European Commission v. Federal Republic of Germany, Case C 142/16 (April 26, 2017)
European Court of Justice
German officials authorized construction of the Moorburg coal-fired power plant in the port of Hamburg along the Elbe River. The river serves as the migratory route for fish listed in Annex II of the European Union (EU) Habitats Directive.
Prior to approval, the project proponents conducted an environmental impact assessment (EIA) that concluded the project would be compatible with conservation objectives of upstream Natura 2000 areas in view of commitments by the project proponent to, among other things, construct fish ladders and monitor their effectiveness. The fish ladders were intended to compensate for fish that would be killed during operation of the Moorburg power plant’s cooling mechanism, which would draw substantial water from the Elbe River.
The Commission brought complaints against Germany alleging violations of the EU Habitats Directive in the context of the authorization.
In its decision, the European Court reiterated that national authorities may authorize an activity subject to an assessment only if they have made certain that the activity will not adversely affect the integrity of the protected site, in this instance Natura 2000 areas located upstream of the proposed power plant. Para. 33. This assessment must include evaluation of protective measures included in the construction project. Para. 34.
The European Court found that Germany was in breach of the Directive because the environmental impact assessment did not contain definitive data regarding the effectiveness of use of the fish ladder and merely stated that its effectiveness could only be confirmed following several years of monitoring. Paras. 36-37. In other words, officials could not guarantee beyond all reasonable doubt that the fish ladder in conjunction with other mitigation measures would not adversely affect the integrity of protected fish species. Para. 38.
Second, the Court found that Germany violated the Directive by failing to take into account the cumulative effects of the proposed coal-fired power plant together with those of an upstream pumped-storage power plant. The Court explained that Germany should have assessed whether such cumulative effects would adversely affect the protected fish species. Paras. 61-63. However, Germany was not required to assess cumulative effects of a future run-of-the-river hydroelectric project which did not have a prospect of succeeding in obtaining the relevant permits, as this did not constitute “another project” under the Directive. Paras. 64-67.
The Court ordered the parties to bear their own costs.