Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij.

• Jurisdiction: European Union
• Celex Number: 62002CJ0127
• ECLI: ECLI:EU:C:2004:482
• Date: 07 September 2004
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-127/02

Case C-127/02

Landelijke Vereniging tot Behoud van de Waddenzee

and

Nederlandse Vereniging tot Bescherming van Vogels

v

Staatssecretaris van Landbouw, Natuurbeheer en Visserij

(Reference for a preliminary ruling from the Raad van State)

(Directive 92/43/EEC – Conservation of natural habitats and of wild flora and fauna – Concept of ‘plan’ or ‘project’ – Assessment of the implications of certain plans or projects for the protected site)

Summary of the Judgment

1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Concept of ‘plan’ or ‘project’ on the protected site – Mechanical cockle fishing – Included – Conditions

(Council Directive 92/43, Art. 6(3))

2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Provisions laying down the procedure for authorisation of a plan or project on the protected site and a duty of general protection – Concomitant application – Not permissible

(Council Directive 92/43, Art. 6(2) and (3))

3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Authorisation of a plan or project on the protected site – Conditions – Appropriate assessment of its implications – Identification of aspects which can affect the site’s conservation objectives

(Council Directive 92/43, Art. 6(3), first sentence)

4. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Failure to transpose – Determination by the national court of the lawfulness of an authorisation for a plan or project on the protected site – Whether permissible

(Council Directive 92/43, Art. 6(3))

1. An activity such as mechanical cockle fishing which has been carried on for many years but for which a licence is 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 be carried on, falls within the concept of ‘plan’ or ‘project’ within the meaning of Article 6(3) of Council Directive 92/43 on the conservation of natural habitats and of wild fauna and flora.

(see para. 29, operative part 1)

2. Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora establishes, for protected sites, a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the protected site but likely to have a significant effect on it is authorised by the national authorities only to the extent that it will not adversely affect the integrity of that site, while Article 6(2) of that directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the directive’s objectives, and cannot be applicable concomitantly with Article 6(3).

(see para. 38, operative part 2)

3. The first sentence of Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the protected site is to be subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective information and, in particular, in the light of the characteristics and environmental conditions of that site, that it will have a significant effect on that site, either individually or in combination with other plans or projects. Such an assessment of the implications implies that, prior to the approval of the plan or project, all the aspects of the plan or project which can, by themselves or in combination 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, taking account of the appropriate assessment of the implications of the plan or project on the site concerned in the light of the site’s conservation objectives, are to authorise that plan or project 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 effects.

(see paras 45, 49, 61, operative part 3-4)

4. Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with, even though it has not been transposed into the legal order of the Member State concerned despite the expiry of the time-limit laid down for that purpose. The effectiveness of Directive 92/43 would be weakened if, in such a case, individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration.

(see paras 66, 70, operative part 5)

JUDGMENT OF THE COURT (Grand Chamber)
7 September 2004(1)

(Directive 92/43/EEC – Conservation of natural habitats and of wild flora and fauna – Concept of ‘plan’ or ‘project’ – Assessment of the implications of certain plans or projects for the protected site)

In Case C-127/02, REFERENCE for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 27 March 2002, registered at the Court on 8 April 2002, in the proceedings brought by Landelijke Vereniging tot Behoud van de Waddenzee,Nederlandse Vereniging tot Bescherming van Vogels

against

Staatssecretaris van Landbouw, Natuurbeheer en Visserij, intervener:Coöperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA,

THE COURT (Grand Chamber),,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann (Rapporteur), J.-P. Puissochet and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, S. von Bahr and R. Silva de Lapuerta, Judges, Advocate General: J. Kokott,
Registrar: M.-F. Contet, Principal Administrator, having regard to the written procedure and further to the hearing on 18 November 2003,after considering the observations submitted on behalf of:

–

Landelijke Vereniging tot Behoud van de Waddenzee, by C.A.M. Rombouts, advocaat,

–

Nederlandse Vereniging tot Bescherming van Vogels, by A.J. Durville, advocaat,

–

Coöperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA, by G. van der Wal, advocaat,

–

the Netherlands Government, by H.G. Sevenster and N.A.J. Bel, acting as Agents,

–

the Commission of the European Communities, by G. Valero Jordana, acting as Agent, and J. Stuyck, avocat,

after hearing the Opinion of the Advocate General at the sitting on 29 January 2004,

gives the following

Judgment

1

The reference for a preliminary ruling concerns the interpretation of Article 6 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’).

2

The reference was made in proceedings between the Landelijke Vereniging tot Behoud van de Waddenzee (National association for conservation of the Waddenzee, ‘the Waddenvereniging’) and the Nederlandse Vereniging tot Bescherming van Vogels (Netherlands association for the protection of birds, ‘the Vogelbeschermingsvereniging’) on the one hand and the Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Secretary of State for agriculture, nature conservation and fisheries, ‘the Secretary of State’) on the other in respect of licences which the latter issued to the Coöperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA (Cooperative producers’ association of Netherlands cockle fisheries, ‘the PO Kokkelvisserij’) for the mechanical fishing of cockles in the special protection area (SPA) of the Waddenzee, classified within the meaning of Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) (‘the Birds Directive’).

Legal framework

The Birds Directive

3

Article 4(1) and (2) of the Birds Directive requires Member States to classify as SPAs the territories satisfying the ornithological criteria established by those provisions.

4

Article 4(4) of the Birds Directive provides: ‘In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.’ The Habitats Directive

5

Article 6 of the Habitats Directive states : ‘1. For special areas of conservation, 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 special areas of conservation, 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...