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CURIA
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CJEU - Judgment of the Court (Fourth Chamber) of 4 October 2007
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Burden of Proof, Environmental Impact Assessments, Protected Areas, Permits, Biodiversity, Contract, Administrative, Evidence
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Failure of a Member State to fulfil obligations
Directive 92/43/EEC
Conservation of natural habitats and of wild fauna and flora
Environmental impact assessment
Abstract
Case C-179/06 Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Environmental impact assessment) Judgment of the Court (Fourth Chamber), 4 October 2007 Summary of the Judgment 1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 (Council Directive 92/43, Art. 6(3)) 2. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission (Art. 226 EC) 1. Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora provides that the obligation to carry out an appropriate assessment of the impact of a plan or project on a protected site is conditional on the plan or project in question being likely to have a significant effect on that site. For that protection mechanism to come into operation, it is necessary for there to be a probability or a risk that a plan or project will have significant effects on the site concerned. The significant nature of the effect on a site of a plan or project must be linked to the site’s conservation objectives. Consequently, where a plan or project has an effect on that site but is not likely to undermine its conservation objectives, that plan or project cannot be considered likely to have a significant effect on the site. That risk must be assessed in the light, inter alia, of the characteristics and specific environmental conditions of the site concerned by that plan or project. (see paras 33-35) 2. In an action against a Member State for failure to fulfil obligations, it is for the Commission to establish the existence of the failure alleged. It is the Commission which must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose. Moreover, the burden of proof borne by the Commission in such an action must be determined according to the types of obligations which directives impose on the Member States and therefore in the results which must be achieved by them. Thus, in an action for failure to fulfil obligations which relates to the obligations laid down in Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, the Commission cannot simply allege the mere existence of framework agreements for industrial construction projects within a special protection area, but must also provide sufficiently specific evidence to show that they are more than at the stage of preliminary administrative reflection and carry a degree of precision in the planning in question which calls for an environmental assessment of their effects. The Commission must also prove that, in the light of the characteristics and the specific environmental conditions of the site affected by a plan or project, that plan or project is likely to have a significant effect on that site, in the light of the conservation objectives fixed for the site. (see paras 37-39, 41) JUDGMENT OF THE COURT (Fourth Chamber) 4 October 2007 (*) (Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Environmental impact assessment) In Case C-179/06, ACTION under Article 226 EC for failure to fulfil obligations, brought on 5 April 2006, Commission of the European Communities, represented by D. Recchia, acting as Agent, with an address for service in Luxembourg, applicant, v Italian Republic, represented by I. M. Braguglia, acting as Agent, assisted by G. Fiengo, avvocato dello Stato, with an address for service in Luxembourg, defendant, THE COURT (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, E. Juhász, R. Silva de Lapuerta (Rapporteur), G. Arestis and J. Malenovský, Judges, Advocate General: J. Kokott, Registrar: M. Ferreira, Principal Administrator, having regard to the written procedure and further to the hearing on 21 June 2007, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following Judgment 1 By its application, the Commission of the European Communities seeks a declaration from the Court that, as a result of approval by the municipality of Altamura and the region of Apulia, with effect from December 2000, of an alteration to an urban development plan comprising a series of industrial construction projects likely to have a significant effect on the Special Protection Area (‘SPA’) and proposed site of Community importance (‘SCIp’) IT 9120007 Murgia Alta without having first carried out an impact assessment at least in respect of the SPA, the Italian Republic has failed to fulfil its obligations under the combined provisions of Articles 6(3) and 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) (‘the Directive’). Community legal context 2 The aim of Directive 92/43 is to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States where the EC Treaty applies. 3 Article 4 of the Directive lays down the procedure for establishing a network, known as ‘Natura 2000’, provided for in Article 3 thereof, and for the designation of special areas of conservation. 4 Article 6 of the Directive, which lays down the conservation measures for those areas, provides: ‘... 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. …’. 