REPORT ON BIRDS DIRECTIVE
EUROPEAN COURT OF JUSTICE CASES
WITH CASE SUMMARIES
September 2004
Authors:
Kocsis-Kupper Zsuzsanna (General Manager, Koup International Consulting)
Zsolt Szilvácsku (Head of Advisory Services, MME-BirdLife Hungary)
Remo Savoia Ubrizsy (EU Environmental and Policy expert, ITL Group Ldt)
Edited by:
Edmond Robb, Rosie Sutherland and Zoltán Waliczky
Financially supported by the RSPB
CONTENTS
Overview
i
Introduction
1. The European Court of Justice
2. General introduction of requirements concerning the Directive
3. Detailed presentation of the requirements concerning the Directive
4. “ Judicial Acquis”
1
1
4
7
19
Overview Table of cases relevant to the Directive
20
Case Summaries
Case C-236/85
Case C-247/85
Case C-252/85
Case C-262/85
Case C-412/85
Case C-339/87
Case C-288/88
Case C-57/89
Case C-58/89R
Case C-157/89
Case C-334/89
Case C-355/90
Case C-75/91
Case C-345/92
Case C-435/92
Case C-118/94
Case C-149/94
Case C-44/95
Case C-3/96
Case C-10/96
Case C-166/97
Case C-96/98
Case C-371/98
Case C-374/98
Case C-38/99
Case C-67/99
Case C-71/99
Case C-159/99
Case C-117/00
Case study: Italy
60
61
65
71
74
79
82
88
89
96
100
103
104
109
111
112
115
117
119
125
132
134
138
143
150
156
161
169
176
180
187
Overview
The Council Directive 79/409/EEC on the conservation of wild birds and the Council Directive 92/43/EEC on the
conservation of natural habitats and of wild fauna and flora, or Birds and Habitats Directives in short, are the most
important pieces of EU legislation for the conservation of birds and their habitats in the European Union. All
Member States of the EU have to transpose the Directives into their national legislation and implement them in full.
However, 25 and 12 years after their adoption, respectively, the nature Directives have still not been fully transposed
in all of the countries and their implementation has been very slow. A reflection of this is that the number of
complaints sent to the Commission under these Directives is higher than those under other EU legislation. Several of
these complaints turned into infringement procedures and ended up with the European Court of Justice (ECJ). The
various judgements of the Court have become an essential tool in the interpretation of various Articles of the
Directives and should guide, in turn, their better enforcem ent and implementation at the national level. It is fair to
say, however, that they are not readily available to a wide range of important stakeholders and decision-makers at the
national level, including environmental NGOs and members of the legal profession.
The nature Directives are central to the European work of BirdLife International, a global alliance of bird
conservation organisations. The Directives catalysed the core conservation programmes of BirdLife on sites of
species, and they are the focus of the work of the Birds and Habitats Directives Task Force, which brings together the
most active Partners of BirdLife to push forward the proper implementation of the Directive. The huge importance
of the rel evant judgements of the ECJ has been recognised early on by the Task Force, and efforts have been made to
compile them, summarise their main implications and make these available to the BirdLife network within the EU.
However, it was agreed that a concentrated effort is needed to identify and collate all the relevant ECJ cases on the
Birds Directive, and where relevant the Habitats Directive, and to prepare a concise summary of each of these to
make these available to BirdLife Partners and other interested parties in the form of a publication.
In 2001, MME/BirdLife Hungary came up with a project proposal to inform their national judiciary, as well as other
key national decision-makers and stakeholders about the key ECJ judgements under the nature Directives and the
implications for their implementation in Hungary, in preparation for the country’s accession to the EU. The Royal
Society for the Protection of Birds (RSPB, the BirdLife Partner in the UK) was approached to provide co-financing
for this project. It was agreed that if the work was done in a way that would satisfy the needs of the BirdLi fe
Partnership (including the translation of the case law summaries into English), the RSPB would co-fund it. The
project was completed in 2003.
The publication is divided into three main parts:
An Introduction section, which starts with a brief overview of the ECJ and the various forms of actions the Court
can take. Most of this section is devoted to providing a detailed Article by Article overview of the Birds Directive,
explaining how the various cases relate to the provisions of the Birds Directive, giving references to the Habitats
Directive provisions where relevant.
A Summary Table, which is based on information on the European Commission, DG Environment Website
(http://europa.eu.int/comm/environment/law/cases_judgements.htm), but which has been substantially enlarged and
up-dated to include relevant information of all the important cases.
Individual Case Reports, summarising the key points for each of the relevant cas es identified under the Birds and
Habitats Directives. The Case Reports are structured into the following sections: Parties, Background, Birds
Directive articl es relevant to the case, Questions before the Court and Judgement.
