Contents
Judgment of the Court (Seventh Chamber)6 July 2023note(Reference for a preliminary ruling — Environment — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Article 12 — System of strict protection for certain animal species — Article 16 — Derogation — Procedure for granting such a derogation — Right of public participation)In Case C‑166/22,REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 14 January 2022, received at the Court on 25 February 2022, in the proceedingsHellfire Massy Residents AssociationvAn Bord Pleanála,Minister for Housing, Local Government and Heritage,Ireland,Attorney General,South Dublin County Council,An Taisce – The National Trust for Ireland,Save Our Bride Otters,THE COURT (Seventh Chamber),composed of M.L. Arastey Sahún, President of the Chamber, F. Biltgen and J. Passer (Rapporteur), Judges,Advocate General: J. Kokott,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Hellfire Massy Residents Association, by B. Harrington, Solicitor, J. Devlin, Senior Counsel, and J. Kenny, Barrister-at-Law,– An Bord Pleanála, by R. Minch, Senior Counsel, L. Mullett, Solicitor, B. Foley, Senior Counsel, and S. Hughes, Barrister-at-Law,– the Minister for Housing, Local Government and Heritage, Ireland, and the Attorney General, by M. Browne, J. Brennan and A. Joyce, acting as Agents, and by E. Barrington and T. Flynn, Senior Counsels,– Save Our Bride Otters and An Taisce – The National Trust for Ireland, by F. Logue, Solicitor,– the Polish Government, by B. Majczyna, acting as Agent,– the European Commission, by G. Gattinara and C. Hermes, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Articles 12 and 16 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 well as Article 6(1) to (9) and Article 9(2) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1; ‘the Aarhus Convention’).
2The request has been made in proceedings between Hellfire Massy Residents Association, on the one hand, and An Bord Pleanála (The Planning Board, Ireland; ‘the Board’), the Minister for Housing, Local Government and Heritage (Ireland), Ireland, and the Attorney General (Ireland) (together, ‘the Irish authorities’), on the other, concerning the validity, first, of a building permit issued by the Board and, second, of the provisions intended to transpose Articles 12 and 16 of Directive 92/43 into Irish law.
Legal context
International law
3Article 6(1) of the Aarhus Convention provides:‘Each Party:(a) shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in Annex I;(b) shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in Annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and(c) may decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.’
4Article 6(2) to (9) of that convention lays down detailed rules for public participation in a decision-making procedure.
5Article 9(2) of the Aarhus Convention provides:‘Each Party shall, within the framework of its national legislation, ensure that members of the public concerned:(a) having a sufficient interest or, alternatively,(b) maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 2(5) shall be deemed sufficient for the purpose of subparagraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.’
European Union law
Directive 92/43
6Under Article 6(3) of Directive 92/43:‘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.’
7Article 12 of that directive provides:1.Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:(a) all forms of deliberate capture or killing of specimens of these species in the wild;(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;(c) deliberate destruction or taking of eggs from the wild;(d) deterioration or destruction of breeding sites or resting places.2. For these species, Member States shall prohibit the keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild, except for those taken legally before this Directive is implemented.3. The prohibition referred to in paragraph 1(a) and (b) and paragraph 2 shall apply to all stages of life of the animals to which this Article applies.4. Member States shall establish a system to monitor the [incidental] capture and killing of the animal species listed in Annex IV(a). In the light of the information gathered, Member States shall take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.’
