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Konstantinos Karatsolis, Lawyer, PhD Candidate Ioanna Vasilopoulou, Lawyer, LLM Ifigenia Tsakalogianni, Lawyer, LLM, MSc

First published: Nomos + Fysi, at: https://nomosphysis.org.gr/22726/i-feroysa-ikanotita-mesa-apo-ti-nomologia-toy-symvoylioy-tis-epikrateias/

1. Foreword

Recently, in view of a fresh start for spatial and urban planning, we have observed a surge in discussions about the future of development, particularly in island areas. Prompted by these developments, multi-level discussions on the term “Carrying Capacity” (hereinafter CC) have also intensified.

Indeed, the delineation of the concept of CC, and the differing approaches to its interpretation, lie at the heart of various concerns and questions, such as:

• What does the CC of an area mean?
• In which fields of activity can it be recorded, assessed, and judged?
• Is CC conceptually linked to the “integrity” of a protected area, or does it also concern study and research for non-protected areas?
• Is it limited to island areas, or should it be studied for all areas of the country?
• What are the indicators, and how are they chosen for each area?
• What are the limits of CC, and how are they chosen?

This study attempts to examine, record, and codify the case law of the Council of State, in order to view CC through the eyes of its Decisions and Preparatory Opinions. Through the study, useful conclusions can be drawn, together with directions for the required indicators and the critical axes that delineate this concept.

In any case, in our view, CC could constitute an important “general principle,” which could be translated into a tool to be taken into account during planning and decision-making that affects Space. To this end, we consider it of the utmost importance not to miss the opportunity to place, for the first time, on an institutional footing the basic axes – or rather, the elements taken into account in assessing and calculating CC.

2. The scope of the definition of CC and the methodology for its recording

The aim of this study is to highlight the elements which, according to the Council of State (from 1992 onwards), constitute critical magnitudes for determining CC, and which could be recorded as basic specifications for its assessment.

The concept of CC has, among other things, been defined as the finite capacity and resilience of ecosystems and human systems, such that no serious deterioration occurs. Its determination requires the joint assessment of parameters across the triad of society, economy, and environment, and depends not only on measurable quantitative data (technical, economic, scientific), but also on a wide range of qualitative factors linked to cultural values, traditions, and the character of the area.

By way of illustration, CC is influenced both by environmental and by urban planning data – for example, for the purpose of determining Building Ratio Transfer Reception Zones, Law 4495/2017 expressly provides that, for each area, account is taken, among other things, of “the CC of the area and the landscape.” Similarly, CC is a concept that concerns, and is included in, a multitude of different sectors and activities, such as tourism, where the CC of a tourist destination is understood as the number of visitors it can accommodate “without altering the natural environment and the quality of the tourist experience it offers.”

In an attempt to delineate the concept of CC, paragraph 1 of Article 64 of the recent Law 4964/2022 provided the following legislative definition: “Carrying Capacity (CC) of a spatial system means the maximum tolerable limits of burdens and/or changes in the conditions prevailing in it, beyond which a balance between the natural environment, the economy, and the society living within it ceases to exist, resulting in excessive or irreversible damage to the natural environment and negative pressures on the human-made environment and on society.” Paragraph 2 of the same article provides a legislative authorisation for the issuance of a Presidential Decree, on the proposal of the Minister of Environment and Energy, which will determine the methodology for assessing CC, the basic parameters that determine it depending on the particular characteristics of the spatial system under examination in each case, and the tolerable limits of the indicator-targets of the basic parameters of its sustainable development – axes which could, from a legal perspective, be outlined in broad terms on the basis of the case law of the Council of State (CoS).

Although the express legislative formulation of the definition of CC is extremely recent, the CoS had already, from the 1990s onwards, invoked this concept either when ruling on applications for annulment of decisions, or when issuing Preparatory Opinions (PE) on draft Presidential Decrees in the exercise of its administrative competences. A large number of decisions and preparatory opinions have therefore emerged referring to the concept of CC and attempting to delineate it by reference to the particular issue under examination on each occasion.

By virtue of this study, the conclusion emerges that the decisions and Preparatory Opinions (PE) of the CoS can, under a certain methodology, be systematically categorised into the following categories, from each of which criteria and data can be drawn for creating “specifications” and criteria for determining the concept of CC:

1. A) Categories by area of activity/intervention: settlements and settlement expansions, island ecosystems, protected areas, cultural environment.
2. B) Categories by sector of activity: the energy system – Renewable Energy Sources (RES), tourism development, e.g. through ESCHASE and ESCHADA, other sectors of activity, as well as the parameters of cumulative impacts of activities and their synergistic effect.

