Nurel v EUIPO - FKuR Property (Terylene) (Conservation of natural habitats and of wild fauna and flora - Intervention in a forest for fire prevention purposes - Judgment) [2023] EUECJ T-325/22 (12 July 2023)

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(Request for a preliminary ruling from the Administratīvā rajona tiesa (District Administrative Court, Latvia))

(Request for a preliminary ruling – Conservation of natural habitats and of wild fauna and flora – Directive 92/43/EEC – Appropriate assessment of the implications for the site – Concept of plan or project – Intervention in a forest for fire prevention purposes – Direct connection with or necessity to the management of the site – Urgency of the measure – Precautionary measures – Principle of sincere cooperation – Reparation of damage)

1. Article 6(3) of the Habitats Directive (2) requires a prior assessment of the effects of any plan or project likely to have a significant effect on areas of conservation of European importance, known as ‘Natura 2000 sites’. But is it also necessary to carry out a prior assessment of precautionary fire protection measures in forest areas? And what are the consequences of failure to carry out an assessment? These questions must be clarified in the present preliminary ruling proceedings.

2. The main proceedings have arisen because the user of a forest felled trees in a Natura 2000 site without a prior assessment in order to make it easier in the future to combat fires. After the authorities responsible for site protection became aware of this, they ordered certain measures, which are being challenged by the user. In addition to the obligation to carry out an assessment for such precautionary fire protection measures, it must be examined in particular what measures may be ordered if such activities have been undertaken without a prior assessment.

3. Article 1(l) of the Habitats Directive defines a special area of conservation 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’.

4. The designation of special areas of conservation is provided for in Article 4(4) of the Habitats Directive:

‘Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.’

5. The protection of Natura 2000 sites is regulated in particular in Article 6 of the Habitats Directive:

‘1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

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.

3. 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.

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.’

6. Furthermore, reference is made in the first question to the definition of ‘project’ in Article 1(2)(a) of the EIA Directive: (3)

‘2. For the purposes of this Directive, the following definitions shall apply:

– other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;

7. Latvia transposed the Habitats Directive in the Likums ‘Par īpaši aizsargājamām dabas teritorijām’ (Law on special areas of conservation).

8. With a view to the protection of the site in question, the Ministru kabineta 2017. gada 16. Augusta noteikumi Nr. 478, ‘Dabas lieguma “Ances purvi un meži” individuālie aizsardzības un izmantošanas noteikumi’ (Decree No 478 of the Council of Ministers of 16 August 2017 on specific rules for the preservation and use of the ‘Marshes and forests of Ance’ area of conservation; ‘Decree No 478’) was adopted.

9. Article 11(2) of Decree No 478 establishes that in forest areas it is prohibited to fell dry trees and remove fallen trees, litter or parts thereof which have a diameter of more than 25 cm at their largest part if the total volume thereof is less than 20 cubic metres per hectare of forest stand, with the following exceptions: 11(2)(1) felling and removing dangerous trees, provided the trees are left in the stand; 11(2)(2) carrying out the aforesaid activities in EU priority forest biotopes, namely bog woodland (91D0*), swamp woods (9080*), alluvial forests on riverbanks and floodplains (91E0*) and old or natural boreal forests (9010*), where it is prohibited to fell dry trees and remove fallen trees, litter or parts thereof which have a diameter of more than 25 cm at their largest part.

10. Article 23(3)(3) of Decree No 478 provides that, from 1 February to 31 July, it is forbidden to carry out forestry operations in a seasonally restricted area, with the exception of measures to protect against and combat forest fires.

11. Furthermore, the area of conservation has a nature protection plan (Plan for 2016 to 2028, ‘the nature protection plan’), which was approved under Vides aizsardzības un reģionālās attīstības ministra 2016. gada 28. aprīļa rīkojums Nr. 105 (Order No 105 of the Minister for Environmental Protection and Regional Development of 28 April 2016).

12. According to the request for a preliminary ruling, the ‘Ances purvi un meži’ area of conservation (‘Marshes and forests of Ance’; ‘the area of conservation’) is a special area of conservation of European importance with a total area of 9 822 ha. (4) The site was created to ensure the preservation and management of biotopes that are specially protected in Latvia and the European Union, sites of rare and protected animal and plant species, and the landscape of coastal depressions and dunes found in the area. The area of conservation hosts 20 specially protected biotopes of European importance, covering a total area of 9 173 ha, (5) 48 species of protected vascular plants, 28 species of bryophytes, 2 species of fungi, 9 species of lichens, 11 mammal species, 61 rare bird species and 15 invertebrate species. It is an important nesting site for rare and endangered birds. In 2004 the area of conservation, with an area of 10 056 ha, was included in the list of sites of international importance for birds.

13. On 31 July 2019, Latvijas valsts meži (6) submitted an application to the Valsts vides dienests (National Environmental Service, Latvia) requesting an initial environmental impact assessment and the issuance of technical rules on the implementation in the area of conservation of the activities envisaged, according to the Valsts meža dienests (National Forestry Service, Lativa), in the fire prevention plan for 2019. Those measures included the felling of trees which would, in the long term, improve the fire protection situation in the area of conservation and also ensure the prompt and effective prevention and extinction of any forest fires which might occur.