8Article 16 of Directive 92/43 provides:1.Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15(a) and (b):(a) in the interest of protecting wild fauna and flora and conserving natural habitats;(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;(d) for the purpose of research and education, of repopulating and re-introducing these species and for the [breeding] operations necessary for these purposes, including the artificial propagation of plants;(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.2. Member States shall forward to the Commission every two years a report in accordance with the format established by [the committee set up pursuant to Article 20] on the derogations applied under paragraph 1. The Commission shall give its opinion on these derogations within a maximum time limit of 12 months following receipt of the report and shall give an account to [that committee].3.The reports shall specify:(a) the species which are subject to the derogations and the reason for the derogation, including the nature of the risk, with, if appropriate, a reference to alternatives rejected and scientific data used;(b) the means, devices or methods authorised for the capture or killing of animal species and the reasons for their use;(c) the circumstances of when and where such derogations are granted;(d) the authority empowered to declare and check that the required conditions obtain and to decide what means, devices or methods may be used, within what limits and by what agencies, and which persons are to carry out the task;(e) the supervisory measures used and the results obtained.’
Directive 2011/92/EU
9Recital 2 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’), states:‘Pursuant to Article 191 of the Treaty on the Functioning of the European Union, [European] Union policy on the environment is based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay. Effects on the environment should be taken into account at the earliest possible stage in all the technical planning and decision-making processes.’
10Under Article 1(2) of Directive 2011/92:‘For the purposes of this Directive, the following definitions shall apply:(a) “project” means:– the execution of construction works or of other installations or schemes,– other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;…(c) “development consent” means the decision of the competent authority or authorities which entitles the developer to proceed with the project;…’
11Article 2(1) to (3) of that directive provides:1. Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.2. The environmental impact assessment may be integrated into the existing procedures for development consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.3. In the case of projects for which the obligation to carry out assessments of the effects on the environment arises simultaneously from this Directive and from [Directive 92/43] and/or Directive 2009/147/EC of the European Parliament and the Council [of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)], Member States shall, where appropriate, ensure that coordinated and/or joint procedures fulfilling the requirements of that Union legislation are provided for.In the case of projects for which the obligation to carry out assessments of the effects on the environment arises simultaneously from this Directive and Union legislation other than the Directives listed in the first subparagraph, Member States may provide for coordinated and/or joint procedures.…’
12Article 3(1) of Directive 2011/92 provides:‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:(a) population and human health;(b) biodiversity, with particular attention to species and habitats protected under [Directive 92/43] and [Directive 2009/147];(c) land, soil, water, air and climate;(d) material assets, cultural heritage and the landscape;(e) the interaction between the factors referred to in points (a) to (d).’
13Article 8a of that directive is worded as follows:1.The decision to grant development consent shall incorporate at least the following information:(a) the reasoned conclusion referred to in Article 1(2)(g)(iv);(b) any environmental conditions attached to the decision, a description of any features of the project and/or measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment as well as, where appropriate, monitoring measures.…4. In accordance with the requirements referred to in paragraph 1(b), Member States shall ensure that the features of the project and/or measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment are implemented by the developer, and shall determine the procedures regarding the monitoring of significant adverse effects on the environment.The type of parameters to be monitored and the duration of the monitoring shall be proportionate to the nature, location and size of the project and the significance of its effects on the environment.Existing monitoring arrangements resulting from Union legislation other than this Directive and from national legislation may be used if appropriate, with a view to avoiding duplication of monitoring.…’
Irish law
14Regulation 51 of the European Communities (Birds and Natural Habitats) Regulations 2011 (‘the 2011 Regulations’) provides:(1) The Minister [for Arts, Heritage and the Gaeltacht] shall take the requisite measures to establish a system of strict protection for the fauna consisting of the species referred to in Part 1 of the First Schedule.(2)Notwithstanding any consent, statutory or otherwise, given to a person by a public authority or held by a person, except in accordance with a licence granted by the Minister under Regulation 54, a person who in respect of the species referred to in Part 1 of the First Schedule–(a) deliberately captures or kills any specimen of these species in the wild,(b) deliberately disturbs these species particularly during the period of breeding, rearing, hibernation and migration,(c) deliberately takes or destroys eggs of those species from the wild,(d) damages or destroys a breeding site or resting place of such an animal, or(e) keeps, transports, sells, exchanges, offers for sale or offers for exchange any specimen of these species taken in the wild, other than those taken legally as referred to in Article 12(2) of [Directive 92/43],shall be guilty of an offence.(3) The prohibitions referred to in paragraph (2) shall apply to all stages of life of the biological cycle of fauna to which this Regulation applies.(4) The Minister shall establish a system to monitor the incidental capture and killing of fauna consisting of the animal species referred to in Part 1 of the First Schedule and, having regard to the information gathered, he or she shall conduct further research or take such conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.’
