Umweltforum Osnabrucker Land (Environment - Assessment of the effects of certain plans and programmes on the environment - Judgment) [2024] EUECJ C-461/23 (17 October 2024)

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( Reference for a preliminary ruling - Environment - Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Article 3(2)(b) - Directive 92/43/EEC - Article 6(3) - Acts for which an assessment is required - National legislative act designating a site as a special area of conservation - List of human activities prohibited on that site, with certain exceptions )

REQUEST for a preliminary ruling under Article 267 TFEU from the Niedersächsisches Oberverwaltungsgericht (Higher Administrative Court, Land of Lower Saxony, Germany), made by decision of 4 July 2023, received at the Court on 24 July 2023, in the proceedings

composed of F. Biltgen, President of the First Chamber, acting as President of the Seventh Chamber, M.L. Arastey Sahún, President of the Fifth Chamber, and J. Passer (Rapporteur), Judge,

- the German Government, by J. Möller and A. Hoesch, acting as Agents, and by K. Dingemann, F. Fellenberg, K. Reiter and D. Römling, Rechtsanwälte,

- Ireland, by M. Browne, Chief State Solicitor, A. Joyce and M. Tierney, acting as Agents, and by B. Kennedy, Senior Counsel, and A. Caroll, Barrister-at-Law,

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

1 This request for a preliminary ruling concerns the interpretation of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).

2 The request has been made in proceedings between Umweltforum Osnabrücker Land eV and the Landkreis Osnabrück (District of Osnabrück, Germany) concerning the lawfulness of a decree adopted by the latter designating a landscape protection area as an integral part of a Natura 2000 site.

‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’

(a) “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:

- which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and

‘1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.

2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,

(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [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)], or

(b) which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 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)].

3. Plans and programmes referred to in paragraph 2 which determine the use of small areas at local level and minor modifications to plans and programmes referred to in paragraph 2 shall require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects.

4. Member States shall determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework for future development consent of projects, are likely to have significant environmental effects.

5. Member States shall determine whether plans or programmes referred to in paragraphs 3 and 4 are likely to have significant environmental effects either through case-by-case examination or by specifying types of plans and programmes or by combining both approaches. For this purpose Member States shall in all cases take into account relevant criteria set out in Annex II, in order to ensure that plans and programmes with likely significant effects on the environment are covered by this Directive.

6 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), which entered into force on 17 February 2012, repealed and replaced Directive 85/337. According to the second paragraph of Article 14 of Directive 2011/92, ‘references to [Directive 85/337] shall be construed as references to [Directive 2011/92]’.

‘Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.’

‘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.

‘Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of [Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1),] in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive [79/409] where the latter date is later.’

10 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), which entered into force on 15 February 2010, repealed and replaced Directive 79/409. According to the second paragraph of Article 18 of Directive 2009/147, ‘references to [Directive 79/409] shall be construed as references to [Directive 2009/147]’.

11 Paragraph 35 of the Gesetz über die Umweltverträglichkeitsprüfung (Law on environmental impact assessments) of 12 February 1990 (BGBl. 1990 I, p. 205), in the version applicable to the dispute in the main proceedings (‘the UVPG’), provides:

‘(1) A strategic environmental assessment shall be carried out in respect of the plans and programmes

2. listed in Annex 5.2, in so far as they set a framework for decisions on the permissibility of projects listed in Annex 1 or projects for which an environmental impact assessment or a preliminary assessment of the individual case is required under the laws of the German Länder.

(2) For plans and programmes not covered by subparagraph 1, a strategic environmental assessment shall be carried out only if they set a framework for decisions on the permissibility of projects listed in Annex 1 or other projects and, according to a preliminary case-by-case examination carried out in accordance with subparagraph 4, are likely to have significant environmental effects. …

‘A strategic environmental assessment shall be carried out in respect of any plans and programmes which are subject to an impact assessment pursuant to Paragraph 36, first sentence, point 2 of the [Gesetz über Naturschutz und Landschaftspflege (Bundesnaturschutzgesetz) (Law on nature conservation and landscape management (Federal Law on nature conservation)) of 29 July 2009 (BGBl. 2009 I, p. 2542), in the version applicable to the dispute in the main proceedings (“the BNatSchG”)].’