There is a small deviation between the cases covered in the second and third sections. This is because of the
appearance of some key new judgements related to the Directive while preparing the detailed cas e summaries.
Although these new cases do not have detailed summaries, they have been included in the overview table.
The
individual
cases
can
be
accessed
at
the
Commission’s
Eur-lex
database
(http://curia.eu.int/en/instit/presentationfr/cje.htm). We would like to encourage the readers to download the cases
mentioned in this report and keep hard copies of these for future reference.
We hope that this publication will help the better understanding of the relevant EU case law on nature cons ervation,
which should ultimately lead to better protection for birds and their habitats on the continent. In order to achieve this
aim, we would like to encourage BirdLife Partners and other interested parties to disseminate the information
i
contained in this publication to all relevant decision-makers and stakeholders in their respective countries. The
original idea from BirdLi fe Hungary to target primarily the legal sector with such information should be followed in
other countries, especially in the new EU member states where there is no precedent for the enforcem ent and
implementation of these Directives.
Finally, we welcome any comments or ideas relating to this publication. We hope to be able to up-date it in the
future at regular intervals, and comments can help us improving the content and format to better serve its goal.
Zoltán Waliczky, European Advocacy Manager
Rosie Sutherland, Legal Adviser
The RSPB
September 2004
ii
Introduction
1.
The European Court of Justice
1.1. About the Court
Contrary to most other international organisations, the EU is based on a set of institutions that share the tasks of the
Community. Some enjoy autonomous powers; other powers must be exercised together with another institution.
Clearly separat ed and independent of the other institutions is the Court of Justice (European Court of Justice
(“ECJ”). The existence of the ECJ underlines the Community’s character as a legal system with a high degree of
legal protection.
The seat of the ECJ is Luxembourg, where there are 25 judges and 8 advocate generals. The judges and advocate
generals are appointed by common accord of the governments of the Member States and hold office for a potentially
renewable term of six years. Every Member State nominates a judge. They are chosen from jurists whose
independence is beyond doubt and who are of recognised competence. The judges select one of their number to be
President of the ECJ for a potentially renewable term of three years. The President directs the work of the ECJ and
presides at hearings and deliberations. The President is responsible for the administration of the ECJ and appoints a
judge rapporteur for every case. As the President does not have a decisive vote, there are an odd number of the
judges so that a majority decision can be reached.
France, Germany, Italy, the United Kingdom and Spain each nominate the advocate generals and the remaining three
are appointed in rotation by the ten smaller countries. The advocate generals assist the ECJ in its task. They deliver,
in open court and with complete impartiality and independence, opinions on the cases brought before the ECJ. Their
duties should not be confused with those of a prosecutor or similar offi cial - that is the role of the Commission, as
guardian of the Community's interests. The first advocate general allocat es a case to one advocate general, who then
prepares it and gives his/her opinion on how the ECJ should decide the case. After the advocate general has
presented his/her reasoned submission, the judges will decide in a plenary session or a chamber without the advocate
general taking part. The judges are not bound by the advocate general’s opinion.
Every three years, there is a partial replacem ent of the judges and the advocate generals. Eight or seven judges will
be replaced alternately and four advocat e generals will be replaced on each occasion.
The ECJ may sit in plenary session or in chambers of three or five judges. Since 1970 the number of cases has
increas ed significantly. This is due to the increase in work in several ways. It has made more use of the possibility
of assigning cases to a chamber rather than to a plenary session. Each chamber has its own president. The ECJ sits
in plenary session when a Member State or a Community institution that is a party to the proceedings so requests, or
in particularly complex or important cases.
The discussions are secret and held in French without interpreters. Each judge has the possibility of expressing
his/her opinion on the case. After the discussion the judges vote, starting with the most junior judge and finishing
with the most senior. Simple majority is needed to determine the decision of the Court.
1
1.2
The various forms of action
It is the responsibility of the ECJ to ensure that the law is observed in the interpretation and applications of the
Treaties establishing the European Communities and of the provisions laid down by the competent Community
institutions. To enable it to carry out that task, the ECJ has wide jurisdiction to hear various types of action and to
give preliminary rulings. From the Directive on the conservation of wild birds (79/409/EEC) (“Birds Directive”)
and the Directive on the conservation of natural habitats and of wild fauna and flora (92/43/EEC) (“Habitats
Directive”) point of view the two following actions are most relevant.
1.2.1. Article 169 (now 226) of the Treaty of Rome. Proceedings for failure to fulfil an obligation: (Case C-3/96)
“ If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver
a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter
may bring the matter before the Court of Justice.”
Before any legal steps are taken the Commission confers extensively with the Member State. This informal stage
lasts about one year. The Member State has two possibilities: it must either change its law in accordance with the
Community law or persuade the Commission that its laws do not violate Community regulations.