Subsequently, conclusions from decisions are grouped into one category in order to highlight the place of CC in rational planning, as well as its field of spatial analysis, while in the final section specific conclusions are codified and final remarks are presented.

• The assessment of CC based on the case law of the Council of State

The first reference by the Council of State (CoS) to CC was made in PE 246/1992, using the descriptive term “maximum limits of development of the area without altering its character or degrading the quality of life, any saturation of sectors and needs, etc.” Already, in PE 586/1992 and 398/1993, which concerned the approval of an urban planning study for a holiday settlement, “carrying capacity (resilience)” is mentioned as a criterion for the suitability of the area for which the urban planning study was to be approved. The CoS stressed the need for spatial and urban planning to exist, so that the magnitude of the CC of the wider area (the entire Prefecture) could be calculated, which should be depicted on an official map, created following the joint assessment of demographic and economic data, as well as examination of the distance between existing settlements.

1. Categories by area of activity/intervention

Attempting the “codification” of the relevant case law, a categorisation of the CoS’s directions regarding CC emerges, firstly, by type/characteristics of the area of the activity or “intervention” in question.

A.1. CC in settlements and settlement expansions

A large number of decisions refer to CC as an element for assessing the satisfaction of residential needs, which are either absorbed by existing settlements or served by expanding settlement boundaries or creating new ones.

Systematic analysis shows that, in this case, what must first be examined is the capacity of existing settlements to absorb residential pressures. The elements taken into account for assessing this capacity are, according to the CoS: (a) the population burden, (b) the criteria relating to new residential receptors provided for by urban/spatial plans (e.g. General Urban Plans), (c) the road network, and (d) the capacity of the water supply network to serve the expected population and the new settlements, without overexploitation of water resources.

In addition, the need has been highlighted to take into account the protection of the “cultural capital” of residential areas, understood as ensuring that the urban character of the residential area is not altered, particularly where it concerns a traditional settlement of high cultural, architectural, and historical value.

Also significant is the non-exceedance of the natural capacity of the residential area, in two respects: first, in the protection of its natural resources as elements of the locally protected natural environment, and second, in the ability of technical and social infrastructure to cope smoothly with the various “pressures.”

A special urban planning regime is, finally, established for cases of the creation of settlements for primary or holiday residence on private initiative, including land owned by building cooperatives. State oversight in these cases takes the form of determining the location of the settlement, based on spatial and urban planning criteria, and approval of the final plan in accordance with the procedure and conditions set out in the law. The private individual does not, however, have a claim against the Administration for approval of the submitted plan and creation of the settlement. In other words, both the creation of the settlement itself and the approval of the urban layout proposed by private parties are matters for the discretion of the regulatory Administration. The latter must, within the framework of the constitutional rules on rational spatial and urban planning and sustainable residential development, take into account the directions of the overarching spatial planning, as well as the environmental conditions and the CC of the area, without being bound by the fact that the interested private individuals or cooperatives own property in a particular location.

A.2. CC in island ecosystems

According to settled case law of the Supreme Court of Annulment, reference is consistently made to the unity and austere symmetry of the landscape of small islands, the extensive coastline relative to their land area, and the close interdependence of human systems (demographic, cultural, socio-economic, etc.) with the natural environment – elements which result in these becoming highly vulnerable and fragile ecosystems.

In general, small islands are characterised by high vulnerability to external interventions, due to their extensive coastline relative to their area and the interdependence between their human-made and natural capital – for this reason they are capable of accommodating only forms of gentle development, compatible with precisely this sensitive character. In other words, the fundamental rule of sustainable development requires rational spatial and urban planning, and applies all the more so to the protection of sensitive ecosystems such as small islands. For this reason, the enhanced protection required for these sensitive ecosystems requires the existence and application of the rules of special spatial planning. This, according to the CoS, must provide for forms of gentle development, compatible with the principle of preserving their cultural and natural capital and the CC of these ecosystems.

