People Over Wind and Peter Sweetman v Coillte Teoranta.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Toader
• ECLI: ECLI:EU:C:2018:244
• Date: 12 April 2018
• Docket Number: C-323/17
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Seventh Chamber)

12 April 2018 ( *1 )

(Reference for a preliminary ruling — Environment — Directive 92/43/EEC — Conservation of natural habitats — Special areas of conservation — Article 6(3) — Screening in order to determine whether or not it is necessary to carry out an assessment of the implications, for a special area of conservation, of a plan or project — Measures that may be taken into account for that purpose)

In Case C‑323/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 10 May 2017, received at the Court on 30 May 2017, in the proceedings

People Over Wind,

Peter Sweetman

v

Coillte Teoranta,

THE COURT (Seventh Chamber),

composed of A. Rosas, President of the Chamber, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– People Over Wind and Mr Sweetman, by O. Clarke, Solicitor, O. Collins, Barrister-at-Law, and J. Devlin, Senior Counsel,

– Coillte Teoranta, by J. Conway, Solicitor, S. Murray, Barrister-at-Law, and D. McGrath, Senior Counsel,

– the European Commission, by C. Hermes and E. Manhaeve, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns 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 (OJ 1992 L 206, p. 7; ‘the Habitats Directive’).

2 The request has been made in proceedings brought by People Over Wind, an environmental NGO, and by Peter Sweetman against Coillte Teoranta (‘Coillte’), a company owned by the Irish State that operates in the forestry sector, relating to the works necessary to lay the cable connecting a wind farm to the electricity grid.

Legal context

EU law

3 The 10th recital of the Habitats Directive states: ‘… an appropriate assessment must be made of any plan or programme likely to have a significant effect on the conservation objectives of a site which has been designated or is designated in future’.

4 Article 2 of the Habitats Directive provides: ‘1. The aim of this Directive shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. 2. Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest. 3. Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics.’

5 Article 3(1) of the Habitats Directive is worded as follows: ‘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. ...’

6 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 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.’

Irish law

7 The High Court (Ireland) explains that development consent is regulated by the Planning and Development Acts and regulations made thereunder. The competent authority is the local planning authority and an appeal lies to An Bord Pleanála (the Irish Planning Board).

8 Certain types of development are classified as ‘exempted development’ and, subject to certain exceptions, do not require consent under the Planning and Development Acts. Thus, an example of exempted development is ‘the 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’.

9 Nevertheless, ‘exempted development’ projects may be subject to other types of consent or a process of adoption. The European Communities (Birds and Natural Habitats) Regulations 2011 (‘the 2011 Regulations’) apply to projects other than developments requiring development consent within the meaning of the Planning and Development Acts. Furthermore, a development which comes within ‘exempted development’ must nevertheless be subject to consent under the Planning and Development Acts where appropriate assessment under Article 6(3) of the Habitats Directive is required.

10 Regulation 42 of the 2011 Regulations provides: ‘1. A screening for Appropriate Assessment of a plan or project for which an application for consent is received, or which a public authority wishes to undertake or adopt, and which is not directly connected with or necessary to the management of the site as a European Site, shall be carried out by the public authority to assess, in view of best scientific knowledge and in view of the conservation objectives of the site, if that plan or project, individually or in combination with other plans or projects is likely to have a significant effect on the European site. 2. A public authority shall carry out a screening for Appropriate Assessment under paragraph (1) before consent for a plan or project is given, or a decision to undertake or adopt a plan or project is taken. ... 6. 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. 7. The public authority shall determine that an Appropriate Assessment of a plan or project is not 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 can 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.’

The dispute in the main proceedings and the question referred for a preliminary ruling

11 The main proceedings relate to the assessment of the effects that the laying of the cable connecting a wind farm to the electricity grid potentially has on two special areas of conservation under the European ecological network Natura 2000, one of which is that of the River Barrow and River Nore (Ireland). That river constitutes a habitat for the Irish subspecies of the freshwater pearl mussel (margaritifera durrovensis; ‘the Nore pearl mussel’), which is included in Annex II to the Habitats Directive. The extant adult...