*
EN
Reports of Cases
*
ECLI:EU:C:2012:560 1
JUDGMENT OF THE COURT (Grand Chamber)
11 September 2012 
Language of the case: Greek.
(Reference for a preliminary ruling — Directives 85/337/EEC, 92/43/EEC, 2000/60/EC and
2001/42/EC — Community action in the field of water policy — Diversion of the course of a river —
Meaning of the time-limit for production of river basin management plans)
In Case C-43/10,
REFERENCE for a preliminary ruling under Article  267 TFEU from the Simvoulio tis Epikratias
(Greece), made by decision of 9  October 2009, received at the Court on 25  January 2010, in the
proceedings
Nomarchiaki Aftodioikisi Aitoloakarnanias,
Dimos Agriniou,
Dimos Iniadon,
Emporiko kai Viomikhaniko Epimelitirio Aitoloakarnanias,
Enosi Agrotikon Sinetairismon Agriniou,
Aitoliki Etairia Prostasias Topiou kai Perivallontos,
Elliniki Ornithologiki Etairia,
Elliniki Etairia gia tin Prostasia tou Perivallontos kai tis Politistikis Klironomias,
Dimos Mesolongiou,
Dimos Aitolikou,
Dimos Inakhou,
Topiki Enosi Dimon kai Kinotiton Nomou Aitoloakarnanias,
Pagkosmio Tamio gia ti Fisi WWF Ellas
v
Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon,
Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis,
2 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
Ipourgos Ikonomias kai Ikonomikon,
Ipourgos Anaptixis,
Ipourgos Agrotikis Anaptixis kai Trofimon,
Ipourgos Politismou,
intervening parties:
Nomarchiaki Aftodioikisi Trikalon,
Nomarchiaki Aftodioikisi Magnisias,
Dimosia Epikhirisi Ilektrismou AE (DEI),
Nomarchiaki Aftodioikisi Karditsas,
Nomarchiaki Aftodioikisi Larisas,
Topiki Enosi Dimon kai Kinotiton tou Nomou Trikalon,
Topiki Enosi Dimon kai Kinotiton tou Nomou Larisis,
Topiki Enosi Dimon kai Kinotiton tou Nomou Karditsas,
Tekhniko Epimelitirio Elladas – Periferiako Tmima Kentrikis kai Ditikis Thessalias,
THE COURT (Grand Chamber),
composed of V.  Skouris, President, A.  Tizzano, J.N.  Cunha Rodrigues, K.  Lenaerts, J.-C.  Bonichot and
U.  Lõhmus, Presidents of Chambers, A.  Rosas, E.  Levits, A.  Ó  Caoimh, L.  Bay Larsen (Rapporteur),
T.  von Danwitz, A.  Arabadjiev and E.  Jarašiūnas, Judges,
Advocate General: J.  Kokott,
Registrar: L.  Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 24 May 2011,
after considering the observations submitted on behalf of:
— Nomarchiaki Aftodioikisi Aitoloakarnanias, Dimos Agriniou, Dimos Iniadon, Emporiko kai
Viomikhaniko Epimelitirio Aitoloakarnanias, Enosi Agrotikon Sinetairismon Agriniou, Aitoliki
Etairia Prostasias Topiou kai Perivallontos, Elliniki Ornithologiki Etairia, Elliniki Etairia gia tin
Prostasia tou Perivallontos kai tis Politistikis Klironomias, Dimos Mesolongiou, Dimos Aitolikou,
Dimos Inakhou, Topiki Enosi Dimon kai Kinotiton Nomou Aitoloakarnanias and Pagkosmio
Tamio gia ti Fisi WWF Ellas, by C.  Rokofillos, G.  Khristoforidis, V.  Dorovinis, N.  Alevizatos,
M.  Asimakopoulou, E.  Kiousopoulou and N.  Khatzis, dikigoroi,
— Nomarchiaki Aftodioikisi Trikalon, by A.  Tigkas, dikigoros,
— Nomarchiaki Aftodioikisi Magnisias, by X.  Kontiadis, dikigoros,
ECLI:EU:C:2012:560 3
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
— Dimosia Epikhirisi Ilektrismou AE (DEI), by C.  Sinodinos and F.-A.  Mouratian, dikigori,
— Nomarchiaki Aftodioikisi Karditsas, by A.  Kormalis, dikigoros,
— Nomarchiaki Aftodioikisi Larisas, Topiki Enosi Dimon kai Kinotiton tou Nomou Trikalon, Topiki
Enosi Dimon kai Kinotiton tou Nomou Larisis, Topiki Enosi Dimon kai Kinotiton tou Nomou
Karditsas, Tekhniko Epimelitirio Elladas – Periferiako Tmima Kentrikis kai Ditikis Thessalias, by
S.  Flogaïtis, A.  Sinis and G.  Siouti, dikigori,
— the Greek Government, by G.  Karipsiadis, C.  Mitkidis and K.  Kardakastanis,  acting as Agents,
— the Norwegian Government, by K.  Moe Winther and I.  Thue, acting as Agents,
— the European Commission, by D.  Recchia, S.  Petrova, I.  Chatzigiannis and P.  Oliver, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 15 September 2011,
gives the following
Judgment
1 This reference for a preliminary ruling concerns the interpretation of Directive  2000/60/EC of the
European Parliament and of the Council of 23 October 2000 establishing a framework for Community
action in the field of water policy (OJ 2000 L  327, p.  1), of Council Directive 85/337/EEC of 27  June
1985 on the assessment of the effects of certain public and private projects on the environment (OJ
1985 L  175, p.  40), as amended by Directive 2003/35/EC of the European Parliament and of the
Council of 26  May 2003 (OJ 2003 L  156, p.  17) (‘Directive 85/337’), of Directive 2001/42/EC of the
European Parliament and of the Council of 27  June 2001 on the assessment of the effects of certain
plans and programmes on the environment (OJ 2001 L  197, p.  30) and of 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).
2 The reference has been made in legal proceedings brought by the Nomarchiaki Aftodioikisi
Aitoloakarnanias (Prefectural Authority of Aitoloakarnania) and other legal persons against the
Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon (Minister for the Environment, Regional
Planning and Public Works) and other ministers, seeking the annulment of measures relating to the
project for the partial diversion of the upper waters of the river Acheloos (Western Greece) to the river
Pinios, in Thessaly.
Legal context
European Union law
Directive 2000/60
3 Recitals 19, 20, 25 and 32 in the preamble to Directive 2000/60 are worded as follows:
‘(19) This Directive aims at maintaining and improving the aquatic environment in the Community.
This purpose is primarily concerned with the quality of the waters concerned. Control of
quantity is an ancillary element in securing good water quality and therefore measures on
quantity, serving the objective of ensuring good quality, should also be established.
4 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
(20) The quantitative status of a body of groundwater may have an impact on the ecological quality of
surface waters and terrestrial ecosystems associated with that groundwater body.
...
(25) Common definitions of the status of water in terms of quality and, where relevant for the
purpose of the environmental protection, quantity should be established. Environmental
objectives should be set to ensure that good status of surface water and groundwater is achieved
throughout the Community and that deterioration in the status of waters is prevented at
Community level.
...
(32) There may be grounds for exemptions from the requirement to prevent further deterioration or to
achieve good status under specific conditions, if the failure is the result of unforeseen or
exceptional circumstances, in particular floods and droughts, or, for reasons of overriding public
interest, of new modifications to the physical characteristics of a surface water body or alterations
to the level of bodies of groundwater, provided that all practicable steps are taken to mitigate the
adverse impact on the status of the body of water.’
4 Article  2 of that directive provides the following definitions:
‘…
(10) “Body of surface water” means a discrete and significant element of surface water such as a lake, a
reservoir, a stream, river or canal, part of a stream, river or canal, a transitional water or a stretch
of coastal water.
…
(13) “River basin” means the area of land from which all surface run-off flows through a sequence of
streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta.
(14) “Sub-basin” means the area of land from which all surface run-off flows through a series of
streams, rivers and, possibly, lakes to a particular point in a water course (normally a lake or a
river confluence).
(15) “River basin district” means the area of land and sea, made up of one or more neighbouring river
basins together with their associated groundwaters and coastal waters, which is identified under
Article  3(1) as the main unit for management of river basins.
…
(17) “Surface water status” is the general expression of the status of a body of surface water,
determined by the poorer of its ecological status and its chemical status.
(18) “Good surface water status” means the status achieved by a surface water body when both its
ecological status and its chemical status are at least “good”.
(19) “Groundwater status” is the general expression of the status of a body of groundwater, determined
by the poorer of its quantitative status and its chemical status.
(20) “Good groundwater status” means the status achieved by a groundwater body when both its
quantitative status and its chemical status are at least “good”.
ECLI:EU:C:2012:560 5
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
(21) “Ecological status” is an expression of the quality of the structure and functioning of aquatic
ecosystems associated with surface waters, classified in accordance with Annex V.
(22) “Good ecological status” is the status of a body of surface water, so classified in accordance with
Annex V.
…
(24) “Good surface water chemical status” means the chemical status required to meet the environmental
objectives for surface waters established in Article  4(1)(a), that is the chemical status achieved by a
body of surface water in which concentrations of pollutants do not exceed the environmental
quality standards established in Annex IX and under Article  16(7), and under other relevant
Community legislation setting environmental quality standards at Community level.
(25) “Good groundwater chemical status” is the chemical status of a body of groundwater, which meets
all the conditions set out in table 2.3.2 of Annex V.
(26) “Quantitative status” is an expression of the degree to which a body of groundwater is affected by
direct and indirect abstractions.
…
(28) “Good quantitative status” is the status defined in table 2.1.2 of Annex V.
…’
5 Article  3(1) and (4) of that directive provide:
‘1. Member States shall identify the individual river basins lying within their national territory and, for
the purposes of this Directive, shall assign them to individual river basin districts. Small river basins may
be combined with larger river basins or joined with neighbouring small basins to form individual river
basin districts where appropriate. Where groundwaters do not fully follow a particular river basin, they
shall be identified and assigned to the nearest or most appropriate river basin district. Coastal waters
shall be identified and assigned to the nearest or most appropriate river basin district or districts.