14. By decision of 4 December 2019, the Ventspils reģionālā vides pārvalde (Regional Environmental Department of Ventspils, Latvia), which is part of the National Environmental Service, ordered that the activity proposed by Latvijas valsts meži should be subject to the environmental impact assessment procedure. On 20 February 2020, the Vides pārraudzības valsts birojs (National Environmental Monitoring Office, Latvia) amended the decision of the Regional Environmental Department of Ventspils of 4 December 2019 to the effect that the activity was not subject to the environmental impact assessment procedure but was instead subject to the assessment procedure for Natura 2000 sites.

15. Latvijas valsts meži notified the National Environmental Monitoring Office that the (2019) fire prevention plan would not be implemented and that, therefore, the assessment procedure for special areas of conservation of European importance (Natura 2000) would not be carried out.

16. On 7 and 14 January 2021, employees of the Kurzeme regional department of the Dabas aizsardzības pārvalde (Environmental Protection Authority, Lativa), inspected the area of conservation and found that Latvijas valsts meži had felled trees in a part of the area of conservation approximately 17 km long, thereby widening the natural roadways.

17. The Environmental Protection Authority concluded that in the present case an activity had been undertaken which was not provided for in the site management plan or in Latvian Decree No 478. It also found that the activity in question formed part of the proposed activities which were previously subject to the abovementioned procedure to assess the implications for the area of conservation.

18. Consequently, by decision of 15 January 2021, the Environmental Protection Authority required Latvijas valsts meži to reduce the negative impact on nature conservation values of the activity undertaken in the area of conservation by leaving any felled pines with a diameter of more than 25 cm at their largest part in the forest stand. As grounds, it stated that the wood would subsequently decay naturally and thus, over time, the felled trees would become a suitable substrate for the development of a series of specially protected insect species found in the area of conservation, including the coniferous longhorn beetle of the Tragosoma depsarium species and the great longhorn beetle of the Ergates faber species. The Environmental Protection Authority also ordered Latvijas valsts meži to supplement the amount of dead wood in these stands in the EU priority protected biotope 9010* ‘Old or natural boreal forests’, (7) which is at present insufficient.

19. Latvijas valsts meži objected to that decision but it was confirmed by the Director-General of the Environmental Protection Authority by decision of 22 March 2021. Thereupon, the undertaking brought an action at the Administratīvā rajona tiesa (District Administrative Court, Latvia) seeking the annulment of the decision.

20. The application states that in the present case the only activities undertaken by Latvijas valsts meži are those permitted and required by law, namely forest fire protection measures to reduce the risk of fire; according to the application, those measures entail maintaining forest roads and natural roadways (including felling trees in accordance with permits issued by the Valsts meža dienests (National Forestry Service)); the measures are not subject to the assessment procedure for Natura 2000 sites and have been implemented in accordance with the site management plan and Decree No 478.

21. The application also makes reference to an agreement reached at a seminar organised on 29 July 2020 by the National Forestry Service on improving fire protection in forests and marshes (including the area of conservation), which established that trees had to be felled in the area of conservation in order to maintain the natural roadways. The requirement imposed by the contested decision has a negative impact on fire protection and on combating fires within the area of conservation. This point has also been noted by the National Forestry Service.

22. The Administratīvā rajona tiesa (District Administrative Court) therefore refers the following questions to the Court of Justice:

‘(1) Does the concept of “project” within the meaning of Article 1(2)(a) of the EIA Directive also include activities undertaken in a forest area to ensure maintenance of the area’s forest fire protection infrastructure installations in accordance with the fire protection requirements established in the applicable legislation?

(2) If the answer to the first question is in the affirmative, must the activities undertaken in a forest area to ensure maintenance of the area’s forest fire protection infrastructure installations in accordance with the fire protection requirements established in the applicable legislation be deemed, for the purposes of Article 6(3) of the Habitats Directive, to constitute a project which is directly connected with or necessary to that management, meaning that an assessment procedure for special areas of conservation of European importance (Natura 2000) is not required for the activities in question?

(3) If the answer to the second question is in the negative, does Article 6(3) of the Habitats Directive also require an assessment to be carried out for plans and projects (activities) which are not directly connected with or necessary to the management of the special area of conservation but which are likely to have a significant effect on conservation areas of European importance (Natura 2000), but which are nevertheless undertaken in accordance with national legislation in order to satisfy forest fire protection and firefighting requirements?

(4) If the answer to the third question is in the affirmative, is it possible to continue and complete the activity in question before carrying out an assessment procedure for special areas of conservation of European importance (Natura 2000) ex post facto?

(5) If the answer to the third question is in the affirmative, in order to avoid a possibly significant impact, are the competent authorities under a duty to require the damage to be made good and to adopt measures if the significance of the impact was not assessed during the assessment procedure for special areas of conservation of European importance (Natura 2000)?’