‘Where plans or programmes referred to in Paragraph 35(1) or Paragraph 36 are subject to only minor modifications or determine the use of small areas at local level, a strategic environmental assessment shall be carried out only if a preliminary case-by-case examination carried out in accordance with Paragraph 35(4) indicates that the plan or programme is likely to have significant effects on the environment. …’

‘(1) Parts of nature and the landscape are placed under protection by means of a declaration of classification. …

2. are incompatible with the requirements of [Directive 2001/42] in that the strategic environmental assessment required by that directive has not been carried out,

shall continue to apply if the failure to comply with those requirements is the result of a decision of the Court of Justice of the European Union, in so far as and for as long as that decision authorises its application. The measures necessary to remedy the failure to comply with [Directive 2001/42] must be taken as soon as possible in the context of a supplementary procedure. …

‘Landscape protection areas are areas the designation of which as such is legally binding and in which special protection for nature and the landscape is required

1. to assist the conservation, development or restoration of the productive and functional capacity of the ecosystem or of the regenerative capacity and sustainable use of natural assets, including the protection of biotopes and habitats of certain species of wild fauna and flora,

(2) The sites included in the list referred to in the third subparagraph of Article 4(2) of [Directive 92/43] shall, in accordance with Article 4(4) of that directive … and depending on the respective conservation objectives, be classified as protected parts of nature and the landscape within the meaning of Paragraph 20(2).

(3) The declaration of protection shall define the protection objective in accordance with the relevant conservation objectives and the boundaries of the site. It shall specify whether priority natural habitat types or priority species should be protected. Compliance with the requirements of Article 6 of [Directive 92/43] shall be ensured by means of obligations and prohibitions and appropriate management and development measures. …

Any alteration or disturbance likely to have a significant adverse effect on the essential features of a Natura 2000 site which are relevant to its conservation or protection objectives shall be prohibited. …’

‘(1) Before they are approved or implemented, projects must be assessed to determine their implications for the conservation objectives of a Natura 2000 site if they are likely, either individually or in combination with other projects or plans, to have a significant effect on the site and are not used directly for the management of the site. Where a Natura 2000 site is a protected part of nature and the landscape within the meaning of Paragraph 20(2), the impact assessment criteria shall depend on the protection objective and the provisions adopted for that purpose, provided that the various conservation objectives have already been taken into account. …

(6) Where, pursuant to other provisions, a project within the meaning of the first sentence of subparagraph 1, which is not implemented by an authority, does not require an administrative decision or notification to an authority, it shall be notified to the competent authority in matters of nature conservation and landscape management. …

(7) With regard to protected parts of nature and the landscape within the meaning of Paragraph 20(2) …, subparagraphs 1 to 6 shall apply only in so far as the protective provisions, including the provisions on exceptions and exemptions, do not make the permissibility of projects subject to stricter rules. …

2. to plans which the authorities are required to comply with or take into account in their decisions.

21 Paragraph 19 of the Niedersächsisches Naturschutzgesetz (Law of the Land of Lower Saxony on nature conservation) of 19 February 2010, in the version applicable to the dispute in the main proceedings, provides:

‘The competent authority in mattes of nature conservation may designate areas as landscape protection areas by means of a regulation pursuant to Paragraph 26(1) of the Law on nature conservation.’

22 Paragraph 1 of the Verordnung über das Landschaftsschutzgebiet ‘Bäche im Artland’ in den Städten Quakenbrück, Fürstenau und Bersenbrück sowie den Gemeinden Menslage, Nortrup, Badbergen, Berge, Bippen, Eggermühlen, Kettenkamp, Ankum und Merzen, Landkreis Osnabrück (Decree on the landscape protection area ‘Brooks in the Artland’ in the towns of Quakenbrück, Fürstenau and Bersenbrück, the municipalities of Menslage, Nortrup, Badbergen, Berge, Bippen, Eggermühlen, Kettenkamp, Ankum and Merzen and the district of Osnabrück, of 30 September 2019 (‘the decree at issue’), entitled ‘Landscape protection area’, provides:

‘(1) The site identified in further detail in subparagraphs 2 and 3 shall be designated as a landscape protection area, under the name “Brooks in the Artland”.

