OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 30 April 2020 (1)
Case C‑254/19
Friends of the Irish Environment Limited
v
An Bord Pleanála,
Notice party:
Shannon LNG Limited
(Request for a preliminary ruling from the High Court (Ireland))
(Reference for a preliminary ruling — Directive 92/43/ECC — Conservation of natural habitats and of wild fauna and flora — Appropriate assessment of the implications of plans and projects — Scope — Extension of the development consent to construct a liquefied natural gas regasification terminal — Single operation)
I. Introduction
1. Article 6(3) of the Habitats Directive (2) requires that plans or projects which are likely to have a significant effect on an area of conservation are subject to an ex ante assessment of their implications in view of the conservation objectives. However, is the extension of a development consent, which is limited to a period of 10 years, by a further 5 years a plan or project within the meaning of that provision? Or are the original development consent and the extension to be regarded as a single operation, meaning that no further assessment is necessary? This question requires clarification in the present preliminary ruling procedure of the Irish High Court.
II. Legal context
A. EU law
2. The development consent given to plans and projects likely to have a significant effect on an area protected under the Habitats Directive or Birds Directive (3) is regulated as follows in Article 6(2) and (3) of the Habitats Directive:
‘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.’
B. Irish law
3. According to the request for a preliminary ruling, the following provisions of the Planning and Development Act 2000 (No 30 of 2000) (‘the PDA 2000’) are relevant.
4. Pursuant to section 40 subsection (1) of the PDA 2000, the permission ceases to have effect on the expiration of the construction phase of a planning permission:
‘40.—(1) Subject to subsection (2), a permission granted under this Part shall, on the expiration of the appropriate period (but without prejudice to the validity of anything done pursuant thereto prior to the expiration of that period), cease to have effect as regards—
(a) in case the development to which the permission relates is not commenced during that period, the entire development, and
(b) in case the development is commenced during that period, so much of the development as is not completed within that period.’
5. Section 42 of the PDA 2000 provides for the extension of the duration of a planning permission. In brief, section 42 provides two alternative bases upon which an application for an extension of duration can be made. The first is where substantial works have been carried out pursuant to the planning permission during the period sought to be extended, and the development will be completed within a reasonable time. The second is where there were considerations of a commercial, economic or technical nature beyond the control of an applicant which substantially militated against either the commencement of the development or the carrying out of substantial works pursuant to the planning permission.
6. In the case of the second basis, i.e. commercial, economic or technical considerations, there are a number of safeguards built into section 42 in order to ensure that stale planning permissions do not undermine the evolution of planning policy. For example, an extension of duration cannot be granted if there have been significant changes in development objectives in the development plan since the date of the permission such that the development would no longer be consistent with the proper planning and sustainable development of the area. It is also necessary that there not be an inconsistency with Ministerial guidelines.
7. Relevantly, a further safeguard is built-in to ensure compliance with both the EIA Directive (4) and the Habitats Directive. More specifically, where the development has not commenced, the local planning authority must be satisfied that an environmental impact assessment, or an appropriate assessment, or both of those assessments, if required, was or were carried out before the planning permission was granted. (Section 42(1)(a)(ii)(IV)).
8. Section 42 contains a further safeguard in terms of the length of time for which an extension of duration can be granted. It is expressly provided that the additional period cannot exceed five years. Moreover, an application for an extension of duration can only be made once.
9. Sections 146B and 146C of the PDA 2000 provide a procedure whereby a particular type of planning permission, available in the case of strategic infrastructure development, can be altered. No express provision is made under these sections for the carrying out of screening or appropriate assessment for the purposes of the Habitats Directive.
10. Section 50 of the PDA 2000 provides that a person shall not question the validity of a planning decision other than by way of an application for judicial review. An application is subject to an eight-week time limit. The High Court has a discretion to extend time in certain specified circumstances.
11. The existence of this time limit has been interpreted by the national courts as precluding a litigant from raising-in judicial-review proceedings directed to a subsequent planning decision complaints that are, in substance, directed to an earlier planning decision in respect of which the time limit has long since expired. The court states this on the basis of the grounds of the application, and not merely on the basis of the formal application.
III. Facts and request for a preliminary ruling
12. The facts set out below follow from the request for a preliminary ruling.
13. On 31 March 2008, An Bord Pleanála, the Irish Planning Board, granted development consent for a gas terminal, more specifically a liquefied natural gas regasification terminal.
