Case C-239/04

Commission of the European Communities

v

Portuguese Republic

(Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 6(4) – Castro Verde special protection area – Lack of alternative solutions)

Summary of the Judgment

1.        Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Authorisation for a plan or project on a protected site

(Council Directive 92/43, Art. 6(3))

2.        Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas

(Council Directive 92/43, Art. 6(3) and (4))

1.        Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora establishes a procedure intended to ensure, by means of a prior examination, that a plan or project which is not directly connected with or necessary to the management of a site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site. That authorisation can thus be granted only on the condition that the competent national authorities are certain, at the time they authorise the plan or project, that it will not have adverse effects on the integrity of the site concerned. The fact that, after its completion, the project may not have produced such effects is immaterial to that assessment. It is at the time of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question

(see paras 19-20, 24)

2.        Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, which permits a plan or project which has given rise to a negative assessment under the first sentence of the same directive to be implemented on certain conditions, must, as a derogation from the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly. Thus, the implementation of a plan or project under Article 6(4) of that directive is, inter alia, subject to the condition that the absence of alternative solutions be demonstrated.

It follows that, where a Member State implements a project notwithstanding the negative environmental impact assessment and without having demonstrated the absence of alternative solutions, it fails to fulfil its obligations under Article 6(4) of Directive 92/43.

(see paras 35-36, 40)

JUDGMENT OF THE COURT (Second Chamber)

26 October 2006 (*)

(Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 6(4) – Castro Verde special protection area – Lack of alternative solutions)

In Case C‑239/04,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 8 June 2004,

Commission of the European Communities, represented by M. van Beek and A. Caeiros, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Portuguese Republic, represented by L. Fernandes, acting as Agent, and J.F. Ganderez and R. Gomes da Silva, advogados, with an address for service in Luxembourg,

defendant,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, J. Klučka, R. Silva de Lapuerta (Rapporteur), and L. Bay Larsen, Judges,

Advocate General: J. Kokott,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 6 April 2006,

after hearing the Opinion of the Advocate General at the sitting on 27 April 2006,

gives the following

Judgment

1        By its application, the Commission of the European Communities asks the Court to declare that, by implementing a project for a motorway, whose route crosses the Castro Verde special protection area (SPA), notwithstanding the negative environmental impact assessment and the existence of alternative solutions for the route concerned, the Portuguese Republic has failed to fulfil its obligations under Article 6(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Directive 97/62/EC of 27 October 1997 (OJ 1997 L 305, p. 42) (‘the Habitats Directive’).

 Legal context

 Directive 79/409/EEC

2        Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) require member States to classify as SPAs areas fulfilling the criteria laid down by those provisions.

3        Article 4(4) of that directive provides:

‘In respect of the protection areas referred to in paragraphs 1 and 2 above, 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. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.’

 The Habitats Directive

4        Article 6(2) to (4) of the Habitats Directive provide:

‘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.

4.      If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

…’

5        Pursuant to Article 7 of the Habitats Directive:

‘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.’

 Facts of the dispute and the pre-litigation procedure

6        The construction project for the A 2 motorway, linking the city of Lisbon with the Algarve region, was awarded in 1997 to the company BRISA Auto-Estradas de Portugal.

7        For the part of that motorway running between the settlements of Aljustrel and Castro Verde, the company drew up a planned route bypassing to the east the settlements of Messejana, Alcarias, Conceiçao, Aivados and Estação de Ourique and crossing the western side of the Cast