(4) The landscape protection area is an integral part of the [Natura 2000] site “Brooks in the Artland” …, designated under [Directive 92/43]. The purpose of the classification is, in accordance with Paragraph 32(2) of the Law on nature conservation, to preserve the site as a [Natura 2000] site and to ensure the coherence of the “Natura 2000” European ecological network.

23 Paragraph 2 of the decree at issue, entitled ‘Characteristics of the area’, is worded as follows:

The landscape protection area “Brooks in the Artland” is located in the geographical region “Ems-Hunte Geest and Dümmer Geest Lowland”. Brooks are considered to be running waters with submerged aquatic vegetation that are representative of the natural area and, in particular, an important habitat for species of fish and agnatha listed in Annex II to Directive 92/43. Alluvial ash-alder woods along the brooks and adjacent birch swamp woods are priority natural habitats within the meaning of Directive 92/43. The presence of other non-priority natural habitats, such as hygrophile tall-herb communities, small transition mires and quaking bogs, mixed acidophilous beech and oak forests, and crested newt (Triturus cristatus) and stag beetle (Lucanus cervus), the species listed in Annex II, add to the value of the area.

24 Paragraph 3 of the decree at issue, entitled ‘Specific protection objective’, provides in subparagraph 4:

‘In addition to Paragraph 3(1) and (2) of this decree, the [Natura 2000] site in the landscape protection area has the specific protection objective (conservation objectives within the meaning of Paragraph 7(1)(9) of the Law on nature conservation) of maintaining or restoring to a favourable conservation status, within the meaning of Paragraph 7(1)(10) of the Law on nature conservation, the natural habitats of Community interest listed in Annex I and the animal species referred to in Annex II to Directive 92/43 that are present on the site, which are relevant to the conservation objective, and, in particular,

‘Pursuant to Paragraph 26(2) of the Law on nature conservation, any act that alters the characteristics of the area defined in Paragraph 2 of this decree or that is contrary to the general objective or specific conservation objective described in Paragraph 3 of this decree shall be prohibited. Pursuant to Paragraph 33(1) of the Law on nature conservation, any act that is likely to have a significant adverse effect on the essential features of the Natura 2000 site which are relevant to its conservation or protection objectives shall be prohibited.

‘(1) The acts or uses referred to in subparagraphs 2 to 7 shall not be subject to the prohibitions set out in Paragraph 4.

(3) Responsible water maintenance in accordance with the principles of the [Wasserhaushaltsgesetz (Law on water management and protection), the Niedersächsisches Wassergesetz (Law of the Land of Lower Saxony on water)] and the Law on nature conservation and the following requirements arising from the protection objective shall not be prohibited:

1. in so far as the person responsible for maintenance submits a maintenance plan for all maintenance measures planned during the maintenance year and within the scope of this decree to the responsible district authority by 31 January of each year for class II waters, the requirements under Paragraph 5(3)(2)(b) to (c), (e) and (h) of this decree shall cease to apply if the competent district approves that plan.

2. If no maintenance plan has been submitted in accordance with Paragraph 5(3)(1) of this decree, the maintenance of the class II waters referred to in Paragraph 2 and their surroundings shall be carried out in accordance with the following rules:

(b) the reduction of vegetation through partial streamline mowing is permitted at any time of the year. If the width of the riverbed does not allow partial streamline mowing to be carried out, mowing shall be carried out on one side or in islands; any deviation from those rules shall require the prior consent of the competent authority in matters of nature conservation;

(4) Responsible use for fishing is permitted in accordance with the [Niedersächsisches Fischereigesetz (Law of the Land of Lower Saxony on fishing) and the Binnenfischereiordnung (Regulation on fishing in fresh water)], preserving as far as possible the natural conditions and biocenoses of the site, in particular the aquatic and floating leaf vegetation and the riparian vegetation, as well as the following requirements derived from the protection objective:

1. the restocking of fish populations shall only be permitted [for species belonging to the] natural range of the running water species referred to in Paragraph 2, provided that the species concerned are not subject to authorisation under the freshwater fishing rules in force at the time of the restocking and that it is ensured that priority species or species typical of the habitat referred to in Paragraph 3 are not affected or displaced.