14. The proposed project is to be located adjacent to what are now two Natura 2000 sites, namely the Lower River Shannon Special Area of Conservation under the Habitats Directive (Site Code IE0002165), and the River Shannon and River Fergus Estuaries Special Area of Conservation under the Birds Directive (Site Code IE0004077).
15. The development consent was granted pursuant to a national legislative regime which did not properly transpose the Habitats Directive. The formal decision to grant development consent makes no reference to the Habitats Directive at all nor does it refer to the two European areas of conservation. Therefore, according to the request for a preliminary ruling, the decision cannot be said to contain ‘complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works …’ (5)
16. The development consent imposed a 10-year time limit on the carrying out and completion of the proposed development works (‘construction phase’). There was no time limit on the operation of the gas terminal thereafter (‘operational phase’).
17. In the event, no development works were ever commenced during this 10-year period. The developer explains that delays arose inter alia as a result of changes to the Irish policy on access to the national gas transmission grid, and, more generally, as a result of the economic situation from 2008.
18. In September 2017, the developer made an application to alter the terms of the development so as to extend the construction phase for a further five years. The Planning Board made a decision granting this application, with the result that the construction phase will now expire on 31 March 2023.
19. Friends of the Irish Environment challenged the extension of the construction phase by way of judicial review proceedings before the High Court.
20. The High Court therefore refers the following questions to the Court of Justice:
‘(1) Does a decision to extend the duration of a development consent constitute the agreement of a project such as to trigger Article 6(3) of the Habitats Directive?
(2) Is the answer to Question (1) above affected by any of the following considerations?
(a) The development consent (the duration of which is to be extended) was granted pursuant to a provision of national law which did not properly implement the Habitats Directive in that the legislation incorrectly equated an appropriate assessment for the purposes of the Habitats Directive with an environmental impact assessment for the purposes of the EIA Directive.
(b) The development consent as originally granted does not record whether the consent application was dealt with under Stage 1 or Stage 2 of Article 6(3) of the Habitats Directive, and does not contain “complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the site concerned” as required under the judgment of 24 November 2011, Commission v Spain, (C‑404/09, EU:C:2011:768).
(c) The original period of the development consent has expired, and as a consequence the development consent has ceased to have effect in respect of the entire development. No development works can be carried out pursuant to the development consent pending its possible extension.
(d) No development works were ever carried out pursuant to the development consent.
(3) In the event that the answer to Question (1) is ‘yes’, what considerations are the competent authority required to have regard to in carrying out a Stage 1 screening exercise pursuant to Article 6(3) of the Habitats Directive? For example, is the competent authority required to have regard to any or all of the following considerations:
(i) whether there are any changes to the proposed works and use;
(ii) whether there has been any change in the environmental background, e.g. in terms of the designation of European Sites subsequent to the date of the decision to grant development consent;
(iii) whether there have been any relevant changes in scientific knowledge, e.g., more up-to-date surveys in respect of qualifying interests of European Sites?
Alternatively, is the competent authority required to assess the environmental impacts of the entire development?
(4) Is there any distinction to be drawn between
(i) a development consent which imposes a time limit on the period of an activity (operational phase), and
(ii) a development consent which only imposes a time limit on the period during which construction works may take place (construction phase) but, provided that the construction works are completed within that time limit, does not impose any time limit on the activity or operation?
(5) To what extent, if any, is the obligation of a national court to interpret legislation in so far as possible in accordance with the provisions of the Habitats Directive and the Aarhus Convention subject to a requirement that the parties to the litigation have expressly raised those interpretive issues? More specifically, if national law provides two decision-making processes, only one of which ensures compliance with the Habitats Directive, is the national court obliged to interpret national legislation to the effect that only the compliant decision-making process can be invoked, notwithstanding that this precise interpretation has not been expressly pleaded by the parties in the case before it?
(6) If the answer to Question (2)(a) above is to the effect that it is relevant to consider whether the development consent (the duration of which is to be extended) was granted pursuant to a provision of national law which did not properly implement the Habitats Directive, is the national court required to disapply a rule of domestic procedural law which precludes an objector from questioning the validity of an earlier (expired) development consent in the context of a subsequent application for development consent? Is such a rule of domestic procedural law inconsistent with the remedial obligation as recently restated in the judgment of 17 November 2016, Stadt Wiener Neustadt (C‑348/15, EU:C:2016:882)?’
