Commission v Belgium [2011] EUECJ C-538/09 (26 May 2011)

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(Failure of a Member State to fulfil obligations – Environment –Directive 92/43/EEC – Article 6(3) – Special areas of conservation – Appropriate assessment of the implications of a plan or project which is likely to have a significant effect on a protected site – Exemption from assessment of plans or projects which are subject to a declaratory scheme – Incorrect transposition)

European Commission, represented by D. Recchia and A. Marghelis, acting as Agents, with an address for service in Luxembourg,

1 By its application, the European Commission claims that the Court should declare that, by not requiring an appropriate environmental impact assessment to be undertaken for certain activities, where those activities are likely to have an effect on a Natura 2000 site, and by making certain activities subject to a declaratory scheme, the Kingdom of Belgium has failed to fulfil its obligations under 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 (OJ 1992 L 206, p. 7; ‘the Habitats Directive’).

2 Under Article 2(1) of the Habitats Directive, the aim of that directive is to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty on the Functioning of the European Union applies.

4 Article 4 of the Habitats Directive governs the procedure for establishing the Natura 2000 network and for the designation of special areas of conservation by the Member States.

5 Paragraphs 2 and 3 of Article 6 of the Habitats Directive, which lays down the conservation measures for those areas, provide:

6 Article 28(2) of the Law of 12 July 1973 on nature conservation (Moniteur belge of 11 September 1973, p. 10306), as amended by the Decree of the Walloon Region of 22 May 2008 (Moniteur belge of 17 June 2008, p. 31074; ‘the Law on nature conservation’), provides:

8 Article 3 of the Decree of the Walloon Region of 11 March 1999 concerning environment permits (Moniteur belge of 8 June 1999, p. 21114) in the version applicable to the present dispute (‘the Decree of 11 March 1999’), provides:

12 Article 2(1) of the Order of the Walloon Government of 4 July 2002 adopting the list of projects requiring an environment impact assessment and of classified installations and activities (Moniteur belge of 21 September 2002, p. 42502), in the version applicable in the present case (‘the Order of 4 July 2002’), states:

13 Annex I to the Order of 4 July 2002 lists a number of projects, installations or activities for which an environmental impact assessment is not compulsory, including the following projects, installations or activities to which the Commission makes specific reference in its application initiating proceedings:

14 During the course of 2006, the Commission received a complaint alleging the unauthorised operation of an industrial-scale cattle shed located within the territory of the commune of Philippeville in the Walloon Region (Belgium), which borders on the ‘Bassin de Fagnard de l’Eau blanche en aval de Mariembourg’, a Natura 2000 site designated as a special area of conservation.

15 The complaint described the serious deterioration of that Natura 2000 site as a result of the effluent discharged from the cattle shed, which – the complainant alleged – threatened a number of the species listed in the Annex to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) and in the Annex to the Habitats Directive.

16 By letter of 23 August 2006, the Commission called on the Kingdom of Belgium to submit its comments regarding compliance with the requirements laid down in Article 6(2) of the Habitats Directive.

17 In the light of the reply from the Kingdom of Belgium, the Commission formed the view that the Belgian legislation did not in fact comply with the requirements laid down in Article 6(3) of the Habitats Directive, since it did not make an environmental impact assessment compulsory and made certain activities likely to affect a Natura 2000 site subject to a declaratory scheme.

18 After giving the Kingdom of Belgium formal notice on 23 March 2007 to submit its observations, the Commission issued a reasoned opinion on 6 May 2008 calling on that Member State to take the measures necessary to comply with that opinion within two months of its receipt.

19 The Kingdom of Belgium responded to the reasoned opinion on 11 July 2008, stating that the agricultural holding originally called in question had since been equipped with a waste-water treatment plant and that there was no longer any discharge to the Natura 2000 site concerned. The Kingdom of Belgium added that the Law on nature conservation now contained an Article 28(2) – the terms of which are set out in paragraph 6 above – and that an order designed to ensure the implementation of that provision was in the process of final adoption.

20 Following a ‘package meeting’ on 17 March 2009 between the Kingdom of Belgium and the Commission, the Kingdom of Belgium supplemented its response to the reasoned opinion on 5 May 2009 with information on the laws and regulations adopted by the Walloon Region with a view to preventing any risk of damage to the environment.

21 On the view that those provisions do not suffice to ensure the systematic assessment of the implications for the protected site, as required under Article 6(3) of the Habitats Directive, the Commission brought the present action.

22 The Commission maintains that, under Article 6(3) of the Habitats Directive, the national authorities may not agree to a plan or project until they have undertaken an assessment of its environmental implications, which must highlight the actual or potential impact of the plan or project on the protected site.

