Syllogos Ellinon Poleodomon kai Khorotakton v Ipourgos Perivallontos, Khorotaxias & Dimosion Ergon and Others (C-177/11)

Contents

Judgment of the Court (Eighth Chamber)21 June 2012^note((Directive 2001/42/CE — Assessment of the effects of certain plans and programmes on the environment — Article 3(2)(b) — Margin of discretion of the Member States))In Case C-177/11,REFERENCE for a preliminary ruling under Article 267 TFEU from the Simvoulio tis Epikrateias (Greece), made by decision of 5 November 2010, received at the Court on 15 April 2011, in the proceedingsSillogos Ellinon Poleodomon kai KhorotaktonvIpourgos Perivallontos, Khorotaxias kai Dimosion Ergon,Ipourgos Ikonomias kai Ikonomikon,Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis,THE COURT (Eighth Chamber),composed of A. Prechal, President of the Chamber, K. Schiemann (Rapporteur) and E. Jarašiūnas, Judges,Advocate General: J. Kokott,Registrar: L. Hewlett, Principal Administrator,having regard to the written procedure and further to the hearing on 29 March 2012,after considering the observations submitted on behalf of:— Sillogos Ellinon Poleodomon kai Khorotakton, by G.P. Giannakourou,— Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon, Ipourgos Ikonomias kai Ikonomikon and Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis, by F. Iatrelis, acting as Agent,— the Greek Government, by K. Paraskevopoulou, C. Divani, G. Karipsiadis and I. Bakopoulos, acting as Agents,— the Belgian Government, by T. Materne, acting as Agent,— the European Commission, by P. Oliver, M. Patakia and S. Petrova, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1The reference for a preliminary ruling concerns the interpretation of 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 (OJ 2001 L 197, p. 30) (the ‘SEA Directive’, ‘SEA’ standing for ‘strategic environmental assessment’).

2The reference has been made in the course of proceedings before the Simvoulio tis Epikrateias (Greek Council of State) by the association Sillogos Ellinon Poleodomon kai Khorotakton (Greek Association of Urban and Regional Planners, ‘the applicant’), the seat of which is in Athens, seeking annulment of Ministerial Decision No 107017 of 28 August 2006 transposing the SEA Directive into Greek law (YPEXODE/EYPE/oik. 107017/28-8-2006; ‘the Ministerial Decision of 28 August 2006’), adopted jointly by Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon (Minister for the Environment, Regional Planning and Public Works), Ipourgos Ikonomias kai Ikonomikon (Minister for Economic Affairs and Finance) and Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis (Minister for the Interior, Public Administration and Decentralisation).

Legal context

European Union legislation

3The relevant directives in the present case are the following:— the SEA Directive;— 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 2006/105/EC of 20 November 2006 (OJ 2006 L 363, p. 368) (‘the Habitats Directive’); and— Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), as codified by Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 (OJ 2010 L 20, p. 7) (‘the Birds Directive’).

The SEA Directive

4Under recital 10 in the preamble to the SEA Directive, all plans and programmes which have been determined to require assessment pursuant to the Habitats Directive are likely to have significant effects on the environment, and should as a rule be made subject to systematic environmental assessment.

5Article 3 of the SEA Directive, entitled ‘Scope’, provides: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 Directive 85/337/EEC, 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 [the Habitats Directive].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....’

The Habitats Directive

6Article 4 of the Habitats Directive provides:1.On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host. ......2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the nine biogeographical regions referred to in Article 1(c)(iii) and of the whole of the territory referred to in Article 2(1), the Commission shall establish, in agreement with each Member State, a draft list of sites of Community importance drawn from the Member States’ lists identifying those which host one or more priority natural habitat types or priority species....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 21.3. The list referred to in paragraph 2 shall be established within six years of the notification of this Directive.4. 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.5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article 6(2), (3) and (4).’

7Article 6(3) of the Habitats Directive provides:‘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.’

8Article 7 of the Habitats Directive provides:‘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 Directive 79/409/EEC 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/EEC, where the latter date is later.’

The Birds Directive

9Article 4 of the Birds Directive, which replaces Article 4 of Directive 79/409 by reproducing it identically, provides:1.The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.In this connection, account shall be taken of:(a) species in danger of extinction;(b) species vulnerable to specific changes in their habitat;(c) species considered rare because of small populations or restricted local distribution;(d) other species requiring particular attention for reasons of the specific nature of their habitat.Trends and variations in population levels shall be taken into account as a background for evaluations.Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species in the geographical sea and land area where this Directive applies.2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance....4. In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. ...’

Greek legislation

10Article 1 of the Ministerial Decision of 28 August 2006 provides:‘The objective of the present decision is to comply with the provisions of [the SEA Directive], so that, within a framework of balanced development, the environmental dimension is integrated before plans and programmes are adopted, by enactment of the measures, conditions and procedures necessary for the evaluation and assessment of the effects that they are likely to have on the environment, thereby promoting sustainable development and a high standard of environmental protection.’

11Article 3(1)(b) of the Ministerial Decision of 28 August 2006 provides:1.A strategic environmental assessment shall be carried out before the adoption of a plan or programme or the commencement of the relevant legislative procedure, subject to paragraph 2, for plans or programmes at national, regional, prefectural or local level likely to have significant environmental effects, in particular:...(b) for all plans and programmes which apply in whole or in part to areas in the national section of the Natura 2000 European Ecological Network (Sites of Community Importance (SCIs) and Special Protection Areas (SPAs)) and which are likely to affect those areas significantly. An exception shall be made for management plans and action programmes directly connected to or necessary for the management and protection of such areas.In order to establish whether the plans and programmes referred to in the foregoing paragraph that are not plans and programmes under subparagraph (a) are likely to have significant effects on areas in the national section of the Natura 2000 European Ecological Network (Sites of Community Importance (SCIs) and Special Protection Areas (SPAs)), and hence whether they must be subject to a strategic environmental assessment procedure, the environmental screening procedure under Article 5(2) shall be followed.’