21. Friends of the Irish Environment, An Bord Pleanála (the Irish Planning Board) and the European Commission have submitted written observations. As the Court of Justice takes the view that it is sufficiently informed, it has decided that a hearing is not necessary.
IV. Legal assessment
22. The first, the second and the fourth questions of the request for a preliminary ruling seek clarification as to whether Article 6(3) of the Habitats Directive is applicable to the extension of a development consent in the first place. On the other hand, the third question relates to the screening exercise for checking whether the extension decision is likely to have a significant effect on the protection areas, with the result that the full assessment must be carried out. By the fifth question, the High Court seeks to ascertain whether it must interpret national law in accordance with the Habitats Directive of its own motion or whether the parties concerned must plead that interpretation. Finally, the sixth question concerns the binding effect of the original development consent on the examination of objections to the extension decision.
A. Questions 1, 2 and 4 — Obligation to carry out a prior examination
23. The first two questions and the fourth question, which should be dealt with together, seek clarification as to whether the decision to extend the duration of a development consent for the construction of a facility constitutes the agreement of a project such as to trigger Article 6(3) of the Habitats Directive. By its second question, the High Court seeks to ascertain whether certain considerations are relevant in that regard. According to my understanding, the fourth question asks whether the extension of the construction phase in the present case must be assessed differently from the extension of the operating phase, which was the subject of a recent judgment on the extension of the operating life of nuclear power stations. (6)
24. Article 6 of the Habitats Directive contains a series of specific obligations and procedures designed, as is clear from Article 2(2) of the directive, to maintain, or as the case may be restore, at a favourable conservation status natural habitats and species of wild fauna and flora of interest for the European Union. (7)
25. For that purpose, Article 6(3) of the Habitats Directive establishes an assessment procedure intended to ensure, by means of a prior examination, that a plan or project is authorised only to the extent that it will not adversely affect the integrity of the site. (8)
26. For that purpose, Article 6(3) of the Habitats Directive provides for two phases. The first, provided for in the provision’s first sentence, requires the Member States to carry out an appropriate assessment of the implications for a protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on that site. The second stage, which is envisaged in the second sentence of that provision and occurs following the aforesaid appropriate assessment, allows such a plan or project to be authorised only if it will not adversely affect the integrity of the site concerned, subject to the provisions of Article 6(4) of the Habitats Directive. (9)
27. The doubts of the national court are based on the fact that the construction of the gas terminal had already been granted development consent with final effect by the decision of 2008 and that the decision of 2018, which is the subject matter of the dispute, merely extended the effectiveness of that development consent. Therefore, it is necessary to clarify whether that second decision constitutes agreement to a plan or project within the meaning of the second sentence of Article 6(3) of the Habitats Directive.
28. In this respect, it should firstly be stated that the Irish Planning Board agreed to the project by issuing the development consent at issue in 2018. According to the wording of the second sentence of Article 6(3) of the Habitats Directive, such agreement is permissible only if the authority has ascertained, in the light of the conclusions of the assessment of the implications for the site, that the integrity of the site concerned will not be adversely affected.
29. The Irish Planning Board opposes this view and contends in particular that, in the absence of any works or interventions involving alterations to the physical aspect of the site, the Court of Justice does not regard the renewal of an operating permit as development consent for a project within the meaning of the EIA Directive. (10) That objection is unconvincing, however, because the definition of ‘project’ in the EIA Directive, which concerns the general assessment of the environmental effects of projects, is narrower than that in the Habitats Directive. (11) In addition, development consent for a project would also exist pursuant to the EIA Directive, since without the extension of the duration of the development consent, the gas terminal would not be allowed to be constructed; therefore, the envisaged works or interventions involving alterations to the physical aspect of the site could not take place.
30. However, an assessment of the extension could be dispensed with if it and the decision of 2008 are to be regarded as one single operation. Further steps for achieving such a single operation would not have to be assessed again under Article 6(3) of the Habitats Directive. (12)
31. On the one hand, according to the Court of Justice, if a recurrent activity had been authorised under national law before the entry into force of the Habitats Directive, it may nevertheless be considered as a distinct project within the meaning of that directive at the time of each subsequent intervention. If it were otherwise, that activity would automatically be excluded from any prior assessment of its implications for the site concerned. (13)
32. On the other hand, the Court of Justice nevertheless allows certain activities, having regard in particular to the regularity or nature of those activities or the conditions under which they are carried out, to be regarded as constituting a single operation, meaning that they can be considered to be one and the same project for the purposes of Article 6(3) of the Habitats Directive. (14) In that case, only the application of the prohibition on deterioration pursuant to Article 6(2) of the Habitats Directive, (15) which requires an assessment of compatibility with the conservation objectives of protected areas only in certain circumstances, could be considered. (16)
33. The background to this case-law was the temporal applicability of Article 6(3) of the Habitats Directive. In the case of an old project which was authorised for the first time before the protection scheme was applicable, its subsequent application may entail a considerable additional burden, meaning that the project developer is particularly worthy of protection. In my view, therefore, it aims to protect the legitimate expectations of project developers by providing a limited restriction of the assessment obligations under Article 6(3).
