Action brought on 9 March 2016 — European Commission v Federal Republic of Germany

(Case C-142/16)

(2016/C 165/14)

Language of the case: German

Parties

Applicant: European Commission (represented by: C. Hermes and E. Manhaeve, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The City of Hamburg issued a water-law permit for the Moorburg coal-fired power station by which the drawing of water from the river Elbe was authorised for purposes of the cooling operations of the power station. The environmental impact assessment underlying the permit identified the danger that the drawing of cooling water would kill fish migrating up the Elbe and thus be significantly detrimental to upstream Natura 2000 areas, the conservation objectives of which include the corresponding species. Ultimately, however, the environmental impact assessment concluded that the areas of conservation would not be adversely affected in any significant way because the assessment characterised a fish ladder installation set up between the power station and the relevant conservation areas as a damage limitation measure. Furthermore, the environmental impact assessment did not investigate the possible cumulative effects of power stations upstream from Moorburg which already exist or have been applied for.

Under the second sentence of Article 6(3) of Directive 92/43/EEC, projects may be agreed to, the light of the impact assessment, only on condition that significant deterioration of Natura 2000 areas can be excluded. If that is not the case, a project may be agreed to only under the strict conditions laid down in Article 6(4) of the directive.

The Commission takes the view that the impact assessment for the site in question is incorrect or incomplete in two respects. First, the assessment assessed the fish ladder as a damage limitation measure in the context of Article 6(3) of the directive, whereas, in accordance with the criteria set out in the judgment of the Court of Justice in Briels (C-521/12 (2)) it is, at most, a compensatory measure within the meaning of Article 6(4) of the directive. Second, the assessment fails to investigate the potential cumulative effects mentioned above, contrary to Article 6(3) of the directive. Since, on that basis, the City of Hamburg ruled out any significant adverse effects for areas of conservation under Article 6(3) of the directive, it failed to satisfy the conditions laid down in Article 6(4) of the directive, such as considering alternative solutions and the overriding public interest.

(1)  OJ 1992 L 206, p. 7.

(2)  ECLI:EU:C:2014:330