23. Latvijas valsts meži, Dabas aizsardzības pārvalde (Environmental Protection Authority) and the European Commission submitted written observations. The Court decided not to hold a hearing pursuant to Article 76(2) of the Rules of Procedure because it considers that it has sufficient information to answer the request for a preliminary ruling.

24. In accordance with the request by the Court, I will focus primarily on the fifth question regarding the orders made by the Environmental Protection Authority for failure to carry out an appropriate assessment of the implications for the site (see E). However, the second and fourth questions also require closer analysis. They concern, first, the connection between the precautionary fire protection measures at issue and the management of the site (see B) and, second, the urgency of the measures (see D). In answering the first and third questions (see A and C), I will essentially recall the Court’s relevant case-law.

25. By the first question, the national court does refer to the concept of ‘project’ in the EIA Directive. However, it actually wishes to ascertain whether tree felling for the purposes of maintaining or creating natural roadways within an area of conservation in accordance with the legal requirements relating to forest fire protection is to be regarded as a project within the meaning of the first sentence of Article 6(3) of the Habitats Directive.

26. Under the first sentence of Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for a special area of conservation in view of the site’s conservation objectives is necessary only if a plan or project is likely to have a significant effect on a special area of conservation within the meaning of the directive, either individually or in combination with other plans or projects.

27. The Habitats Directive does not define the meaning of ‘project’, although Article 1(2)(a) of the EIA Directive does contain a definition. Under that provision, ‘project’ means the execution of construction works or of other installations or schemes and other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources. According to the Court’s case-law, a project as defined in the EIA Directive is a fortiori a project within the meaning of the Habitats Directive. (8)

28. Nevertheless, the concept of ‘project’ in the EIA Directive is more restrictive than in the Habitats Directive, as the conditions of it being an ‘installation or scheme’ or an ‘intervention’ are absent in the Habitats Directive. Accordingly, the concept of ‘project’ in the Habitats Directive also covers operations which no longer come under the concept of ‘project’ in the EIA Directive. (9) Rather, the crucial factor is whether the activity concerned is likely to have a significant effect on a protected site (10) or whether there is a likelihood or a risk that the plan or project will have a significant effect on the site. (11)

29. The creation of a natural roadway by tree felling could be regarded as the execution of other installations or schemes. (12) On the other hand, tree felling with a view to maintaining existing roadways could at least constitute an ‘other intervention in the natural surroundings and landscape’. In any case, such measures in an area of conservation which – as in the present case (13) – includes the protection of forest habitat types, entail, in principle, a likelihood or a risk of a significant effect.

30. The answer to the first question is therefore that tree felling in an area of conservation with a view to the protection of forest habitats in order to maintain or create infrastructure installations in that area in accordance with the legal requirements relating to forest fire protection is a project within the meaning of the first sentence of Article 6(3) of the Habitats Directive.

31. The second question is intended to clarify whether tree felling in an area of conservation with a view to the protection of forest habitats in order to maintain or create infrastructure installations in that area in accordance with the legal requirements relating to forest fire protection is directly connected with or necessary to the management of the site.

32. This question is posed because under the first sentence of Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for a special area of conservation in view of the site’s conservation objectives is not necessary if the measure in question is directly connected with or necessary to the management of the site.

33. The economic user of a forest area will certainly take the view that precautionary fire protection measures in that area are directly connected with or necessary to the management of the site.

34. Article 6 of the Habitats Directive, however, concerns the protection of Natura 2000 sites. Accordingly, ‘the management of the site’ does not mean measures for the economic use of the site, but measures within the meaning of Article 1(l) 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.

35. Those measures must correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites. Furthermore, Article 4(4) provides that in designating sites the Member State must establish priorities in the light of their importance for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed. Moreover, when establishing those measures and priorities, the Member State must use the best available scientific knowledge. (14)

36. Accordingly, in infringement proceedings concerning the Białowieża Forest, the Court of Justice examined whether the tree felling works at issue were compatible with the site’s conservation objectives and measures. Because that was not the case, it rejected the Member State’s argument that those works were directly connected with or necessary to the management of the site. (15)

37. Precautionary measures to prevent or combat fires may be directly connected with or necessary to the management of an area of conservation within the meaning of the first sentence of Article 6(3) of the Habitats Directive. Fires can harm protected habitats and thus undermine the site’s conservation objectives. (16) According to the request for a preliminary ruling, both the nature protection plan and Latvian Decree No 478 (17) thus contain indirect references to the necessity of fire protection and firefighting measures in the site concerned.

38. It does not follow, however, that all precautionary fire protection measures, or the measures at issue at least, are necessarily directly connected with or necessary to the management of the site. This can be seen from the fact that fires can also be part of the natural development of certain protected habitat types and may even therefore be necessary for certain species. (18) This is also highlighted by the Environmental Protection Authority in its submissions.