…
4. Member States shall ensure that the requirements of this Directive for the achievement of the
environmental objectives established under Article  4, and in particular all programmes of measures
are coordinated for the whole of the river basin district. …’
6 Article  4 of Directive 2000/60 is worded as follows:
‘1. In making operational the programmes of measures specified in the river basin management plans:
(a) for surface waters
(i) Member States shall implement the necessary measures to prevent deterioration of the status
of all bodies of surface water, subject to the application of paragraphs  6 and 7 and without
prejudice to paragraph  8;
(ii) Member States shall protect, enhance and restore all bodies of surface water, subject to the
application of subparagraph  (iii) for artificial and heavily modified bodies of water, with the
aim of achieving good surface water status at the latest 15 years after the date of entry into
force of this Directive, in accordance with the provisions laid down in Annex V, subject to
the application of extensions determined in accordance with paragraph  4 and to the
application of paragraphs 5, 6 and 7 without prejudice to paragraph  8;
…
6 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
(b) for groundwater
(i) Member States shall implement the measures necessary to prevent or limit the input of
pollutants into groundwater and to prevent the deterioration of the status of all bodies of
groundwater, subject to the application of paragraphs  6 and 7 and without prejudice to
paragraph  8 of this Article and subject to the application of Article  11(3)(j);
(ii) Member States shall protect, enhance and restore all bodies of groundwater, ensure a balance
between abstraction and recharge of groundwater, with the aim of achieving good
groundwater status at the latest 15 years after the date of entry into force of this Directive,
in accordance with the provisions laid down in Annex V, subject to the application of
extensions determined in accordance with paragraph  4 and to the application of
paragraphs  5, 6 and 7 without prejudice to paragraph  8 of this Article and subject to the
application of Article  11(3)(j);
…
…
4. The deadlines established under paragraph  1  may be extended for the purposes of phased
achievement of the objectives for bodies of water, provided that no further deterioration occurs in the
status of the affected body of water when all of the following conditions are met:
(a) Member States determine that all necessary improvements in the status of bodies of water cannot
reasonably be achieved within the timescales set out in that paragraph for at least one of the
following reasons:
(i) the scale of improvements required can only be achieved in phases exceeding the timescale,
for reasons of technical feasibility;
(ii) completing the improvements within the timescale would be disproportionately expensive;
(iii) natural conditions do not allow timely improvement in the status of the body of water.
(b) Extension of the deadline, and the reasons for it, are specifically set out and explained in the river
basin management plan required under Article  13.
(c) Extensions shall be limited to a maximum of two further updates of the river basin management
plan except in cases where the natural conditions are such that the objectives cannot be achieved
within this period.
(d) A summary of the measures required under Article  11 which are envisaged as necessary to bring
the bodies of water progressively to the required status by the extended deadline, the reasons for
any significant delay in making these measures operational, and the expected timetable for their
implementation are set out in the river basin management plan. A review of the implementation
of these measures and a summary of any additional measures shall be included in updates of the
river basin management plan.
5. Member States may aim to achieve less stringent environmental objectives than those required under
paragraph  1 for specific bodies of water when they are so affected by human activity, as determined in
accordance with Article  5(1), or their natural condition is such that the achievement of these objectives
would be infeasible or disproportionately expensive, and all the following conditions are met:
(a) the environmental and socioeconomic needs served by such human activity cannot be achieved by
other means, which are a significantly better environmental option not entailing disproportionate costs;
—
—
ECLI:EU:C:2012:560 7
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
(b) Member States ensure:
for surface water, the highest ecological and chemical status possible is achieved, given impacts
that could not reasonably have been avoided due to the nature of the human activity or
pollution,
for groundwater, the least possible changes to good groundwater status, given impacts that
could not reasonably have been avoided due to the nature of the human activity or pollution;
(c) no further deterioration occurs in the status of the affected body of water;
(d) the establishment of less stringent environmental objectives, and the reasons for it, are specifically
mentioned in the river basin management plan required under Article  13 and those objectives are
reviewed every six years.
6. Temporary deterioration in the status of bodies of water shall not be in breach of the requirements
of this Directive if this is the result of circumstances of natural cause or force majeure which are
exceptional or could not reasonably have been foreseen, in particular extreme floods and prolonged
droughts, or the result of circumstances due to accidents which could not reasonably have been
foreseen, when all of the following conditions have been met:
(a) all practicable steps are taken to prevent further deterioration in status and in order not to
compromise the achievement of the objectives of this Directive in other bodies of water not
affected by those circumstances;
(b) the conditions under which circumstances that are exceptional or that could not reasonably have
been foreseen may be declared, including the adoption of the appropriate indicators, are stated in
the river basin management plan;
(c) the measures to be taken under such exceptional circumstances are included in the programme of
measures and will not compromise the recovery of the quality of the body of water once the
circumstances are over;
(d) the effects of the circumstances that are exceptional or that could not reasonably have been
foreseen are reviewed annually and, subject to the reasons set out in paragraph  4(a), all
practicable measures are taken with the aim of restoring the body of water to its status prior to
the effects of those circumstances as soon as reasonably practicable, and
(e) a summary of the effects of the circumstances and of such measures taken or to be taken in
accordance with paragraphs  (a) and (d) are included in the next update of the river basin
management plan.
7. Member States will not be in breach of this Directive when:
— failure to achieve good groundwater status, good ecological status or, where relevant, good
ecological potential or to prevent deterioration in the status of a body of surface water or
groundwater is the result of new modifications to the physical characteristics of a surface water
body or alterations to the level of bodies of groundwater, or
— failure to prevent deterioration from high status to good status of a body of surface water is the
result of new sustainable human development activities
8 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
and all the following conditions are met:
(a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;
(b) the reasons for those modifications or alterations are specifically set out and explained in the river
basin management plan required under Article  13 and the objectives are reviewed every six years;
(c) the reasons for those modifications or alterations are of overriding public interest and/or the
benefits to the environment and to society of achieving the objectives set out in paragraph  1 are
outweighed by the benefits of the new modifications or alterations to human health, to the
maintenance of human safety or to sustainable development, and
(d) the beneficial objectives served by those modifications or alterations of the water body cannot for
reasons of technical feasibility or disproportionate cost be achieved by other means which are a
significantly better environmental option.
8. When applying paragraphs  3, 4, 5, 6 and 7, a Member State shall ensure that the application does
not permanently exclude or compromise the achievement of the objectives of this Directive in other
bodies of water within the same river basin district and is consistent with the implementation of other
Community environmental legislation.
9. Steps must be taken to ensure that the application of the new provisions, including the application
of paragraphs  3, 4, 5, 6 and 7, guarantees at least the same level of protection as the existing
Community legislation.’
7 Article  5(1) of Directive 2000/60 provides:
‘Each Member State shall ensure that for each river basin district or for the portion of an international
river basin district falling within its territory:
— an analysis of its characteristics,
— a review of the impact of human activity on the status of surface waters and on groundwater, and
— an economic analysis of water use
is undertaken according to the technical specifications set out in Annexes II and III and that it is
completed at the latest four years after the date of entry into force of this Directive.’
8 Article  6(1) of that directive states:
‘Member States shall ensure the establishment of a register or registers of all areas lying within each
river basin district which have been designated as requiring special protection under specific
Community legislation for the protection of their surface water and groundwater or for the
conservation of habitats and species directly depending on water. They shall ensure that the register is
completed at the latest four years after the date of entry into force of this Directive.’
9 Under the first subparagraph of Article  9(1) of that directive:
‘Member States shall take account of the principle of recovery of the costs of water services, including
environmental and resource costs, having regard to the economic analysis conducted according to
Annex III, and in accordance in particular with the polluter pays principle.’
ECLI:EU:C:2012:560 9
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
10 Article  11(7) of Directive 2000/60 is worded as follows:
‘The programmes of measures shall be established at the latest nine years after the date of entry into
force of this Directive and all the measures shall be made operational at the latest 12 years after that
date.’
11 Article  13 of that directive provides:
‘1. Member States shall ensure that a river basin management plan is produced for each river basin
district lying entirely within their territory.
…
4. The river basin management plan shall include the information detailed in Annex VII.
5. River basin management plans may be supplemented by the production of more detailed
programmes and management plans for sub-basin, sector, issue, or water type, to deal with particular
aspects of water management. Implementation of these measures shall not exempt Member States
from any of their obligations under the rest of this Directive.
6. River basin management plans shall be published at the latest nine years after the date of entry into
force of this Directive.
7. River basin management plans shall be reviewed and updated at the latest 15 years after the date of
entry into force of this Directive and every six years thereafter.’
12 Article  14 of that directive is worded as follows:
‘1. Member States shall encourage the active involvement of all interested parties in the
implementation of this Directive, in particular in the production, review and updating of the river
basin management plans. Member States shall ensure that, for each river basin district, they publish
and make available for comments to the public, including users:
(a) a timetable and work programme for the production of the plan, including a statement of the
consultation measures to be taken, at least three years before the beginning of the period to
which the plan refers;
(b) an interim overview of the significant water management issues identified in the river basin, at
least two years before the beginning of the period to which the plan refers;
(c) draft copies of the river basin management plan, at least one year before the beginning of the
period to which the plan refers.
On request, access shall be given to background documents and information used for the development
of the draft river basin management plan.
2. Member States shall allow at least six months to comment in writing on those documents in order
to allow active involvement and consultation.
3. Paragraphs 1 and 2 shall apply equally to updated river basin management plans.’
10 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
13 Article  15 of the directive states:
‘1. Member States shall send copies of the river basin management plans and all subsequent updates to
the Commission and to any other Member State concerned within three months of their publication:
(a) for river basin districts falling entirely within the territory of a Member State, all river
management plans covering that national territory and published pursuant to Article  13;
(b) for international river basin districts, at least the part of the river basin management plans
covering the territory of the Member State.
2. Member States shall submit summary reports of:
— the analyses required under Article  5, and
— the monitoring programmes designed under Article  8,
undertaken for the purposes of the first river basin management plan within three months of their
completion.
3. Member States shall, within three years of the publication of each river basin management plan or
update under Article  13, submit an interim report describing progress in the implementation of the
planned programme of measures.’
14 Under the first subparagraph of Article  24(1) of Directive 2000/60, Member States were to bring into
force the laws, regulations and administrative provisions necessary to comply with that directive at the
latest by 22 December 2003 and forthwith to inform the Commission thereof.
Directive 85/337
15 Article  1 of Directive 85/337 is worded as follows:
‘1. This Directive shall apply to the assessment of the environmental effects of those public and private
projects which are likely to have significant effects on the environment.
