence of alternative solutions, the existence of imperative reasons of major public interest and communication to the Commission of the necessary compensatory measures to ensure the overall coherence of the Natura 2000 network, fails to fulfil its obligations in relation to that site under Article 6(2) to (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora in conjunction with Article 7 of that Directive.

(see para. 197, operative part 2)

3. From the date on which a site is designated as a special protection area under Directive 79/409 on the conservation of wild birds, as amended by Directive 97/49, a Member State that fails to adopt the necessary measures to prevent the deterioration of habitats including the habitats of species, and to prevent significant disturbance of the capercaillie, the presence of which on the site concerned was the reason for the designation of that area as a special protection area, caused by open-cast mining operations in or in the immediate proximity of that site, fails to fulfil its obligations in relation to the said site under Article 6(2) to (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora in conjunction with Article 7 of that directive.

(see para. 197, operative part 2)

4. From the date on which Decision 2004/813, adopting, pursuant to Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, the list of sites of Community importance for the Atlantic biogeographical region was adopted, a Member State that fails to adopt the necessary measures to prevent the deterioration of habitats, including the habitats of species, and disturbance of species by certain mining operations in or in the immediate proximity of that site, fails to fulfil its obligations, in relation to a site designated as a site of Community importance, under Article 6(2) of that Directive.

(see para. 197, operative part 3)

JUDGMENT OF THE COURT (Fourth Chamber)

24 November 2011 (*)

(Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora – Open-cast coal mines – ‘Alto Sil’ site – Special protection area – Site of Community importance – Brown bear (Ursus arctos) – Capercaillie (Tetrao urogallus))

In Case C‑404/09,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 20 October 2009,

European Commission, represented by D. Recchia and by F. Castillo de la Torre and J.-B. Laignelot, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (Fourth Chamber),

composed of J.-C. Bonichot, President of the Chamber, A. Prechal (Rapporteur), K. Schiemann, C. Toader and E. Jarašiūnas, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 28 June 2011

gives the following

Judgment

1 By its action the European Commission seeks a declaration from the Court that:

– by authorising the open-cast mines ‘Fonfría’, ‘Nueva Julia’ and ‘Ladrones’ but failing to subject that authorisation to an assessment in order to identify, describe and assess in an appropriate manner the direct, indirect and cumulative effects of the existing open-cast mining projects,

the Kingdom of Spain has failed to fulfil its obligations under Articles 2, 3 and 5(1) and (3) of 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), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5, ‘Directive 85/337, as amended’),

– from 2000, the date of designation of the ‘Alto Sil’ as a special protection area (‘SPA’) under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) as amended by Commission Directive 97/49/EC of 29 July 1997 (OJ 1997 L 223, p. 9, ‘the Birds Directive’),

– by authorising the ‘Nueva Julia’ and ‘Ladrones’ open-cast mining operations but failing to subject that authorisation to an appropriate assessment of the possible effects of those projects; and in any event failing to comply with the conditions under which the execution of a project is permitted, in spite of the risk which those projects represented for the capercaillie, which is one of the natural assets which justified the classification of the ‘Alto Sil’ SPA, namely that there are no alternative solutions, that there are imperative reasons of overriding public interest and only after having notified the Commission of the necessary compensatory measures to ensure that the overall coherence of the Natura 2000 network is protected, and

– by failing to adopt the necessary measures to prevent the deterioration of habitats, including the habitats of species, and to prevent significant disturbance of the capercaillie, the presence of which on the ‘Alto Sil’ site was the reason for the designation of that area as an SPA, caused by the ‘Feixolín’, ‘Salguero-Prégame-Valdesegadas’, ‘Fonfría’, ‘Ampliación de Feixolín’ and ‘Nueva Julia’ mines,

the Kingdom of Spain has failed to fulfil its obligations in relation to the ‘Alto Sil’ SPA under Article 6(2) to (4) 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, ‘the Habitats Directive’) in conjunction with Article 7 of that directive;

– from January 1998, by failing in relation to the mining operations at the ‘Feixolín’, ‘Salguero-Prégame-Valdesegadas’, ‘Fonfría’ and ‘Nueva Julia’ mines to adopt the necessary measures to safeguard the ecological interest which the proposed ‘Alto Sil’ site had at national level, and which was proposed as a site of Community importance (‘the SCI’) under the Habitats Directive, the Kingdom of Spain has, in relation to that site, failed to fulfil its obligations under that directive, as interpreted in Case C‑117/03Dragaggi and Others [2005] ECR I‑167 and Case C‑244/05Bund Naturschutz in Bayern and Others [2006] ECR I‑8445;

– from December 2004,

– by permitting open-cast mining (in the case of the ‘Feixolín’, ‘Salguero-Prégame-Valdesegadas’, ‘Fonfría’ and ‘Nueva Julia’ mines) likely to have a significant impact on the natural assets which determined the designation of the ‘Alto Sil’ area as an SCI...