In this context, the introduction of different regulations for small islands compared to the rest of the mainland is, in principle, justified, since the mainland, unless subject to a special protection regime, may, in principle, permissibly sustain more intensive productive and general development activity than that to which island areas are subject. Accordingly, the CC of small islands is a magnitude that must be assessed with particular care in the relevant scientific studies.

From the CoS’s case law it can be seen that, for calculating the CC of small islands, the relevant assessment factors are, on the one hand, the multiple uses of the indigenous resources of small islands, and, on the other, the protection and maintenance of their biodiversity.

More specifically, the CoS has stated that CC may be determined in long-term and medium-term sustainable development plans, which should integrate environmental protection into economic planning, with particular emphasis on: (a) revising unsustainable practices, (b) promoting environmentally sound technology, and (c) excluding technologies that pose a threat to their ecosystem. Indeed, particularly with regard to the biodiversity of the island ecosystem, it is essential to calculate the measure for maintaining biodiversity for each island and to develop new technologies for this purpose.

Also of interest is the reference to the preparation of a special “capacity” study for small islands, i.e. a special spatial planning tool provided for by the South Aegean Regional Framework, while at the same time the need to avoid disrupting the island “microcosm” has been emphasised, as it constitutes a particular and self-contained ecosystem. Finally, it has been held that a key factor for determining the limits of CC on small islands is their energy system (for more on CC in relation to RES on small islands, see below).

A.3. CC in Protected Areas

In what is perhaps one of the earliest references, at least at the level of European law, CC has been directly linked to the maintenance of the “integrity” of protected areas (mainly those of the NATURA 2000 network). Integrity is directly linked to the CC (carrying capacity) of a protected ecosystem. In this field, CC corresponds to an upper limit of tolerance to external, i.e. human-made, interventions in a spatially defined ecosystem – if the number or intensity of existing interventions increases beyond the CC limit, it is presumed that the ecosystem is being degraded and its quality affected. Correspondingly, if the impact of human activities on the local natural environment is judged compatible with CC, their permitting, siting, and operation may be allowed, subject to conditions.

CC and the so-called “integrity” of a protected area are interrelated concepts, on the one hand, and, on the other, CC serves as a criterion for identifying harm to integrity. However, because the concept of integrity is broad and abstract, there is difficulty, or impossibility, in determining harm to it. For precisely this reason it is interpreted by reference to another concept of the Habitats Directive, “favourable conservation status.”

A.4. CC of the Cultural Environment

Also of interest is the reference to “CC of the Cultural Landscape” in a recent Preparatory Opinion of the Court, by which a Presidential Decree for a Special Urban Plan (SUP) was rejected due to the lack of stand-alone reasoning as to the “gentleness” of the proposed intervention.

On this point, the Court referred, in its reasoning, to opinions of competent Services, which stressed the importance of the compatibility of each intervention with the “CC of the cultural landscape,” understood as the absence of significant and irreversible disturbance to the environment “of the monuments that bear witness to the continuous habitation and human activity in the area.”

Indeed, the elements identified as relevant to assessing this type of CC included ensuring, or not undermining, the necessary composition of the monuments and their surroundings into a “historical, aesthetic, and functional unity,” and the absence of visual harm to the specific archaeological site.

1. More specific categories – distinction by sector of activity

Furthermore, a categorisation of the CoS’s directions regarding CC emerges by type and characteristics of the activity or “intervention” in an area.

B.1. CC in the Energy System – Renewable Energy Sources (RES)

CC in the context of the energy system has been approached by the CoS as a concept relating to not exceeding the capacity to meet the energy needs to be served by the (wind) installations to be sited, taking into account the impacts of the installation of all the wind farms and the determination of the total number of wind turbines that may be installed in an area, as a whole or in sections thereof.

Specifically with regard to RES, CC had already been reflected, since 2008, in the Special Framework for Spatial Planning and Sustainable Development for Renewable Energy Sources (RES), as “the maximum number of typical wind turbines permitted to be installed in a spatial unit,” i.e. the maximum siting capacity for wind installations. Indeed, the Strategic Environmental Impact Study (SEIS) accompanying the Special Framework provided that the formulation of the specific content of the siting rules for each category of renewable source is carried out following joint assessment of the expected share of each in the energy production mix and of the existence of exploitable energy potential, which thereby becomes a criterion of particular weight for the CC of the receiving areas, as well as of the need for the harmonious integration of the relevant projects into the natural and human-made environment.