2. For the purposes of this Directive:
“project” means:
— the execution of construction works or of other installations or schemes,
— other interventions in the natural surroundings and landscape including those involving the
extraction of mineral resources;
“developer” means:
the applicant for authorisation for a private project or the public authority which initiates a project;
“development consent” means:
the decision of the competent authority or authorities which entitles the developer to proceed with the
project.
ECLI:EU:C:2012:560 11
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
“public” means:
one or more natural or legal persons and, in accordance with national legislation or practice, their
associations, organisations or groups;
“public concerned” means:
the public affected or likely to be affected by, or having an interest in, the environmental
decision-making procedures referred to in Article  2(2); for the purposes of this definition,
non-governmental organisations promoting environmental protection and meeting any requirements
under national law shall be deemed to have an interest;
…
5. This Directive shall not apply to projects the details of which are adopted by a specific act of
national legislation, since the objectives of this Directive, including that of supplying information, are
achieved through the legislative process.’
16 Article  2(1) of that directive provides:
‘Member States shall adopt all measures necessary to ensure that, before consent is given, projects
likely to have significant effects on the environment by virtue, inter alia, of their nature, size or
location are made subject to a requirement for development consent and an assessment with regard
to their effects. ...’
17 Article  5(3) of that directive provides:
‘The information to be provided by the developer in accordance with paragraph  1 shall include at least:
— a description of the project comprising information on the site, design and size of the project,
— a description of the measures envisaged in order to avoid, reduce and, if possible, remedy
significant adverse effects,
— the data required to identify and assess the main effects which the project is likely to have on the
environment,
— an outline of the main alternatives studied by the developer and an indication of the main reasons
for his choice, taking into account the environmental effects,
— a non-technical summary of the information mentioned in the previous indents.’
18 Under Article  6 of Directive 85/337:
‘1. Member States shall take the measures necessary to ensure that the authorities likely to be
concerned by the project by reason of their specific environmental responsibilities are given an
opportunity to express their opinion on the information supplied by the developer and on the request
for development consent. To this end, Member States shall designate the authorities to be consulted,
either in general terms or on a case-by-case basis. The information gathered pursuant to Article  5
shall be forwarded to those authorities. Detailed arrangements for consultation shall be laid down by
the Member States.
12 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
2. The public shall be informed, whether by public notices or other appropriate means such as
electronic media where available, of the following matters early in the environmental decision-making
procedures referred to in Article  2(2) and, at the latest, as soon as information can reasonably be
provided:
(a) the request for development consent;
(b) the fact that the project is subject to an environmental impact assessment procedure and, where
relevant, the fact that Article  7 applies;
(c) details of the competent authorities responsible for taking the decision, those from which relevant
information can be obtained, those to which comments or questions can be submitted, and details
of the time schedule for transmitting comments or questions;
(d) the nature of possible decisions or, where there is one, the draft decision;
(e) an indication of the availability of the information gathered pursuant to Article  5;
(f) an indication of the times and places where and means by which the relevant information will be
made available;
(g) details of the arrangements for public participation made pursuant to paragraph  5 of this Article.
3. Member States shall ensure that, within reasonable time-frames, the following is made available to
the public concerned:
(a) any information gathered pursuant to Article  5;
(b) in accordance with national legislation, the main reports and advice issued to the competent
authority or authorities at the time when the public concerned is informed in accordance with
paragraph  2 of this Article;
(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the
Council of 28  January 2003 on public access to environmental information [(OJ 2003 L  41,
p.  26)], information other than that referred to in paragraph  2 of this Article which is relevant for
the decision in accordance with Article  8 and which only becomes available after the time the
public concerned was informed in accordance with paragraph  2 of this Article.
…’
19 Article  8 of that directive states:
‘The results of consultations and the information gathered pursuant to Articles  5, 6 and 7 must be
taken into consideration in the development consent procedure.’
20 Article  9(1) of that directive is worded as follows:
‘When a decision to grant or refuse development consent has been taken, the competent authority or
authorities shall inform the public thereof in accordance with the appropriate procedures and shall
make available to the public the following information:
— the content of the decision and any conditions attached thereto,
—
—
ECLI:EU:C:2012:560 13
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
— having examined the concerns and opinions expressed by the public concerned, the main reasons
and considerations on which the decision is based, including information about the public
participation process,
— a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the
major adverse effects.’
Directive 2001/42
21 Article  2 of Directive 2001/42 provides:
‘For the purposes of this Directive:
(a) “plans and programmes” shall mean plans and programmes, including those co-financed by the
European Community, as well as any modifications to them:
which are subject to preparation and/or adoption by an authority at national, regional or local
level or which are prepared by an authority for adoption, through a legislative procedure by
Parliament or Government, and
which are required by legislative, regulatory or administrative provisions;
…’
22 Article  3(2) of that directive provides:
‘Subject to paragraph  3, an environmental assessment shall be carried out for all plans and
programmes:
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste
management, water management, telecommunications, tourism, town and country planning or
land use and which set the framework for future development consent of projects listed in
Annexes I and II to Directive 85/337/EEC, or
(b) which, in view of the likely effect on sites, have been determined to require an assessment
pursuant to Article  6 or 7 of Directive 92/43/EEC.’
Directive 92/43
23 According to the third recital in the preamble to Directive 92/43, ‘the main aim of this Directive being
to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional
requirements, this Directive makes a contribution to the general objective of sustainable development;
… the maintenance of such biodiversity may in certain cases require the maintenance, or indeed the
encouragement, of human activities’.
24 Article  2(3) of that directive provides:
‘Measures taken pursuant to this Directive shall take account of economic, social and cultural
requirements and regional and local characteristics.’
14 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
25 Article  3(1) of that directive is worded as follows:
‘A coherent European ecological network of special areas of conservation shall be set up under the title
Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and
habitats of the species listed in Annex  II, shall enable the natural habitat types and the species’
habitats concerned to be maintained or, where appropriate, restored at a favourable conservation
status in their natural range.
The Natura 2000 network shall include the special protection areas [“SPAs”] classified by the Member
States pursuant to [Council] Directive 79/409/EEC [of 2  April 1979 on the conservation of wild birds
(OJ 1979 L 103, p.  1)].’
26 Article  4 of Directive 92/43 states:
‘1. On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each
Member State shall propose a list of sites indicating which natural habitat types in Annex I and which
species in Annex II that are native to its territory the sites host. …
The list shall be transmitted to the Commission, within three years of the notification of this Directive,
together with information on each site. That information shall include a map of the site, its name, location,
extent and the data resulting from application of the criteria specified in Annex III (Stage 1) provided in a
format established by the Commission in accordance with the procedure laid down in Article 21.
2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the
five biogeographical regions referred to in Article  1(c)(iii) and of the whole of the territory referred to
in Article  2(1), the Commission shall establish, in agreement with each Member State, a draft list of
sites of Community importance [“SCIs”] drawn from the Member States’ lists identifying those which
host one or more priority natural habitat types or priority species.
…
The list of sites selected as [SCIs], identifying those which host one or more priority natural habitat
types or priority species, shall be adopted by the Commission in accordance with the procedure laid
down in Article  21.
3. The list referred to in paragraph  2 shall be established within six years of the notification of this
Directive.
4. Once a [SCI] 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. As soon as a site is placed on the list referred to in the third subparagraph of paragraph  2 it shall be
subject to Article  6(2), (3) and (4).’
27 Under Article  6(2) to (4) of that directive:
‘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.
ECLI:EU:C:2012:560 15
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
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.’
28 Article  7 of that directive is worded as follows:
‘Obligations arising under Article  6(2), (3) and (4) of this Directive shall replace any obligations arising
under the first sentence of Article  4(4) of Directive  79/409/EEC in respect of areas classified pursuant
to Article  4(1) or similarly recognised under Article  4(2) thereof, as from the date of implementation of
this Directive or the date of classification or recognition by a Member State under Directive
79/409/EEC, where the latter date is later.’
Directive 79/409
29 Under Article  4(1) and (2) of Directive 79/409:
‘1. The species mentioned in Annex I shall be the subject of special conservation measures concerning
their habitat in order to ensure their survival and reproduction in their area of distribution.
…
Member States shall classify in particular the most suitable territories in number and size as [SPAs] for
the conservation of these species, taking into account their protection requirements in the geographical
sea and land area where this Directive applies.
2. Member States shall take similar measures for regularly occurring migratory species not listed in
Annex I, bearing in mind their need for protection in the geographical sea and land area where this
Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their
migration routes. To this end, Member States shall pay particular attention to the protection of
wetlands and particularly to wetlands of international importance.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
30 The dispute in the main proceedings concerns a project for the partial diversion of the upper waters of
the river Acheloos to Thessaly (‘the project at issue in the main proceedings’). That major project,
intended to serve not only the irrigation needs of the region of Thessaly and electricity production
but also the supply of water to towns and cities in that region, has long been the subject of litigation.
16 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
A number of actions, seeking the annulment of the ministerial decrees approving successive versions of
that project, have been brought by environmental organisations, international non-governmental
organisations and local authorities concerned.
31 The environmental parameters in respect of certain individual technical works forming part of that
project were initially approved by two decisions of 9 October 1991 and 21 April 1992 of the competent
ministers. They concerned a tunnel of 18.5 kilometres channelling the waters of the river Acheloos to
Thessaly and dams and reservoirs, together with works associated with that project.
32 Both those ministerial decisions were annulled, by judgments No  2759/1994 and No  760/1994
respectively of the Simvoulio tis Epikratias (Council of State), on the ground that they were not based
on a comprehensive study of the environmental impact of the project at issue in the main proceedings.
That court held that the diversion of a proportion of the waters of the river Acheloos to the plain of
Thessaly constituted a technically complex and large-scale project whose overall effect on the
environment of the areas concerned was not confined to the sum of the strictly local consequences of
each of the works considered in isolation. Consequently, it was not sufficient, in order to measure and
assess the consequences of that project, to identify the environmental effects of each of the works
taken separately, but it was on the contrary necessary to prepare an overall study in which the various
distinct consequences and the subsequent environmental impact of that project would be considered
and assessed together, in accordance with an appropriate scientific method.