39. The Commission’s Interpretation Manual for habitat types under Annex I to the Habitats Directive thus defines the priority habitat type 9010* ‘Western Taiga’ as natural old forests as well as young forest stages naturally developing after fire. (19) Accordingly, Member States have reported for that habitat type and habitat type 2180 ‘Wooded dunes of the Atlantic, Continental and Boreal region’, which cover large parts of the area of conservation at issue, fire and fire suppression as one of the ten most important threats and pressures. (20)

40. The extent to which tree felling in order to maintain or create natural roadways within an area of conservation has an effect on the site depends above all on the location of the felled trees, in particular whether habitat types or species protected there are affected, and on the species and condition of the trees.

41. However, even if certain of the site’s conservation objectives are thereby adversely impacted, it is possible that the Member State attaches higher importance to fire protection, as under Article 4(4) of the Habitats Directive it must establish priorities and, in particular, reconcile various conflicting objectives. (21) A weighting in favour of precautionary fire protection measures would be justified if the risk of future effects on the site through fires outweighed the specific undermining of certain conservation objectives by the measures in question.

42. Such a weighting requires, however, that the conservation objectives concerned are taken fully into account. General administrative responsibilities for fire protection or forest management do not therefore give rise to the power to establish precautionary fire protection measures as conservation measures for a Natura 2000 site. Nor can this be decided by an undertaking making economic use of the site. Rather, the weighting exercise falls within the responsibility of the authorities which, under the law of the Member State, are competent for site protection, that is to say, for establishing conservation objectives and measures pursuant to Article 4(4) and Article 6(1) of the Habitats Directive.

43. Precautionary measures pursuant to general statutory fire protection rules or fire protection plans based thereon may therefore be directly connected with or necessary to the management of a site within the meaning of the first sentence of Article 6(3) of the Habitats Directive only if they are at the same time part of the conservation measures established pursuant to Article 4(4) and Article 6(1). On the other hand, precautionary fire protection measures which do not fulfil that condition and are likely to undermine the site’s conservation objectives must be subject to an appropriate assessment of the implications for the site under the first sentence of Article 6(3).

44. The third question again addresses the aspect of the measures at issue being undertaken in accordance with national legislation in order to satisfy forest fire protection and firefighting requirements. It is thus asked whether an assessment of the implications for the site must be carried out despite those national rules if the conditions for such an assessment laid down in the first sentence of Article 6(3) of the Habitats Directive are fulfilled.

45. The obligation to carry out an assessment of implications under Article 6(3) of the Habitats Directive does not, however, include an exception for measures provided for in national law. National firefighting legislation cannot therefore offer exemption from the requirements laid down in Article 6(3).

46. In practical terms, therefore, the national court must, as far as is at all possible, interpret the rules implementing Article 6(3) of the Habitats Directive and all other national rules, including firefighting rules, in a way which accords with the requirements of Article 6(3). (22) That interpretation must ensure as far as possible that measures undertaken in accordance with national fire protection legislation are also assessed if the conditions under which an assessment is to be carried out are fulfilled. According to the Environmental Protection Authority and the Commission, this is possible without difficulty in Latvian law.

47. Should such interpretation in conformity with the directive be impossible, however, the Habitats Directive cannot impose directly applicable obligations on an individual because it is a directive. (23) Private forest owners could therefore rely on exceptions under national law to the obligation to carry out an assessment of the implications for the site on the basis of the fire protection rules.

48. According to information on its website, however, Latvijas valsts meži is fully owned by the Latvian State and manages Latvia’s State forests. This is also reflected in its name, which can be translated as ‘Latvian State Forests’. If this is correct, which would have to be verified by the referring court in case of doubt, Latvijas valsts meži must be considered an emanation of the Latvian State, which may not derive any advantage from an incorrect transposition of the Habitats Directive. (24) In that case the Habitats Directive may be relied upon directly against Latvijas valsts meži. (25)

D. Fourth question – continuation of measures before an assessment of the implications for the site

49. By the fourth question, the referring court wishes to ascertain whether the firefighting measures at issue may be continued and completed before carrying out a procedure to assess effects on Natura 2000 sites ex post facto.

50. With this question, the referring court might have in view the case-law according to which national courts may, under certain circumstances, maintain temporarily the effect of certain consents granted in breach of an assessment requirement under EU law until that procedural defect is remedied ex post. (26)

51. However, the request for a preliminary ruling does not – with the exception of the fourth question – provide any indication that works are actually continued or that an ex post assessment of the implications of the measures for the site is being undertaken. Furthermore, the abovementioned case-law requires that the maintenance of the consent and the associated continuation of the activity in question is necessary for overriding reasons in the general interest, for example reasons relating to the protection of the environment (27) or energy supply. (28) The request for a preliminary ruling provides no indication of such reasons either.

52. It is evident from the background to the contested decision and the submissions made by Latvijas valsts meži, however, that the measures at issue were implemented without an appropriate assessment of the implications for the site because the undertaking did not wish to wait for the assessment, due to the urgency of precautionary fire protection measures. I therefore understand this question as seeking to ascertain whether it may be permitted, in cases of particular urgency, to implement measures which are, in principle, subject to an assessment before the assessment has been carried out and the results of the assessment are available.