Specifically, the CC of a Wind Priority Area is defined as “the maximum siting capacity for wind installations, expressed as a number of wind turbines and as installed electrical capacity”[27].

The case law of the CoS does, however, appear to assess the installation of RES on small islands differently from their installation on the mainland[28]. Specifically for the former, the objective and local limits of CC are defined as elements that include, in particular, local energy sources, which must remain essentially local and environmentally friendly, while the importance of installing a gentle, low- to medium-scale energy system using environmentally friendly technology is highlighted[29].

Indeed, the CoS recently emphasised that the CC of small islands is directly linked to the medium-term development of energy demand; indeed, their energy system is expressly identified as the main factor for determining the limits of their CC, on which their sustainable development depends to a significant degree[30]. In CoS Decision 1429/2022, the Court goes so far as to formulate the reasoning that environmental protection, the tolerable limits of island ecosystems through the concept of CC, energy autonomy, and economic development ultimately constitute “components” of a modern – difficult to achieve, but desirable – socio-economic “synthesis,” which is translated into the concept of sustainable development[31].

Finally, specifically with regard to CC for small hydroelectric plants, Article 16 of the Special Spatial Framework for RES sets out specific criteria for assessing the CC of Small Hydroelectric Plants (SHPs), in the sense of the maximum siting capacity (i.e. installation density) of SHPs on the same “line” of hydraulic potential, that is, on the same watercourse, while in the CoS’s case law this is referred to as the maximum siting capacity on the same line of hydraulic potential, in terms of coexistence with other uses and the maintenance of the hydrobiological and ecological characteristics of the receiving water bodies[32].

B.2. Approaches to CC in other sectors of activity

In researching decisions and preparatory opinions of the CoS concerning Special Spatial Development Plans for Strategic Investments (ESCHASE) and Special Spatial Development Plans for Public Properties (ESCHADA), it was found that the CoS refers to the Strategic Environmental Impact Study and/or the other studies accompanying the above plans, and in particular to the method of calculating CC, elements which appear to be implicitly accepted by the Court in its reasoning and ultimately in its decision[33].

In more specific case-law instances, in the context of the CC of aquifers (e.g. rivers), CC is expressly defined as the maintenance of the range of water inflow, the non-reduction of the adequacy of available groundwater, and the non-abstraction of quantities of water that affect the water balance.

Specific reference to CC was made on numerous occasions by the CoS in cases of Integrated Aquaculture Development Areas (POAY), for which the definition of CC derived directly from the Special Framework for Spatial Planning and Sustainable Development for aquaculture, as the “Carrying capacity of the receiving area for siting production units,” which “is a tool that can be used to estimate the maximum biomass of one or more farmed species that a given space can support, taking into account the viability of the organisms and the sustainability of the environment.” Correspondingly, in a similar decision, CC is defined by reference to the degree of concentration of units and their environmental impacts on the ecosystem, determined following assessment of a series of parameters, such as the physicochemical characteristics of the waters, the productivity of the ecosystem, the ecological status of the waters, etc.

A specific reference to the CC of waste-management receivers (OEDA – Integrated Waste Disposal Facility) was also identified in the case-law research, for which it was expressly defined as their capacity to receive waste per year.

B.3. CC in the cumulative effects of activities – synergistic effect of projects and activities

In the majority of decisions concerning industrial activities, waste management facilities, transport projects, or production activities, where the non-exceedance of the tolerable limits of the receiving area was at issue, there was a direct reference to the concept of CC.

For example, in the case of a secondary-sector unit, it was found that “CC does not permit the burden of new secondary-sector units,” thus establishing a requirement to examine the impacts of cumulation with existing uses and the number of installations with the same uses.

In addition, the CoS has repeatedly noted that, for CC in relation to waste management units (OEDA), industries, livestock farming units, and migration reception facilities, account must be taken of the cumulative impacts on the natural and human-made environment from the parallel operation of such units, focusing on the cumulative effect of corresponding nuisances of different types in the area concerned. Similarly, the potential cumulative harmful effect of similar installations from the simultaneous operation of installations has been noted.