33 Following those judgments, a single assessment was drawn up which related to all the works to be
carried out as part of the project at issue in the main proceedings. Consequently, by joint decision of
15  December 1995, the competent ministers approved the environmental parameters relating to the
partial diversion to Thessaly of the upper waters of the river Acheloos and the construction and
operation of the works associated with that diversion, which included, inter alia, hydroelectric power
stations. Further, by another ministerial decision, the maximum volume of water which could be
diverted was reduced from 1 100 million to 600 million cubic metres per annum.
34 A further action for the annulment of those decisions was upheld by judgment No  3478/2000 of the
Simvoulio tis Epikratias. The court held that, taking into account the findings and evaluations
contained in the environmental impact assessment (‘the EIA’), it was apparent that the assessment
contained a thorough and informed evaluation which balanced the impact of those works against the
needs which they were to meet and, in particular, the maintenance and strengthening of productivity
in the plain of Thessaly. However, the court also held that that assessment did not consider any
alternative solution capable of avoiding the destruction of most of the important monuments in the
region concerned. Consequently, those decisions were annulled in their entirety.
35 After the Simvoulio tis Epikratias delivered that judgment, the Minister of the Environment and Public
Works decided to commission a ‘supplementary environmental impact assessment on the partial
diversion to Thessaly of the waters of the river Acheloos’. It is apparent from that assessment,
produced in 2002, that its aim was, in particular, to explore projects which were full alternatives to that
diversion, to present new environmental data which had in the interim become available on the areas
affected by the works and to clarify the environmental impact and the remedial measures, taking into
account the specific technical studies carried out in those affected areas since completion of the
environmental impact assessment produced in 1995. That supplementary assessment was approved by
a decision of the Minister of Culture of 13 March 2003.
36 Thereafter, the competent ministers issued their joint decision of 19 March 2003 which approved the
environmental parameters applicable to the construction and operation of the works partially to divert
the upper waters of the Acheloos to Thessaly.
37 That decision was annulled by judgment No 1688/2005 of the Simvoulio tis Epikratias. In that judgment,
the court held that, taking into account the provisions then in force of Law 1739/1987 (FEK A’ 201/
20.11.1987) and in the light both of Directive 2000/60 and of the principle of sustainable water
ECLI:EU:C:2012:560 17
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
management, the execution of works exploiting water resources was permitted only if such works were
part of a programme of sustainable development of those resources. The work relating to the project at
issue in the main proceedings had never been incorporated into such a programme, which, moreover,
had never been implemented. As a consequence of that decision to annul, the Simvoulio tis Epikratias
also annulled, by judgment No  1186/2006, a decision of 18  March 2005, whereby the Minister of the
Environment approved the award of the contract for the ‘completion of the Sikia dam’.
38 On 2  August 2006, Law 3481/2006 (FEK A’ 162/2.8.2006) was adopted; Articles  9 and 13 thereof,
approving the project at issue in the main proceedings, were submitted to the Greek Parliament, in
the form of an amendment, on 6 July 2006. Article  9 of that law provided that, until the ratification of
the national programme for management and protection of the water resources of the country and the
regional management plans, it was possible to approve management plans for the waters of specific
river basins and to transfer water to other basins, and that projects relating to such plans had to be
approved by legislation where they were large-scale projects or projects of national importance. Under
Article  13 of that law, the works associated with the project at issue in the main proceedings were
defined as large-scale works and works in the public interest and the management plan for the
Acheloos and Pinios river basins was approved, as were the environmental specifications applicable to
the construction and operation of the works associated with that project.
39 Article  13(4) of Law 3481/2006 provided that it was possible, in accordance with the management plan
and the environmental parameters ratified in Article  13(3), to bring into service or complete
construction of the public works and the works of Dimosia Epikhirisi Ilektrismou (DEI (the Public
Power Corporation of Greece)) relating to the diversion of the upper waters of the river Acheloos to
Thessaly or the production of electrical energy which had been subject to a public procurement
procedure and which were constructed or under construction. On the basis of that provision the
company awarded the contract was instructed to continue the work which it had suspended following
the judgment which annulled the award of the contract.
40 The applicants in the main proceedings seek the annulment of the project at issue in the main
proceedings in its entirety. The actions are directed against both Article  13 of Law 3481/2006 and the
related administrative measures. The Simvoulio tis Epikratias states that both the measures approving
the environmental parameters and the measures pursuant to which the works associated with that
project were to be carried out had previously been annulled by judgments of that court delivered prior
to the entry into force of Law 3481/2006. In the opinion of the referring court, there is therefore an
attempt to adopt those measures anew by means of the abovementioned management plan, which was
approved on the basis of Article  9 of that law. The main question at issue in the main proceedings is
the compatibility of the provisions of Articles 9 and 13 of that law with European Union law.
41 In those circumstances, the Simvoulio tis Epikratias decided to stay the proceedings and refer the
following questions to the Court of Justice for a preliminary ruling:
‘1. Does Article 13(6) of Directive 2000/60/EC … merely set an ultimate temporal limit (22 December
2009) for the drawing up of management plans for water resources or does it lay down, up until
that date, a special time-limit for transposition of the relevant provisions of Articles  3, 4, 5, 6, 9,
13 and 15 of that directive?
2. Should the Court of Justice hold that the foregoing provision of that directive merely sets an
ultimate temporal limit (22  December 2009) for the drawing up of management plans for water
resources:
Is national legislation that permits the transfer of water from a particular river basin to another
river basin, without the plans having yet been drawn up for the river basin districts within which
the river basins from and towards which water will be transferred are located, consistent with
18 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
Articles  2, 3, 4, 5, 6, 9, 13 and 15 of Directive 2000/60, given that, under Article  2(15) of that
directive, the main unit for management of a river basin is the river basin district to which it
belongs?
3. Should the preceding question be answered in the affirmative:
For the purpose of Articles  2, 3, 5, 6, 9, 13 and 15 of Directive 2000/60, is the transfer of water
from a river basin district to a neighbouring river basin district permitted? Should the answer be
in the affirmative, can the purpose of that transfer be only to meet water-supply needs or can
irrigation and power generation also be served? Is it in any event a requirement, for the purpose
of those provisions of that directive, that the administrative authorities have decided, stating
reasons and on the basis of the necessary scientific study, that the receiving river basin district
cannot meet with its own water resources the needs which it has in respect of water supply,
irrigation and so forth?
4. Should the Court of Justice hold, as regards Question 1, that Article  13(6) of Directive 2000/60
does not merely set an ultimate temporal limit (22  December 2009) for the drawing up of
management plans for water resources, but lays down a special time-limit for transposition of the
relevant provisions of Articles 3, 4, 5, 6, 9, 13 and 15 of that directive:
Does national legislation, enacted within that special time-limit for transposition, that permits the
transfer of water from a particular river basin to another river basin, without the plans having yet
been drawn up for the river basin districts within which the river basins from and towards which
water will be transferred are located, place, without more, the practical effect of that directive at
risk, or is it necessary, in order to assess whether the practical effect of the directive is placed at
risk, to take account of criteria such as the scale of the interventions provided for and the
objectives of the transfer of the water?
5. Is a legislative provision which is enacted by a national parliament and which approves river basin
management plans without the relevant national rules providing for a public consultation stage in
the procedure before the national parliament, and without it being apparent from the case-file that
the consultation procedure before the administrative authorities that is provided for in Directive
2000/60 was observed, compatible with Articles 13, 14 and 15 of that directive which concern the
procedures for informing and consulting the public and for public participation?
6. For the purpose of … Directive 85/337/EEC …, does an [EIA] which relates to the construction of
dams and the transfer of water and which was placed for approval before the national parliament
after the annulment by a judicial decision of the measure by which it had previously been
approved and in respect of which the publicity procedure had previously been observed, without
that procedure being observed anew, meet the requirements of Articles  1, 2, 5, 6, 8 and 9 of that
directive regarding informing the public and public participation?
7. Does a project to divert a river fall within the field of application of Directive 2001/42/EC …
where that plan:
(a) concerns the construction of dams and the transfer of water from one river basin district to
another (from those of western mainland Greece and Epirus to those of Thessaly),
(b) falls within the field of application of Directive 2000/60 …,
(c) concerns works under … Directive 85/337 …,
(d) may have environmental effects on areas covered by … Directive  92/43/EEC ...?
ECLI:EU:C:2012:560 19
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
8. Should the preceding question be answered in the affirmative:
For the purpose of Article  13(1) of Directive 2001/42, can acts which concerned the project at
issue and which have been annulled with retroactive effect by judicial decisions be considered to
be formal preparatory acts which were issued before 21 July 2004 so that there is no obligation to
prepare a strategic environmental report?
9. Should the preceding question be answered in the negative:
For the purpose of Article  11(2) of Directive 2001/42, if a plan simultaneously falls within the field
of application of that directive and within that of Directives 2000/60 and 85/337 which also
require the environmental effects of that scheme to be assessed, are the assessments which have
been drawn up on the basis of the provisions of Directives  2000/60 and 85/337 sufficient for
observance of the requirements of Directive 2001/42, or will an autonomous strategic
environmental report have to be prepared?
10. For the purpose of Articles 3, 4 and 6 of … Directive 92/43 …, were the areas which were included
in the national lists of [SCIs] and, ultimately, were included in the Community list of SCIs covered
by the protection afforded by Directive 92/43 before the publication of Commission
Decision  2006/613/EC of 19  July 2006 adopting [, pursuant to Council Directive 92/43,] the list
of sites of Community importance for the Mediterranean biogeographical region [(OJ 2006 L 259,
p.  1)]?
11. Is it possible, for the purpose of Articles 3, 4 and 6 of Directive 92/43, for the competent national
authorities to grant consent authorising the carrying out of a project for the diversion of waters
which is not directly connected with or necessary to the conservation of a district included
within a special protection area when all the studies that are contained in the file for that project
record a complete lack of information or an absence of reliable and updated data regarding the
birds in that district?
12. For the purpose of Articles 3, 4 and 6 of Directive 92/43, can reasons for which a project to divert
waters is undertaken that relate principally to irrigation and secondarily to water supply constitute
the imperative public interest which that directive requires in order for that scheme to be
permitted to be carried out notwithstanding its adverse effects on areas protected by that
directive?
13. Should the preceding question be answered in the affirmative:
In determining the sufficiency of the compensatory measures which are necessary to ensure that
the overall coherence of the Natura 2000 network, where that is harmed by a project to divert
waters, is protected, for the purpose of Articles  3, 4 and 6 of Directive 92/43 should criteria such
as the scale of that diversion and the extent of the works which the diversion entails be taken into
account?