12Article 5(1) of the Ministerial Decision of 28 August 2006 provides:‘Each plan and programme referred to in Article 3(1)(b) and (2) shall be subject to an environmental screening procedure, so that the competent authority referred to in paragraph 3 can decide, in accordance with the specific terms of Article 3, whether the plan or programme is likely to have significant effects on the environment and must therefore be subject to a strategic environmental assessment ...’

13The referring court observes that Article 3(1)(b) and Article 5 of that decision make the strategic environmental assessment provided for by the SEA Directive subject to a ‘prior environmental screening procedure’ designed to determine whether the plans and programmes referred to are likely to have significant effects on the Special Protection Areas belonging to the Natura 2000 European Ecological Network.

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

14In support of its application, the applicant has raised a number of grounds for annulment under national law and European Union law.

15With regard to European Union law, the applicant claims that the Ministerial Decision of 28 August 2006 did not correctly transpose the SEA Directive. In its view, it follows from Article 3(4) of that directive that the right of Member States to determine whether or not plans or programmes are likely to have significant effects on the environment does not exist with regard to the plans and programmes referred to in Article 3(2).

16In those circumstances, the Simvoulio tis Epikrateias decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Does Article 3(2)(b) of [the SEA Directive], in providing that an environmental assessment is to be carried out for all plans and programmes “which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of [the Habitats Directive]”, mean that the obligation to make a particular plan subject to an environmental assessment depends on the preconditions for environmental assessment under [the Habitats Directive] being met in respect of that plan and that, therefore, the provision in question of [the SEA Directive] also requires, like the above provisions of [the Habitats Directive], affirmation that the plan is likely to have significant effects on a special area of conservation, whilst leaving the substantive assessment in that regard to the Member States? Or is Article 3(2)(b) of [the SEA Directive] to be interpreted as meaning that the requirement to carry out an environmental assessment under that provision does not depend on the preconditions for carrying out an environmental assessment under [the Habitats Directive] being met, that is to say on the finding as to the likelihood of significant effects on a special area of conservation, and it is sufficient to find that a particular plan is connected in some way with a site envisaged in [the Habitats Directive], but not necessarily with a special area of conservation, in order for the obligation to carry out such an assessment to be activated?’

The question referred for a preliminary ruling

17By its question, the referring court asks, in essence, whether Article 3(2)(b) of the SEA Directive must be interpreted as meaning that the obligation to make a particular plan subject to an environmental assessment within the meaning of that directive depends on the preconditions requiring an assessment under the Habitats Directive being met in respect of that plan.

18First, it should be noted that Article 3(4) of the SEA Directive, which the referring court also cites in its order for reference, does not apply, as its wording confirms, to the plans and programmes referred to in Article 3(2) of that directive.

19With regard to Article 3(2)(b) of the SEA Directive, that provision requires an environmental assessment every time an assessment is required under Articles 6 or 7 of the Habitats Directive. Consequently, the scope of those articles must be examined in order to determine the scope of Article 3(2)(b) of the SEA Directive.

20Article 4(5) of the Habitats Directive provides that sites of Community importance, including sites of Community importance designated as special areas of conservation by the Member States, are subject to Article 6(2), (3) and (4) of that directive.

21It follows from the wording of Article 6(3) of the Habitats Directive, read in conjunction with Article 4(5) of that directive, that an 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 thereon, either individually or in combination with other plans or projects.

22The first sentence of Article 6(3) of the Habitats Directive makes the requirement of an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that that plan or project will have a significant effect on the site concerned (Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I-7405, paragraph 43). That condition is fulfilled if it cannot be excluded, on the basis of objective information, that that plan or project will have a significant effect on the site concerned (see, to that effect, Case C-418/04 Commission v Ireland [2007] ECR I-10947, paragraph 227).

23It follows that an examination carried out to determine whether a plan or project is likely to have a significant effect on a site, within the meaning of Article 6(3) of the Habitats Directive, is necessarily limited to the question of whether it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on the site concerned. That interpretation is also required with regard to the areas referred to in Article 4(1) and (2) of the Birds Directive, given that Article 7 of the Habitats Directive extends the scope of Article 6(3) of the latter directive to those areas.

24The answer to the question referred is therefore that Article 3(2)(b) of the SEA Directive must be interpreted as meaning that the obligation to make a particular plan subject to an environmental assessment depends on the preconditions requiring an assessment under the Habitats Directive, including the condition that the plan may have a significant effect on the site concerned, being met in respect of that plan. The examination carried out to determine whether that latter condition is fulfilled is necessarily limited to the question as to whether it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on the site concerned.

Costs

25Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

Operative part

On those grounds, the Court (Eighth Chamber) hereby rules: 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 must be interpreted as meaning that the obligation to make a particular plan subject to an environmental assessment depends on the preconditions requiring an assessment under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2006/105/EC of 20 November 2006, including the condition that the plan may have a significant effect on the site concerned, being met in respect of that plan. The examination carried out to determine whether that latter condition is fulfilled is necessarily limited to the question as to whether it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on the site concerned.