15Regulation 54 of the 2011 Regulations provides:(1) Any person may apply to the Minister, or the Minister or Ministers of Government with responsibilities for fish species referred to in Part 2 of the First Schedule, for a derogation licence from complying with the requirements of the provisions of Regulations 51, 52 and 53.(2)Where there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species to which [Directive 92/43] relates at a favourable conservation status in their natural range, the Minister, or the Minister or Ministers of Government with responsibilities for fish species referred to in the Fourth Schedule, may grant such a derogation licence to one or more persons, where it is–(a) in the interests of protecting wild fauna and flora and conserving natural habitats,(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property,(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment,(d) for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants, or(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species to the extent specified therein, which are referred to in the First Schedule.(3) A derogation licence granted under paragraph (2) shall be subject to such conditions, restrictions, limitations or requirements as the Minister considers appropriate.(4) Any conditions, restrictions, limitations or requirements to which a derogation licence under paragraph (2) is subject shall be specified therein.(5) Without prejudice to any conditions, restrictions, limitations or requirements specified therein, a derogation licence granted under this Regulation is subject to the provisions of subsections (2) to (5) of section 14 of the Protection of Animals (Amendment) Act 1965.(6) The Minister shall forward to the European Commission every two years a report, in accordance with a format established by the European Commission, on the derogation licences to which paragraph (2) relates.(7)The report referred to in paragraph (6) shall specify–(a) the species which are subject to the derogation licences and the reason for the derogation, including the nature of the risk with, if appropriate, a reference to alternatives rejected and scientific data used,(b) the means, devices or methods authorised for the capture or killing of animal species and the reasons for their use,(c) the circumstances of when and where such derogation licences are granted,(d) the authority empowered to declare and check that the required conditions apply, and to decide what means, devices or methods may be used, within what limits and by what agencies, and which persons are to carry out the task, and(e) the supervisory measures used and the results obtained.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
16By decision of 25 June 2020, the Board granted a development consent to South Dublin County Council (Ireland) for a project consisting of two buildings comprising a visitor centre at Montpelier Hill in County Dublin, a tree canopy walk/pedestrian bridge over a regional road, conversion of conifer forest to deciduous woodland, and conservation works to existing structures.
17That decision states that the Board had completed an appropriate assessment exercise, for the purposes of Article 6(3) of Directive 92/43, and had concluded that there was no adverse effect on European sites.
18According to the abovementioned decision, the Board had also completed an environmental impact assessment, within the meaning of Directive 2011/92, and had concluded that, subject to compliance with the conditions set out in that decision, the effects on the environment of the proposed development would be acceptable.
19By a judgment of 2 July 2021, the referring court dismissed the action brought by the applicant in the main proceedings against the decision of 25 June 2020, with the exception of the ground challenging, as regards the situation following the adoption of that decision, the validity of Regulations 51 and 54 of the 2011 Regulations.
20By that ground of challenge, the applicant in the main proceedings submits, in essence, that the system of strict protection provided for in Article 12 of Directive 92/43, as implemented in Irish law, is invalid in so far as it does not integrate the derogation mechanism laid down in Article 16 of that directive into the procedure for granting development consent to projects and, moreover, does not provide for proper public participation, thereby failing to comply with the Aarhus Convention.
21The Board and the Irish authorities dispute the merits of the abovementioned ground of challenge. In addition, they object to the reliance by the applicant in the main proceedings, first, on the Aarhus Convention since it did not expressly reference that convention in its pleadings, and, second, on possible future harm to strictly protected species.