14. For the purpose of Articles  3, 4 and 6 of Directive 92/43, interpreted in the light of the principle
of sustainable development as enshrined in Article  6 of the EC Treaty, may the competent
national authorities grant consent for the carrying out of a project to divert waters within a
Natura 2000 area that is not directly connected with or necessary to the preservation of the
coherence of that area, when it is apparent from the [EIA] for that project that the project will
result in the conversion of a natural fluvial ecosystem into a man-made fluvial and lacustrine
ecosystem?’
20 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
Consideration of the questions referred for a preliminary ruling
The first question
42 By its first question, the referring court seeks, in essence, to ascertain whether Article  13(6) of
Directive 2000/60 fixes solely a time-limit for the production of river basin management plans or
whether it also establishes a special transposition time-limit in respect of certain provisions of
Articles 3 to 6, 9, 13 and 15 of that directive.
43 Under the first subparagraph of Article  24(1) of Directive 2000/60, the Member States were to bring
into force the laws, regulations and administrative provisions necessary to comply with that directive
at the latest by 22 December 2003.
44 The fact that Article  13(6) of Directive 2000/60 states that river basin management plans must be
published at the latest nine years after the date of entry into force of that directive, in other words by
22  December 2009, cannot call into question the time-limit laid down for the transposition of that
directive in Article  24(1) thereof.
45 Article  13(6) of Directive 2000/60 does not concern the time-limit for the transposition of the
directive, but merely fixes a final date for the implementation of one of the measures which the
Member States must take pursuant to that directive after its transposition.
46 The Court has indeed already ruled that, by excluding from national legislation in force in September
2004 the definitions of the terms in Article  2 of Directive  2000/60 and the timescales within which the
standards of water quality are to be met, as set out in Articles  4 to 6 and 8 of that directive, the
obligations under Article  2, read in conjunction with those latter provisions, were not implemented
with the binding force required (see, to that effect, Case C-32/05 Commission v Luxembourg [2006]
ECR I-11323, paragraphs 16, 17 and 65).
47 In the light of the foregoing, the answer to the first question is that Articles  13(6) and 24(1) of
Directive 2000/60 must be interpreted as respectively fixing 22  December 2009 as the date of expiry
of the period allowed to Member States for the publication of river basin management plans and
22  December 2003 as the date of expiry of the maximum period available to the Member States for
the transposition of that directive, in particular Articles 3 to 6, 9, 13 and 15 thereof.
The second, third and fourth questions
48 By its second, third and fourth questions, which should be examined together, the referring court seeks
first to ascertain whether Directive 2000/60 must be interpreted as precluding a provision of national
law whereby consent is given, prior to 22 December 2009, to a transfer of water from one river basin
to another or from one river basin district to another where the river basin management plans
concerned were not yet adopted by the competent national authorities. If the answer is in the
negative, the referring court then asks whether such a transfer can take place solely to meet the
objective of supplying drinking water or also for purposes of irrigation and energy production. Lastly,
the referring court asks whether the compatibility of such a transfer with that directive is dependent
on whether it is impossible for the receiving river basin or river basin district to meet from its own
water resources its needs in respect of the supply of drinking water, electricity production or
irrigation.
49 It must first be recalled that the project at issue in the main proceedings, in so far as it concerns the
transfer of water from one river basin to another or from one river basin district to another, is liable,
as observed by the Advocate General in points 66 and 67 of her Opinion, to be incompatible with the
environmental objectives stated in Article  4(1) of Directive 2000/60.
ECLI:EU:C:2012:560 21
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
50 It must next be recalled that the project at issue in the main proceedings was adopted by the Greek
legislature on 2 August 2006.
51 As regards whether the Member State concerned was already bound to comply with the environmental
objectives stated in Article 4(1) of Directive 2000/60 at the time when that project was adopted, it must
be observed that Article  4(1) provides that, in respect of surface waters and groundwater, Member
States are to adopt appropriate measures of conservation in making operational the programmes of
measures specified in river basin management plans.
52 Article  4(1) of Directive 2000/60 thereby establishes a link between the appropriate measures of
conservation which the Member States are bound to adopt under that provision and the prior
existence of a management plan for the river basin district concerned.
53 Consequently, Directive 2000/60 does not prohibit a priori the transfer of water from one river basin to
another or from one river basin district to another before the publication of management plans for the
river basin districts concerned, that publication being however required, in accordance with
Article  13(6) of that directive, by no later than 22 December 2009.
54 It is common ground that, at the time when the project at issue in the main proceedings was adopted,
the river basin management plans for the river basins affected by that project did not exist (see
judgment of 19 April 2012 in Case C-297/11 Commission v Greece, paragraph  17).
55 Thus, on the date when the project at issue in the main proceedings was adopted, the Hellenic
Republic was not obliged to have produced the management plans for the river basin districts affected
by that project. Even though the time-limit for the transposition of Directive 2000/60, as fixed in the
first subparagraph of Article  24(1) thereof, had expired, the time-limit laid down in Article  13(6) of
the directive for the publication of river basin management plans had not yet been reached.
56 Consequently, the project at issue in the main proceedings, as adopted by the Greek legislature on
2 August 2006, without prior production of river basin management plans for the river basins affected
by that project, was not subject to Article  4 of Directive 2000/60.
57 However, it must be recalled that, in accordance with the Court’s settled case-law, during the period
prescribed for transposition of a directive, the Member States to which it is addressed must refrain
from taking any measures liable seriously to compromise the attainment of the result prescribed by
that directive. Such an obligation to refrain owed by all the national authorities must be understood
as referring to the adoption of any measure, general or specific, liable to produce such a
compromising effect (see Case C-129/96 Inter-Environment Wallonie [1997] ECR I-7411,
paragraph  45, and Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others [2011]
ECR I-4599, paragraph  78 and the case-law cited).
58 That obligation to refrain from taking measures is also owed by the Member States, by virtue of the
application of the second paragraph of Article  10 EC in conjunction with the third paragraph of
Article  249 EC, during a transitional period in which they are authorised to continue to apply their
national systems, even though those systems do not comply with the directive in question (see, to that
effect, Stichting Natuur en Milieu and Others, paragraph  79 and the case-law cited).
59 The same holds true where a directive such as Directive 2000/60 establishes a transitional period within
which the Member States are not required to adopt all the measures prescribed by the directive.
60 Accordingly, even before 22  December 2009, the date on which the period imposed on the Member
States, under Article  13(6) of Directive 2000/60, for the publication of river basin management plans
expired, the Member States had to refrain from taking any measures liable seriously to compromise
the attainment of the result prescribed by Article  4 of that directive.
22 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
61 In particular, as regards the environmental objectives set by Article  4 of Directive 2000/60, it should be
noted that, under Article  4(1)(a)(ii), Member States are to ‘protect, enhance and restore all bodies of
surface water, … with the aim of achieving good surface water status at the latest 15 years after the
date of entry into force of this Directive, in accordance with the provisions laid down in Annex V,
subject to the application of extensions determined in accordance with paragraph  4 and to the
application of paragraphs 5, 6 and 7 without prejudice to paragraph  8’.
62 The realisation of such an objective cannot, subject to certain qualifications, be jeopardised by a
national measure, even where that measure was adopted before 22 December 2009.
63 In the absence, in the documents submitted to the Court, of any factor indicative of the situations
provided for in Article  4(4) to (6) of Directive 2000/60, it must be observed that, under Article  4(7):
‘Member States will not be in breach of this Directive when:
— failure to achieve good groundwater status, good ecological status … or to prevent deterioration in
the status of a body of surface water or groundwater is the result of new modifications to the
physical characteristics of a surface water body or alterations to the level of bodies of groundwater,
or
— failure to prevent deterioration from high status to good status of a body of surface water is the
result of new sustainable human development activities
and all the following conditions are met:
(a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;
(b) the reasons for those modifications or alterations are specifically set out and explained in the river
basin management plan required under Article  13 and the objectives are reviewed every six years;
(c) the reasons for those modifications or alterations are of overriding public interest and/or the
benefits to the environment and to society of achieving the objectives set out in paragraph  1 are
outweighed by the benefits of the new modifications or alterations to human health, to the
maintenance of human safety or to sustainable development, and
(d) the beneficial objectives served by those modifications or alterations of the water body cannot for
reasons of technical feasibility or disproportionate cost be achieved by other means which are a
significantly better environmental option.’
64 While it is true that, as stated in paragraph  56 of this judgment, Article  4(7) is not applicable, as such,
to a works project adopted on 2  August 2006, without prior production of river basin management
plans for the river basins affected by that project, the conditions governing the project cannot be
more rigorous than those pertaining if it had been adopted subsequent to Article  4 of Directive
2000/60 having become applicable to it.
65 In the case of such a project, the criteria and conditions laid down in Article  4(7) of Directive 2000/60
may, in essence, be applied by analogy and, where necessary, mutatis mutandis, as setting the upper
limit for restrictions on the project.
66 As stated in recital  15 of the preamble to that directive, the supply of water is a service of general
interest. As regards the production of electricity and irrigation, it is clear from Article  4(3)(a)(iii) of
the directive that they also in principle serve a general interest.
ECLI:EU:C:2012:560 23
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
67 Consequently, consent was capable of being given to a project such as that at issue in the main
proceedings, which is not subject to Article  4 of Directive 2000/60 and which would have been liable
to have adverse effects on water of the kind stated in Article  4(7), at the very least if:
— all practicable steps were taken to mitigate the adverse impact of the project on the status of the
body of water;
— the reasons why that project had to be carried out were specifically set out and explained;
— that project served a general interest which might consist in, inter alia, the supply of water,
electricity production or irrigation, and/or the benefits to the environment and society linked to
the achievement of the objectives set out in Article  4(1) were outweighed by the benefits to human
health, to the maintenance of human safety or to sustainable development resulting from that
project, and
— lastly, the beneficial objectives pursued by that project could not for reasons of technical feasibility
or disproportionate cost be achieved by other means which would have been a significantly better
environmental option.