(5) Responsible use of the land for agriculture, in accordance with the good agricultural practice referred to in Paragraph 5(2), and the following requirements arising from the protection objective, shall be permitted:

(6) Responsible forestry carried out in accordance with Paragraph 11 of the [Niedersächsischen Gesetz über den Wald und die Landschaftsordnung (Law of the Land of Lower Saxony on forests and landscape planning)] and Paragraph 5(3) of the Law on nature conservation and the following requirements arising from the objective of protection shall not be prohibited:

(7) The creation of new forest areas through afforestation is only permitted with the consent of the competent authority in matters of nature conservation.

(8) In the cases referred to in subparagraphs 2, 3, 5 and 6, the competent authority in matters of nature conservation shall give the necessary consent … provided that and to the extent that there is no reason to expect any impact or lasting disturbance of the landscape protection area or the features of that area which are essential for the conservation and protection objectives of this decree. …

(9) Where notification is required under subparagraphs 2, 4, 6 and 7, the competent authority in matters of nature conservation may order the necessary measures to ensure compliance with the protection objective of this decree. … The competent authority in matters of nature conservation may, on a case-by-case basis, prohibit the implementation of the acts or measures notified where they would affect the protection objective of this decree.

27 Paragraph 7 of the decree at issue, entitled ‘Authority to issue orders’, provides in subparagraph 1:

‘… the competent authority in matters of nature conservation may order the restoration of the status quo ante if the prohibitions referred to in Paragraph 4 or the duties to authorise or notify referred to in Paragraph 5 of this decree have been infringed and if nature or the landscape have been unlawfully destroyed, damaged or altered.’

28 Paragraph 9 of the decree at issue, entitled ‘Implementation of conservation and restoration measures’, provides in subparagraph 1:

‘The provisions contained in Paragraphs 4 and 5 of this decree correspond, in general terms, to measures for maintaining the favourable conservation status of the habitat types listed in Annex I and the animal species listed in Annex II to [Directive 92/43] present in the [landscape protection area].’

29 Paragraph 10 of the decree at issue, entitled ‘Administrative offences’, provides in subparagraph 1:

‘Any person who, in the absence of an exemption under Paragraph 5 or a derogation under Paragraph 6, intentionally or negligently contravenes the prohibitions set out in Paragraph 4 of this decree shall be in breach of the provisions of this decree.’

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

30 On 30 September 2019, the district of Osnabrück adopted the decree at issue, designating the landscape protection area ‘Brooks in the Artland’ as an integral part of the eponymous Natura 2000 site (‘the site concerned’).

31 During the process of adopting that decree, the district of Osnabrück had ensured public participation, including that of the applicant in the main proceedings, by allowing that public to consult the draft decree and the various maps relating thereto and a statement of reasons. By contrast, the district of Osnabrück had not carried out an environmental assessment, under Directive 2001/42, or a preliminary examination of the need for such an assessment, before adopting the decree at issue.

32 On 13 October 2020, the applicant in the main proceedings submitted an application for judicial review of the decree at issue, alleging infringement of provisions relating to the environment, in particular provisions intended to transpose EU law.

33 Hearing that request, the Niedersächsisches Oberverwaltungsgericht (Higher Administrative Court, Land of Lower Saxony, Germany), which is the referring court in the present case, considers that, in the light of the judgment of 22 February 2022, Bund Naturschutz in Bayern (C-300/20, EU:C:2022:102, paragraphs 60 to 69), there was no obligation under Paragraph 35 of the UVPG, which is based on Article 3(2)(a) of Directive 2001/42, to carry out an environmental assessment prior to the adoption of the decree at issue.

34 According to that court, however, it is possible that, prior to that adoption, it would have been necessary to carry out an environmental assessment, under the combined provisions of Paragraph 36 of the UVPG and point 2 of the first sentence of Paragraph 36 and the first sentence of Paragraph 34(1) of the Law on nature conservation, which are based on the combined provisions of Article 3(2)(b) of Directive 2001/42 and Article 6(3) of Directive 92/43.

