delivered on 3 May 2007 (1)

(Failure of a Member State to fulfil obligations – Council Directive 79/409/EEC on the conservation of wild birds – Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora – Obligation to avoid pollution or deterioration of habitats or any disturbances affecting birds under Article 4(4) of Council Directive 79/409/EEC – Obligation to avoid deterioration or disturbance under Article 6(2) of Council Directive 92/43/EEC – Scope ratione temporis of Article 6(3) and (4) of Council Directive 92/43/EEC – Obligation to conduct an ex ante assessment – Valloni e steppe pedegarganiche – Gargano National Park)

1. In these proceedings, the Commission seeks a declaration under Article 226 EC that, in omitting to take the appropriate steps to avoid, in the special protection area (‘SPA’) ‘Valloni e steppe pedegarganiche’, the deterioration of natural habitats and the habitats of species, Italy has failed to comply with its obligations under Article 4(4) of Directive 79/409 (2) (the ‘Birds Directive’) and Article 6(2), (3) and (4) and Article 7 of Directive 92/43 (3) (the ‘Habitats Directive’). This raises the question of the relationship between those provisions of the two directives.

Relevant Community law

The Birds Directive

4. Article 4 of the Birds Directive then provides:

‘1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.

…

Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies.

…

4. 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. ...’

6. Article 13 states that ‘[a]pplication of the measures taken pursuant to this Directive may not lead to deterioration in the present situation as regards the conservation of species of birds referred to in Article 1’.

The Habitats Directive

‘[1] … the preservation, protection and improvement of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, are an essential objective of general interest pursued by the Community, as stated in Article 130r of the Treaty; [(5)]

…

[6] … in order to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status, it is necessary to designate special areas of conservation in order to create a coherent European ecological network according to a specified timetable;

[7] … all the areas designated, including those classified now or in the future as [SPAs] pursuant to [the Birds Directive], will have to be incorporated into the coherent European ecological network;

[10] … an appropriate assessment must be made of any plan or programme likely to have a significant effect on the conservation objectives of a site which has been designated or is designated in future.’

9. Article 1(j) of the Habitats Directive defines a ‘site’ as ‘a geographically defined area whose extent is clearly delineated’.

10. Article 1(k) defines a ‘site of Community importance’ as:

‘… a site which, in the biogeographical region or regions to which i[t] belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II and may also contribute significantly to the coherence of Natura 2000 referred to in Article 3, and/or contributes significantly to the maintenance of biological diversity within the biogeographical region or regions concerned’.

11. Article 1(l) defines a ‘special area of conservation’ (‘SAC’) as:

‘… a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated’.

12. Article 2 states:

‘1. The aim of this Directive shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora …

13. Articles 3, 4 and 5 deal with the establishment of the ‘coherent European ecological network of special areas of conservation’ known as ‘Natura 2000’. Article 3(1), second paragraph, provides that ‘[t]he Natura 2000 network shall include the [SPAs] classified by the Member States pursuant to [the Birds Directive]’.

14. Article 6(2), (3) and (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.

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.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’

15. Article 7 of the Habitats Directive provides:

‘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 [the Birds Directive] in respect of areas classified pursuant to Article 4(1) [(6)] 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 [the Birds Directive], where the latter date is later.’

16. Article 23 required Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Habitats Directive within two years of its notification, i.e. by June 1994. (7)

Relevant facts and procedure

17. The ‘Valloni e steppe pedegarganiche’, situated in the Apulia region, is one of the principal steppe areas in Italy, harbouring rare and protected species of wild birds. It has a geological substratum consisting of chalk dating from the Cretaceous and Jurassic Periods. The site shows significant biodiversity and contains a series of erosional canyons that harbour a rupestral environment with rare endemic plant species. (8) It is the only station on the Italian peninsula of Tetrax tetrax (Little bustard), and is also the habitat for the Falco biarmicus (Lanner falcon), Neophron percnopterus (Egyptian vulture), Burhinus oedicnemus (Stone curlew), Melanocorypha calandra (Calandra Lark), Calandrella brachydactyla ((Greater) (9) Short-toed lark), and the Falco peregrinus (Peregrine). All these birds are listed in Annex I to the Birds Directive.

18. The ‘Valloni e steppe pedegarganiche’ featured as an Important Bird Area (under the name ‘Promontorio del Gargano’ (Gargano Promontory)) in the 1989 European ornithological inventory ‘Important Bird Areas in Europe’ (‘IBA Catalogue 89’).

19. Nine years later, on 28 December 1998, Italy classified the site as an SPA under Article 4(1), final paragraph, of the Birds Directive.