22In those circumstances, the High Court (Ireland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Whether the general principles of EU law arising from the supremacy of the EU legal order have the effect that a rule of domestic procedure whereby an applicant in judicial review must expressly plead the relevant legal provisions cannot preclude an applicant who challenges the compatibility of domestic law with identified EU law from also relying on a challenge based on legal doctrines or instruments that are to be read as inherently relevant to the interpretation of such EU law, such as the principle that EU environmental law should be read in conjunction with the [Aarhus Convention] as an integral part of the EU legal order.(2) Whether [Article 12 and/or Article 16] of [Directive 92/43] and/or those provisions as read in conjunction with [Article 9(2)] of the [Aarhus Convention] and/or in conjunction with the principle that Member States must take all the requisite specific measures for the effective implementation of [that] directive have the effect that a rule of domestic procedure whereby an applicant must not raise a “hypothetical question” and “must be affected in reality or as a matter of fact” before [he or] she can complain regarding the compatibility of the domestic law with a provision of EU law cannot be relied on to preclude a challenge made by an applicant who has invoked the public participation rights in respect of an administrative decision and who then wishes to pursue a challenge to the validity of a provision of domestic law by reference to EU law in anticipation of future damage to the environment as [a] result of an alleged shortcoming in the domestic law, where there is a reasonable possibility of such future damage, in particular because the development has been authorised in an area which is a habitat for species subject to strict protection and/or because applying the precautionary approach there is a possibility that post-consent surveys may give rise to a need to apply for a derogation under [Article 16] of [Directive 92/43].(3) Whether [Article 12 and/or Article 16] of [Directive 92/43] and/or those provisions as read in conjunction with [Article 6(1) to (9) and/or Article 9(2)] of the [Aarhus Convention] and/or with the principle that Member States must take all the requisite specific measures for the effective implementation of [that] directive have the effect that a derogation licence system provided in domestic law to give effect to [Article 16] of [that] directive should not be parallel to and independent of the development consent system but should be part of an integrated approval process involving a decision by a competent authority (as opposed to an ad hoc judgement formed by the developer itself on the basis of a general provision of criminal law) as to whether a derogation licence should be applied for by reason of matters identified following the grant of development consent and/or involving a decision by a competent authority as to what surveys are required in the context of consideration as to whether such a licence should be applied for.(4) Whether [Article 12 and/or Article 16] of [Directive 92/43] and/or those provisions as read in conjunction with [Article 6(1) to (9) and/or Article 9(2)] of the [Aarhus Convention] have the consequence that, in respect of a development where the grant of development consent was subjected to appropriate assessment under [Article 6(3)] of [Directive 92/43], and in a context where a post-consent derogation may be sought under [Article 16] of [Directive 92/43], there is a requirement for a public participation procedure in conformity with [Article 6] of the Aarhus Convention.’
Admissibility of the request for a preliminary ruling
23The Irish authorities and the Polish Government contend that the present request for a preliminary ruling is inadmissible on the ground, in essence, that it relates to points of law which are based on a hypothetical scenario.
24In that regard, it should be noted that, according to settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court of Justice. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling (judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C‑100/21, EU:C:2023:229, paragraph 52 and the case-law cited).
25It follows that questions relating to EU law enjoy a presumption of relevance. The Court of Justice may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court of Justice does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C‑100/21, EU:C:2023:229, paragraph 53 and the case-law cited).
26In this instance, it should be noted that the present request for a preliminary ruling was submitted to the Court in the context of an action seeking, inter alia, (i) the quashing of the decision of 25 June 2020 and (ii) a declaration that Regulations 51 and 54 of the 2011 Regulations are invalid.