34. Although the present case does not concern recurring activities, the original 2008 development consent and the development consent at issue relate to the same project. Moreover, the Planning Board emphasises that, aside from the extension of the construction phase, the development consent at issue did not alter the scope of the project and its potential environmental effects, in particular on the protected areas concerned.
35. Nevertheless, the nature and circumstances of the extension decision suggest that it cannot be regarded as a single operation together with the 2008 development consent and that the project therefore cannot be given privileged treatment when it comes to the application of Article 6(3) of the Habitats Directive, as indicated by its wording.
36. Firstly, the present case does not concern an old project that was authorised before Article 6(3) of the Habitats Directive became applicable. Rather, the 2008 development consent was already subject to these requirements. From the point of view of EU law, there is therefore much less reason to protect the project developer via the legal concept of the single operation.
37. This is because, if the 2008 development consent were appropriately assessed, the effort required to carry out an appropriate assessment of the extension decision would be very limited. One could essentially refer to the previous assessment and would only have to take account of any changes that have occurred since then.
38. However, if the original project was granted development consent in breach of Article 6(3), the project developer is significantly less worthy of protection than in the case of an old development consent that was not yet subject to the more stringent requirements. This is all the more true in that the essential requirements of the appropriate assessment pursuant to Article 6(3) have been known not just since the judgment against Ireland (17) which is referred to in the request for a preliminary ruling and was delivered shortly before the 2008 development consent; rather, they had already been clarified by the Court of Justice much earlier. (18) Particularly in the case of a major project such as that in the present case, the project developer had to be aware of these requirements of EU law, even if the 2008 development consent potentially complied with national law.
39. Secondly, Irish law expressly provides that any extension of the construction phase requires a new development consent. Accordingly, in Question 2(c), the High Court was right to refer to the fact that the construction of the gas terminal would not be possible without the development consent at issue, because the construction phase originally permitted has expired.
40. In that sense, in its judgment on the extension of the operating life of nuclear power stations, the Court of Justice emphasised that the operating life of the facilities in question had already expired or was about to expire and was extended only by the legislation at issue. (19) By contrast, the recurring maintenance works on a waterway, which the Court of Justice recognised as possible single operations, (20) had already been granted permission in a single development consent before Article 6(3) of the Habitats Directive became applicable. (21)
41. Moreover, the application of Article 6(3) of the Habitats Directive to the extension is in line with the purpose of a temporary development consent to carry out certain works. The expiry of the time limit allows and usually requires a review as to whether the conditions of the development consent are still met. Therefore, the Industrial Emissions Directive (22) and the Plant Protection Regulation, (23) for example, provide that permits and approvals, respectively, are granted only for a limited period of time and are reviewed before they are extended. Although those permits and approvals do not relate to the construction phase of a project, but rather to the operation or use phase, it is also the case for the construction phase that the relevant circumstances and regulations existing after the expiry of the temporary period may differ from those existing at the time of first authorisation.
42. In that regard, it is primarily of practical importance that the 2008 development consent was granted pursuant to a provision of national law which did not properly implement the Habitats Directive (Question 2(a)) and that it did not contain complete, precise and definitive findings and conclusions that were capable of removing all reasonable scientific doubt as to the effects of the proposed works (Question 2(b)). These two factors mean that the assessment of the 2008 development consent is of only very limited relevance for the review of the extension. (24) If an original assessment were insufficient, however, it would be all the more necessary to close any gaps when taking a new decision. (25)
43. The principles of legal certainty and the protection of legitimate expectations do not lead to a different conclusion. This is because the legal certainty and any legitimate expectations based on the 2008 development consent could relate only to the period during which the gas terminal could be constructed pursuant to that development consent.