If the Commission and the Member State cannot agree on this matter, the Commission will send a letter of formal
notice to the Member State. The addressed State may then answer and justify its laws or actions.
Most cases pursued under Article 169 are solved in these first two stages. Only a few cas es reach the stage where the
Commission delivers a reasoned opinion as to how it considers that a Member State has failed to ful fil a Treaty
obligation. In its reasoned opinion the Commission expresses its legal arguments as to why the State is violating
Community law. The Commission must bring all of its arguments forward in the reasoned opinion because later,
before the ECJ, it is not able to raise new grounds or submissions. If it did, the ECJ would reject them.
The Commission gives the Member State a short period of time to comply with its opinion, otherwise the case is
referred to the ECJ. The ECJ then gives judgement on the case, deciding whether the State is in violation of its
obligations under Community law or not. The State cannot defend itsel f by arguing that the national law prevents it
from complying with Community law. Such an argument would be rejected by the ECJ.
A Member State failing to comply with a Community directive, regulation or decision may be confronted with
Article 169 proceedings. Infringements of Community law must be punished by the legal system of the Member
State in the same ways as if a national law had been broken. Article 169 also applies if a nationalised industry or a
private body under government control breaches Community law.
If the ECJ finds that the obligation has not been ful filled, the Member State concerned must comply without delay.
However, if, after new proceedings are initiated by the Commission, the ECJ finds that the Member State concerned
has not complied with its judgement, it may impose a fixed or a periodic penalty.
2
1.2.2. Article 177 (now 234) of the Treaty of Rome. Preliminary ruling (Case C-118/94)
The ECJ also has jurisdiction in another very important kind of procedure. Although the ECJ is, by its very nature,
the supreme guardian of Community legality, it is not the only judicial body empowered to apply Community law.
The courts of each of the Member States are also Community courts in as much as:
•
they have jurisdiction to review the administrative implementation of Community law, for which the
authorities of the Member States are essentially responsible; and
•
many provisions of the Treaties and of secondary legislation - regulations, directives and decisions - directly
confer individual rights on nationals of Member States which national courts must uphold.
To ensure the effective application of Community law and to prevent differences between the rules of interpret ation
applicable in different national courts from leading to different interpretations of Community law, the Treaties
provided for a system of preliminary rulings which, while not setting up any hierarchical relationship, has
institutionalised fruit ful co-operation between the ECJ and the national courts.
In cases involving Community law, national courts, if in doubt as to the interpretation or validity of that law, may,
and in some cases must, seek a preliminary ruling from the ECJ on the relevant questions.
That system, the benefits of which have been amply demonstrated by the large number of questions referred to the
ECJ since it was set up, ensure that Community law is interpreted and applied uniformly throughout the Community.
It is a procedure which, by ensuring permanent co-operation between national courts and the ECJ, clearly
demonstrates that national courts too are the guardians of Community law.
A preliminary ruling is also the form of procedure by which any European citizen may seek clari fi cation of the
Community rules, which concern him.
Although such a ruling may be sought only by a national court, which alone has the power to decide that it is
appropriat e do so, all the parties involved may take part in the proceedings before the ECJ.
Finally, it must not be forgotten that several important principles of Community law have been laid down in
preliminary rulings, sometimes in answer to questions referred by courts of first instance against whose decisions an
appeal would lie under national law.
What are the effects of a preliminary ruling by the ECJ?
The ECJ rules on the law, that is to say that it declares what the relevant Community law is. The national court to
which that ruling is addressed must apply the law, as interpreted by the ECJ, without modification or distortion, to
the dispute before it.
A ruling on interpretation by the ECJ also serves as a guide for other national courts dealing with a substantially
similar problem or a question on which a preliminary ruling has already been given.
2.
General introduction of requirements concerning the Directive on the
conservation of wild birds (79/409/EEC) based on the case law of the
Court
2.1. Requirements concerning the issue of implementation provision of law (see Case
236/85, Case 252/85, Case 412/85, Case 339/87, Case 334/89, Case 75/91, Case 345/92,
Case C-159/99, Case 117/00, Case 415/01)
First of all it has to be stated that regulations of specific Directives lay charges exclusively on Member States
previous to its accessing or the deadline set for taking over legal requirements falling due.
As the last sentence of Article 5 of the Treaty of Rome (“TR”) declares, Member States shall refrain from providing
dispositions jeopardising the fulfilment of objectives set in TR.
3
As a consequence, all the authorities of the country shall meet these contractual obligations after having joined the
1
European Union or taken over the Directive .