23 Where the criteria for exempting a category of plans or projects are not sufficient to ensure with certainty that the plans or projects concerned will not have any significant adverse effects as regards the integrity of the protected site, such an assessment should, the Commission argues, take place systematically.

24 In the present case, it is clear from Article 29(1) of the Law on nature conservation that, in the case of plans or projects which do not require an environment permit, such as the categories of plans and projects which merely require a declaration to be made to the local authority, there is no need for an assessment of their environmental implications.

25 However, that exception from the obligation to carry out such an assessment for plans and projects subject to a declaratory scheme is not based on an objective criterion. It is always possible that activities taking place below the thresholds laid down by the Order of 4 July 2002 may also have a significant impact on the site concerned.

26 In that regard, the Commission refers to the activities and installations referred to in paragraph 13 above and states that a holding of 500 bovine animals may, owing to the consequent discharge of effluent, have implications for a particular site, even though that discharge would have no effect on another site.

27 In its reply, the Commission adds – with regard to the argument concerning the possibility of transferring establishments from Class 3 to Class 2 – that the fifth paragraph of Article 3 of the Decree of 11 March 1999 places that responsibility on the declarant, whereas, under Article 6(3) of the Habitats Directive, it is for the competent national authorities to establish, by means of an appropriate assessment, that plans and projects will not adversely affect the integrity of the site concerned. Moreover, it is clear from the fifth paragraph of Article 3 of that decree that transfer from Class 3 to Class 2 is linked to the impossibility of complying with comprehensive conditions, and not to the risk posed to a Natura 2000 site.

28 Furthermore, the Commission argues, the general prohibitions referred to in Article 28(2) of the Law on nature conservation relate to Article 6(2) of the Habitats Directive, which does not concern the obligation to carry out an assessment of the implications for the site of a new project. Consequently, in the view of the Commission, Article 28(2) of that law does not adequately transpose Article 6(3) of the Habitats Directive into national law.

29 The Kingdom of Belgium contends that the inspections carried out by the Belgian authorities have not disclosed that the cattle shed to which the complaint relates has any negative implications for the Natura 2000 site known as the ‘Bassin de Fagnard de l’Eau blanche en aval de Mariembourg’.

30 More generally, according to the Kingdom of Belgium, it is clear from Article 3 of the Decree of 11 March 1999 that Class 3 – establishments in which are subject to a declaratory scheme – covers by definition installations and activities which have a low impact on humans and on the environment.

31 Moreover, in order to operate a Class 3 installation or carry on a Class 3 activity, it is necessary to comply with the Environment Code and the comprehensive conditions laid down for each sector of activity. Those comprehensive conditions are designed to reduce the impact on the environment and to prevent damage to Natura 2000 sites.

32 The Kingdom of Belgium adds that, when drawing up the list of classified activities and installations, the Walloon Region carried out a study of activities likely to have effects on the environment, taking into account the criteria laid down in Annex III to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).

33 In order to mitigate any risk of environmental damage arising from an unpredictable situation, the Decree of 11 March 1999 also makes it possible for a Class 3 establishment to be transferred to another class where it is unable to comply with the comprehensive conditions applicable to it. In such cases, the declarant must submit an application for a Class 2 environment permit. In those circumstances, the competent authority would then, on the basis of the information provided in the permit application, be in a position to decide whether it was necessary to assess the implications of the establishment for the Natura 2000 site concerned.

34 According to the Kingdom of Belgium, Article 28 of the Law on nature conservation constitutes the last layer of protection. Article 28(1) provides that all operators are bound by the general prohibition, under which it is forbidden to cause damage to natural habitats or to disturb the species for which the Natura 2000 sites were designated. Article 28(2) enables the Government to impose general measures on all activities that are likely to have implications for Natura 2000 sites. That provision was implemented by the Order of the Walloon Government of 23 October 2008 introducing general preventive measures applicable to Natura 2000 sites (Moniteur belge of 27 November 2008, p. 62636) and by the Order of the Walloon Government of 23 October 2008 laying down certain detailed rules under the preventive arrangements applicable to Natura 2000 sites (Moniteur belge of 27 November 2008, p. 62644).

35 If all those layers of provisions, which provide effective protection for Natura 2000 sites, were to prove inadequate, it would still be open to the Walloon Government to issue general protective measures applicable outside Natura 2000 sites to supplement those concerning the sites themselves.

36 In its rejoinder, the Kingdom of Belgium states that the only circumstances in which Article 6(3) of the Habitats Directive is not applicable is where there is no possibility of any significant effect on special areas of conservation. As it is, the Belgian authorities have acted consistently with that approach by means of Article 3 of the Decree of 11 March 1999.