5 Article 7 of Directive 92/43 provides that obligations arising under Article 6(2) to (4) thereof are to replace any obligations arising under the first sentence of Article 4(4) of 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 Directive 92/43 or the date of classification or recognition by a Member State under Directive 79/409, where the latter date is later. The Murgia Alta area 6 In 1998, the Murgia Alta site was classified as an SPA pursuant to Article 4(1) of Directive 79/409 (code IT 9120007). It is part of the Mediterranean biogeographical region and has a surface area of 143 152 ha. 7 That SPA is home to numerous bird species listed in Annex I to Directive 79/409, including the largest population of the lesser kestrel (Falco naumanni) species in Italy. 8 Two priority habitats referred to in Annex I to Directive 92/43 are in that SPA, namely habitat 6210, ‘Semi-natural dry grasslands and scrubland facies: on calcareous substrates (Festuco-Brometalia)’, and habitat 6220, ‘Pseudosteppe with grasses and annuals Thero-Brachypodietea’, and also a priority plant referred to in Annex II to Directive 92/43: Stipa austroitalica Martinovsky. 9 The Murgia Alta site is described as follows in the data form established pursuant to Commission Decision 97/266/EC of 18 December 1996 concerning a site information format for proposed Natura 2000 sites (OJ 1997 L 107, p. 1): ‘General site character Habitat classes % cover Heath, scrub, maquis and garrigue, phrygana 20.00 Dry grassland, steppes 65.00 Evergreen woodland 15.00 Total habitat cover 100 Other site characteristics Evocative landscape made up of slightly rolling terrain and depressions in the shape of dolines, with superficial karstic phenomena represented by karstic basins and sink-holes. The substratum is formed by cretaceous limestone, generally covered by Pleistocene limestone. The bioclimate is sub-Mediterranean. Quality and importance Sub-region strongly characterised by the vast dry, limestone plateau which culminates at 679 m at Monte Caccia. It appears mainly to be a high, rocky calcareous plateau. It is one of the largest sub-steppe areas in Italy, with herbaceous vegetation due to the Festuco brometalia. The area’s flora is particularly rich, totalling some 1 500 species. Over 90 species of nesting aviary fauna have been recorded, which places this area in second position in the region, after Gargano. The residual woodland formations are characterised by the prevalence of Quercus pubescens, often accompanied by Fraxinus ornus. Rare Quercus cerris and Q. frainetto have also been observed. Vulnerability The principal factor of destruction is the removal of the calcareous substratum, which is then reduced to powder by mechanical means. In this manner, vast stretches comprising sub-steppe vegetation are destroyed by the cultivation of new areas. The operation also often involves drystone walls and other forms of delimitation, which carry serious dangers of hydrogeological catastrophe. Recurring fires, related to prevalent grain farming; the construction of secondary residences in the most attractive tourist areas. Improper use of the karstic cavities as dumps for urban solid waste and solid waste.’ Facts 10 On 27 December 2000, the municipality of Altamura, by a series of decisions taken by its municipal council, approved framework agreements for the purposes of Article 27 of Law No 142 of 8 June 1990 on arrangements for local autonomy (Ordinamento delle autonomie locali, ordinary supplement to GURI No 135 of 12 June 1990) concerning approximately 100 industrial construction projects, many of which were situated within the Murgia Alta SPA and SCIp. Those agreements concerned in particular 34 sites covering 60 ha, falling within the project of the Consorzio di Sviluppo Murgiano and 11 sites, covering 8 ha, coming within the project of the Consorzio San Marco. Those agreements were subsequently approved by a decree of the Giunta regionale (regional government) of the region of Puglia. 11 In order to promote employment in industrial and trade production units, the mayors of the municipalities concerned may ask the Giunta regionale to adopt a framework agreement to authorise major projects which provide an immediate significant boost to employment. 12 The signature of a framework agreement, which must be authorised by the Giunta regionale, is allowed only if the urban development plan in effect does not provide for areas intended for specific purposes which are operational and legally effective for the works to be carried out or if it is necessary to expand existing structures in adjacent areas which are not intended for industrial and trade activities. 13 In the period from 1998 to 2001, a large number of undertakings submitted applications to the municipality of Altamura with a view to obtaining industrial- and trade-related framework agreements, some of which involved amendments to the general urban development plan. The procedures undertaken on the basis of those applications did not comprise any general programming phase, although they did contain various procedures for amending that plan. 14 The regional administration subjected the Consorzio di Sviluppo Murgiano projects to a verification procedure concerning the need for an environmental impact assessment, taking the view that other projects, such as the Consorzio San Marco projects, did not need to undergo such a procedure. On the basis of those agreements, the municipality of Altamura granted a certain number of construction permits. Pre-litigation procedure 15 Pursuant to Article 226 EC, on 9 July 2004 the Commission sent a letter of formal notice to the Italian Republic, asking it to provide its observations on the situation of the area in question in the light of the obligations laid down in Articles 6(3) and (7) of the Directive. 