Furthermore, in a recent decision concerning a Special Spatial Development Plan for a Strategic Investment (ESCHASE), it was held that the adequate assessment of the proposed ESCHASE plan as regards CC is not undermined by the fact that, subsequent to the approval of that ESCHASE by Presidential Decree, another ESCHASE in a neighbouring area was put out for public consultation. It is noted here that the CoS, in processing the subsequent draft Presidential Decree for the ESCHASE in that neighbouring area (located 1,500 m from the intervention area), rejected it, among other reasons, on the ground that it was unclear whether, in calculating the CC index, the number of beds of the preceding and already approved Strategic Investment had been taken into account.

Ultimately, of essential importance for determining CC is the examination of impacts arising from cumulation with existing different and similar uses, as well as on the basis of the number of installations/activities with the same or similar uses.

1. The place of CC in rational planning and its field of spatial analysis

At the same time, a significant part of the case law confirms that CC is an element and criterion that must be included, among other things, in spatial and urban planning.

CC is, of course, a dynamic tool, assessed at different levels of spatial planning and spatial unit, and depending on various factors specific to each case, such as the type of intervention, the conditions of the area concerned, and the particular local, natural, cultural, and urban planning characteristics, etc. Thus, specifically as regards the field of spatial analysis of CC, various findings of the CoS can be identified.

First, in the case of approval of a Residential Control Zone (ZOE), the basis adopted was the area of the ZOE to be approved itself, while in the creation of new settlements the broader criterion of the area of the then-Prefecture (now Regional Unit) was used, as opposed to cases of absorbing residential pressures (primary and secondary residence), where emphasis was placed on the more specific criterion of the area of the existing settlement concerned.

In addition, in approving projects and activities on small islands, which, as noted above, are particularly sensitive ecosystems, the reference basis adopted was the units into which the whole island entity, smaller or larger, is divided, i.e. the island Municipality. By analogy, in approving a POAY, the necessary field of spatial analysis of CC was the marine area of the intervention, understood broadly as its ecosystem, while in a case approving a Special Urban Plan (SUP) within the city of Athens, the spatial basis for determining CC was the specific Municipality receiving the Plan (Municipality of Amaroussion).

Conversely, narrowing the spatial unit, in exceptional cases of large projects, such as the Olympic Works, the basis for calculation was the area of their installation; in ESCHADA and ESCHASE, the specific property in question; and in approving local street-alignment plans for the exceptional designation of areas for the erection of buildings serving a public, municipal, or charitable purpose in an out-of-plan area, that specific out-of-plan area.

As a rule, however, according to the CoS, point-by-point and fragmented siting of projects and activities must be avoided, since this is contrary to the CC of the area and to proper spatial planning. The latter is of particular importance for the Court, ultimately constituting the decisive criterion available to the State and its administrative bodies for determining, in the first instance, the possibility of siting a project/activity, in order to ensure the protection of the environment, the best possible living conditions for the population, and economic development in accordance with the principle of sustainability.

Relevant and worth noting is CoS Decision 2996/2014, according to which “an essential condition for sustainable development is integrated spatial plans. These plans set, on the basis of data analysis and forecasts of future developments, the long-term objectives of economic and social development, and regulate, among other things, the framework for shaping residential areas and open spaces in out-of-plan areas.” In support of this, it is worth noting that, in recent years, and more intensely recently, the CoS has highlighted to the Administration, in view of the constitutional requirement for spatial planning, the necessity of promptly approving the new Regional Spatial Planning and Sustainable Development Framework for the South Aegean Region and the new Special Spatial Planning and Sustainable Development Framework for Tourism.

4. Conclusions of a theoretical nature

Following the above analysis, we codify in targeted fashion some of our most important conclusions:

First, the elements taken into account for calculating sustainable development should also be taken into account for calculating CC, since it appears that, often in the case law of the CoS, these two concepts coincide.

Beyond this, the calculation and assessment of CC constitute a basic criterion for the rational control of land uses. This means that any changes or increases in urban planning parameters (e.g. an increase in the building ratio) affect CC and must therefore take it into account. Naturally, beyond quantitative elements, CC is also combined with qualitative criteria, such as the character of islands as traditional human systems and the status of areas as sensitive ecosystems. The magnitude of CC must therefore also be examined from this perspective. In particular, special care must be taken to preserve the character of small islands and their island human-made and natural environment and landscape.

Finally, it is clear that CC concerns a very broad field of activities: tourism, energy, the primary sector, aquaculture (POAY), industry, etc., and is therefore a concept that must be assessed in conjunction with, and in direct relation to, sustainable development, rational spatial and urban planning, the control of land uses, and environmental protection.