37 As regards the possibility for establishments to be transferred from Class 3 to Class 2, the Kingdom of Belgium contends that the Commission’s interpretation is incorrect, since, in determining whether the establishment concerned is of a kind requiring an environment permit rather than a declaration, the declarant must base its decision on criteria laid down by the Walloon Government. As for the argument that such a transfer depends on whether the comprehensive conditions have been complied with, the Kingdom of Belgium states that, in the light of the Belgian legislation, a Class 3 establishment which complies with the comprehensive conditions applying to it will have little or no effect on human health or the environment.

38 Thus, the Kingdom of Belgium maintains that it has correctly transposed Article 6(3) of the Habitats Directive into national law by establishing an appropriate system for assessing the implications of all activities which may have negative implications for a protected site.

39 It is settled law that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that the plan or project in question will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (see Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I-7405, paragraphs 43 and 44; Case C-6/04 Commission v United Kingdom [2005] ECR I-9017, paragraph 54; and Case C-418/04 Commission v Ireland [2007] ECR I-10947, paragraph 226).

40 That risk must be assessed in the light, inter alia, of the characteristics and specific environmental conditions of the site concerned by that plan or project (see Waddenvereniging and Vogelbeschermingsvereniging, paragraph 49, and Case C-179/06 Commission v Italy [2007] ECR I-8131, paragraph 35).

41 Moreover, the condition governing the need to undertake an assessment of the implications of a plan or a project on a particular site, in accordance with which such an assessment must be carried out where there are doubts as to the existence of significant effects, does not permit that assessment to be avoided, in respect of certain categories of projects, on the basis of criteria which do not adequately ensure that those projects are not likely to have a significant effect on the protected sites (see, to that effect, Case C-98/03 Commission v Germany [2006] ECR I-53, paragraph 41).

42 The option of generally exempting certain activities, in accordance with the rules in force, from the need for an assessment of the implications for the site concerned is not such as to guarantee that those activities do not adversely affect the integrity of the protected site (see, to that effect, Commission v Germany, paragraphs 43 and 44, and Case C-241/08 Commission v France [2010] ECR I-0000, paragraph 31).

43 Thus, Article 6(3) of the Habitats Directive does not authorise a Member State to enact national legislation which allows the environmental impact assessment obligation for development plans to benefit from a general waiver because of the low costs entailed or the particular type of work planned (see, to that effect, Case C-256/98 Commission v France [2000] ECR I-2487, paragraph 39).

44 Similarly, by systematically exempting works and development programmes and projects which are subject to a declaratory scheme from the procedure for assessing their implications for the site, a Member State fails to fulfil its obligations under Article 6(3) of the Habitats Directive (see, to that effect, Case C-241/08 Commission v France, paragraph 62).

45 It is therefore clear from the case-law of the Court that, in principle, pursuant to Article 6(3) of the Habitats Directive, a Member State may not, on the basis of the sphere of activity concerned or by introducing a declaratory scheme, systematically and generally exempt certain categories of plans or projects from the obligation requiring an assessment to be undertaken of their implications for Natura 2000 sites.

46 It is in the light of those considerations that it is necessary, in the present case, to consider whether the provisions adopted by the Kingdom of Belgium are in conformity with Article 6(3) of the Habitats Directive.

47 In that regard, it should be noted that Article 29(2) of the Law on nature conservation provides that any plan or project requiring a permit and which is likely to have a significant effect on a Natura 2000 site, whether individually or in combination with other plans or projects, must undergo an impact assessment as provided for under the legislation laying down arrangements for environmental impact assessments in the Walloon Region.

48 At the same time, the Decree of 11 March 1999 states that Class 3 installations and activities need only be the subject of a prior declaration to the local authority in whose territory the planned establishment is to be located.

49 The Commission infers from those provisions, read together, that Class 3 installations and activities do not require a permit and that, accordingly, they are not liable to be the subject of an assessment of their implications for a Natura 2000 site, a point which is not disputed by the Kingdom of Belgium.

50 In that regard, the Commission refers to Annex I to the Order of 4 July 2002, which lists those projects, installations or activities – the Class 3 activities referred to in paragraph 13 above – for which an environmental impact assessment is not compulsory.

51 Consequently, the Kingdom of Belgium has established a declaratory scheme which exempts certain activities and installations, on a general basis, from the obligation requiring their implications for a Natura 2000 site to be assessed. The Kingdom of Belgium thus presumes that plans or projects subject to that declaratory scheme are not likely to have a significant effect on a protected site.