68 While the fact that it is impossible for a river basin or river basin district to meet from its own water
resources its needs in terms of drinking water, electricity production or irrigation may indeed be
capable of justifying, in the light of Directive 2000/60, a transfer of water such as that in the project at
issue in the main proceedings, it is not the case that such a transfer can be justified only by reason of
such an impossibility. It cannot be ruled out that, even where there is no such impossibility, the
transfer of water may be regarded as satisfying the conditions mentioned in the preceding paragraph
and, in particular, (i) the condition that it serves a general interest and/or the benefits to the
environment and society linked to the achievement of the objectives set out in Article  4(1) of that
directive are outweighed by the benefits to human health, to the maintenance of human safety or to
sustainable development resulting from the transfer of water and (ii) the condition that the beneficial
objectives pursued by that transfer cannot, for reasons of technical feasibility or disproportionate cost,
be achieved by other means which would be a significantly better environmental option.
69 In the light of the foregoing, the answer to the second, third and fourth questions is that Directive
2000/60 must be interpreted as meaning that:
— it does not preclude, in principle, a provision of national law whereby consent is given, prior to
22 December 2009, to a transfer of water from one river basin to another or from one river basin
district to another where the management plans for the river basin districts concerned were not
yet adopted by the competent national authorities;
— such a transfer must not be such as seriously to jeopardise the realisation of the objectives laid
down by that directive;
— however, to the extent that that transfer is liable to have adverse effects on water of the kind stated
in Article 4(7) of that directive, consent may be given to it, at the very least if the conditions set out
in Article  4(7)(a) to (d) are satisfied, and
— the fact that it is impossible for the receiving river basin or river basin district to meet from its own
water resources its needs in terms of drinking water, electricity production or irrigation is not a
sine qua non for such a transfer of water to be compatible with that directive provided that the
conditions listed above are satisfied.
24 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
The fifth question
70 By its fifth question, the referring court asks whether Articles  13 to 15 of Directive 2000/60 must be
interpreted as precluding the approval by a national parliament of management plans for river basins,
such as the plans at issue in the main proceedings, where no procedure for public information,
consultation or participation has been implemented.
71 Since Articles  13 and 15 of Directive 2000/60 do not lay down any obligation relating to public
information, consultation or participation when river basin management plans are produced, this
question must be examined solely in the light of Article  14 of that directive, which does lay down such
obligations.
72 In that regard, it must be recalled that Article  14(1) of Directive 2000/60 provides that ‘Member States
shall encourage the active involvement of all interested parties in the implementation of this Directive,
in particular in the production, review and updating of the river basin management plans. Member
States shall ensure that, for each river basin district, they publish and make available for comments to
the public, including users … draft copies of the river basin management plan, at least one year before
the beginning of the period to which the plan refers’.
73 Further, the Court declared in Case C-297/11 Commission v Greece, paragraph  17, that the Hellenic
Republic, by not having produced, by 22  December 2009, river basin management plans, both for
those river basin districts falling wholly within its territory and for international river basin districts,
had failed to fulfil its obligations under Article  13(1) to (3) and (6) and Article  15(1) of Directive
2000/60. In the course of those infringement proceedings, the Hellenic Republic did not maintain that
it had, by that date, produced a river basin management plan within the meaning of Directive 2000/60.
In particular, it made no mention of the law at issue in the main proceedings.
74 Accordingly, the management plans for river basins, such as the plans at issue in the main proceedings,
adopted on 2 August 2006, cannot be regarded as management plans falling within Articles 13 to 15 of
Directive 2000/60. The obligation stemming from Article  14(1) of that directive therefore does not
apply to such plans.
75 Consequently, the answer to the fifth question is that the fact that a national parliament approves
management plans for river basins, such as the plans at issue in the main proceedings, where no
procedure for public information, consultation or participation has been implemented does not fall
within the scope of Article  14 of Directive 2000/60, and in particular the scope of Article  14(1)
thereof.
The sixth question
76 By its sixth question, the referring court asks, in essence, whether Directive 85/337 must be interpreted
as precluding legislation such as Law 3481/2006, adopted by the Greek Parliament on 2 August 2006,
which approves a project for the partial diversion of the waters of a river such as that at issue in the
main proceedings on the basis of an EIA for that project which had served as the basis of an
administrative decision adopted at the conclusion of a procedure which complied with the obligations
in terms of public information and participation laid down by that directive, even though that decision
was annulled by a court order.
77 Article  1(5) of Directive 85/337 provides that that directive ‘shall not apply to projects the details of
which are adopted by a specific act of national legislation, since the objectives of this Directive,
including that of supplying information, are achieved through the legislative process’.
ECLI:EU:C:2012:560 25
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
78 It follows from that provision that, where the objectives of Directive 85/337, including that of
supplying information, are achieved through a legislative process, that directive does not apply to the
project in question (see Case C-287/98 Linster [2000] ECR I-6917, paragraph  51; Joined Cases
C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and Others [2011] ECR I-9711, paragraph  36;
and Case C-182/10 Solvay and Others [2012] ECR, paragraph  30).
79 That provision lays down two conditions for the exclusion of a project from the scope of Directive
85/337. The first requires the details of the project to be adopted by a specific legislative act. Under the
second, the objectives of the directive, including that of supplying information, must be achieved
through the legislative process (see Case C-435/97 WWF and Others [1999] ECR I-5613,
paragraph  57; Boxus and Others, paragraph  37; and Solvay and Others, paragraph  31).
80 The first condition entails, first of all, adoption of the project by a specific legislative act. It should be
pointed out in this regard that the terms ‘project’ and ‘development consent’ are defined in Article  1(2)
of Directive 85/337. Thus, a legislative act adopting a project must, if it is to come within the scope of
Article  1(5) of the directive, be specific and display the same characteristics as a development consent
of that kind. It must in particular grant the developer the right to carry out the project (see WWF and
Others, paragraph  58; Boxus and Others, paragraph  38; and Solvay and Others, paragraph  32).
81 The project must also be adopted in detail, that is to say, in a sufficiently precise and definitive
manner, so that the legislative act adopting the project must include, like a development consent,
following their consideration by the legislature, all the elements of the project relevant to the
environmental impact assessment (see WWF and Others, paragraph  59; Boxus and Others,
paragraph  39; and Solvay and Others, paragraph  33). The legislative act must therefore demonstrate
that the objectives of Directive 85/337 have been achieved as regards the project in question (see
Linster, paragraph  56; Boxus and Others, paragraph  39; and Solvay and Others, paragraph  33).
82 It follows that the details of a project cannot be considered to be adopted by a legislative act, for the
purposes of Article  1(5) of Directive 85/337, if that act does not include the elements necessary to
assess the environmental impact of the project or if the adoption of other measures is needed in order
for the developer to be entitled to proceed with the project (see WWF and Others, paragraph  62;
Linster, paragraph  57; Boxus and Others, paragraph  40; and Solvay and Others, paragraph  34).
83 As regards the second condition, it is clear from Article  2(1) of Directive 85/337 that the fundamental
objective of the directive is to ensure that projects likely to have significant effects on the environment
by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to
their environmental effects before consent is given (see Linster, paragraph  52; Boxus and Others,
paragraph  41; and Solvay and Others, paragraph  35).
84 In addition, the sixth recital in the preamble to Directive 85/337 states that the assessment must be
conducted on the basis of the appropriate information supplied by the developer, which may be
supplemented by the authorities and by the people who may be concerned by the project in question
(see WWF and Others, paragraph  61; Linster, paragraph  53; Boxus and Others, paragraph  42; and
Solvay and Others, paragraph  36).
85 Consequently, the national legislature must have sufficient information at its disposal at the time when
the project is adopted. In accordance with Article  5(3) of Directive 85/337 and Annex IV thereto, the
minimum information to be supplied by the developer is to include a description of the project
comprising information on the site, design and size of the project, a description of the measures
envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, and the data
required to identify and assess the main effects which the project is likely to have on the environment
(see Boxus and Others, paragraph  43, and Solvay and Others, paragraph  37).
26 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
86 There is however nothing to prevent the national legislature, when adopting a project, from using
information gathered as part of an earlier administrative procedure and the EIA produced in that
connection, provided that the EIA is based on information and knowledge that are not out of date. The
EIA, which must be carried out before the decision-making process, involves an examination of the
substance of the information gathered as well as a consideration of the expediency of supplementing
it, if appropriate, with additional data (see Case C-50/09 Commission v Ireland [2011] ECR I-873,
paragraph  40).
87 In that regard, the fact that the EIA was produced as part of an administrative procedure which led to
the adoption of a decision which was ultimately annulled by court order is, as such, of no relevance.
88 However, a legislative act which does no more than simply ‘ratify’ a pre-existing administrative act, by
merely referring to overriding reasons in the public interest, without the prior initiation of a
substantive legislative process enabling the conditions stated in paragraph  79 of this judgment to be
fulfilled, cannot be regarded as a specific legislative act within the meaning of Article  1(5) of Directive
85/337 and is not therefore sufficient to exclude a project from the scope of that directive (see Boxus
and Others, paragraph  45, and Solvay and Others, paragraph  39).
89 In particular, a legislative act adopted without the members of the legislative body having had available
to them the information mentioned in paragraph  85 of this judgment cannot fall within the scope of
Article  1(5) of Directive 85/337 (see Boxus and Others, paragraph  46, and Solvay and Others,
paragraph  40).
90 It is for the national court to determine whether those conditions have been satisfied. For that purpose,
it must take account of both the content of the legislative act adopted and the entire legislative process
which led to its adoption, in particular the preparatory documents and parliamentary debates (see
Boxus and Others, paragraph  47, and Solvay and Others, paragraph  41).
91 The answer to the sixth question therefore is that Directive 85/337, and in particular Article  1(5)
thereof, must be interpreted as not precluding legislation such as Law 3481/2006, adopted by the
Greek Parliament on 2  August 2006, which approves a project for the partial diversion of the waters
of a river such as that at issue in the main proceedings on the basis of an EIA for that project which
had served as the basis for an administrative decision adopted on the conclusion of a procedure which
complied with the obligations in terms of public information and participation laid down by that
directive, even where that decision was annulled by court order, provided that that legislation
constitutes a specific legislative act, so that the objectives of that directive can be achieved through
the legislative process. It is for the national court to determine whether those two conditions have
been complied with.
The seventh question
92 By its seventh question, the referring court seeks, in essence, to ascertain whether a project for the
partial diversion of the waters of a river, such as that at issue in the main proceedings, must be
regarded as a plan or programme falling within the scope of Directive 2001/42.