16 The Italian Republic replied to that letter of formal notice by correspondence of 14 October 2004 and 9 June 2005, to which it attached memoranda from the Ministry of the Environment and the Protection of Natural Resources. 17 The Commission sent the Italian Republic a reasoned opinion on 13 July 2005, requesting it to adopt the measures necessary to comply with that opinion within a period of two months from its notification. 18 The Italian Republic replied to that opinion by forwarding two new ministerial memoranda dated 3 and 7 October 2005. 19 Finding that the situation remained unsatisfactory, the Commission brought the present action. The action Arguments of the parties 20 The Commission states that no impact assessment within the meaning of Article 6(3) of Directive 92/43 was made in relation to the series of operations provided for in the relevant framework agreements which are likely to have a significant effect on the area in question. 21 The Commission observes that the various administrative decisions by which those operations were approved are contrary to Article 6(3) of the Directive, in that the interventions referred to were not subjected to an environmental impact assessment, even though they are likely to have a significant effect on the Murgia Alta SPA and SCIp. 22 The Commission states that whether or not the framework agreements and the measures resulting therefrom are of a legal nature is irrelevant, in the light of the Member States’ obligations under Article 6(3) of the Directive. 23 The Commission adds that the parts of the area affected by the projects in question are contiguous and that it is therefore possible that there may be overall significant effects. 24 The Commission adds that it is not relevant that the municipality of Altamura issued only a limited number of construction permits, that no further construction permits were issued in 2003, that the other construction permit applications have been made subject to an impact assessment and that a mission is under way to conduct an overall assessment of the sites affected by installations covered by earlier plans. 25 The Commission also notes that no grounds have been put forward to justify the lack of impact assessment and that no information has been provided to demonstrate that the industrial and trade construction operations in question were not likely to have significant effects on the protected area. 26 The Italian Republic notes that a framework agreement is not a measure defining a legal situation, or an administrative measure, or a contract, but a procedural module under which public and private persons define beforehand the conduct and commitments by which they will be bound in order to attain a final result. Consequently, other administrative measures will be necessary for the works covered by the framework agreements which are the subject of the present action to be actually carried out. 27 The Italian Republic adds that the legislative provisions relating to the promotion of employment may not derogate from the rules governing the protection of the environment and natural resources. Under Italian law, moreover, the SPAs and sites of Community importance enjoy protection similar to that provided by the stringent legal rules applicable to parks and other natural areas. 28 That Member State observes that the municipality of Altamura granted only a limited number of construction permits for individual projects, some of which were linked to expansions of current plants and some of which were situated in areas intended for industrial installations. Since June 2003 no construction permits have been granted and no authorisations given for projects proposed by the Consorzio di Sviluppo Murgiano and the Consorzio San Marco. 29 The Italian Republic observes that only 15 projects have actually been carried out, relating to different parts of the area and involving different methods of completion, according to whether new construction or expansions are involved. There is no contiguity between those projects; nor is there any general or territorial plan covering them. An impact assessment has been carried out for some of them, whereas in other cases various authorisations have been granted in keeping with environmental and landscape aspects. 30 That Member State states that the municipality of Altamura is preparing to carry out an overall impact assessment and to promote initiatives aimed at mitigating any effects on the environment. 31 The Italian Republic adds that all the procedures relating to applications for plant construction in the municipality of Altamura have ben suspended pending the results of scientific studies concerning the environmental impact assessments for the projects in question. Findings of the Court 32 The Court observes, as a preliminary point, that the provision infringement of which is alleged by the Commission is part of a complex set of rules the purpose of which is the establishment and management of areas forming part of the European network Natura 2000, as reflected in the third to sixth recitals in the preamble to the Directive. 