52 In such circumstances, where a Member State introduces a declaratory scheme, under which there is accordingly no provision for a risk assessment depending inter alia on the characteristics and specific environmental conditions of the site concerned, that Member State must show that the provisions which it has adopted enable it to be excluded, on the basis of objective information, that any plan or project subject to that declaratory scheme will have a significant effect on a Natura 2000 site, whether individually or in combination with other plans or projects (see, to that effect and by analogy, Case C-241/08 Commission v France, paragraph 32).

53 It can be inferred from Article 6(3) of the Habitats Directive that competent national authorities may refrain from carrying out an impact assessment of any plan or project which is not directly connected with, or necessary to, the management of a Natura 2000 site only where it can be excluded, on the basis of objective information, that that plan or project will have a significant effect on that site, whether individually or in combination with other plans or projects (see, to that effect, Waddenvereniging and Vogelbeschermingsvereniging, paragraph 45, and Commission v Ireland, paragraph 238).

54 In that regard, first, the Kingdom of Belgium refers to Article 3 of the Decree of 11 March 1999, which states that the declaratory scheme applies only to installations and activities with a low impact on humans and on the environment, for which the Belgian Government has laid down comprehensive conditions.

55 It should be borne in mind, however, that even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration (see, to that effect, with regard to Directive 85/337, Case C-392/96 Commission v Ireland [1999] ECR I-5901, paragraph 66).

56 It follows that a Member State cannot assume that categories of plans or projects defined by reference to spheres of activity and special installations will, by definition, have a low impact on humans and on the environment.

57 Secondly, the Kingdom of Belgium states that, when the Walloon Region drew up the list of classified activities and installations, it carried out an assessment of activities likely to have effects on the environment, taking into account the criteria laid down in Annex III to Directive 85/337.

58 It should be noted, however, that the Kingdom of Belgium has not produced that assessment. In any event, as the Commission points out, it is not possible, in particular – contrary to the requirement under Article 6(3) of the Habitats Directive – to predict, in principle, on the basis of such an assessment the possible effects of a plan or project, in combination with other plans or projects, on a particular site.

59 Thirdly, the Kingdom of Belgium maintains that, in accordance with the Decree of 11 March 1999, where a planned Class 3 establishment is unable to comply with the comprehensive conditions applying to it, it is transferred to Class 2. On the basis of the information provided by the declarant in the application for a Class 2 environment permit, the competent authority may then decide to require an assessment of the implications of the establishment for the Natura 2000 site concerned in the light of the conservation objectives for that site.

60 However, the Kingdom of Belgium has not produced either the provisions of the comprehensive conditions relating to the installations and activities to which the Commission refers or the criteria enabling the declarant to determine whether the planned Class 3 establishment is able to comply with those comprehensive conditions. Nor does the Kingdom of Belgium explain how, specifically, those provisions offset the lack of an appropriate assessment of the implications of plans or projects that are likely to have a significant effect on the protected site.

61 Fourthly, the Kingdom of Belgium relies on the provisions for implementing Article 28(2) of the Law on nature conservation, which – it asserts – provide effective protection in any event for Natura 2000 sites in the Walloon Region.

62 None the less, that Member State does no more than give the references for the two orders of the Walloon Government of 23 October 2008, referred to in paragraph 34 above, without examining their content or explaining the reasons why, in its submission, those orders are adequate for ensuring the transposition into national law of Article 6(3) of the Habitats Directive.

63 Fifthly, the Kingdom of Belgium also mentions the obligation to comply with the Environment Code, although it does not state specifically how the provisions of that code, read in conjunction with the general conditions, are capable of protecting the environment.

64 It is clear from the foregoing that the Kingdom of Belgium has not provided evidence enabling the Court to determine whether the provisions which that Member State has adopted allow it to be excluded, on the basis of objective information, that any plan or project subject to that declaratory scheme will have a significant effect on a Natura 2000 site, whether individually or in combination with other plans or projects.

65 In those circumstances, the Commission’s action must be regarded as well founded.

66 In the light of the foregoing considerations, it must be held that, by not requiring an appropriate environmental impact assessment to be undertaken for certain activities, subject to a declaratory scheme, when those activities are likely to have an effect on a Natura 2000 site, the Kingdom of Belgium has failed to fulfil its obligations under Article 6(3) of the Habitats Directive.

67 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, the latter must be ordered to pay the costs.

1. Declares that, by not requiring an appropriate environmental impact assessment to be undertaken for certain activities, subject to a declaratory scheme, where those activities are likely to have an effect on a Natura 2000 site, the Kingdom of Belgium has failed to fulfil its obligations under 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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Belgium [2011] EUECJ C-538/09 (26 May 2011) URL: http://www.bailii.org/eu/cases/EUECJ/2011/C53809.html Cite as: [2011] EUECJ C-538/9, [2011] EUECJ C-538/09

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