53. No provision is made for such advance implementation of measures in Article 6(3) of the Habitats Directive. Rather, according to the wording of that provision, the appropriate assessment must be carried out prior to the measure in question. (29) The Court of Justice thus refers to a prior or ex ante assessment. (30)

54. This chronology is necessary so that it can be clarified, as far as possible, before the measure in question is implemented whether and, as the case may be, to what extent it would have an effect on the site. An ex post assessment would naturally not allow adverse effects to be prevented. Furthermore, without taking stock thoroughly before the effects occur, it will be difficult as a rule to establish unequivocally the original status of the site and the extent of any effects.

55. It is not therefore permissible in principle to commence a measure which is subject to assessment before the assessment of the implications has been concluded. This holds a fortiori for the continuation of a measure if it has already been commenced in breach of the obligation to carry out an assessment of the implications for the site.

56. Various kinds of risks which might justify an exception to prior assessment on the basis of the abovementioned case-law on the maintenance of the effect of consents are, however, conceivable. (31)

57. Such an exception seems particularly appropriate in the case of actual and present dangers such as fire or flood. It is also conceivable in the case of imminent dangers which are not yet present but will, in all likelihood, occur in the near future. Such likelihood could arise, for example, from the weather forecast or from the fact that there has already been considerable precipitation upstream which will soon lead to a flood downstream.

58. There is no need, however, to decide on such scenarios in these proceedings. Rather, the parties are in dispute over precautionary measures to make it easier in the future – at a time not yet foreseeable – to counter actual and present dangers.

59. It generally makes sense to implement such precautionary measures as quickly as possible so that preparations are in place if a danger actually materialises. However, the urgency is much less than in the case of actual and present dangers or imminent dangers.

60. In this regard, it is for the Member States to adopt rules and take measures which allow, where necessary, a decision to be made in good time on precautionary measures which are compatible with the rules of Article 6 of the Habitats Directive on site protection. (32)

61. If, as in the present case, such measures are to be approved under Article 6(3) of the Habitats Directive, the Member State must therefore at least ensure that the assessment of the implications for the site can be carried out as quickly as possible. Consideration of the best scientific knowledge in the field (33) and public participation (34) will undoubtedly take time. If the competent authorities have sufficient resources and experience and all those involved engage in sincere cooperation it should nevertheless be possible to reach a decision within a few months or even more quickly.

62. The request for a preliminary ruling suggests that in the present case a decision on the measures could have been made in good time. In fact, more than six months passed between the application submitted by Latvijas valsts meži on 31 July 2019 requesting an assessment and the final administrative decision of 20 February 2020. In the following year, Latvijas valsts meži first gave notification that the measures would not be implemented, before the Environmental Protection Authority found, during an inspection in January 2021, that they had in fact been implemented without an assessment. This presumably happened in winter 2020/2021, more than a year after the initial application. It must therefore be presumed that an appropriate assessment of the implications for the site could have been carried out.

63. Furthermore, it should also be recalled in this regard that precautionary fire protection measures may serve the site’s conservation objectives and, as conservation measures, thus be directly connected with or necessary to the management of the site. (35) It is true that the establishment of conservation measures must also take into consideration the best available scientific knowledge (36) and public participation may also be necessary. (37) However, there is a greater degree of flexibility than in the assessment of the implications for the site under Article 6(3) of the Habitats Directive. Accordingly, it would seem to be generally preferable, as well as quicker, to decide on precautionary fire protection measures in connection with the conservation measures for the site.

64. Precautionary fire protection measures which are likely to have a significant effect on a special area of conservation, are not intended to counter a present or imminent actual danger to an overriding protected interest and were also not established as conservation measures pursuant to Article 4(4) and Article 6(1) of the Habitats Directive, may not therefore be implemented before the conclusion of an appropriate assessment of the implications for the site under Article 6(3). The Member States must, however, ensure that such measures can be assessed as quickly as possible.

65. By the fifth question, the referring court wishes to ascertain whether the competent authorities are under a duty to require the damage to be made good and to adopt measures if the significance of the impact on a Natura 2000 site was not assessed pursuant to Article 6(3) of the Habitats Directive.

66. This question has nothing to do with State liability for damage caused to individuals as a result of breaches of EU law for which the State can be held responsible. (38) Rather, the court asks whether the competent authorities must require individuals who have affected a Natura 2000 site without an appropriate assessment of the implications for the site to make good damage or to adopt other measures.

67. The aim of such ‘making good’ cannot generally be financial compensation, but is primarily real ‘restitution in kind’, that is to say, reparation of damage to the site. Full reparation is rarely possible. The present case, for example, concerns felled trees which can only be replaced over decades. It will often be possible, however, to adopt measures to reduce damage or to make it good elsewhere.

68. Construed in this way, the question seeks to clarify whether the Environmental Protection Authority was required by the Habitats Directive to adopt the orders contested in the main proceedings. According to the request for a preliminary ruling, it ordered Latvijas valsts meži to leave any felled pines with a diameter of more than 25 cm at their largest part in the forest stand and to supplement the amount of dead wood in the stands of the EU priority protected biotope 9010* ‘Western Taiga’, which is at present insufficient.

