The recent EU Habitats decision of Grüne Liga considers the requirement to assess and revisit the impact of an existing development when an inadequate assessment has been carried out.
Issues to Consider & Likely Impact in Irish Law
Case C-399/14 Grüne Liga Sachsen & Ors v Freistat Sachsen (“Grüne Liga”) was a request for a preliminary ruling by the German Bundesverwaltungsgericht (Federal Administrative Court of Germany, one of the five federal Supreme Courts of Germany) (the “Referring Court”). The Referring Court referred four questions relating to the interpretation of the Habitats Directive to the European Court of Justice (“Court”) as follows:
- whether a project for which approval was granted before a site was listed by the Commission would require a review of its implications on Sites of Community Importance (“SCI”) after it was carried out;
- the Referring Court also asked what requirements should be applied in such a subsequent review and the relevance of whether a project has been completed to such a review;
- whether the project (a bridge in this case) should be demolished given that they had found that previous assessments were flawed (but the bridge was constructed and in operation); and
- relevant considerations which can be taken into account in making a decision or alternative solutions for the project including demolition.
While the facts are particular to this case (as a determination was made by the German Courts that the previous assessments were defective), the case confirms the obligations of a Member State under Article 6(2) of the Habitats Directive. The case gives some insight into the obligations and considerations of a public authority in complying with Article 6(2) of the Habitats Directive in carrying out its functions where there is a risk of deterioration or disturbance of the conservation objectives of a European Site.
This decision considers the obligation to carry out a subsequent review notwithstanding the fact that a valid planning permission has been granted and indeed a plan or project has been constructed and completed. The decision confirms previous decisions that a subsequent review is required to meet the requirements of a review under Article 6(3) of the Habitats Directive and that a review must take into account the risks of deterioration or disturbance that could be significant, within the meaning of Article 6(2) of the Habitats Directive, including those which may have arisen because the plan or project has been carried out.
This decision highlights the implications for existing plans or projects where a previous assessment is inadequate or defective or where a new designation arises.
The adequacy of previous assessments may need to be considered and reviewed particularly in circumstances where the requirements of the Habitats Directive are triggered and risks to the conservation objectives of a European Site arise.
This case concerned the construction of a bridge over the river Elbe. The bridge was given planning approval on 25 February 2004. The areas on either side of the river the bridge crosses are classified as SCI but were not officially classed as SCI until December 2004. The areas on either side of the river were, however, notified for listing as SCI by Germany in March 2002 (informally) and June 2002 (formally). The bridge was built out and has been open to traffic since August 2013.
At the time the bridge was given approval the areas on either side of the river were not officially an SCI but were a candidate SCI. The planning approval given in February 2004 was based on an assessment dated January 2003 which investigated possible effects of the construction project on the areas on either side of the river, which the Referring Court found to be defective in 2014.
A further assessment of the bridge was carried out in 2008 which found that there were significant negative effects to the project but that these could be addressed by compensatory measures within the meaning of Article 6(4) of the Habitats Directive. The project was again approved, subject to specific measures. The Referring Court also found this second assessment to be defective in 2014.
Judgment of the Court of Justice (Third Chamber)
Project Authorised Prior to Listing as an SCI
The Court referred to previous case law which held that, even if a project was authorised before the system of protection laid down by the Habitats Directive became applicable, and accordingly the project was not subject to a prior assessment
under Article 6(3) of the Habitats Directive during the authorisation stage, the implementation of such project could still fall within the scope of Article 6(2) of the Habitats Directive. Therefore, the implementation of the bridge in the instant case fell within the scope of Article 6(2) of the Habitats Directive.
The Court held that Article 6(2) of the Habitats Directive does not impose a procedure for precise protective measures to examine or review the implications of a plan or project in the same manner that Article 6(3) of the Habitats Directive does. Instead, Article 6(2) of the Habitats Directive establishes a general obligation of protection consisting of taking appropriate protective measures so as to avoid deterioration as well as disturbance which could have significant effects in light of the objectives of the Habitats Directive and this obligation under Article 6(2) of the Habitats Directive is ongoing in nature.
The Court held that an “appropriate step” within the meaning of Article 6(2) of the Habitats Directive might entail an obligation to carry out a subsequent review of the implications of existing plans or projects on the SCI. However, this remains within the discretion of the Member State and is not an absolute obligation. In the instant case, the project was not directly connected with the management of the SCI but was authorised, following a study that did not meet the requirements of Article 6(3) of the Habitats Directive, before the site in question was included in the list of SCIs. In these circumstances the court held that it must be the subject of a subsequent review by the competent authorities of its implication for the SCI as that review constituted the only appropriate step for avoiding the deterioration or disturbance of the SCI which could be significant in view of the objectives of the Habitats Directive.
Requirements to be Imposed in a Subsequent Review
The Court held that, although the obligation for such a subsequent review arose from Article 6(2) of the Habitats
Directive, the procedure carried out under such a review had to meet all the requirements of Article 6(2) and 6(3) of the Habitats Directive as both Articles 6(2) and 6(3) of the Habitats Directive were required to be construed as a coherent whole.
within the meaning of Article 6(2) of the Habitats Directive, have already occurred on completion of the works. The assessment must enable it to be established whether such risks are likely to materialise if the works continue to be used.
Therefore, the Court held that a subsequent review must define what risks of deterioration or disturbance likely to be significant within the meaning of Article 6(2) of the Habitats Directive would be entailed by the implementation of the plan or project, and that subsequent review must be carried out in accordance with the requirements of Article 6(3) of the Habitats Directive.
The Court held that while imperative reasons of overriding public interest in accordance with Article 6(4) of the Habitats Directive could be considered as part of this review, these could only be considered after the implications of the plan or project had been studied in accordance with Article 6(3) of the Habitats Directive.
The Court also held that the subsequent review should take into account the conservation objectives of the SCI existing at the date of the inclusion of that site in the list of SCIs as well as all implications arising or likely to arise following the partial or total implementation of the plan or project after that date as well.
Relevance of the Fact that the Project had Been Completed and was in Operation, and the Considerations in Making a Decision
The Court held that the requirements of a subsequent review may not be amended solely because the structure in question was constructed pursuant to a planning decision immediately enforceable under national law. The Court held that a new assessment of the implications for the site concerned of a plan or project already implemented must take into account the assumption that the risks of deterioration or disturbance that could be significant,
If, in spite of a negative assessment carried out in accordance with Article 6(3) of the Habitats Directive, the plan or project must nevertheless be carried out or continued for imperative reasons of overriding public interest, the Member State is required to take all compensatory measures necessary. The examination of alternative solutions in the event of a negative assessment, requires weighing the environmental consequences of maintaining or restricting the use of the works, including closure or even demolition, against the important public interest that led to their construction. If an alternative step, such as demolition, were to entail risks of deterioration or disturbance which could be significant, then such a step would be contrary to the objective of the Habitats Directive and could not be regarded as an alternative solution within the meaning of Article 6(4) of the Habitats Directive.
The Court referred to the Opinion of AG Sharpston where she found that if, after weighing up these considerations, a decision to demolish the bridge was taken, this proposal for demolition should be regarded as a project under Article 6(3) of the Habitats Directive which would be subject to the scrutiny required by that provision before it could be carried out. The Court also agreed with AG Sharpston’s finding that the economic cost of alternative steps are not of equal importance to the objective of conserving natural habitats and the wild fauna and flora pursued by the Habitats Directive and could not alone be considered as a determining factor in the choice of alternative solutions.