Background to the dispute and the pre-litigation procedure
9 The Kaliakra region, situated on Bulgaria’s Black Sea coast, is an important site for the conservation of numerous species of birds and their habitats and accordingly was designated an IBA by the non-governmental organisation BirdLife International.
10 On 18 December 2007, in accordance with the Birds Directive, the Republic of Bulgaria established the Kaliakra SPA. Nevertheless, that protection area covered only two thirds of the territory of the Kaliakra IBA. The Republic of Bulgaria also set up the Belite Skali SPA to the west of the Kaliakra SPA and outside the Kaliakra IBA. Furthermore, that Member State proposed to the Commission that a site of Community interest be designated under the name ‘Kompleks Kaliakra’ including almost the entire area covered by the Kaliakra and Belite Skali SPAs.
11 Following complaints submitted by the Bulgarian Society for the Protection of Birds (Bulgarsko druzhestvo za zashtita na ptitsite) concerning the insufficient scope of the geographical area covered by the Kaliakra SPA and the adverse effects of several business projects on natural habitats and habitats of bird species, the Commission sent a letter of formal notice on 6 June 2008 to the Republic of Bulgaria requesting that it address the failure to fulfil its obligations under Article 4(1) and (2) of the Birds Directive in respect of six SPAs, including the Kaliakra SPA. Since the Commission was not satisfied with the various replies submitted by the Republic of Bulgaria, it sent a second letter of formal notice on 1 December 2008 requesting the Republic of Bulgaria to remedy its failure to fulfil its obligations under Article 4(4) of the Birds Directive and the combined provisions of Articles 2(1) and 4(2) and (3) of Directive 2011/92 and of Annex III thereto, in so far as that Member State had authorised the installation of several wind farms within the Kaliakra IBA. The Republic of Bulgaria replied to those letters of formal notice on 30 January 2009 and subsequently submitted additional information on several occasions.
12 On 30 September 2011, the Commission sent a supplementary third letter of formal notice to the Republic of Bulgaria which, first, was designed to consolidate the two previous letters of formal notice and, secondly, contained new requests concerning the territories of the Kaliakra IBA, the Belite Skali SPA and the Kompleks Kaliakra SCI. That letter raised two sets of issues: the insufficient geographical scope of the territory of the Kaliakra SPA and the effects of several projects on the Kaliakra SPA, the Belite Skali SPA, the Kompleks Kaliakra SCI and the area which should have been classified as an SPA, according to the IBA inventory, but which had not been so classified.
13 On 30 January 2012, the Republic of Bulgaria informed the Commission that the projects listed by it had been, for the most part, approved before that Member State’s accession to the European Union or before the inclusion of the areas concerned in the Natura 2000 network, with the result that EU law was not applicable to those sites.
14 By letter of 22 June 2012, the Commission delivered a reasoned opinion in which it complained that the Republic of Bulgaria had failed to fulfil its obligations under Article 4(1), (2) and (4) of the Birds Directive, Article 6(2), (3) and (4) of the Habitats Directive and the combined provisions of Articles 2(1) and 4(2) and (3) of Directive 2011/92 and of Annex III thereto.
15 The Republic of Bulgaria replied to that reasoned opinion and, on the basis of additional information, informed the Commission that it had taken a series of measures designed to correct the shortcomings identified.
16 As it took the view that the situation remained unsatisfactory, the Commission brought the present action on 24 March 2014.
Findings of the Court
48 It must be noted at the outset that, taking into account the information provided by the Republic of Bulgaria in its defence, to the effect that it did not authorise the implementation of the project ‘TSID — Atlas’, the Commission decided to exclude that project from the present action for failure to fulfil obligations.
49 Furthermore, as the Advocate General correctly observes in points 71 to 73 of her Opinion, that third complaint must be understood as meaning that the Commission claims that the Republic of Bulgaria has failed to fulfil, first, its obligations under Article 6(2) of the Habitats Directive by failing to oppose the implementation of projects in the Kaliakra and Belite Skali SPAs and, secondly, the provisional protection obligations arising from the judgments in Dragaggi and Others (C‑117/03, EU:C:2005:16) and in Bund Naturschutz in Bayern and Others (C‑244/05, EU:C:2006:579) by reason of its failure to oppose those projects implemented within the boundaries of the proposed Kompleks Kaliakra SCI. By that complaint, the Commission therefore refers, not to decisions authorising projects adopted by the Republic of Bulgaria before its accession to the European Union, but to their implementation after that accession and the deterioration of those sites resulting from that implementation.
50 It is therefore necessary, first, to consider whether Article 6(2) of the Habitats Directive could apply, from a temporal perspective, to the situation in question, to the extent that that provision could require the Republic of Bulgaria to oppose the implementation, within the Kaliakra and Belite Skali SPAs, of the projects ‘Kaliakra Wind Power’, ‘EVN Enertrag Kavarna’, ‘Vertikal — Petkov & Cie’, and ‘Thracian Cliffs Golf & Spa Resort’.
51 In that respect, it is clear from the Court’s case-law that Article 6(2) of the Habitats Directive also applies to installations the project for which was approved by the competent authority before the protection provided for in that directive became applicable to the protection area concerned (see, to that effect, judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 124).
52 The Court has already held that, although such projects are not subject to the requirements relating to the procedure for prior assessment of the implications of the project for the site concerned, laid down by the Habitats Directive, their implementation nevertheless falls within the scope of Article 6(2) of that directive (judgments in Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraphs 48 and 49, and in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 125).