69. I understand the latter order to mean that Latvijas valsts meži may not remove dead wood until it is present in sufficient volume. It cannot be assumed that the Environmental Protection Authority thereby wished to require trees to be killed until a certain proportion of dead wood is achieved. On that interpretation, to all appearances, the order simply reiterates the existing obligations under Article 11(2) of Decree No 478 to refrain from removing dead wood where the proportion of dead wood is insufficient. It is not therefore an order for reparation.

70. Consequently, the question arises, in essence, whether the competent authorities were under a duty to order Latvijas valsts meži to leave any felled pines with a diameter of more than 25 cm at their largest part in the forest stand.

71. The court asks whether that order was necessary to avoid a possibly significant impact. However, the question is posed only in the event that the tree felling required an appropriate assessment of the implications for the site, which was not carried out. The principal effect of that order is therefore that Latvijas valsts meži is not able to continue the measures undertaken in breach of Article 6(3) of the Habitats Directive by removing the unlawfully felled trees from the forest.

72. Consequently, that order also does not aim to obtain reparation or directly to avoid a possibly significant impact, but merely to prevent a continuation of the breach of Article 6(3) of the Habitats Directive. It is only a secondary effect that there is also a limitation of the adverse impact of that breach.

73. The Member States and all their authorities are under an obligation to order the termination of any breach of EU law and to adopt appropriate transposition measures by virtue of the binding effect of directives under the third paragraph of Article 288 TFEU and the principle of sincere cooperation under Article 4(3) TEU. The principle of sincere cooperation requires in particular that the Member States take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union. Such an obligation is owed not only by the State as such, but within the sphere of their powers also by all its authorities, (39) including the Environmental Protection Authority. Furthermore, it even rests on undertakings which must be considered an emanation of the Member State, (40) which appears to be the case with Latvijas valsts meži. (41)

74. In connection with other environmental assessments, the Court of Justice has thus ruled that it may be necessary to revoke or suspend consent already granted in order to be able to remedy the failure to carry out an assessment. (42) Prevention of the further implementation of an activity which is in breach of EU law has the same quality.

75. It must therefore be stated that the authorities of a Member State are under a duty, within the sphere of their powers on the basis of the third paragraph of Article 288 TFEU and Article 4(3) TEU, to order the termination of measures implemented in breach of Article 6(3) of the Habitats Directive. In this regard, an undertaking which must be considered an emanation of the Member State is under a duty, directly and without any national provision or official order, to discontinue such a measure.

76. Only in the event that the Court wishes to comment not only on the termination of breaches but also on real reparation of damage, it should be noted that the principle of sincere cooperation would also be relevant. It requires the Member States also to nullify the unlawful consequences of a breach of EU law (43) and to make good the damage caused by the breach. (44)

77. Furthermore, even where EU legislation such as the Habitats Directive does not specifically provide any penalty for an infringement, Article 4(3) TEU requires the Member States to take all measures necessary to guarantee the application and effectiveness of EU law. (45) This means measures, and in particular rules, which ensure that individuals comply with EU law. The discussion in this regard mainly concerns penalties, (46) although rules to guarantee reparation of possible damage resulting from the breach of EU law are a fortiori necessary. (47) The main aim of the respective rules is not to penalise individuals but to establish or maintain a certain status. Furthermore, an obligation to make reparation for damage strengthens the working of the relevant rules because it offers an incentive to avoid breaches. (48)

78. The aim of establishing or maintaining a certain status is particularly important in site protection under the Habitats Directive because those rules seek to protect the common natural heritage of the European Union. (49)

79. Consequently, the Member States must adopt rules under which individuals may be required to make reparation for damage if this has affected Natura 2000 sites in breach of Article 6(3) of the Habitats Directive, as the Court has already indicated. (50) In some cases, the relevant national legal bases may already be derived from the transposition of the Environmental Liability Directive, (51) although, because of the various limitations of those rules, it cannot be ruled out that effective transposition of the Habitats Directive requires further rules on reparation to be adopted.

80. In the present case, however, such national rules are not relevant if Latvijas valsts meži is to be considered an emanation of the Latvian State and is thus directly subject to the obligations arising from Habitats Directive. (52)

81. I therefore propose that the Court give the following answer to the request for a preliminary ruling:

(1) Tree felling in an area of conservation with a view to the protection of forest habitats in order to maintain or create infrastructure installations in that area in accordance with the legal requirements relating to forest fire protection is a project within the meaning of Article 6(3) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.

(2) Precautionary measures pursuant to general statutory fire protection rules or fire protection plans based thereon may be directly connected with or necessary to the management of a site within the meaning of the first sentence of Article 6(3) of Directive 92/43 only if they are at the same time part of the necessary conservation measures under Article 4(4) and Article 6(1). On the other hand, precautionary fire protection measures which do not fulfil that condition and are likely to undermine the site’s conservation objectives must be subject to an appropriate assessment of the implications for the site under the first sentence of Article 6(3).

