Case C‑164/17

Edel Grace and Peter Sweetman

v

An Bord Pleanála

(Request for a preliminary ruling from the Supreme Court (Ireland))

Reference for a preliminary ruling — Environment — Directive 92/43/EC — Conservation of natural habitats and of wild fauna and flora — Article 6(3) and (4) — Assessment of the implications of a plan or project for a protected site — Plan or project not directly connected with or necessary to the management of the site — Wind farm project — Directive 2009/147/EC — Conservation of wild birds — Article 4 — Special Protection Area (SPA) — Annex I — Hen harrier (Circus cyaneus) — Suitable habitat fluctuating over time — Temporary or permanent reduction of the amount of appropriate land — Measures included in the project to ensure that, during the lifetime of the project, the amount of land that is in fact suitable for hosting the natural habitat of the species will not be reduced and indeed may be enhanced)

Summary — Judgment of the Court (Second Chamber), 25 July 2018

1.        Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Appropriate assessment of the implications for a site arising from a plan or project — Protective measures – Compensatory measures — Distinction

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

2.        Environment — Conservation of natural habitats and of wild fauna and flora — Directive 92/43 — Special areas of conservation — Obligations of the Member States — Assessment of a project’s implications for a site –Whether account should be taken of the future development of a new habitat aimed at compensating for the loss of area and quality entailed by the project — Not such account to be taken –Classification of such a development as a compensatory measure — Condition

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

1.      See the text of the decision.

(see para. 47)

2.      Article 6 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, where it is intended to carry out a project on a site designated for the protection and conservation of certain species, of which the area suitable for providing for the needs of a protected species fluctuates over time, and the temporary or permanent effect of that project will be that some parts of the site will no longer be able to provide a suitable habitat for the species in question, the fact that the project includes measures to ensure that, after an appropriate assessment of the implications of the project has been carried out and throughout the lifetime of the project, the part of the site that is in fact likely to provide a suitable habitat will not be reduced and indeed may be enhanced may not be taken into account for the purpose of the assessment that must be carried out in accordance with Article 6(3) of the directive to ensure that the project in question will not adversely affect the integrity of the site concerned; that fact falls to be considered, if need be, under Article 6(4) of the directive.

In that regard, the Court has previously ruled that the measures provided for in a project which are aimed at compensating for the negative effects of the project cannot be taken into account in the assessment of the implications of the project provided for in Article 6(3) of the Habitats Directive (judgments of 15 May 2014, Briels and Others, C‑521/12, EU:C:2014:330, paragraph 29, and of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 48).

It is only when it is sufficiently certain that a measure will make an effective contribution to avoiding harm, guaranteeing beyond all reasonable doubt that the project will not adversely affect the integrity of the area, that such a measure may be taken into consideration when the appropriate assessment is carried out (see, to that effect, judgment of 26 April 2017, Commission v Germany, C‑142/16, EU:C:2017:301, paragraph 38).

As a general rule, any positive effects of the future creation of a new habitat, which is aimed at compensating for the loss of area and quality of that habitat type in a protected area, are highly difficult to forecast with any degree of certainty or will be visible only in the future (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraphs 52 and 56 and the case-law cited).

It is not the fact that the habitat concerned in the main proceedings is in constant flux and that that area requires ‘dynamic’ management that is the cause of uncertainty. In fact, such uncertainty is the result of the identification of adverse effects, certain or potential, on the integrity of the area concerned as a habitat and foraging area and, therefore, on one of the constitutive characteristics of that area, and of the inclusion in the assessment of the implications of future benefits to be derived from the adoption of measures which, at the time that assessment is made, are only potential, as the measures have not yet been implemented. Accordingly, and subject to verifications to be carried out by the referring court, it was not possible for those benefits to be foreseen with the requisite degree of certainty when the authorities approved the contested development.

(see paras 50-53, 57, operative part)