93 In that regard, it must be observed that, in order to establish whether a project falls within the scope of
Directive 2001/42, it is necessary to consider whether that project is a plan or a programme within the
meaning of Article  2(a) of that directive.
94 Under the second indent of Article  2(a) of Directive 2001/42, only plans and programmes required by
legislative, regulatory or administrative provisions are to be regarded as ‘plans and programmes’ within
the meaning of that directive.
ECLI:EU:C:2012:560 27
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
95 It is not evident that the project concerned constitutes a measure which defines criteria and detailed
rules for the development of land and which subjects implementation of one or more projects to rules
and procedures for scrutiny (see, to that effect, Case C-567/10 Inter-Environment Bruxelles and Others
[2012] ECR, paragraph  30).
96 Consequently, the answer to the seventh question is that a project for the partial diversion of the
waters of a river, such as that at issue in the main proceedings, is not to be regarded as a plan or
programme falling within the scope of Directive  2001/42.
The eighth and ninth questions
97 Having regard to the answer given to the seventh question, there is no need to answer the eighth and
ninth questions of the referring court.
The tenth question
98 By its tenth question, the referring court asks whether the areas which were listed in the national list of
SCIs transmitted to the Commission pursuant to the second subparagraph of Article  4(1) of Directive
92/43 and were then included in the list of SCIs adopted by Decision 2006/613 were entitled to the
protection of that directive before that decision was published.
99 Decision 2006/613, whereby the Commission adopted the list of SCIs for the Mediterranean
biogeographical region, took effect, pursuant to Article  254(3) EC, upon its notification to the Member
States.
100 As the Commission has stated, without being contradicted, that decision was in fact notified to the
Hellenic Republic on 19  July 2006, in other words prior to the adoption, on 2  August 2006, of Law
3481/2006 approving the project for the partial diversion of the waters of the river Acheloos.
101 Under Article  4(5) of Directive 92/43, the protective measures prescribed in Article  6(2) to (4) of that
directive are required only as regards sites which, in accordance with the third subparagraph of
Article  4(2) thereof, are on the list of sites selected as SCIs which has been adopted by the
Commission in accordance with the procedure laid down in Article  21 of that directive (see Case
C-117/03 Dragaggi and Others [2005] ECR I-167, paragraph  25).
102 It follows that, after notification of Decision 2006/613 to the Member State concerned, it was obliged
to take the protective measures laid down in Article  6(2) to (4) of Directive 92/43.
103 That conclusion cannot be called into question by the fact that, following the annulment, in 2005, of the
administrative decisions giving consent to the project at issue in the main proceedings, the legislative
provisions contained in Law 3481/2006 giving consent to that project were submitted to the Greek
Parliament in the form of an amendment on 6  July 2006, while Decision 2006/613 was notified to the
Hellenic Republic on 19 July of that year. In such circumstances, the application of Article  6(2) to (4) of
Directive 92/43 relates, in any event, to a situation which cannot be regarded as already established.
104 That said, it must, in any event, be recalled that, even before the entry into force of Decision 2006/613,
the Member States are to protect sites as soon as they propose them, under Article  4(1) of Directive
94/43, as sites eligible for identification as SCIs on the national list transmitted to the Commission
(see, to that effect, Dragaggi and Others, paragraph  26). The Member States are required, under that
directive, to take protective measures that are appropriate, having regard to the directive’s conservation
objective, for the purpose of safeguarding the relevant ecological interest which those sites have at
national level (see Dragaggi and Others, paragraph  30) and cannot therefore consent to interventions
which may create the risk of seriously compromising the ecological characteristics of those sites, for
28 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
example interventions which create the risk of significantly reducing the surface area of a site, of
leading to the disappearance of priority species present on that site, or, finally, of having as an
outcome the destruction of the site or the eradication of its representative characteristics (see Case
C-244/05 Bund Naturschutz in Bayern and Others [2006] ECR I-8445, paragraph  46, and Case
C-340/10 Commission v Cyprus [2012] ECR, paragraph  44).
105 In the light of the foregoing, the answer to the tenth question is that the areas which were listed in the
national list of SCIs transmitted to the Commission pursuant to the second subparagraph of
Article  4(1) of Directive 92/43 and were then included in the list of SCIs adopted by Decision
2006/613 were entitled, after notification of Decision 2006/613 to the Member State concerned, to the
protection of that directive before that decision was published. In particular, after that notification, the
Member State concerned also had to take the protective measures laid down in Article  6(2) to (4) of
the directive.
The eleventh question
106 By its eleventh question, the referring court seeks, in essence, to ascertain whether Directive 92/43 must
be interpreted as precluding consent being given to a project for the diversion of water not directly
connected with or necessary to the conservation of a SPA, but likely to have a significant effect on that
SPA, in the absence of information or of reliable and updated data concerning the birds in that area.
107 According to the Court’s settled case-law, under Article  4(1) and (2) of Directive  79/409 the Member
States are required to classify as SPAs the territories meeting the ornithological criteria specified by
those provisions (see, inter alia, Case C-418/04 Commission v Ireland [2007] ECR I-10947,
paragraph  36).
108 It follows from Article  7 of Directive 92/43 that Article  6(2) to (4) of that directive replaces the first
sentence of Article  4(4) of Directive 79/409 as from the date of implementation of Directive 92/43 or
the date of classification by a Member State under Directive 79/409, where the latter date is later (see,
in particular, Case C-418/04 Commission v Ireland, paragraph  173, and Case C-404/09 Commission v
Spain [2011] ECR I-11853, paragraph  97).
109 It is clear from the order for reference and from the oral submissions of the Commission that the SPAs
affected by the project at issue in the main proceedings had already been classified prior to the
adoption of Law 3481/2006. Consequently, the obligations stemming from Article  6(2) to (4) of
Directive  92/43 were applicable to those SPAs at the date when that project was approved.
110 In that regard, it must be recalled that Article  6(3) of Directive 92/43 provides for an assessment
procedure intended to ensure, by means of a prior examination, that a plan or project which is not
directly connected with or necessary to the management of the site concerned but likely to have a
significant effect on it is authorised only to the extent that it will not adversely affect the integrity of
that site (see Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I-7405,
paragraph  34, and Case C-304/05 Commission v Italy [2007] ECR I-7495, paragraph  56).
111 With regard to the concept of ‘appropriate assessment’ within the meaning of Article  6(3) of Directive
92/43, it should be noted that the directive does not define any particular method for the carrying out
of such an assessment (Commission v Italy, paragraph  57).
112 The Court has, however, held that that assessment must be organised in such a manner that the
competent national authorities can be certain that a plan or project will not have adverse effects on
the integrity of the site concerned, given that, where doubt remains as to the absence of such effects,
the competent authority will have to refuse development consent (see Commission v Italy,
paragraph  58).
ECLI:EU:C:2012:560 29
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
113 With regard to the factors on the basis of which the competent authorities may gain the necessary level
of certainty, the Court has stated that it must be ensured that no reasonable scientific doubt remains,
and those authorities must rely on the best scientific knowledge in the field (see Waddenvereniging and
Vogelbeschermingsvereniging, paragraphs 59 and 61, and Commission v Italy, paragraph  59).
114 Furthermore, knowledge of the effects of a plan or a project in the light of the conservation objectives
relating to a given site is an essential prerequisite for the application of Article  6(4) of Directive 92/43,
since, in the absence thereof, no condition for application of that derogating provision can be assessed.
The assessment of any imperative reasons of overriding public interest and that of the existence of less
harmful alternatives require a weighing up against the damage caused to the site by the plan or project
under consideration. In addition, in order to determine the nature of any compensatory measures, the
damage to the site must be precisely identified (see, to that effect, Commission v Italy, paragraph  83,
and Solvay and Others, paragraph  74).
115 In the light of the foregoing, it cannot be held that an assessment is appropriate where information and
reliable and updated data concerning the birds in that SPA are lacking.
116 That said, where the development consent given to a project is annulled or revoked because that
assessment was not appropriate, it cannot be ruled out that the competent national authorities may
gather a posteriori reliable and updated data on the birds in the SPA concerned and that they may
appraise, on the basis of that data and an assessment thereby supplemented, whether the project for
the diversion of water adversely affects the integrity of that SPA and, where necessary, what
compensatory measures must be taken to ensure that the execution of the project will not jeopardise
protection of the overall coherence of Natura 2000.
117 Consequently, the answer to the eleventh question is that Directive 92/43, and in particular Article 6(3)
and (4) thereof, must be interpreted as precluding development consent being given to a project for the
diversion of water which is not directly connected with or necessary to the conservation of a SPA, but
likely to have a significant effect on that SPA, in the absence of information or of reliable and updated
data concerning the birds in that area.
The twelfth question
118 By its twelfth question, the referring court seeks, in essence, to ascertain whether Directive 92/43 must
be interpreted as meaning that grounds linked, on the one hand, to irrigation and, on the other, to the
supply of drinking water, relied on in support of a project for the diversion of water, may constitute
imperative reasons of overriding public interest capable of justifying the implementation of a project
which adversely affects the integrity of the sites concerned.
119 Article  6(4) of Directive 92/43 provides that if, in spite of a negative assessment carried out in
accordance with the first sentence of Article  6(3) thereof, a plan or project must nevertheless be
carried out for imperative reasons of overriding public interest, including those of a social or economic
nature, and there are no alternative solutions, the Member State is to take all compensatory measures
necessary to ensure that the overall coherence of Natura 2000 is protected (see Commission v Italy,
paragraph  81, and Solvay and Others, paragraph  72).
120 As is clear from paragraphs  100, 101, 107 and 108 of this judgment, such a provision applies both to
SPAs and to SCIs in the list adopted by the Commission in accordance with the third subparagraph of
Article  4(2) of Directive 92/43.
121 An interest capable of justifying, for the purposes of Article  6(4) of Directive  92/43, the implementation
of a plan or project must be both ‘public’ and ‘overriding’, which means that it must be of such an
importance that it can be weighed against that directive’s objective of the conservation of natural
habitats and wild fauna, including birds, and flora (see, to that effect, Solvay and Others, paragraph  75).
30 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
122 Irrigation and the supply of drinking water meet, in principle, those conditions and are therefore
capable of justifying the implementation of a project for the diversion of water in the absence of
alternative solutions.