(3) The obligation to carry out an assessment of implications under Article 6(3) of Directive 92/43 does not include an exception for measures based on national firefighting legislation. Such legislation cannot therefore, in principle, offer exemption from the requirements laid down in Article 6(3).

(4) Precautionary fire protection measures which are likely to have a significant effect on a special area of conservation, which are not intended to counter a present or imminent actual danger to an overriding protected interest and which were also not established as conservation measures pursuant to Article 4(4) and Article 6(1) of Directive 92/43 may not be implemented before the conclusion of an appropriate assessment of the implications for the site under Article 6(3). The Member States must, however, ensure that such measures can be assessed as quickly as possible.

(5) The authorities of a Member State are under a duty, within the sphere of their powers on the basis of the third paragraph of Article 288 TFEU and Article 4(3) TEU, to order the termination of measures implemented in breach of Article 6(3) of Directive 92/43. An undertaking which must be considered an emanation of the Member State is under a duty, directly and without any national provision or official order, to discontinue such a measure.

2 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 adapting certain directives in the field of environment, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 193).

3 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 16 April 2014 (OJ 2014 L 124, p. 1).

4 Point 1.1 of the Standard data form (https://natura2000.eea.europa.eu/Natura2000/SDF.aspx?site=LV0523400) states that it is a Type C site. According to the explanations in the Commission Implementing Decision of 11 July 2011 concerning a site information format for Natura 2000 sites (OJ 2011 L 198, p. 39 [53 and 54]), it is therefore protected both under the Habitats Directive and under 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), as amended by Directive 2013/17.

5 According to point 3.1 of the Standard data form, substantial areas of protected forest habitat types are present on the site, in particular almost 5 500 ha of wooded dunes of the Atlantic, Continental and Boreal region (2180), almost 900 ha of Western Taiga (9010*), more than 250 ha of Fennoscandian deciduous swamp woods (9080*) and approximately 730 ha of bog woodland (91D0*). The * in the code indicates that the latter three habitat types are priority habitat types.

6 According to its website (https://www.lvm.lv/en/about-us), the company manages the State-owned forest land of Latvia, totalling 1.6 million ha. The shares in the company are held by the Latvian State (https://www.lvm.lv/en/about-us/management).

7 According to Annex I to the Habitats Directive, priority habitat type 9010* has the designation ‘Western Taiga’.

8 Judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging (C‑127/02, EU:C:2004:482, paragraphs 23 and 26); of 14 January 2010, Stadt Papenburg (C‑226/08, EU:C:2010:10, paragraph 38); and of 7 November 2018, Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:882, paragraphs 60, 65 and 66).

9 Judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:882, paragraphs 63 to 65).

10 See my Opinion in Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:622, point 117), and judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:882, paragraphs 67 to 72).

11 See judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging (C‑127/02, EU:C:2004:482, paragraphs 41 and 43); of 17 April 2018, Commission v Poland (Białowieża Forest) (C‑441/17, EU:C:2018:255, paragraph 111); and of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraph 119).

12 See judgment of 7 November 2018, Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 72), with regard to establishing grazing land.

14 Opinion of Advocate General Ćapeta in Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:90, point 49), and my Opinion in Commission v France (C‑241/08, EU:C:2009:398, point 70).

15 Judgment of 17 April 2018, Commission v Poland (Białowieża Forest) (C‑441/17, EU:C:2018:255, paragraphs 122 to 126).

16 European Commission, Natura 2000 and Forests (2015, in particular p. 15, 27 and 28).

19 European Commission, Directorate-General for Environment, Nature and Biodiversity Unit (ENV B.3), Interpretation Manual of European Union Habitats – EUR 28, April 2013, p. 102.

20 European Environment Agency, Factsheet 2180 Wooded dunes of the Atlantic, Continental and Boreal Region, Report under the Article 17 of the Habitats Directive, Period 2007-2012, and Factsheet 9010 Western Taiga, Report under the Article 17 of the Habitats Directive, Period 2007-2012 (available at https://projects.eionet.europa.eu/habitat-art17report/library/2007-2012-reporting/factsheets).

21 See judgment of 4 March 2010, Commission v France (C‑241/08, EU:C:2010:114, paragraph 53).

22 See, with regard to the obligation to interpret national rules in a manner consistent with EU law, judgments of 10 April 1984, von Colson and Kamann (14/83, EU:C:1984:153, paragraph 26), and of 1 August 2022, Sea Watch (C‑14/21 and C‑15/21, EU:C:2022:604, paragraphs 83 and 84).

23 See judgments of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 43), and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften (C‑684/16, EU:C:2018:874, paragraph 66).

24 See judgments of 12 July 1990, Foster and Others (C‑188/89, EU:C:1990:313, paragraph 17), and of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraph 32).

25 See judgment of 12 November 2019, Commission v Ireland (Derrybrien Windfarm) (C‑261/18, EU:C:2019:955, paragraph 91).

26 Judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraphs 55 to 63); of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraphs 34 to 43); of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraphs 178 to 182); and of 25 June 2020, A and Others (Wind turbines in Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraphs 90 to 95).

