European Commission v Republic of Poland.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Tizzano
• ECLI: ECLI:EU:C:2017:877
• Docket Number: C-441/17
• Date: 20 November 2017
• Procedure Type: Demanda de medidas provisionales - fundada

ORDER OF THE COURT (Grand Chamber)

20 November 2017 ( *1 )

(Interim relief — Application for interim measures — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Directive 2009/147/EC — Conservation of wild birds)

In Case C‑441/17 R,

APPLICATION for interim measures under Article 279 TFEU and Article 160(2) of the Rules of Procedure of the Court of Justice lodged on 20 July 2017,

European Commission, represented by C. Hermes and H. Krämer and by K. Herrmann and E. Kružíková, acting as Agents,

applicant,

v

Republic of Poland, represented by J. Szyszko, Minister for the Environment, and by B. Majczyna and D. Krawczyk, acting as Agents,

defendant,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano (Rapporteur), Vice-President, R. Silva de Lapuerta, T. von Danwitz, J.L. da Cruz Vilaça, A. Rosas, C.G. Fernlund and C. Vajda, Presidents of Chambers, E. Juhász, A. Arabadjiev, C. Toader, D. Šváby, M. Berger, A. Prechal and E. Jarašiūnas, Judges,

after hearing the Advocate General, M. Wathelet,

makes the following

Order

1 By its application for interim measures, the European Commission asks the Court, pending the judgment of the Court in the main action, to order that the Republic of Poland cease, except where there is a threat to public safety, the active forest management operations in habitats 91D0 –– bog woodland –– and 91E0 –– alluvial forests with willow, poplar, alder and ash –– and in the centuries-old stands of habitat 9170 –– sub-continental oak-hornbeam forests –– as well as in the habitats of the white-backed woodpecker (Dendrocopos leucotos), the three-toed woodpecker (Picoides tridactylus), the pygmy owl (Glaucidium passerinum), the boreal owl (Aegolius funereus), the honey buzzard (Pernis apivorus), the red-breasted flycatcher (Ficedula parva), the collared flycatcher (Ficedula albicollis) and the stock dove (Colomba oenas) and in the habitats of certain saproxylic beetles, namely the flat bark beetle (Cucujus cinnaberinus), Boros schneideri, the false darkling beetle (Phryganophilus ruficollis), Pytho kolwensis, Rhysodes sulcatus and the goldstreifiger beetle (Buprestis splendens), and stop the removal of centuries-old dead spruces and the felling of trees as part of increased logging on the PLC200004 Puszcza Białowieska site (Poland) (‘the Natura 2000 Puszcza Białowieska site’), resulting from the implementation of the decision of the Minister for the Environment of the Republic of Poland of 25 March 2016 and Article 1(2) and (3) of Decision No 51 of the Director-General of Lasy Państwowe (Forestry Office, Poland) of 17 February 2017 (‘Decision No 51’).

2 That application has been made in an action for failure to fulfil obligations under Article 258 TFEU brought by the Commission on 20 July 2017 seeking a declaration that the Republic of Poland has failed to meet its obligations under: – 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), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (‘the Habitats Directive’), by approving on 25 March 2016 an amendment to a forest management plan for the Białowieża Forest District (Poland) and implementing the forest management operations prescribed in that amendment without satisfying itself that doing so would not adversely affect the integrity of the Natura 2000 Puszcza Białowieska site; – Article 6(1) of the Habitats Directive and under Article 4(1) and (2) 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), as amended by Directive 2013/17 (‘the Birds Directive’), by failing to take the necessary conservation measures corresponding to the ecological requirements of (i) the natural habitat types listed in Annex I and the species listed in Annex II to the Habitats Directive, and (ii) the birds listed in Annex I to the Birds Directive and the regularly occurring migratory species not listed in that annex, for which the Natura 2000 Puszcza Białowieska site was designated as a Site of Community Importance and a Special Protection Area for Birds; – Article 12(1)(a) and (d) of the Habitats Directive, by failing to guarantee the strict protection of certain saproxylic beetles, namely the flat bark beetle (Cucujus cinnaberinus), the goldstreifiger beetle (Buprestis splendens), the false darkling beetle (Phryganophilus ruficollis) and Pytho kolwensis, listed in Annex IV(a) to the Habitats Directive, that is, by failing effectively to prohibit the deliberate killing or disturbance of those beetles or the deterioration or destruction of their breeding sites in the Białowieża Forest District; and – Article 5(b) and (d) of the Birds Directive, by failing to guarantee the protection of the species of birds referred to in Article 1 of the Birds Directive, including, in particular, the white-backed woodpecker (Dendrocopos leucotos), the three-toed woodpecker (Picoides tridactylus), the pygmy owl (Glaucidium passerinum) and the boreal owl (Aegolius funereus), that is, by failing to ensure that they will not be killed or disturbed during their breeding and rearing periods and that their nests or eggs will not be deliberately destroyed, damaged or removed in the Białowieża Forest District.

3 The Commission also requested, pursuant to Article 160(7) of the Rules of Procedure of the Court of Justice, that the interim measures referred to in paragraph 1 of this order be granted before the defendant submitted its observations, owing to the risk of serious and irreparable damage for the habitats and the integrity of the Natura 2000 Puszcza Białowieska site.

4 By order of 27 July 2017, Commission v Poland (C‑441/17 R, not published, EU:C:2017:622), the Vice-President of the Court provisionally granted that request pending the adoption of an order terminating the proceedings for interim measures.

5 On 4 August 2017, the Republic of Poland submitted its written observations on the application for interim measures.

6 On 11 September 2017, the parties made oral observations at a hearing before the Vice-President of the Court.

7 Following that hearing, on 13 September 2017 the Commission supplemented its application for interim measures by requesting that the Court order additionally that the Republic of Poland pay a periodic penalty payment if it fails to comply with the orders made in the present proceedings.

8 On 19 September 2017, the Republic of Poland requested that the Commission be invited to submit the evidence on which its additional request was based.

9 On 21 September 2017 the Commission, having been invited to do so by the Court, sent the requested evidence.

10 In its observations submitted on 28 September 2017, the Republic of Poland contended that the Commission’s additional request was inadmissible and, in any event, was unfounded.

11 Further, in those observations, the Republic of Poland requested that the present case be attributed to the Grand Chamber of the Court, relying on the third paragraph of Article 16 of the Statute of the Court of Justice of the European Union.

12 Although the Court is not obliged to grant such a request when it is made at a very advanced stage of the proceedings, as has occurred in the present case (see, by analogy, judgment of 7 September 2006, Spain v Council, C‑310/04, EU:C:2006:521, paragraph 23), the Vice-President of the Court, applying Article 161(1) of the Rules of Procedure, nevertheless referred the matter to the Court, which, in the light of its importance, assigned it to the Grand Chamber, in accordance with Article 60(1) of those rules.

13 On 17 October 2017, the parties presented oral observations before the Grand Chamber.

Legal context

The Habitats Directive

14 In accordance with Article 2(1) of the Habitats Directive, the aim of the directive is 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 FEU Treaty applies.

15 The third subparagraph of Article 4(2) of that directive states: ‘The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.’

16 Article 6(1), (3) and (4) 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. … 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...