Judgment of the Court (Fifth Chamber) of 24 November 2016.
European Commission v Kingdom of Spain.
Failure of a Member State to fulfil obligations — Directive 2009/147/EC — Conservation of wild birds — Special protection areas — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Directive 92/43/EEC — Conservation of natural habitats.
By its action, the European Commission asks the Court to declare that, by failing to take appropriate steps to avoid, in the special protection area (‘the SPA’) ‘Campiñas de Sevilla’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which that area was established, the Kingdom of Spain has failed to fulfil its obligations under Article 3 of 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), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) (‘Directive 85/337’), Article 4(4) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2009 L 20, p. 7) (‘the Birds Directive’), and Article 6(2) 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’).
In accordance with Article 2(1) of Directive 85/337, Member States are to adopt all measures necessary to ensure that, before 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 an assessment with regard to their effects. Those projects are defined in Article 4 of that directive.
Background to the dispute and the pre-litigation procedure
Following a complaint lodged in the month of February 2010 concerning a project for the construction of a high-speed railway line between Seville (Spain) and Almería (Spain), sections ‘Marchena-Osuna I’, ‘Marchena-Osuna II’ and ‘Variante de Osuna’, the Commission sent, on 17 June 2011, a letter of formal notice to the Kingdom of Spain in which it stated that that State had failed to fulfil its obligations under Article 3 of Directive 85/337, Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive. That complaint was accompanied by a report on the potential impacts of the works on the railway corridor crossing Andalucía as it passes through the SPA ‘Campiñas de Sevilla’.
Overall, the project makes provision, first, for infrastructure improvements and adaptation of the existing railway line and, secondly, further installation works required for the implementation and commissioning of the new railway platform.
With regard to the section relating to the improvement and adaptation of the existing track, the environmental impact assessment was submitted for public consultation on 4 July 2006. By decision of 26 November 2006, an environmental impact statement was adopted in accordance with that assessment. The works relating to the infrastructure began on 4 December 2007 and were interrupted in 2009. That project makes provision to cross a natural site, classified by the Spanish authorities on 29 July 2008 as an SPA for birds. That area was declared as an SPA after authorisation of the project in question and after the environmental impact statement in respect of that project by the Spanish authorities. However, the site in question was already included, since 1998, under No 238 of the list of areas of importance for the conservation of birds in Europe, namely in the Inventory of Important Bird Areas in the European Community (‘the IBA 98’).
On 20 July 2011, the Kingdom of Spain asked the Commission for an extension of the prescribed period for reply, which was granted.
On 20 September 2011, the Kingdom of Spain replied to the letter of formal notice.
By letter of 20 June 2013, the Commission delivered a reasoned opinion in which it complained that the Kingdom of Spain had failed to fulfil its obligations under Article 3 of Directive 85/337, Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive.
On 21 August 2013, the Kingdom of Spain replied to that reasoned opinion by enclosing with its letter an annex presenting a report entitled ‘Análisis de la afección del Eje Ferroviario Transversal a la avifauna de la ZEPA Campiñas de Sevilla’ (Analysis of the impacts of the railway corridor crossing the bird areas of the SPA ‘Campiñas de Sevilla’), drawn up in the month of July 2013 by the Environment and Water Management Agency of the Consejería de Agricultura, Pesca y Medio Ambiente de la Junta de Andalucía (Regional Ministry for Agriculture, Fisheries and the Environment of the Region of Andalucía, Spain).
Taking the view that the measures taken by the Kingdom of Spain remained unsatisfactory, the Commission decided to bring the present action.