27However, it is apparent from that request for a preliminary ruling, as well as from the file before the Court, and, in particular, from the referring court’s judgment of 2 July 2021, that, although the referring court has already rejected the ground of challenge of the action seeking the quashing of the decision of 25 June 2020 and, in that respect, has also rejected the ground of challenge alleging the invalidity of Regulations 51 and 54 of the 2011 Regulations as regards the effect of the potential invalidity of those provisions on the legality of the procedure for adopting that decision, that court still has to rule on that ground of challenge to the extent that it concerns the situation following the adoption of the abovementioned decision.
28In those circumstances, the request for a preliminary ruling must be regarded as admissible.
Consideration of the questions referred
The third and fourth questions
29By its third and fourth questions, which it is appropriate to examine before the first and second questions, the referring court asks, in essence, whether Articles 12 and 16 of Directive 92/43 are to be interpreted as requiring a piece of national legislation intended to transpose those provisions of Directive 92/43 into national law to provide for (i) a development consent procedure which involves a decision by a competent authority determining whether it is necessary to apply for a derogation under Article 16 of that directive because of matters identified following the grant of development consent to a project and/or whether surveys are required to that end and (ii) public participation in that derogation procedure.
30In that regard, it is sufficient to note that Articles 12 and 16 of Directive 92/43, which do not concern only activities carried out in the context of projects within the meaning of Article 1(2)(a) of Directive 2011/92, but which concern any human activity, do not require the derogation procedure under Article 16 of Directive 92/43 to be integrated into the procedures for granting development consent to such projects; nor do they require provision to be made for public participation in such a derogation procedure.
31Indeed, neither Directive 92/43 nor, for that matter, Directive 2011/92, lays down any obligation to that effect.
32It is true that Article 2(2) of Directive 2011/92 deals with the issue of integration of procedures. However, that provision merely provides for the possibility of integrating the environmental impact assessment into the existing procedures for development consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of that directive. In addition, Article 2(3) of that directive simply requires that Member States ‘shall, where appropriate, ensure that coordinated and/or joint procedures fulfilling the requirements of [Directive 2011/92, Directive 92/43 and/or Directive 2009/147] are provided for’ in the case of projects for which the obligation to carry out assessments of the effects on the environment arises simultaneously from Directive 2011/92 and from Directive 92/43 and/or Directive 2009/147.
33Similarly, although Article 8a(1)(b) of Directive 2011/92 stipulates that the decision to grant development consent is to incorporate ‘where appropriate, monitoring measures’, such as those for which, in the case in the main proceedings, as is apparent from the file before the Court, provision appears to have been made in the decision of 25 June 2020, it does not expressly refer to the derogation procedure under Article 16 of Directive 92/43.
34Therefore, Ireland cannot, in the dispute in the main proceedings, be accused of not having adopted a comprehensive legislative framework, since Regulations 51 and 54 of the 2011 Regulations reproduce, word for word, the main content of Articles 12 and 16 of that directive.
35That said, Articles 12 and 16 of Directive 92/43 and, accordingly, Regulations 51 and 54 of the 2011 Regulations which transpose those provisions into national law, must be interpreted and applied in conformity with the requirements arising from other EU acts and from international conventions which are binding on the European Union, in particular, the requirements arising from Directive 2011/92 and from the Aarhus Convention, as interpreted in the case-law of the Court.
36It follows from that case-law that, in the specific case where, first, the execution of a project that is subject to the dual requirement for assessment and development consent laid down in Article 2(1) of Directive 2011/92 involves the developer applying for and obtaining a derogation from the plant and animal species protection measures prescribed in the provisions of national law transposing Articles 12 and 13 of Directive 92/43 and where, second, a Member State confers power to grant such a derogation on an authority other than the one on which it confers power to give development consent for the project, that potential derogation must necessarily be adopted before development consent is given. If it were otherwise, that development consent would be given on an incomplete basis and would not, therefore, meet the applicable requirements (see, to that effect, judgment of 24 February 2022, Namur-Est Environnement, C‑463/20, EU:C:2022:121, paragraphs 52 and 59 and the case-law cited).