The majority of the decisions and preparatory opinions of the CoS converge on the view that CC is a criterion of essential importance, which must necessarily be taken into account, among other things, in spatial and urban planning. Moreover, as the current President of the Hellenic Republic, Ms A. Sakellaropoulou, noted during her term as Vice-President of the CoS, it cannot fail to be taken into account that “the CC of human ecosystems is a decisive factor for their very existence.”

As a final remark, we consider it of the utmost importance to enrich the national legal order with the safeguards for integrating the concept of CC into planning, with the first step being the issuance of the Presidential Decree provided for by paragraph 2 of Article 64 of Law 4964/2022.

5. By way of conclusion

In our view, a clear presentation of the pillars that make up the concept of CC should lay the foundation for establishing a tool that does not reject or permit interventions in a given defined space, but rather takes into account the actual urban planning, environmental, and cultural data of an area, under a common, scientific assessment on an ad hoc basis. We hope that this study will assist the work of the State and of scientists in this direction.

Below follows, codified in tabular form, the above categorisation, together with indicative references to the corresponding Decisions and Preparatory Opinions.

We warmly thank Ms Athina Michalakea, Lawyer, PhD Candidate, for her contribution to the initial research and recording.

1. Rational planning and field of spatial analysis of CC

[1] Particularly for island areas, the completion and approval of the Special Spatial Planning Framework for Tourism and the Regional Spatial Planning Framework for the South Aegean is expected in the coming period. At the same time, the preparation of many Local and/or Special Urban Plans has begun in island areas.

[2] Sakellaropoulou A., The position of the Council of State and CC, 2016, Nomos kai Fysi.

[3] Vlantou A., Environmental-Spatial planning and CC, 2016, Nomos kai Fysi.

[4] Under paragraph 6 of Article 72 of Law 4495/2017 (Official Gazette A’ 167/03.11.2017).

[5] Panagiotopoulos P., Sustainable Regional Development, Sport – Tourism, Nomiki Vivliothiki, 2023, p. 63.

[6] Official Gazette 150/A/30.7.2022.

[7] PE CoS 196/2021, CoS 164/2022.

[8] CoS 6070/1996, CoS 585/2014, CoS 711/2014.

[9] CoS 629/2022, CoS 630/2022, CoS 631/2022, CoS 1037/2022.

[10] G. Giannakourou (2022) Spatial and Urban Planning Law, Nomiki Vivliothiki, p. 160. CoS 293/2018, reasoning para. 9, 148/2018. Cf. PE CoS 30/2001 Plenary, 158/2003, 325/2003.

[11] See CoS 3920/2010, CoS 387/2014, CoS 413-414/2005.

[12] The settled case law of the CoS repeats, in numerous decisions, that “The fundamental rule of sustainable development applies all the more so to sensitive ecosystems, the development of which – residential, tourism, and economic in general – must be linked to the preservation of their character and of the human-made and natural environment,” see, indicatively, CoS Plenary 3920/2010, 2489/2006, 3478/2000.

[13] Indicatively, CoS 629-631/2022.

[14] CoS 1421/2013, reasoning para. 27.

[15] PE CoS 273/1998, PE CoS 175/1999, PE CoS 216/1999, PE CoS 355/1999, PE CoS 359/1999, PE CoS 432/2001.

[16] PE CoS 273/1998, PE CoS 175/1999, PE CoS 216/1999, PE CoS 355/1999, PE CoS 359/1999, PE CoS 432/2001.

[17] CoS 1037/2022.

[18] CoS 2939/2000, CoS 2940/2000.

[19] CoS 1421/2013, CoS 1422/2013, CoS 1429/2022, CoS 1538/2022.