44. However, the development consent at issue relates to the time after the expiry of the 2008 development consent. For that period, the earlier decision could not form the basis for either legal certainty or legitimate expectations. Rather, it is established that the construction of the gas terminal would not be possible without the development consent at issue, because the construction phase originally permitted has expired. On the other hand, the new construction phase is a situation which could not be regarded as already established, meaning that Article 6(3) of the Habitats Directive is applicable. (26)
45. Friends of the Irish Environment is therefore right to draw a comparison with the Wells judgment, (27) which concerned the EIA Directive. It is true that, for reasons of legal certainty, that directive does not require an environmental impact assessment in cases where a development consent was granted after the time limit for transposition of the EIA Directive, but the development consent procedure had been formally initiated before that point in time (so-called ‘pipeline’ projects). (28) However, a decision which is necessary to prevent an existing development consent from expiring is considered to constitute a new development consent within the meaning of the EIA Directive, which requires an assessment. (29)
46. Thirdly, in the present case, the extension decision allows the works to be carried out for the first time, that is to say a measure which should be assessed under Article 6(3) of the Habitats Directive in order to determine whether it is likely to have a significant effect on the protection areas concerned. However, the risk of such an adverse effect is a decisive factor in determining whether an appropriate assessment is necessary, (30) as the prevention of such risks is the aim of the assessment. (31)
47. This constitutes an essential difference from recurring activities, which may be recognised as a single operation under certain circumstances, (32) because such operations will generally not have an additional adverse effect on a protection area if they are repeated without being altered.
48. Question 2(d) seeks to ascertain whether that third aspect is of such importance that the extension decision would not need to be assessed if some of the work for realising the project had already been carried out and some of the adverse effects had therefore already occurred.
49. However, this question does not need to be answered in the present case, as no work has been carried out. Furthermore, according to the request for a preliminary ruling, even such work would not have given rise to a right to complete the project even after the authorised construction phase had expired. (33)
50. Therefore, the decision to extend the duration of the development consent to construct a facility, in the absence of which no works may be carried out, must be regarded as independent agreement of a project such as to trigger Article 6(3) of the Habitats Directive.
B. Question 3 — Screening exercise
51. By its third question, the High Court would like to find out what considerations the competent authority is required to take into account when carrying out a Stage 1 screening exercise pursuant to Article 6(3) of the Habitats Directive.
52. Under the first sentence of Article 6(3) of the Habitats Directive, 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, is to be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives.
53. It follows that the 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 likelihood or a risk that the plan or project will have a significant effect on the site concerned. (34) Having regard to the precautionary principle, in particular, such a risk is deemed to be present where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives for the site. (35) The assessment of that risk must be made in the light, in particular, of the characteristics and specific environmental conditions of the site concerned by such a plan or project. (36)
54. Therefore, the screening exercise must take full account of the aforementioned aspects in order to justify dispensing with a full assessment.
55. The — seemingly implicit — finding by the Planning Board in connection with the 2008 development consent, that the project would not adversely affect the integrity of the site, is only a factual indication in this context. Its significance depends on the reasons on which the Planning Board based that finding. However, given that, according to the request for a preliminary ruling, already in 2008 that development consent did not contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works in the area, it is certainly incapable nowadays of ruling out the risk that the area would be adversely affected.
56. Rather, further scientific findings would be required in order to dispense with the appropriate assessment. Firstly, these findings would have to close the gaps in the 2008 assessment and, secondly, they would have to take account of any intervening changes in the project, the protected habitats and species concerned (37) and the scientific knowledge. Any other plans and projects that have been added in the meantime must be included if, together with the plan or project under consideration, they could have a significant effect on the site.
57. The answer to the third question should therefore be that the appropriate assessment under the first sentence of Article 6(3) of the Habitats Directive must be carried out where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives for the site. An earlier assessment of the same plan or project can rule out that risk only in so far as it contains complete, precise and definitive findings capable of removing all reasonable scientific doubt as to the effects of the works. Therefore, the screening test must also close any gaps in that earlier assessment and take account of whether the project has been changed in the meantime and whether other plans and projects have been added which, together with the plan or project under assessment, could have a significant effect on the site, and, moreover, whether there have been any changes in the protected habitats and species concerned and whether any new scientific knowledge is available.
C. Question 5 — Interpretation in accordance with EU law and arguments of the parties
58. By the fifth question, the High Court seeks to ascertain how far the obligation to interpret national law in accordance with EU law extends if the parties concerned have not expressly asserted that interpretation.