35 In that regard, the referring court asks, in the first place, in the light, in particular, of the judgment of 12 June 2019, CFE (C-43/18, EU:C:2019:483, paragraphs 49 and 50), whether a legislative act such as the decree at issue, by which a Member State designates a site as a special area of conservation in accordance with Directive 92/43, must be regarded, in any event, as being directly connected with or necessary to the management of the site, irrespective of its regulatory content.

36 Since, in its view, several factors militate against such an interpretation, the referring court then seeks to ascertain, in the second place, whether and under what conditions rules such as the exceptions set out in Paragraph 5(3) to (6) of the decree at issue must be regarded as being directly connected with or necessary to the management of the site concerned.

37 In the third place, assuming that those exceptions should be understood not as consisting merely in specifying the scope of the prohibitions laid down in Paragraph 4 of the decree at issue, but as autonomous rules not directly connected with or necessary to the management of the site concerned, the referring court raises the question of how the obligation to carry out an environmental assessment under Directive 2001/42 is affected by: (i) the fact that the activities covered by those exceptions will no longer be subject, prior to their implementation, to an impact assessment of individual cases pursuant to Article 6(3) of Directive 92/43 and, even if they were subject to such an assessment, it would be carried out in the light of the specific criteria and procedures established by those exceptions, (ii) the fact that the activities permitted under those exceptions have already been implemented on the site concerned for a long time, and (iii) the fact that the decree at issue should be regarded, as the case may be, as a plan which determines the use of small areas at local level within the meaning of Article 3(3) of Directive 2001/42.

38 Finally, in the fourth place, the referring court raises the question of what procedures, if any, exist for carrying out an environmental impact assessment.

39 In those circumstances, the Niedersächsisches Oberverwaltungsgericht (Higher Administrative Court, Land of Lower Saxony, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 3(2)(b) of Directive 2001/42 … in conjunction with Article 6(3) of Directive 92/43 … to be interpreted as meaning that all the provisions in a legislative act by which a Member State designates a site as a special area of conservation under [Directive 92/43] are to be regarded, whatever their regulatory content, as directly connected with or necessary to the management of the site, with the result that the legislative act, as a plan, is not subject to an environmental assessment under Article 3(2)(b) of [Directive 2001/42] in conjunction with Article 6(3) of [Directive 92/43], or is it possible that, depending on the content of the individual provisions, a differentiated approach may be appropriate, so that individual provisions of such an act, as a plan or part of a plan, would have to be regarded as directly connected with or necessary to the management of the site and other provisions of that act, as a plan or part of a plan, would not?

(2) If Question 1 is answered as having the second meaning: Is Article 3(2)(b) of [Directive 2001/42] in conjunction with Article 6(3) of [Directive 92/43] to be interpreted as meaning that an individual provision contained in a legislative act of a Member State designating a site as a special area of conservation within the meaning of [Directive 92/43], setting conservation objectives and laying down requirements and prohibitions is to be regarded as a plan or part of a plan not directly connected with or necessary to the management of the site if that provision, by establishing specific criteria and procedures, excludes activities in the site from the scope of the requirements and prohibitions laid down, and those activities do not directly serve to fulfil the conservation objectives, but are to be regarded as management or maintenance measures serving other purposes and qualifying as a project within the meaning of Article 6(3) of [Directive 92/43]?

(3) If Question 2 is answered in the affirmative: Is Article 3(2)(b) of [Directive 2001/42] in conjunction with Article 6(3) of [Directive 92/43] to be interpreted as meaning that, based on a provision contained in a legislative act designating a site as a special area of conservation within the meaning of [Directive 92/43], such as that described in Question 2, which establishes in a sufficiently specific manner the criteria and procedures for carrying out the activities covered by it and qualifying as a project within the meaning of Article 6(3) of [Directive 92/43], the occurrence of a significant effect on the site cannot be regarded as excluded if national law does not provide for any authorisation requirement for those activities and by reason of that provision in the legislative act the competent authority also dispenses with prior notification and carrying out a project-related impact assessment pursuant to Article 6(3) of [Directive 92/43] for those activities in individual cases, or else carries out a project-related impact assessment in individual cases and, in the process, assesses the project’s impact against the yardstick of whether the criteria and procedures contained in the provision, such as that described in Question 2, are fulfilled?