37However, as is apparent from the file before the Court and, in particular, from the referring court’s judgment of 2 July 2021, the referring court, which alone has jurisdiction to find and assess the facts of the dispute in the main proceedings, has already held that, at the time when the decision of 25 June 2020 was adopted, the need to obtain a derogation under Regulation 54 of the 2011 Regulations had not been identified. It follows that the situation referred to in the previous paragraph, namely that in which the obtaining of such a derogation is required before development consent is given, has not arisen in this instance.
38It should be added that, under Article 3(1)(b) of Directive 2011/92, that directive – the objective of which, according to recital 2 thereof, is that effects on the environment should be taken into account at the earliest possible stage in all the technical planning and decision-making processes, in accordance with the precautionary principle and the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay – stipulates that the environmental impact assessment is to identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on biodiversity, with particular attention to species and habitats protected under Directive 92/43 and Directive 2009/147.
39Accordingly, the outcome of an environmental impact assessment – which must be a full assessment (see, to that effect, judgment of 24 February 2022, Namur-Est Environnement, C‑463/20, EU:C:2022:121, paragraph 58 and the case-law cited) – must make it possible to determine whether, at the time of that assessment, the project concerned was likely to have effects prohibited by Article 12 of Directive 92/43.
40Therefore, a piece of national legislation, such as the 2011 Regulations, which criminalises the commission of the acts which Member States must prohibit in accordance with Article 12 of Directive 92/43, does not appear, in itself, both from a general point of view and in the specific context of granting development consent to a project falling within the scope of Directive 2011/92, to be liable to undermine the effectiveness of Article 12 of Directive 92/43 or to contravene the principles referred to in paragraph 38 above.
41Lastly, it should be noted that the dispute in the main proceedings does not concern a derogation under Regulation 54 of the 2011 Regulations. Consequently, there is no need to ascertain whether, and under what conditions, members of the public concerned derive from the provisions of the Aarhus Convention a right to participate in the administrative procedure relating to such a derogation.
42In the light of all the foregoing considerations, the answer to the third and fourth questions is that Articles 12 and 16 of Directive 92/43 must be interpreted as meaning that a piece of national legislation intended to transpose those provisions into national law cannot be regarded as contrary to that directive on the ground that that piece of national legislation does not provide for (i) a development consent procedure which involves a decision by a competent authority determining whether it is necessary to apply for a derogation under Article 16 of the abovementioned directive because of matters identified following the grant of development consent to a project and/or whether surveys are required to that end or (ii) public participation in that derogation procedure.
The first and second questions
43By its first and second questions, the referring court asks, in essence, whether EU law is to be interpreted as precluding national procedural rules relating to judicial review of the legality of an act, under which a person applying for such review is required to refer expressly to the legal provisions whose infringement he, she or it is pleading and may not raise a ‘hypothetical question’ but rather ‘must be affected in reality or as a matter of fact’ before being entitled to challenge the compatibility of a piece of national legislation with EU law.
44It is apparent from the file before the Court that those questions have been submitted because, in the dispute in the main proceedings, the Irish authorities relied on national procedural rules in order to contest the admissibility of the arguments put forward by the applicant in the main proceedings which gave rise to the third and fourth questions.
45In those circumstances, having regard to the answer to the third and fourth questions, it does not appear to be necessary to answer the first and second questions.
Costs
46Since 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.
Operative part
On those grounds, the Court (Seventh Chamber) hereby rules: Articles 12 and 16 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and floramust be interpreted as meaning that a piece of national legislation intended to transpose those provisions into national law cannot be regarded as contrary to that directive on the ground that that piece of national legislation does not provide for (i) a development consent procedure which involves a decision by a competent authority determining whether it is necessary to apply for a derogation under Article 16 of the abovementioned directive because of matters identified following the grant of development consent to a project and/or whether surveys are required to that end or (ii) public participation in that derogation procedure.
Delivered in open court in Luxembourg on 6 July 2023.
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