21. The area subject to reindustrialisation, in total 400 hectares, lies along National Road 89 between the villages of Posta Spiriticchio and Posta Predella, to the southwest of the Siponto agglomeration, on the territory of the municipality of Manfredonia.

22. On 19 December 2003, the Commission sent Italy a letter of formal notice, asking it to submit observations. There was no response. By letter of 9 July 2004, the Commission therefore sent Italy a reasoned opinion pursuant to Article 226 EC, giving it a period of two months to comply.

23. In a letter dated 9 November 2004, Italy informed the Commission that it intended shortly to reply substantively to its complaints. No further response was, however, forthcoming.

24. Accordingly, the Commission brought the present action on 24 October 2005. It asks the Court to:

–prior to 28 December 1998, the date on which the ‘Valloni e steppe pedegarganiche’ was designated as an SPA, Italy breached Article 4(4) of the Birds Directive by failing to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting birds likely to have significant consequences, inasmuch as the plan designated ‘the regional agreement’ and the projects outlined therein were liable to have an impact on the habitats and species within IBA (Important Bird Area) No 94 (from IBA Catalogue 89) ‘Gargano Promontory’ or No 129 (from IBA Catalogue 98) ‘Gargano Promontory’ and have in fact brought about a deterioration of habitats and resulted in serious disturbances affecting birds within these IBAs;

–after 28 December 1998, Italy failed to meet its obligations under Article 6(2), (3) and (4) and Article 7 of the Habitats Directive in so far as

–contrary to Article 6(2), Italy has not taken appropriate steps to avoid, in the SPA ‘Valloni e steppe pedegarganiche’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the area has been designated arising from the projects contained in the regional agreement that have already been completed and that are responsible for the deterioration of the natural habitat, and the habitats of species and the disturbance of the species in the area concerned;

–contrary to Article 6(3), Italy has not conducted an ex ante assessment of the projects contained in the regional agreement that have already been completed and that were likely to have a significant effect on the SPA;

–contrary to Article 6(4), Italy has not applied the procedure that allows a project to be carried out (in spite of a negative assessment of the implications for the site and in the absence of alternative solutions) for imperative reasons of overriding public interest, including those of a social or economic nature or considerations relating to human health or public safety or to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest; nor has it communicated to the Commission all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected, with respect to the projects included in the regional agreement that have been approved (in spite of their implications for the SPA) to combat the socio-economic crisis and unemployment that affect the region of Manfredonia;

(b)order Italy to pay the costs.

Assessment

Preliminary remark

Costs

Prior to 28 December 1998: Alleged violation of Article 4(4) of the Birds Directive

On and after 28 December 1998: Alleged violation of Article 6(2), (3) and (4) of the Habitats Directive

Article 6(2) of the Habitats Directive

Relationship between Article 4(4) of the Birds Directive and Article 6(3) and 6(4) of the Habitats Directive

Costs

54. 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. In its pleadings, the Commission has asked for costs. Whilst I consider that the Commission is not entitled to declarations under Article 6(3) and (4) of the Habitats Directive, the substance of the infringement has been established. I therefore see no reason to depart from the Court’s normal practice. The Italian Republic should be ordered to bear the costs.

Conclusion

55. I therefore consider that the Court should:

–declare that, prior to 28 December 1998, the Italian Republic failed to meet its obligations under Article 4(4) of Directive 79/409/EEC (the Birds Directive) in so far as it failed to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting birds likely to have significant consequences in respect of the areas designated, on that date, as the Special Protection Area ‘Valloni e steppe pedegarganiche’;

–declare that, on and after 28 December 1998, the Italian Republic failed to meet its obligations under Article 6(2) of Directive 92/43/EEC (the Habitats Directive) in so far as it has not taken appropriate steps to avoid, in the Special Area of Conservation ‘Valloni e steppe pedegarganiche’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the area has been designated;

–order the Italian Republic to bear the costs.

* Language of the case: English.

ECLI:EU:C:2025:140

1

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

after considering the observations submitted on behalf of:

–Waltham Abbey Residents Association, by J. Devlin, Senior Counsel, J. Kenny, Barrister-at-Law, and D. Healy, Solicitor,

–An Bord Pleanála, by. B. Foley, Senior Counsel, A. Carroll, Barrister-at-Law, and P. Reilly, Solicitor,

–Ireland, by M. Browne, Chief State Solicitor, S. Finnegan, K. Hoare and A. Joyce, acting as Agents, and by D. McGrath, Senior Counsel, F. Valentine, Senior Counsel, and E. O’Callaghan, Barrister-at-Law,

–the European Commission, by M. Noll-Ehlers and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [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 Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘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.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law