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.
The European Commission asked the European Court of Justice (ECJ) to declare that, by authorizing the construction of a coal-fired power plant in Moorburg, without conducting an adequate environmental impact assessment (EIA or impact assessment), Germany failed to fulfill its obligations under Article 6(3) and (4) of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (‘the Habitats Directive’). The Commission alleged that the EIA for the Moorburg plant wrongly concluded there would be no adverse effects on the integrity of upstream Natura 2000 protected areas because the EIA failed to provide sufficient data to guarantee the effectiveness of the fish ladder as a mitigating measure ensuring the plant (more specifically, its cooling mechanism, which would draw large quantities of water from the river) would not adversely affect the integrity of upstream Natura 2000 protected areas and, secondly, failed to take into account cumulative effects with other relevant projects.
The ECJ decided that Germany failed to fulfill its obligations under the second sentence of Article 6(3) of the Habitats Directive by authorizing the construction of the Moorburg coal plant on the basis of an EIA that concluded there would be no adverse effects on the integrity of the Natura 2000 areas without sufficient evidence to guarantee beyond all reasonable doubt the effectiveness of the fish ladder. The ECJ explained that the authorization criterion in the second sentence of Article 6(3) of the Habitats Directive integrates the precautionary principle:
[T]he cooling mechanism of the Moorburg plant is likely to have a significant effect on certain fish species listed in Annex II to the Habitats Directive and protected in the Natura 2000 areas concerned.
The impact assessment carried out by the German authorities showed that the death of fish pertaining to three species listed in Annex II to the Habitats Directive, on account of the Moorburg plant drawing cooling water from their migratory corridor, would affect the reproduction of those species in the relevant protected areas…
[C]ompetent national authorities may authorise an activity subject to an assessment only if they have made certain that it will not adversely affect the integrity of the protected site. This is so when there is no reasonable doubt from a scientific point of view as to the absence of such adverse effects.
In order to ensure that the construction of the Moorburg plant would not adversely affect the integrity of the Natura 2000 areas concerned, it was the responsibility of the German authorities to take account of the protective measures included in that construction project. In that regard, it is settled case-law that the application of the precautionary principle in the context of the implementation of Article 6(3) of the Habitats Directive requires the competent national authority to take into account, inter alia, the protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects on the site, in order to ensure that it does not adversely affect the integrity of the protected site.
In the present case, it is clear from the file submitted to the Court that, in addition to other measures designed to prevent the negative effects of drawing water from the river, such as the installation of a trap and truck system and the reduction of the plant’s activity when oxygen levels drop below a critical point for fish, a fish ladder was installed next to the Geesthacht weir.
That fish ladder was intended to increase migratory fish stocks by allowing those species to reach their breeding areas, along the middle and upper reaches of the Elbe, more quickly. Increasing stocks in this manner was expected to compensate for the fish deaths near the Moorburg plant so that the conservation objectives of the Natura 2000 areas upstream of the plant would not be significantly affected.
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.
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.
[T]he 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.
Paras. 30-40 (internal citations omitted).
The ECJ decided that Germany also failed to fulfill its obligations under the second sentence of Article 6(3) of the Habitats Directive by authorizing the construction of the Moorburg coal plant on the basis of an EIA that failed to assess the cumulative effects resulting from the Moorburg plant together with the Geesthacht pumped-storage power plant:
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.
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.
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.
The ECJ emphasized the applicability of the Habitats Directive despite the distance of the Moorburg coal plant from the Natura 2000 areas at issue protected under that Directive:
It should be noted at the outset that the fact that the project to which the environmental assessment being challenged relates is not situated in the Natura 2000 areas concerned, but rather at a considerable distance from them, upstream of the Elbe, in no way precludes the applicability of the requirements laid down in Article 6(3) of the Habitats Directive. It is clear from the wording of that provision that ‘any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon’ is subject to the environmental protection mechanism it prescribes.