(4) If Question 2 is answered in the affirmative: Is Article 3(2)(b) of [Directive 2001/42] in conjunction with Article 6(3) of [Directive 92/43] to be interpreted as meaning that, based on a provision contained in a legislative act designating a site as a special area of conservation within the meaning of [Directive 92/43], such as that described in Question 2, there is no reason to fear the occurrence of a significant effect on the site if the activities covered by such a provision have, as a general rule, already been carried out for a long time and, in any event, based on the criteria and procedures for carrying them out established by the provision, no intensification or expansion of those activities in the site is made possible?

(5) If, on the basis of the answers to the preceding questions, an obligation to carry out an environmental assessment pursuant to Article 3(2)(b) of [Directive 2001/42] in conjunction with Article 6(3) of [Directive 92/43] is to be assumed to exist by reason of the content of individual provisions of a legislative act designating a site as a special area of conservation within the meaning of [Directive 92/43]: Is Article 3(3) of [Directive 2001/42] to be interpreted as meaning that, if designating the site is to be regarded as determining the use of small sites at local level, on the basis of the pre-existing classification of the site as a site of Community importance within the meaning of the third subparagraph of Article 4(2) of [Directive 92/43], an authority of a Member State must, as a general rule, presume that the designation of an area of conservation is likely to have significant effects on the environment?

(6) If, on the basis of the answers to the preceding questions, an obligation to carry out an environmental assessment is to be assumed to exist by reason of the content of individual provisions of a legislative act designating a site as a special area of conservation within the meaning of [Directive 92/43]: Is Article 3(2)(b) of [Directive 2001/42] in conjunction with Article 6(3) of [Directive 92/43] to be interpreted as meaning that only those individual provisions are to be made the subject of the environmental assessment or should such an environmental assessment relate to the entire content of the legislative act?

(7) If, on the basis of the answers to the preceding questions, an obligation to carry out an environmental assessment is to be assumed to exist by reason of the content of individual provisions of a legislative act designating a site as a special area of conservation within the meaning of [Directive 92/43]: Is Article 4(1) of [Directive 2001/42], which provides that the environmental assessment referred to in Article 3 of the directive is to be carried out during the preparation of a plan or programme and before its adoption, to be interpreted as meaning that failure to carry out an environmental assessment of a plan or components of a plan cannot be subsequently remedied by means of a supplementary procedure after the plan or components of the plan have been adopted, thereby rectifying ex post the procedural error of failure to carry out an environmental assessment?’

40 By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(2)(b) of Directive 2001/42, read in conjunction with Article 6(3) of Directive 92/43, must be interpreted as meaning that a legislative act by which the Member State concerned designates a site as a special area of conservation, under Directive 92/43, and which lists the human activities that are prohibited on that site, subject to the exceptions which that legislative act also lays down, is covered by the concept of ‘plans and programmes’, within the meaning of Directive 2001/42, in respect of which an environmental assessment is required.

41 Under Article 3(2)(b) of Directive 2001/42, the obligation to subject a specific plan or programme to an environmental assessment under that directive depends on whether Articles 6 and 7 of Directive 92/43 require an assessment.

42 In accordance with Article 6(3) of Directive 92/43, an appropriate assessment is required for any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect on that site, either individually or in combination with other plans or projects.

43 The Court has already held that a legislative act by which a Member State designates a site as a special area of conservation pursuant to Directive 92/43 is, by its nature, directly connected with or necessary to the management of the site. Article 4(4) of Directive 92/43 requires such designations to be made for the purposes of implementing that directive (judgment of 12 June 2019, CFE, C-43/18, EU:C:2019:483, paragraph 49).

44 It is true that that assessment cannot be extended to all the provisions of such a legislative act automatically, without verifying their content. In particular, it cannot be ruled out a priori that that act may also contain provisions which are unrelated to the fulfilment by the Member State concerned of the obligation laid down in Article 4(4) of Directive 92/43 and which are not directly connected with or necessary to the management of the site in question in any other way.

45 However, subject to the verifications which it is for the referring court to make, the decree at issue does not appear to contain such provisions.