33 Article 6(3) of Directive 92/43 provides that the obligation to carry out an appropriate assessment of the impact of a plan or project on a protected site subject is conditional on the plan or project in question being likely to have a significant effect on that site (Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I-7405, paragraph 40). 34 The Court also held, in paragraph 43 of that judgment, that the environmental protection mechanism provided for in Article 6(3) of the Directive requires that there be a probability or a risk that a plan or project will have significant effects on the site concerned. 35 In respect of the latter criterion, the Court stated, in paragraphs 46 to 48 of the same judgment, that, as is clear from the first sentence of Article 6(3) of the Directive in conjunction with the 10th recital in its preamble, the significant nature of the effect on a site of a plan or project must be linked to the site’s conservation objectives. Consequently, where a plan or project has an effect on that site but is not likely to undermine its conservation objectives, that plan or project cannot be considered likely to have a significant effect on the site. That risk must be assessed in the light, inter alia, of the characteristics and specific environmental conditions of the site concerned by that plan or project. 36 In order to determine whether the complaint directed against the Italian Republic is well founded, it is appropriate to situate the obligation under Article 6(3) of the Directive, as clarified in the preceding paragraphs of this judgment, in the context of the action for failure to fulfil obligations brought by the Commission under Article 226 EC. 37 It is clear from established case-law that in such an action it is for the Commission to prove the existence of the alleged infringement. It is the Commission which must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (Case C-342/05 Commission v Finland [2005] ECR I-0000, paragraph 23 and case-law cited). 38 Moreover, the burden of proof borne by the Commission in an action for failure to fulfil obligations must be determined according to the types of obligations which directives impose on the Member States and therefore in the results which must be achieved by them (see, to that effect, Case C-60/01 Commission v France [2002] ECR I-5679, paragraph 25). 39 Under Article 6(3) of Directive 92/43, then, it is for the Commission to furnish the proof that, in the light of the characteristics and the specific environmental conditions of the site affected by a plan or project, that plan or project is likely to have a significant effect on that site, in the light of the conservation objectives fixed for the site. 40 With regard to the measures which are the subject of the present action and in order to determine whether it is well founded, it is appropriate to distinguish between the various framework agreements, on the one hand, and the works carried out subsequent to the granting of construction permits by the municipality of Altamura, on the other. 41 First, as regards the framework agreements, which are at varying stages of preparation, in the light of the defendant’s line of argument that those agreements do not bear the legal hallmarks of a plan or project referred to in Article 6(3) of the Directive, the Court notes that the Commission, in an action for failure to fulfil obligations laid down in that provision, cannot simply allege the mere existence of such agreements, but must also provide sufficiently specific evidence to show that they are more than at the stage of preliminary administrative reflection and carry a degree of precision in the planning in question which calls for an environmental assessment of their effects. 42 Thus, without its being necessary to determine the scope and legal consequences stemming from the disputed framework agreements under national law, it is clear that the Commission, in merely alleging the existence of such agreements, did not furnish sufficiently specific evidence enabling the Court to consider that measures likely to have a significant effect on the site concerned within the meaning of Article 6(3) of the Directive were at issue. 43 Second, as regards projects carried out and the evidence supporting the burden of proof of the obligation to carry out an assessment of environmental implications, the Court finds that the Commission did not give the Court specific indications as to the geographic location and the scope of the construction work carried out in relation to the site. It moreover acknowledged at the hearing that it did not have this information. 44 Nor has the Commission provided data on the technical nature of the works in question or provided explanations as to what extent those works, in the light of the characteristics and specific environmental conditions of the site, are likely to have a significant effect on it. 45 In those circumstances, it is clear that the Commission has not satisfied the obligation to adduce evidence concerning the alleged infringement. 46 Therefore, the action must be dismissed as unfounded in its entirety. Costs 47 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Italian Republic has applied for costs and the Commission has been unsuccessful, the Commission must be ordered to pay the costs. On those grounds, the Court (Fourth Chamber) hereby: 1. Dismisses the action. 2. Orders the Commission of the European Communities to pay the costs. [Signatures] * Language of the case: Italian.