CJEU rules against Germany in habitats case…

The CJEU yesterday ruled that by authorising the construction of the coal-fired power plant in Moorburg, near Hamburg (Germany), without conducting an appropriate and comprehensive assessment of its implications, the Federal Republic of Germany 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.

The case involves is interesting as regards: (i) on-going monitoring of mitigation; and (ii) assessment of cumulative impacts.

By its first complaint, the Commission claimed Germany infringed the second sentence of Article 6(3) of the Habitats Directive because the operation of the Moorburg plant has a negative impact on several Natura 2000 areas situated upstream of the Geesthacht weir and, more specifically, that a large number of fish pertaining to species listed in Annex II to the Habitats Directive are killed as a result of the drawing of cooling water by the Moorburg plant. This was upheld.

Mitigation measures were proposed – in the form of a so-called “fish ladder” along with monitoring in order to verify the effectiveness of that measure. The CJEU said on this:

“37 However, it is clear that the impact assessment itself did not contain definitive data regarding the effectiveness of the fish ladder, and merely stated that its effectiveness could only be confirmed following several years of monitoring.

38 It must therefore be held that, at the time the authorisation was granted, the fish ladder, even though it was intended to reduce direct significant effects on the Natura 2000 areas situated upstream of the Moorburg plant, could not guarantee beyond all reasonable doubt, together with the other measures referred to in paragraph 35 of the present judgment, that that plant would not adversely affect the integrity of the site, within the meaning of Article 6(3) of the Habitats Directive.

39 That conclusion cannot be called into question by the arguments of the Federal Republic of Germany concerning risk management and the data relating to the years 2011 to 2014.

40 According to the case-law, the authorisation criterion laid down in the second sentence of Article 6(3) of the Habitats Directive integrates the precautionary principle and makes it possible effectively to prevent adverse effects on the integrity of protected sites as the result of plans or projects. A less stringent authorisation criterion than that in question could not ensure as effectively the fulfilment of the objective of site protection intended under that provision (judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 53 and the case-law cited).

41 As regards the estimates on which the impact assessment was based, it should be pointed out that the data relating to the years 2011 to 2014 was collected by the Federal Republic of Germany after the granting of the authorisation of 30 September 2008.

42 In that regard, it should be noted that it is at the date of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question (judgment of 26 October 2006, Commission v Portugal, C‑239/04, EU:C:2006:665, paragraph 24 and the case-law cited).

43 As regards multi-phase monitoring, such monitoring cannot be considered as sufficient to ensure performance of the obligation laid down in Article 6(3) of the Habitats Directive.

44 First, as the Commission argued at the hearing, without being challenged in that respect by the defendant Member State, the results of that monitoring may be irrelevant if the data was collected at times when the Moorburg plant was not using the continuous cooling mechanism. Secondly, the monitoring measures only the number of fish that manage to bypass the Geesthacht weir via the fish ladder. Accordingly, that monitoring is not capable of ensuring that the fish ladder will avoid any adverse effects on the integrity of the protected sites.

45 It follows that, by authorising the construction of the Moorburg plant on the Elbe on the basis of an impact assessment which concluded there would be no adverse effects on the integrity of the Natura 2000 areas, the Federal Republic of Germany has failed to fulfil its obligations under the second sentence of Article 6(3) of the Habitats Directive”

The Commission also alleged that Germany failed to into account, in the impact assessment the potential cumulative effects with the Geesthacht pumped-storage power plant and a possible run-of-river hydroelectric power plant at the Geesthacht weir, in relation to which an application for authorisation for installation and operation had also been submitted

The CJEU ruled:

“Findings of the Court

56 By its second complaint, divided into two parts, the Commission alleges that the German authorities failed to assess how the cumulative effects resulting from the Moorburg plant together with those of the Geesthacht pumped-storage power plant and the potential run-of-river hydroelectric power plant at the Geesthacht weir would adversely affect fish species such as river lamprey, sea lamprey and salmon in the protected sites.

57 According to settled case-law, the appropriate assessment of the implications of the plan or project for the site concerned that must be carried out pursuant to Article 6(3) of the Habitats Directive requires that all the aspects of the plan or project which could, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified in the light of the best scientific knowledge in the field (judgment of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 49 and the case-law cited).

58 The first part of the second complaint concerns the Geesthacht pumped-storage power plant which, according to the file submitted to the Court, dates from 1958 and is situated upstream, in the neighbourhood of the Geesthacht weir.

59 On the one hand, as was stated in paragraph 42 above, it is the date of adoption of the decision authorising implementation of a project that must be taken into account when the cumulative effects resulting from that project in combination with another project which is likely to have a significant effect on a site are assessed (see, to that effect, judgment of 26 October 2006, Commission v Portugal, C‑239/04, EU:C:2006:665, paragraph 24 and the case-law cited).

60 On the other hand, it should also be noted that, by contrast with the case which gave rise to the judgment of 14 January 2016 in Grüne Liga Sachsen and Others (C‑399/14, EU:C:2016:10), the present case does not concern an examination ex post facto of the effects of the Geesthacht pumped-storage power plant dating from 1958, but rather concerns the taking into account of that plant in the impact assessment of another project, the Moorburg plant in this instance.

61 Under Article 6(3) of the Habitats Directive, national authorities are required, when assessing cumulative effects, to take into account all projects which, in combination with the project for which an authorisation is sought, are likely to have a significant effect on a protected site in the light of the objectives pursued by that directive, even where those projects precede the date of transposition of that directive.

62 Projects which, like the Geesthacht pumped-storage power plant, are likely to cause, as a result of their combination with the project to which the impact assessment relates, deterioration or disturbance likely to affect the migratory fish present in the river and consequently result in the deterioration of the site concerned in the light of the objectives pursued by the Habitats Directive, are not to be excluded from the impact assessment required under Article 6(3) of the Habitats Directive.

63 It follows from the foregoing considerations that, by failing to assess appropriately the cumulative effects resulting from the Moorburg plant together with the Geesthacht pumped-storage power plant, the Federal Republic of Germany has failed to fulfil its obligations under Under Article 6(3) of the Habitats Directive.

64 In the second part of the second complaint, the Commission criticises the Federal Republic of Germany for failing to take into account, when assessing the cumulative effects at issue in the present case, the run-of-river hydroelectric power plant at the Geesthacht weir, on the ground that, under German law, the application for authorisation for the installation and operation of that plant had no prospect of succeeding. Indeed, pursuant to German legislation, having right of use of the water and land at the weir in question is a necessary condition for such a project to be approved.

65 In that regard, it is apparent from the file submitted to the Court that the application for the construction of the run-of-river hydroelectric power plant at the Geesthacht weir was submitted by a company which did not enjoy right of use of the water, land or structures at the Geesthacht weir.

66 It is also clear from that file that, under German water legislation, a procedure for the approval of the plans could not have been initiated unless Vattenfall Europe, as the holder of the right of use of the water and the land at the Geesthacht weir, and the Federal Waterways and Shipping Administration had indicated that the project did not conflict with any other rights. Vattenfall Europe subsequently declared, however, that it would not give such consent for the construction of the run-of-river hydroelectric power plant.

67 In those circumstances, it must be held that the run-of-river hydroelectric power plant at the Geesthacht weir did not constitute ‘another project’ within the meaning of Article 6(3) of the Habitats Directive. Accordingly, the second part of the second complaint must be rejected.”

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