According to Article 5 of the TR, the Birds Directive regulations shall be legalised by current authorities of
administration at all times (as authorities of the Member State) given the fact that “ it is state authorities – not in need
of any specific legal norms – that are in the position to perform Directive regulations in case the implementation of
2
the Directive in the national legislation has not yet been realised in any kind of ways.”
This results in the fact that concerning the Birds Directive objectives, “the conservation of all species of naturally
occurring birds in the wild state in the European territory of Member States” (Paragraph 1 of Article 1), needs to be
taken into consideration by all authorities and they shall not take or support any measures jeopardising the realisation
3
of this objective .
No matter whether it is a public-law or private-law organisation handling tasks of public interest, it shall allow for
this “application priority” of the Birds Directive.
Domestic implementation of regulations cannot be hindered or prevented by either any excuses of social or economic
4
diffi culties or the lack of proper legitimacy of regional authorities or the division of labour among Member States .
The fact that other Member States have also achieved del ay in the domestic implementation of the Birds Directive
does not serve the basis for other Member States performing their obligations with temporary delay.
2.2. Timely fulfilment of essential obligations
As has already been mentioned, the accession countries are obliged to have finished the complete domestic
implementation of the Birds Directive by the time they become a Member State.
However, based on experiences and commentaries, an equity grace period necessarily exists in such cases, which
implies the fact that “ in compliance with previous practice, the Commission does not strictly impose sanctions on the
violation of contract to the Member State in the course of the first year following the accession” although “it does
5
not have any kind of community or EU Court case-law basis.”
1
2
3
4
5
Isak, Gutachten vom 11.4.1995. zuhanden des S teirisches Unweltanwaltes zur F rage.
F reytag/Iven, 1995, 116f.
Isak, Gutachten, 7.
ECJ, 68/81 (1982).
Isak, Gutachten.
4
In Commission v Spain (Case C-355/90), more commonly known as the Santona Marshes case, the Court declared
that the Birds Directive regulations are directly applicable in the Member States if the regulation in question is clear,
precise and positive.
Based on the judgement of the Court, Spain had failed to ful fil its obligations, as it had not indicated protection sites
meeting the requirements of Paragraph 4 of Article 4 of the Birds Directive there by infringing protective
dispositions concerning these zones.
In the above outlined case, the Court has drawn attention to the fact that one of the basis of legalising protection
measures is the determination of appropriate sites, which is an obligation that cannot be neglected in any
circumstances.
Both delayed (after deadline) implementation of Directive changes, as well as delayed, unclear and ambiguous
ful filment of reporting obligations might serve the basis of the legal intervention as set out in Article 169 of TR and
carried out by the Court referring to the violation of contract.
6
The implementation and application of Court judgements shall be effected within the shortest possible period ,
becaus e since the Maastricht Treaty, an overhead or fixed amount of penalty can be imposed on the government on
the basis of further condemnation on defaulted or delayed ful filment.
This means that there is an additional weapon in the hands of interest groups involved in bird protection as the
applicability of Article 4(4) is not in any way conditional upon the prior classification as a special protection area and
has direct effect on Member States. Prior to the judgement, the general opinion seemed to be that Article 4(4),
becaus e of its references to Article 4(1) and (2), which gave Member States considerable discretion, could not be of
direct effect. The exact form the measures should take, once the ornithological criteria are determined by the Birds
Directive are met, are still matters of considerable discretion simply because the Directive itsel f makes no provision.
2.3. Formal quality requirements concerning the implementation
The Court considers the ful filment of implementation requirements satis fied i f they are published in appropriate
predetermined legal form. This obligation can be ful filled for example by a ministerial legal act based on law (e.g.
ministerial decree), which is published in an offici al journal in compliance with enactment regulations and is of
7
general validity, furthermore it declares rights and obligations for both natural and legal persons .
On the other hand, the Court did not accept the solution where the legal act announcing Directive requirements can
8
be optionally altered by the subordinate official administration or authority . It is not an acceptable way of tackling
the implementation of Directive requirements in case the announcement is made by a scientific institute declaring
itself in this issue, since such a declaration does not impose binding force and therefore this form does not guarantee
9
the consideration of the Directive requirements .
In many cases, the Court has drawn attention to the fact that it is essential to make both obligations and rights
10
acquainted with everybody for instance in connection with the process of air cleanness protection Directive .
6
7
8
9
10
ECJ 169/87; ECJ C -345/92.
ECJ, C -339/87.
ECJ, 247/85.
ECJ, 262/85.
Am ong others related to cases No. C -59/89 and C -13/90.