46 In that regard, under Article 4(4) of Directive 92/43, once a site of Community importance has been adopted, the Member State concerned is to designate it as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type or species and for the coherence of Natura 2000. That Member State is also required, in accordance with the same provision of Directive 92/43, as interpreted by the Court, to define, within the same time limits and prior to the setting of those priorities, the conservation objectives, which must be specific, as well as to fix, in accordance with Article 6(1) of that directive, the conservation measures (see, to that effect, judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation), C-444/21, EU:C:2023:524, paragraphs 45, 53, 65 and 66).

47 In accordance with Article 6(1) of Directive 92/43, conservation measures involve, where relevant, ‘appropriate statutory, administrative or contractual measures’.

48 Accordingly, the conservation measures which the Member State concerned must establish under Article 6(1) may consist, inter alia, in establishing a legal regime designed to limit human activities on the territory of the site in question in relation to what was authorised until then on that site, taking account of the conservation objectives set.

49 Provisions of a legislative act designating a site as a special area of conservation, by which the Member State concerned seeks to establish such a legal regime, must therefore be regarded as being ‘directly connected with or necessary to the management of the site’ in question.

50 In the absence of any clarification in that regard in Directive 92/43, the Member States remain, moreover, free to determine, in their legal systems, the type of rules which they deem to be most appropriate for the establishment of such a legal regime.

51 In the present case, the legal regime established by the decree at issue consists of a series of provisions, including Paragraph 4 of that decree, which lays down prohibitions, and Paragraph 5 thereof, which lists the ‘acts and uses’ not covered by those prohibitions.

52 In that regard, the referring court states, inter alia, that it considers that the purpose of the exceptions provided for in Paragraph 5 of the decree at issue is to authorise, in a certain context, the continuation of operational activities already started on the site concerned and still ongoing, in particular activities for commercial purposes, such as fishing, agriculture and forestry, and certain measures for water maintenance, with the aim of avoiding a disproportionate interference with the rights of the owners and beneficiaries affected by the protection afforded to the site concerned.

53 The fact remains that, subject to the verifications which it is for that court to make, Paragraph 5 of the decree at issue is among the provisions intended, as a whole, to establish the legal regime considered necessary for the protection, inter alia, of the designated special area of conservation, namely, in the present case, the site concerned.

54 That appears to be reaffirmed by Paragraph 9 of the decree at issue, subparagraph 1 of which provides that the provisions contained in Paragraphs 4 and 5 of that decree ‘correspond, in general terms, to measures for maintaining the favourable conservation status of the habitat types listed in Annex I and the animal species listed in Annex II to [Directive 92/43] present [on the site concerned]’, and by the wording of Paragraph 7(1) and Paragraph 10(1) of that decree.

55 It follows that, again subject to the verifications which are for the referring court to make, the decree at issue must be regarded as being directly connected with or necessary, as a whole, to the management of the site concerned.

56 In the light of all those reasons, the answer to the first and second questions is that Article 3(2)(b) of Directive 2001/42, read in conjunction with Article 6(3) of Directive 92/43, must be interpreted as meaning that a legislative act by which the Member State concerned designates a site as a special area of conservation, under Directive 92/43, and which lists the human activities which are prohibited on that site, subject to the exceptions which that legislative act also lays down, is not covered by the concept of ‘plans and programmes’, within the meaning of Directive 2001/42, in respect of which an environmental assessment is required.

57 In the light of the answer given to the first and second questions, there is no need to answer the third, fourth, fifth, sixth or seventh question.

58 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 3(2)(b) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, read in conjunction with 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,

must be interpreted as meaning that a legislative act by which the Member State concerned designates a site as a special area of conservation, under Directive 92/43, and which lists the human activities which are prohibited on that site, subject to the exceptions which that legislative act also lays down, is not covered by the concept of ‘plans and programmes’, within the meaning of Directive 2001/42, in respect of which an environmental assessment is required.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Umweltforum Osnabrucker Land (Environment - Assessment of the effects of certain plans and programmes on the environment - Judgment) [2024] EUECJ C-461/23 (17 October 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C46123.html Cite as: ECLI:EU:C:2024:902, [2024] EUECJ C-461/23, EU:C:2024:902

Court of Justice of the European Communities (including Court of First Instance Decisions)