Brian Holohan and Others v An Bord Pleanála.

• Jurisdiction: European Union
• Celex Number: 62017CJ0461
• ECLI: ECLI:EU:C:2018:883
• Docket Number: C-461/17
• Date: 07 November 2018
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Second Chamber)

7 November 2018 ( *1 )

(Reference for a preliminary ruling — Environment — Directive 92/43/EEC — Conservation of natural habitats — Conservation of wild fauna and flora — Road construction project — Appropriate assessment of effects on the environment — Extent of the obligation to state reasons — Directive 2011/92/EU — Assessment of the implications of certain projects — Annex IV, Point 3 — Article 5(3)(d) — Meaning of the concept of ‘main alternatives’)

In Case C‑461/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 5 May 2017, received at the Court on 28 July 2017, in the proceedings

Brian Holohan,

Richard Guilfoyle,

Noric Guilfoyle,

Liam Donegan

v

An Bord Pleanála,

intervening parties:

National Parks and Wildlife Service (NPWS),

THE COURT (Second Chamber),

composed of A. Prechal, President of the Third Chamber, acting as President of the Second Chamber, C. Toader (Rapporteur), and A. Rosas, Judges,

Advocate General: J. Kokott,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 16 May 2018,

after considering the observations submitted on behalf of:

– B. Holohan, R. Guilfoyle, N. Guilfoyle and L. Donegan, by D. Browne and C. Hugues, both Barristers-at-law, and by P. O’Higgins and J. Devlin, both Senior Counsel, instructed by C. Herlihy, L. O’Sullivan and B. Harrington, Solicitors,

– An Bord Pleanála, by F. Valentine, Barrister-at-law, and N. Butler, Senior Counsel, instructed by M. Larkin and A. Doyle, solicitors,

– Ireland, by M. Browne, G. Hodge and A. Joyce, acting as Agents, and by G. Simons, Senior Counsel, and M. Gray, Barrister-at-law,

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

– the United Kingdom Government, initially by G. Brown, acting as Agent, and by C. Banner, Barrister, and subsequently by R. Fadoju and J. Kraehling, acting as Agents, and by T. Buley and C. Banner, Barristers,

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

after hearing the Opinion of the Advocate General at the sitting on 7 August 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation 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’) and of 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; ‘the EIA Directive’).

2 The request has been made in proceedings where the opposing parties are Mr Brian Holohan, Mr Richard Guilfoyle, Mr Noric Guilfoyle and Mr Liam Donegan, on the one hand, and An Bord Pleanála (Ireland) (the Planning Board; ‘the Board’), on the other, concerning the granting of development consent for a project to extend the northern ring-road of the city of Kilkenny (Ireland) (‘the development project’).

Legal context

European Union law

The Habitats Directive

3 The first and third recitals of the Habitats Directive state: ‘… the preservation, protection and improvement of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, are an essential objective of general interest pursued by the Community, as stated in Article [191 TFEU]; ... ... 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.’

4 Article 1 of that directive provides: ‘For the purposes of this directive: ... (e) conservation status of a natural habitat means the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species within the territory referred to in Article 2. The [conservation] status of a natural habitat will be taken as “favourable” when: – its natural range and areas it covers within that range are stable or increasing, and – the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and ... (k) site of Community importance 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 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; ...’

5 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.’

6 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. ...’

7 Article 6 of that directive provides: ‘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.’

8 In accordance with Article 7 of the Habitats Directive, obligations arising under Article 6(2) to (4) of that directive are to apply to special protection areas (‘SPAs’) within the meaning of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7; ‘the Birds Directive’).

The Birds Directive

9 The fourth subparagraph of Article 4(1) of the Birds Directive provides: ‘Member States shall classify in...