5
2.4. Material quality requirements concerning the implementation
The implementation of the measure according to which it is not necessary for all Member States to pass an act has
11
also been based on the third sentence of Article 189 in TR relating to the Birds Directive . As for promulgating acts
of implementation, previous legal practice of the Court lays emphasis on the following issues based on the Birds
Directive-rel ated decisions:
“In the course of implementing a Directive in the national code of laws, regulations are not supposed to be
implemented word by word and in the same format, but requirements of the implementation can be met in the
framework of general legal context as long as a complete, clear and unambiguous application of the Directive can
12
be ensured and guaranteed this way.”
The so called “ Royer” judgement also gives its contributions, according to which:
“selecting the format and tools means that the most suitable way of guaranteeing the practical efficiency of the
13
Directive ("effet util") and needs to be investigated with regard to its objectives.”
From our point of view, on the basis of above statements, obligations originating from the Birds Directive shall be
implemented among the dispositions of the national legislation in the same quality and as an explicit norm.
Obligations resulting from the Birds Directive in question need not be implemented word by word, however, it can
be stated as a minimum stipulation that the degree and expansion of obligations set in the Birds Directive shall be
present in similar proportion in national dispositions.
Instead of regulating explicit obligations determined in the Directive, it is not a satisfactory solution to allude to the
appropriat e implementation of the Directive in absence of the implementation of dispositions, the provision of an
optional authorisation does not meet the previously mentioned requirement of “ the most suitable way of
guaranteeing the practical efficiency of the Directive”.
This is exactly the jurisdiction, where the vast majority of rights concerning “ nature” and the “ environment” (and
less to individuals) and the implementation of which needs to be carried out with special accuracy in order to ensure
legal security.
Birds Directive-rel ated judicial practice has clearly pointed out the responsibility, namely the fact that “the accuracy
of implementation and its exact way of building it into the national legislation are of great importance even in cases
such as the present one, where it is the Member State’s public administration that is in charge of its own, national
14
territory of the surface of the earth held in common.”
This logical argument is in accordance with cases when the Court has on several occasions taken the word by word
15
implementation of Directives as a good starting point . With regard to this, both protection requirements and the
level of protection determined in the disposition of the Directive shall be respected in the most accurate way, where
as further exemptions for birds’ disadvantage are forbidden.
11
12
13
14
15
ECJ, cases No. C -339/87 and EC J, 29/84.
ECJ, 252/85 and ECJ, 339/87.
ECJ, 48/75.
F irst in the case EC J, 247/85 (1987), then in ECJ, 252/85 (1988).
ECJ, 252/85 (1988); In the F rench provisions with respect to the Directive the ”land sustaining the national biological values”
was defined which does not correspond to the conservation objectives of the Birds Directive because according to the B irds
Directive the objective is to protect and to conserve all the bird species with habitats on the territory of Europe.
6
In relation to the level of protection a further issue also arises, namely the fact that “ in order to ensure complete and
efficient protection for the avifauna living in the territory of the Member States it has been essential – even in
16
national provisions of law – to clearly and accurately express prohibitions set in the Birds Directive” . To protect
legal security, this should be taken into consideration even if the practice of law in question is not irreconcilable with
17
the Directive .
3.
Detailed presentation of the requirements concerning the Birds Directive
based on the case law of the Court
The following is a brief summary of dispositions determined in each Article while a schematic insight is also given
about the development of legal activities of the ECJ.
3.1. Article 1 – the filed of enforcement
The first sentence of Article 1 of the Birds Directive “ refers to the conservation of all species of naturally occurring
18
birds in the wild state in the European territory of the Member State to which the Treaty applies” . Three theories
are worth being distinguished concerning this disposition.
First of all it needs to be emphasised that the Birds Directive refers exclusively to species of wildfowl within their
habitat in the territory of Member States. This geographical limitation is not obvious, since TR does not restrain
19
Community activities to the Community environment .
On the one hand, the application of this disposition can be represented by the fact that the Directive embargo does
20
not refer to the trade on bird carcass es originating from “the third world” or to the hunting of wildfowl living
21
outside the Member States .
On the other hand, according to the quoted disposition, the Directive shall be applied on the entire European territory
of Member States as a whole, in accordance with the notion of “ common heritage” (third paragraph o f the
preambles).
In conformity with present disposition, the condemnation of the Court against Belgium referred to the fact that the
national legislation of the Benelux countries have applied dispositions determined in the Birds Directive on the
protection of wildfowl species living in their area only in a limited way. The Belgian government based its opinion
on the idea that “a Member State is supposed to take specific measures of protection concerning species living in its
22
own national territory” . The Court has developed in favour of the Commission having prosecuted an action that
also bird species, which simply pass through the territory of the Benelux countries, are regarded as having their
23
habitat in the country .
16
17
18
19
20
21
22
23
ECJ, 252/85 (1988).
ECJ, C -339/87; In this case ”cogent reasons, and legal provisions” required the adm ission of not implem ented prohibitions.