59. The background to that question is the fact that the Planning Board based the contested extension of the development consent not on provisions that provide for an appropriate assessment under Article 6(3) of the Habitats Directive, namely section 42 of the PDA 2000, but on sections 146B and 146C of the PDA 2000, which do not require such an assessment. However, the choice of legal basis was not expressly the subject of the action in the main proceedings.
60. The reference to the express assertion of a specific plea suggests applying the case-law on the obligation of courts to examine certain question of their own motion. According to that case-law, while EU law does not require national courts to raise of their own motion a plea alleging infringement of provisions of EU law where examination of that plea would oblige them to go beyond the ambit of the dispute as defined by the parties, they are obliged to raise of their own motion points of law based on binding EU rules only where, under national law, they must or may do so in relation to a binding rule of national law. (38)
61. Upon closer examination, however, that case-law is not relevant in the present case, since, as far as can be seen from the file, Friends of the Irish Environment has in fact consistently asserted that Article 6(3) of the Habitats Directive has been infringed. There is therefore no reason for this question to be examined by the court of its own motion.
62. Rather, the question is whether reliance on that provision may be made dependent on the fact that the party concerned also relies on the provisions of national law whose application and interpretation in accordance with EU law is necessary to remedy a possible infringement of EU law.
63. As correctly stated by Friends of the Environment and the Commission, the case-law on this point is clear.
64. The Court of Justice has repeatedly held that the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. (39)
65. It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently to comply with the third paragraph of Article 288 TFEU. (40)
66. If this is not possible, the primacy of EU law means that the national courts called upon, in the exercise of their jurisdiction, to apply provisions of EU law must be under a duty to give full effect to those provisions, if necessary refusing of their own motion to apply any conflicting provision of national law. (41) This duty is restricted by the fact that a directive, at least, cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. (42)
67. However, it is not necessary for the parties to expressly plead before the national courts which individual provisions of national law those courts should disapply or interpret in accordance with EU law. Rather, the identification of those provisions and the development of the approach for eliminating any contradiction between national law and EU law is part of the obligation of national courts to achieve the result envisaged by the directive.
68. Moreover, in the case in the main proceedings, it is also not apparent why the High Court should seek to establish the correct legal basis for the extension of the construction phase if it finds that the extension was granted in breach of Article 6(3) of the Habitats Directive.
69. In any event, the obligation of a national court to interpret national law as far as possible in accordance with EU law does not require that the parties to the proceedings before it expressly assert that specific interpretation, if those parties allege at least an infringement of the relevant provisions of EU law.
D. Question 6 — Preclusion
70. By its sixth question, the High Court seeks to ascertain whether it must disapply a rule of national procedural law which precludes a party to a dispute from questioning the validity of an earlier (expired) development consent in the context of a subsequent application for development consent.
71. An answer to this question is sought only in the event that Article 6(3) of the Habitats Directive applies to the extension for the reason that the original development consent was granted pursuant to a provision of national law which did not properly implement the Habitats Directive. However, as explained above, this factor is not of decisive importance, (43) meaning that an answer is not required.
72. Moreover, this question once again raises the notions of legal certainty and the protection of legitimate expectations. In so far as they are relevant to the application of Article 6(3) of the Habitats Directive, however, they are reflected in the legal concept of the single operation, which has already been discussed. (44) This is another reason why the sixth question does not require a separate answer.
V. Conclusion
73. I therefore propose that the Court of Justice give the following ruling:
(1) The decision to extend the duration of the development consent to construct a facility, in the absence of which no works may be carried out, must be regarded as independent agreement of a project such as to trigger Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.
(2) The appropriate assessment under the first sentence of Article 6(3) of Directive 92/43 must be carried out where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives for the site. An earlier assessment of the same plan or project can rule out that risk only in so far as it contains complete, precise and definitive findings capable of removing all reasonable scientific doubt as to the effects of the works. Therefore, the screening test must also close any gaps in that earlier assessment and take account of whether the project has been changed in the meantime and whether other plans and projects have been added which, together with the plan or project under assessment, could have a significant effect on the site, and, moreover, whether there have been any changes in the protected habitats and species concerned and whether any new scientific knowledge is available.
(3) The obligation of a national court to interpret national law as far as possible in accordance with EU law does not require that the parties to the proceedings before it expressly assert that specific interpretation, if those parties allege at least an infringement of the relevant provisions of EU law.