27 Judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraphs 59 to 61); of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 39); and of 25 June 2020, A and Others (Wind turbines in Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraphs 90 and 91).

28 Judgments of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraph 179), and of 25 June 2020, A and Others (Wind turbines in Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 92).

29 Judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging (C‑127/02, EU:C:2004:482, paragraph 34); of 11 April 2013, Sweetman and Others (C‑258/11, EU:C:2013:220, paragraph 28); and of 21 July 2016, Orleans and Others (C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 43).

30 Judgment of 14 January 2010, Stadt Papenburg (C‑226/08, EU:C:2010:10, paragraph 48); of 14 January 2016, Grüne Liga Sachsen and Others (C‑399/14, EU:C:2016:10, paragraph 33); and of 7 November 2018, Coöperatie Mobilisation for the Environment and Others (C‑293/17 and C‑294/17, EU:C:2018:882, paragraph 85).

31 Above all, the judgment of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraph 179), could offer guidance in this regard.

32 See, to that effect, judgment of 11 June 2020, Alianța pentru combaterea abuzurilor (C‑88/19, EU:C:2020:458, paragraph 57).

33 Judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging (C‑127/02, EU:C:2004:482, paragraph 54); of 21 July 2016, Orleans and Others (C‑387/15 and C‑388/15, EU:C:2016:583, paragraph 51); and of 17 April 2018, Commission v Poland (Białowieża Forest) (C‑441/17, EU:C:2018:255, paragraph 113).

34 Judgment of 8 November 2016, Lesoochranárske zoskupenie VLK (C‑243/15, EU:C:2016:838, paragraph 49).

37 See my Opinion in CFE and Terre wallonne (C‑43/18 and C‑321/18, EU:C:2019:56). See also, however, judgment of 22 February 2022, Bund Naturschutz in Bayern (C‑300/20, EU:C:2022:102).

38 Judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 33); of 14 March 2013, Leth (C‑420/11, EU:C:2013:166, paragraph 40); and of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution) (C‑61/21, EU:C:2022:1015).

39 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 64); of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 43); of 12 November 2019, Commission v Ireland (Derrybrien Windfarm) (C‑261/18, EU:C:2019:955, paragraphs 75 and 90); and of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 173).

40 Judgment of 12 November 2019, Commission v Ireland (Derrybrien Windfarm) (C‑261/18, EU:C:2019:955, paragraph 91).

42 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraphs 65 and 68); of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraphs 46 and 47); of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraphs 170 and 172); and of 12 November 2019, Commission v Ireland (Derrybrien Windfarm) (C‑261/18, EU:C:2019:955, paragraph 75).

43 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 64); of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 43); of 12 November 2019, Commission v Ireland (Derrybrien Windfarm) (C‑261/18, EU:C:2019:955, paragraphs 75 and 90); and of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 173).

44 Judgments of 7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 66), and of 10 March 2022, Grossmania (C‑177/20, EU:C:2022:175, paragraphs 65 to 68).

45 Judgments of 21 September 1989, Commission v Greece (68/88, EU:C:1989:339, paragraph 23); of 8 September 2005, Yonemoto (C‑40/04, EU:C:2005:519, paragraph 59); and of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie (C‑617/17, EU:C:2019:283, paragraph 37).

46 Judgments of 21 September 1989, Commission v Greece (68/88, EU:C:1989:339, paragraph 24); of 8 September 2005, Yonemoto (C‑40/04, EU:C:2005:519, paragraph 59); and of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie (C‑617/17, EU:C:2019:283, paragraph 37).

47 See, to that effect, judgments of 17 July 2008, Commission v Italy (C‑132/06, EU:C:2008:412, paragraphs 37 to 39 and 44 to 46), with regard to collection of evaded VAT; of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 26); and of 12 December 2019, Otis Gesellschaft and Others (C‑435/18, EU:C:2019:1069, paragraph 22), with regard to compensation for cartel agreements.

48 See, to that effect, judgments of 17 July 2008, Commission v Italy (C‑132/06, EU:C:2008:412, paragraph 47); and of 20 September 2001, Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 27); and of 12 December 2019, Otis Gesellschaft and Others (C‑435/18, EU:C:2019:1069, paragraph 24).

49 Judgments of 10 January 2006, Commission v Germany (C‑98/03, EU:C:2006:3, paragraph 59), and of 2 March 2023, Commission v Poland (Forest management and good practice) (C‑432/21, EU:C:2023:139, paragraphs 72 and 73).

50 Judgments of 13 December 2007, Commission v Ireland (C‑418/04, EU:C:2007:780, paragraphs 83 to 88), and of 3 April 2014, Cascina Tre Pini (C‑301/12, EU:C:2014:214, paragraph 32).

51 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Nurel v EUIPO - FKuR Property (Terylene) (Conservation of natural habitats and of wild fauna and flora - Intervention in a forest for fire prevention purposes - Judgment) [2023] EUECJ T-325/22 (12 July 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T32522.html Cite as: ECLI:EU:T:2023:397, [2023] EUECJ T-325/22, EU:T:2023:397

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