The second sentence of P aragraph 1 of Article 1 and P aragraph 2 explain the intention of the codifier to ensure the complete
and overall protection of birds.
L. Kräm er.
C our de C assation (F rance), verdict of 17 June 1985, (case No. 84-90547); The case refers to birds from S pain which was
considered to be ”third country” at that tim e.
C onseil d'Etat (F rance), 24 F ebruary 1989.
ECJ, 247/85 (1987).
ECJ, 247/85 (1987).
7
The Court also condemned France since it narrowed down the sphere of application of the Directive to “ the national
biological heritage” in the spirit of which it is impossible to establish a comprehensive, complete and efficient
protection on the species of wildfowl to be naturally found in the entire territory of the Community irrespective of
24
their habitation or migrating route .
The second factor of the first sentence in Paragraph 1 of Articl e 1 worth focusing on is the fact that the Directive
exclusively refers to “ species of naturally occurring birds in the wild state in the European territory of the
Community”. According to Article 11 of the Directive, Member States shall ensure that no damage occurs to local
flora and fauna by naturalising bird species not having their habitat on European territories.
Taking no notice of restrictions, “ the general system of protection the realisation and application of which are
determined in the Directive, shall be introduced and implemented in case of all bird species (…) even if given species
25
are considered rare” .
3.2. Article 2 – General principles
Article 2 of the Directive declares that “ Member States shall take the requisite measures to maintain the population
of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural
requirements, while taking account of economic and recreational requirements, or to adapt the population of these
species to that level”. This way the Directive lays a general charge on Member States as well as outlines its general
philosophy.
Article 2 instructs Member States to take necessary measures in accordance with previously outlined requirements in
order to sustain or reach the appropriate level of speci es referred to in above-mentioned Article. The question arises
whether the violation of more detailed and special obligations set in the following Articles of the Directive and
especially the violation of the Directive itsel f can be based on the content of Article 2. According to a member of the
26
Court this possibility cannot be precluded . The formulation of the Article is not less convincing just like the
remaining part of the Directive does not make hints of the fact that the general obligation determined in Article 2
would set limits to the accomplishment of more detailed speci fi cations laid down in subsequent Articles. However,
some other Articles of the Directive determine speci al, more detailed rules in certain subject matters, which presumes
the fact that the Community legislator had the intention of exhaustively defining these special detailed regulations,
and of determining requisite measures with respect to Article 2. Obligations laid down in Article 2 are therefore
merely of secondary importance.
Taking no notice of general obligations entailed on Member States, Article 2 also represents the basis of the Birds
Directive philosophy. It determines the protection of wild birds as the fulfilment of ecological, scientifi c and cultural
demands and these factors are laid with bigger emphasis on them than those of economic and recreational demands.
In fact it is the ful filment conforming to the previous threefold standpoint method that makes Directive regulations
(primary requirements) becom e realised, while the two additional requirements can be taken into consideration only
27
as secondary objectives (secondary requirements) .
24
25
26
27
ECJ, 252/85 (1987).
ECJ, 247/85.
Wouter P. J. Wills, law clerk at the EC Court of Justice.
S ee the foot-note 28, no doubt that the C ouncil used intentionally this differentiation.
8
The Court has established in its decision in connection with the Birds Directive that “ Article 2 does not form the
basis of a self-determining, autonomous exemption from the general system of protection, which means that the
28
Directive takes both the need of efficient bird protection and other requirements into consideration” .
It was the Commission that took actions against Belgium and Italy concerning Directive violations, which were
based on Article 169 of TR since national provisions of law in these countries contained exceptions to issues set out
in Articles 5, 6 and 7 of the Birds Directive exceeding the legitimate exemptions as determined in accordance with
Article 9. Belgium and Italy have pronounced that these exceptions can be harmonised with the content of the Birds
Directive, in particular with the economic and recreational requirements determined in Article 2. The Court
categori cally rejected these arguments and gave a rather strict and narrow interpretation of Article 9.
In some following cases the Court has confirmed that Article 2 simply determines the fundamental philosophy of the
Directive. However, it is not applicable to the basis of the general scope concerning the content of other Articles,
therefore it is not applicable to the restrictive interpretation of Articles that are suffi ciently clear already in
themselves. The enforcement of Article 2 can be relevant only in exceptional cases, when vague, unambiguous or
more general concepts of the Directive are to be defined.
In Paragraph 2 of Article 2 in the Habitat Directive it is stated as follows: “ Measures taken pursuant to this Directive
shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild
fauna and flora of Community interest.” Paragraph 3 of the same Article adds the remark that “ Measures taken
pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local
characteristics.” Compared to Article 2 of the Birds Directive, these regulations confirm the definite priority of
environmental needs in relation to economic and other demands. As for later cas e law of the Court, alluding to nonenvironmental exceptions there are limited possibilities even with regard to the Habitats Directive.