[20] According to settled EU and national case law, a plan not directly connected with, or necessary for, the management of a particular Habitat, but which may nevertheless significantly affect that site, should be approved only if, following a prior assessment, it is established that it will not adversely affect the integrity of that site. Specifically, there must be a formed conviction, i.e. no reasonable scientific doubt as to the absence of harmful effects on the integrity of that site (indicatively CoS 807/2014). The appropriate assessment of the implications of the plan or project on the protected site presupposes that, before the plan or project is approved, all aspects of the plan or project that could, either alone or in combination with other plans or projects, affect the conservation objectives of that site are identified, taking into account the best scientific knowledge in the field (CJEU C-387/15 and C-388/15, para. 50, judgment of 14.01.2016, C-399/14, Grüne Liga Sachsen eV and Others, para. 49, C-258/11, para. 40, C-404/09, para. 99, C-127/02, para. 42, CoS 2365-66/2021, 2242/2020, 1804/2018, 551/2015, 2741/2014). The competent authority shall authorise the activity in the site concerned only if it has made certain that it will not adversely affect the integrity of that site, there being no reasonable scientific doubt as to such effects (CJEU C-399/14, para. 49, C-258/11, para. 40, CoS Plenary 2996/2014, CoS 2242/2020, 1804/2018, 245/2016, 1964/2015, 551/2015, 2741/2014, 807/2014, 711/2014, 4224/2013, 1422/2013, 2473/2010, 293/2009, among others).

[21] Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

[22] Specifically, the CJEU has held that “a precondition for the integrity of a site as a natural habitat, within the meaning of Article 6(3) of the Habitats Directive, not to be adversely affected is that it be maintained at a favourable conservation status, which entails ensuring the lasting preservation of the constitutive characteristics of the site concerned that are linked to the presence of a natural habitat type whose preservation objective justified the designation of that site in the list of SCIs, within the meaning of that Directive,” see C-258/2011, para. 48. That is, “integrity of the site” may, in practice, be defined as the coherent sum of the ecological structure, function, and ecological processes across the whole of the area of the site that enable it to sustain the habitat, complex of habitats, and/or populations of the species for which it was classified. See further Karatsolis K., Tsakalogianni I., Kolovetzou E. (2021) Protected Areas: A Legal Perspective on the Modern Framework – The Rational Allocation and Permissible Limits of Human Interventions, Nomiki Vivliothiki. See also, indicatively, CoS 1704/2017, reasoning para. 19: “(…) the implementation of the plan is assessed as not having significant adverse effects on the protected areas within which it will be carried out, and will not adversely affect their integrity, and therefore no question arises here either of ensuring the overall coherence of the NATURA 2000 network, or of the existence of an overriding reason of public interest of an economic or social nature that could, exceptionally, render acceptable the implementation of a plan with significant adverse effects on protection zones under Article 6(4) of Directive 92/43/EEC, which has no application here.”

[23] PE CoS 109/2023.

[24] PE CoS 175/1999, CoS 2814/2013, 4189/2014, 4191/2014, 4193/2014, 1420/2015, 1421/2015, 1422/2015, 1423-28/2015, 1430/2015, 1431/2015, 1432/2015, 3164/2015, 964/2018, 1260/2018, 1358/2018, 2242/2020, 1429/2022

[25] CoS 1508/2008. See also the recent decisions of the Athens Administrative Court of Appeal (Annulment Division) 818-819/2023.

[26] As approved by the decision of the National Committee for the Coordination of Government Policy on Spatial Planning and Sustainable Development (Official Gazette 2464/B/03.12.2008), together with its Strategic Environmental Impact Study, incorporating terms, restrictions, and directions for the protection and management of the environment and for addressing the significant environmental impacts that may arise from its implementation. The Special Framework for Spatial Planning and Sustainable Development for RES is a strategic planning document of exceptional importance, which, due to its specialised character, takes precedence over more general Spatial Planning Frameworks, since it focuses on the possibilities for siting RES in Greek territory.

[27] Official Gazette 2464/B/03.12.2008, by which the Special Framework for Spatial Planning and Sustainable Development for renewable energy sources (RES) and its Strategic Environmental Impact Study were approved.

[28] Specifically on CC in the case of siting wind farms, see CoS 1420-1428/2015, CoS 1430-1432/2015, CoS 3164/2015, CoS 964/2018, CoS 1260/2018, CoS 2242/2020.

[29] PE CoS 175/1999, CoS 1421/2013, CoS 1422/2013, CoS 1429/2022, CoS 1538/2022.

[30] CoS 1421/2013 (similarly 1422/2013).

[31] See reasoning para. 10 of the decision, and further in: Tsakalogianni I., Permissibility, subject to conditions, of siting wind farms in island ecosystems – Observations on CoS Decision 1429/2022, PerDik 4/2022, p. 622.

[32] CoS 47/2018 and Article 16 of the Special Spatial Framework for RES.

[33] PE CoS 363/2013, 139/2014, 171/2020, 199/2020.