Action brought on 20 October 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-404/09)

2010/C 11/26

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: F. Castillo de la Torre, D. Recchia and J.-B. Laignelot, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

Pleas in law and main arguments

The Commission became aware of the existence of various opencast coal mines, developed by the Empresa Minero Siderúrgica de Ponferrada (MSP), likely to affect the natural assets of the area proposed as the ‘Alto Sil’ site of Community interest (ES0000210), situated in the province of León in the northeast of the Autonomous Community of Castilla y León. Reports confirmed not only the existence at the same time of several open cast mines for the extraction of coal, but also that the opencast mining was to continue by means of further mines to which consent had been given or was about to be given.

As regards Directive 85/337/EEC, the Commission considers that, as regards the three mines at issue, no account was taken of the possible indirect, cumulative or synergistic effects on the most vulnerable species.

The Commission considers that, having regard to the nature of the projects at issue, their proximity and their lasting effects over time, the description of the significant effects of those projects on the environment, pursuant to what is laid down in Annex IV to Directive 85/337/EEC ought necessarily to cover ‘the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary. effects of the project’.

As regards Directive 92/43, in relation to habitats, the species referred to by the application are mainly the capercaillie and the brown bear. The Commission considers that the consequences of the mines on those species cannot be assessed solely in terms of direct destruction of the critical areas for those species, but that account must be taken of the greater fragmentation, degradation and destruction of habitats which are potentially suitable for reconquest by those species and of the increased disturbance caused to those species, those being matters which have not been taken into account. Further there is the additional risk of a definite barrier effect as a result of the movement and fragmentation of populations.

In brief, the Commission considers that the mines at issue worsen the factors considered to be causing the decline of those species and that therefore the authorities are not entitled to conclude that the mining activities at issue have no significant effects on those species.

Consequently, the Commission considers that there has been no assessment of the possible impact on the capercaillie and brown bear species which can be considered appropriate, within the meaning of Article 6(3). The Commission considers that if such an assessment had taken place, the conclusion would have to have been, at the least, that there was not the certainty which the case-law requires that there were no significant effects for those species stemming from the projects to which consent had been given. That means that the authorities were entitled to give consent to those opencast mining projects solely after they were satisfied that the conditions of Article 6(4)were met; in other words, in the absence of alternatives, including the ‘zero alternative’, after they had identified the existence of imperative reasons of overriding public interest to justify the application of the exception to the rule contained in that article and after, as appropriate, they had determined the necessary compensatory measures.

(1)  OJ 1985 L 175, p. 40

(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)