3.3. Habitat protection (Articles 3 and 4) (Case 57/89, Case C-355/90, Case C-44/95, Case
C-3/96, Case C-96/98, Case C-371/98, Case C-101/00, Case C-240/00, Case C-202/01,
Case 378/01
3.3.1. Overvi ew
Article 3 of the Directive instructs Member States to “ take the requisite measures to preserve, maintain or
reestablish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1”. The first
sentence of Articl e 4 expresses that “ 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”,
while the first part of the fourth sentence in the same Article announces that “ Member States shall classify in
particular the most suitable territories in number and size as special protection areas for the conservation of these
29
species” . According to Paragraph 2 of Article 4 “ Member States shall take similar measures for regularly
occurring migratory species not listed in Annex I”.
Paragraph 4 of Article 4 contains the obligation that Member States shall take necessary measures in order to avoid
both polluting or deteriorating habitat and disturbing birds in any way. In the following, allocating Special
Protection Areas (“SPA”) are separately discussed as well as the relevant obligations and other obligations
concerning other or all habitats are investigated.
The preliminary question arises, what is the connection between habitat-protection obligations determined in Articles
3 and 4 and the general objectives of the Directive set in Article 1, namely wild bird protection and preservation?
The question actually is whether Articles 3 and 4 merely involve protecting and preserving species from the abovementioned impacts with regard to its regulations or whether issues determined in these Articles lay to certain extent
independent obligations concerning habitat protection.
In 1993, the Court made an explicit decision in favour of the latter interpretation: “ Articles 3 and 4 of the Directive
oblige Member States to preserve, sustain and restore habitats based on their ecological value. Furthermore,
Paragraph 9 of the Directive preamble (recital) makes it clear that preserving, sustaining and restoring adequate
biodiversity, habitat diversity appropriate in size are essential in the event of all species of birds protection. Member
28
29
ECJ, cases No. 247/85 and 262/85; The Court has listed ”the requirem ents of public health, public safety, econom y, ecology,
science, farming and recreation” in the order of Article 9 which were interpreted in these two decisions of the C ourt. Ecology
and science is am ong the other prior requirem ents in Article 2. The expressions ”on the one hand” and ”on the other hand”
used by the C ourt cannot be interpreted as parallel to the distinction between prior and secondary requirem ents.
The original list containing 74 species in Annex I of 1979 have continuously broadened and is still being under expansion
during the consultation with the adhering countries.
9
States are obliged to apply regulations of Articles 3 and 4 even before the risk of decreasing number or extinction of
30
protected species would arise.”
3.3.2. Designating SPAs (Paragraphs 1 and 2 of Article 4)
Allocating SPAs embodies the most critical and controversial part of the Birds Directive application. According to
the fourth sentence of Paragraph 1 in Article 4 “ Member States shall classify in particular the most suitable
territories in number and size as special protection areas for the conservation of these species, taking into account
their protection requirements in the geographical sea and land area where this Directive applies”. Paragraph 2
furthermore adds the remark that “ Member States shall take similar measures for regularly occurring migratory
species not listed in Annex I (…) Member States shall pay particular attention to the protection of wetlands and
particularly to wetlands of international importance”. It can be stated that “ similar measures” refers back to the
previous obligation in the same Article, which is the allocation of SPAs laid down in the fourth sentence of
Paragraph 1 in Article 4. The notion of “Wetland habitats of international importance” refers to the Convention on
Wetlands of International Importance especially as Waterfowl Habitat 1971 (“ the Ramsar Convention”).
Quoted dispositions entrust Member States to allocate SPAs in their own territory. In the original proposal of the
Commission, Member States had been supposed to consult the Commission. The Council however refused this
proposal, and instead it was replaced by Paragraph 3 of Article 4, which speci fies that Member States shall send all
significant information to the Commission to enable it to take the initiative in realising appropriate measures in order
to ensure allocated sites to form a coherent system satisfying protection demands. In a Birds Directive-related
provision, this disposition has been partially made more accurat e by the Council, since it has added the remark to the
above-mentioned section that “the Commission plan made for handing in appropriate proposals refers to the
criterion of allocation, to the aspects of selection and to the organisational and methodological issues of the
31
protection system in the SPA network” .