53 In the present case, first, it is clear from the file submitted to the Court that the ‘Kaliakra Wind Power’ project for the construction of 35 wind-power installations was authorised in 2006 and became operational on 5 June 2008. The ‘EVN Enertrag Kavarna’ project involving the construction of 32 wind-power installations was authorised on 26 July 2006. That authorisation was subsequently reduced to 20 installations, eight of which were built and became operational on 8 June 2012. Three further installations were authorised in 2005 as part of the ‘Vertikal — Petkov & Cie’ project. Proceedings brought against those three authorisations concluded in a settlement reached on 26 July 2007, after which the operation of two installations began on 24 April 2008 and 14 February 2011, while the third installation was not built.
54 Secondly, an initial building permit for the ‘Thracian Cliffs Golf & Spa Resort’ tourism project in the Belite Skali SPA, which includes the construction of a golf course and spa, was issued on 22 December 2005 and the operating authorisation was granted on 6 April 2010.
55 It follows from the findings set out in paragraphs 51 and 52 of the present judgment that the implementation of those projects and the activity generated by the installations resulting from those projects, even though they were authorised before the accession of the Republic of Bulgaria and before the Birds and Habitats Directives applied to those authorisations, fall within the scope of Article 6(2) of the Habitats Directive.
56 In the second place, as regards the complaint that the Republic of Bulgaria did not take appropriate measures to prevent the deterioration of a number of habitats of species and the adverse effect on birds caused by the activity associated with the installations resulting from the implementation of the four projects in question in the Kaliakra and Belite Skali SPAs, it should be recalled that an activity complies with Article 6(2) of the Habitats Directive only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives (judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 126 and the case-law cited).
57 It follows that the present complaint is well founded only if the Commission demonstrates to a sufficient legal standard that the Republic of Bulgaria has not taken the appropriate protective measures, consisting in ensuring that the activities associated with the operation of the installations resulting from those projects, in so far as they took place after the classification of the Kaliakra and Belite Skali sites as SPAs, would not lead to deteriorations of the habitats of a number of species or cause disturbances, to the detriment of those species, likely to have significant effects having regard to the objective of the Habitats Directive of ensuring the conservation of those species (see, by analogy, judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 128).
58 None the less, in order to establish failure to fulfil obligations under Article 6(2) of the Habitats Directive, the Commission does not have to establish the existence of a cause-and-effect relationship between the operation of installations resulting from a project and significant disturbance caused to the species concerned. It is sufficient for the Commission to establish that there is a probability or risk that that operation might cause such disturbances (see, to that effect, judgment in Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 142 and the case-law cited).
59 In that regard, the file submitted to the Court shows that, given the high density of wind-power installations within the Kaliakra SPA, in particular in the context of the ‘Kaliakra Wind Power’ project, their activity could cause significant disturbances and deterioration to the habitats of protected species of birds. The same is true in respect of the area of the Belite Skali SPA affected by the installations of the ‘Thracian Cliffs Golf & Spa’, the operation of which alters the characteristics of the habitats in question.
60 In the light of the foregoing, the Court finds that this complaint put forward by the Commission is, to that extent, well founded.
61 By contrast, as regards, in the third place, the substantial destruction of the ‘Ponto-Sarmatic steppes’ priority habitat referred to in paragraph 44 of the present judgment, the Republic of Bulgaria claims, without being contradicted, that the ground preparation work which destroyed those habitats located within the territory of the Kompleks Kaliakra SCI took place before the accession of that Member State to the European Union. Consequently, the destruction of those habitats cannot constitute, from a temporal perspective, a failure to comply with EU law.
62 Furthermore, it should be noted that, as the Advocate General observed in point 107 of her Opinion, if a habitat type has already been destroyed in the areas concerned the subsequent operation of the installations resulting from the implementation of the projects cannot impair it any further. Consequently, the Commission’s action is not well founded on that point.
On those grounds, the Court (Third Chamber) hereby:
1. Declares that:
– by failing to include all the territories of the important bird areas in the special protection area covering the Kaliakra region, the Republic of Bulgaria has failed to classify as special protection areas the most suitable territories in number and size for the conservation, first, of the biological species listed in Annex I to Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds and, secondly, of the migratory species not listed in that annex but regularly occurring in the geographical sea and land area where that directive applies, with the result that that Member State has failed to fulfil its obligations under Article 4(1) and (2) of that directive;
– by approving the implementation of the projects ‘AES Geo Energy’, ‘Disib’ and ‘Longman Investment’ in the territory of the important bird area covering the Kaliakra region which was not classified as a special protection area, although it should have been, the Republic of Bulgaria has failed to fulfil its obligations under Article 4(4) of Directive 2009/147;
– by approving the implementation of the projects ‘Kaliakra Wind Power’, ‘EVN Enertrag Kavarna’ and ‘Vertikal — Petkov & Cie’, and of the ‘Thracian Cliffs Golf & Spa Resort’, in the territory of the special protection areas covering the regions of Kaliakra and Belite Skali respectively, the Republic of Bulgaria has failed to fulfil its obligations under Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;
– by failing, first, to assess properly the cumulative effect of the projects ‘Windtech’, ‘Brestiom’, ‘Eco Energy’ and ‘Longman Investment’ in the territory of the important bird area covering the Kaliakra region which was not classified as a special protection area, although it should have been, and, secondly, by none the less authorising the implementation of the ‘Longman Investment’ project, the Republic of Bulgaria has failed to fulfil its obligations under Article 4(2) and (3) of 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 and point 1(b) of Annex III to that directive, and under Article 2(1) of that directive, respectively;