123 However, where the SCI concerned hosts a priority natural habitat type and/or a priority species, the
only considerations which may be raised, under the second subparagraph of Article  6(4) of Directive
92/43, 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.
124 Since the Commission has not, in the present case, been asked to give an opinion, the Court must
examine whether irrigation and the supply of drinking water may fall within the considerations stated
in the preceding paragraph.
125 As regards irrigation, it is evident that it cannot in principle qualify as a consideration relating to
human health or public safety. On the other hand, it appears more plausible that irrigation may, in
some circumstances, have beneficial consequences of primary importance for the environment.
126 In contrast, the supply of drinking water is, in principle, to be included within considerations relating
to human health.
127 In any event, it is for the referring court to assess whether the project at issue in the main proceedings
does in fact adversely affect the integrity of one or more SCIs hosting a priority natural habitat type
and/or a priority species.
128 In the light of the foregoing, the answer to the twelfth question is that Directive  92/43, and in
particular Article  6(4) thereof, must be interpreted as meaning that grounds linked, on the one hand,
to irrigation and, on the other, to the supply of drinking water, relied on in support of a project for
the diversion of water, may constitute imperative reasons of overriding public interest capable of
justifying the implementation of a project which adversely affects the integrity of the sites concerned.
Where such a project adversely affects the integrity of a SCI hosting a priority natural habitat type
and/or a priority species, its implementation may, in principle, be justified by grounds linked with the
supply of drinking water. In some circumstances, it might be justified by reference to beneficial
consequences of primary importance which irrigation has for the environment. On the other hand,
irrigation cannot, in principle, qualify as a consideration relating to human health or public safety,
justifying the implementation of a project such as that at issue in the main proceedings.
The thirteenth question
129 By its thirteenth question, the referring court seeks, in essence to ascertain whether, under Directive
92/43, for the purposes of determining the adequacy of compensatory measures account should be
taken of the extent of the diversion of water and the scale of the works involved in that diversion.
130 The first sentence of the first subparagraph of Article  6(4) of Directive 92/43 provides that 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 is to take all compensatory
measures necessary to ensure that the overall coherence of Natura 2000 is protected.
131 As stated in paragraph  114 of this judgment, in order to determine the nature of any compensatory
measures, the adverse impact of the project on the site concerned must be precisely identified.
ECLI:EU:C:2012:560 31
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
132 The extent of the diversion of water and the scale of the works involved in that diversion are factors
which must necessarily be taken into account in order to identify with precision the adverse impact of
the project on the site concerned and, therefore, to determine the nature of the necessary
compensatory measures in order to ensure the protection of the overall coherence of Natura 2000.
133 Consequently, the answer to the thirteenth question is that, under Directive 92/43, and in particular
the first sentence of the first subparagraph of Article  6(4) thereof, for the purposes of determining the
adequacy of compensatory measures account should be taken of the extent of the diversion of water
and the scale of the work involved in that diversion.
The fourteenth question
134 By its fourteenth question, the referring court seeks, in essence to ascertain whether Directive 92/43,
interpreted in the light of the objective of sustainable development, as enshrined in Article  6 EC,
permits, in relation to sites which are part of the Natura 2000 network, the conversion of a natural
fluvial ecosystem into a largely man-made fluvial and lacustrine ecosystem.
135 Even if the conversion of a natural fluvial ecosystem into a largely man-made fluvial and lacustrine
ecosystem were to have a negative impact on the integrity of sites which are part of the Natura 2000
network, it does not necessarily follow that consent may not be given to the project which causes that
conversion.
136 As stated in paragraph  119 of this judgment, under Article  6(4) of Directive 92/43, which concerns
sites which are part of the Natura 2000 network, consent might be given to that project provided that
the conditions referred to in that provision are satisfied.
137 According to the third recital in the preamble to Directive 92/43, as the main aim of that directive is to
promote the maintenance of biodiversity, taking account of economic, social, cultural and regional
requirements, the directive makes a contribution to the general objective of sustainable development.
The maintenance of such biodiversity may in certain cases require the maintenance, or indeed the
encouragement, of human activities.
138 Accordingly, the first subparagraph of Article  6(4) of Directive 92/43, and in particular the condition
that the Member State is to take all compensatory measures necessary to ensure that the overall
coherence of Natura 2000 is protected, must be applied in the light of the objective of sustainable
development as referred to in the third recital in the preamble to that directive and enshrined in
Article  6 EC.
139 Consequently, the answer to the fourteenth question is that Directive 92/43, and in particular the first
subparagraph of Article  6(4) thereof, interpreted in the light of the objective of sustainable
development, as enshrined in Article  6 EC, permits, in relation to sites which are part of the Natura
2000 network, the conversion of a natural fluvial ecosystem into a largely man-made fluvial and
lacustrine ecosystem provided that the conditions referred to in that provision of the directive are
satisfied.
Costs
140 Since these proceedings are, for the parties to the main proceedings, a step in the action pending
before the referring court, the decision on costs is a matter for that court. Costs incurred in
submitting observations to the Court, other than the costs of those parties, are not recoverable.
—
—
—
—
32 ECLI:EU:C:2012:560
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
On those grounds, the Court (Grand Chamber) hereby rules:
1. Articles  13(6) and 24(1) of Directive 2000/60/EC of the European Parliament and of the
Council of 23  October 2000 establishing a framework for Community action in the field of
water policy must be interpreted as respectively fixing 22  December 2009 as the date of
expiry of the period allowed to Member States for the publication of river basin
management plans and 22  December 2003 as the date of expiry of the maximum period
available to the Member States for the transposition of that directive, in particular
Articles  3 to 6, 9, 13 and 15 thereof.
2. Directive 2000/60 must be interpreted as meaning that:
it does not preclude, in principle, a provision of national law whereby consent is given,
prior to 22  December 2009, to a transfer of water from one river basin to another or
from one river basin district to another where the managements plans for the river basin
districts concerned were not yet adopted by the competent national authorities;
such a transfer must not be such as seriously to jeopardise the realisation of the
objectives laid down by that directive;
however, to the extent that that transfer is liable to have adverse effects on water of the
kind stated in Article  4(7) of that directive, consent may be given to it, at the very least
if the conditions set out in Article 4(7)(a) to (d) are satisfied, and
the fact that it is impossible for the receiving river basin or river basin district to meet
from its own water resources its needs in terms of drinking water, electricity production
or irrigation is not a sine qua non for such a transfer of water to be compatible with that
directive provided that the conditions listed above are satisfied.
3. The fact that a national parliament approves management plans for river basins, such as the
plans at issue in the main proceedings, where no procedure for public information,
consultation or participation has been implemented does not fall within the scope of
Article 14 of Directive 2000/60, and in particular the scope of Article  14(1) thereof.
4. Council Directive 85/337/EEC of 27  June 1985 on the assessment of the effects of certain
public and private projects on the environment, as amended by Directive 2003/35/EC of the
European Parliament and of the Council of 26  May 2003, and in particular Article  1(5)
thereof, must be interpreted as not precluding legislation such as Law 3481/2006, adopted
by the Greek Parliament on 2  August 2006, which approves a project for the partial
diversion of the waters of a river such as that at issue in the main proceedings on the basis
of an environmental impact assessment for that project which had served as the basis for an
administrative decision adopted on the conclusion of a procedure which complied with the
obligations in terms of public information and participation laid down by that directive,
even where that decision was annulled by court order, provided that that legislation
constitutes a specific legislative act, so that the objectives of that directive can be achieved
through the legislative process. It is for the national court to determine whether those two
conditions have been complied with.
5. A project for the partial diversion of the waters of a river, such as that at issue in the main
proceedings, is not to be regarded as a plan or programme falling within the scope of
Directive 2001/42/EC of the European Parliament and of the Council of 27  June 2001 on
the assessment of the effects of certain plans and programmes on the environment.
ECLI:EU:C:2012:560 33
JUDGMENT OF 11. 9. 2012 – CASE C--43/10
NOMARCHIAKI AFTODIOIKISI AITOLOAKARNANIAS AND OTHERS
6. The areas which were listed in the national list of sites of Community importance
transmitted to the European Commission pursuant to the second subparagraph of
Article  4(1) of Council Directive 92/43/EEC of 21  May 1992 on the conservation of natural
habitats and of wild fauna and flora and were then included in the list of SCIs adopted by
Commission Decision 2006/613/EC of 19  July 2006 adopting, pursuant to Council Directive
92/43/EEC, the list of sites of Community importance for the Mediterranean
biogeographical region were entitled, after notification of Decision 2006/613 to the Member
State concerned, to the protection of that directive before that decision was published. In
particular, after that notification, the Member State concerned also had to take the
protective measures laid down in Article  6(2) to (4) of the directive.
7. Directive 92/43, and in particular Article  6(3) and (4) thereof, must be interpreted as
precluding development consent being given to a project for the diversion of water which is
not directly connected with or necessary to the conservation of a special protection area, but
likely to have a significant effect on that special protection area, in the absence of
information or of reliable and updated data concerning the birds in that area.
8. Directive 92/43, and in particular Article  6(4) thereof, must be interpreted as meaning that
grounds linked, on the one hand, to irrigation and, on the other, to the supply of drinking
water, relied on in support of a project for the diversion of water, may constitute imperative
reasons of overriding public interest capable of justifying the implementation of a project
which adversely affects the integrity of the sites concerned. Where such a project adversely
affects the integrity of a site of Community importance hosting a priority natural habitat
type and/or a priority species, its implementation may, in principle, be justified by grounds
linked with the supply of drinking water. In some circumstances, it might be justified by
reference to beneficial consequences of primary importance which irrigation has for the
environment. On the other hand, irrigation cannot, in principle, qualify as a consideration
relating to human health and public safety, justifying the implementation of a project such
as that at issue in the main proceedings.
9. Under Directive 92/43, and in particular the first sentence of the first subparagraph of
Article  6(4) thereof, for the purposes of determining the adequacy of compensatory
measures account should be taken of the extent of the diversion of water and the scale of
the works involved in that diversion.
10. Directive 92/43, and in particular the first subparagraph of Article  6(4) thereof, interpreted
in the light of the objective of sustainable development, as enshrined in Article  6 EC,
permits, in relation to sites which are part of the Natura 2000 network, the conversion of a
natural fluvial ecosystem into a largely man-made fluvial and lacustrine ecosystem provided
that the conditions referred to in that provision of the directive are satisfied.
[Signatures]