In the sphere of application of Paragraphs 1 and 2 in Article 4 the critical point is the question: to what extent
Member States have their discretionary right concerning the issue of designating sites as SPA? The case law of the
Court shows that the above-mentioned discretionary jurisdiction is to be interpreted with restrictions and in a
narrowed down sense. In the ECJ case (No. C-355/90), the Court condemned Spain since it failed to allocate a
coastal region of Cantabria called Marismas de Santoña as a SPA. The Court announced its consideration of this
case that “ Member States might have some kind of discretionary rights in allocating adequate SPA sites, however,
some criteria determined in the Birds Directive – such as the presence of specific species set in Annex 1 on the one
hand and the classification of the habitat as wetland habitat on the other hand – should also be taken into
32
consideration when allocating SPA sites” .
30
31
32
C ase No. ECJ, C -355/90 (translated from F rench).
C ouncil R esolution; OJ 1979 No C 103/6.
ECJ, C -355/90 case.
10
The decision made by the Court in connection with the present case was based (only) on the following quotation: “ It
has been a well-established fact that Marismas de Santoña forms one of the most important ecosystems on the Iberia
Peninsula for several water-fowls. Swamps and moors are in fact used by numerous birds as winter sites or rest
sites while migrating from European countries to South-African or Iberian areas. On that site, there are many
endangered speci es of birds, such as the spoonbill which uses Marismas de Santoña both as rest site and feeding site
while migrating. As it has become clear from records and the dispute at law, there regularly appear 19 bird species
33
and at least 14 migrating species that are all listed in Annex 1 of the Directive” .
Conclusions of the decision can be summarised as follows: first of all, according to Paragraphs 1 and 2 of Article 4, a
Member State is obliged to designate a given territory as a SPA where it meets certain requirem ents. Some of these
requirem ents are the presence of species listed in Annex 1 or migrating species or the site has been classified as a
wetland habitat. On the other hand, simply the fact that a given site offers one of the most important habitat for
endangered bird species or just for one single endangered species is suffi cient reason for designating a site as a
34
SPA . Furthermore, the fact that the Court has condemned Spain for not having allocated Marismas de Santoña as
an SPA, demonstrates that Paragraphs 1 and 2 of Article 4 are unambiguous and can be applied by themselves and in
a positive way, so in other words they have direct effect. The Court has actually declared that Paragraphs 1 and 2 in
Article 4 contain objective criteria which have already been applied in the present case on the initiative of the
Commission. This possibility can be effectuated not only by the ECJ but also by national courts on the initiatives of
private clients.
Determining points of the Court’s standpoint in the similar Dutch Dykes case (No. C-3/96) are as follows:
•
The regulation of site designation determined in Paragraph 1 of Article 4 in the Birds Directive is an
obligation that cannot be disregarded by any Member States by implementing different conservation measures
in favour of speci es protection instead.
•
The scope for action when classi fying suitable sites does not enable Member States to fail allocating sites that
are found appropriate for cons ervation of birds based on ornithological criteria. Member States are only
entitled to establish allocating criteria and protection measures on the basis of scienti fic and practical aspects.
•
It is the Important Bird Areas (“IBA”) book of 1989 (revised version published in 2000) that contains the
most suitable sites for designation.
The above outlined cases (No. C-355/90 and 3/96) shed light on an important aspect in connection with allocating
SPAs. The Court has made it clear that it is not enough simply to declare the existence of the sites and their exact
geographical location but a protection system must be put into the fram ework of the regulations and in accordance
with above-mentioned conditions. It has also been stated that no Member States can veri fy the negligence of site
designation by having designated other sites which are in fact important for di fferent species. Article 4 has no
consideration for delayed or gradual application, it shall be applied from the moment the Birds Directive was
enforced.
Ultimately the Court has categorically rejected the possibility of a Member State failing to fulfil requirements
determined in Paragraphs 1 and 2 of Article 4 or applying a narrowed down interpretation of a requi rement by
alluding to economic demands as laid down in Article 2 of the Directive. “ As a consequence of the interpretation
concerning ECJ case No. C-57/89, Member States are not empowered to arbitrarily establish exceptions due to other
interests in the course of applying the Directive. With regard to Article 4 of the Directive, the Court made a direct
and clear allusion to the fact that reasons for establishing exceptions shall be in accordance with general interests
that might be superior to ecological principles determined in the Directive. Interests mentioned of secondary
importance in Article 2 are economic and recreational demands and cannot be taken into consideration in this
35
respect” .
Articles 3-11 of the Habitats Directive include the requirements of: “ a coherent European network” of Special Areas
for Conservation (“SACs”) plus SPAs which shall be established as “ Natura 2000 network”. The process of
designating SACs is significantly different from SPA designation. According to Paragraph 2 of Articl e 3 of the
Habitats Directive “ The Natura 2000 network shall include the special protection areas classified by the Member
States pursuant to Directive 79/409/EEC.” The Habitats Directive did not alter the regulations of SPA designation,
however, it did have a significant practical importance. Although SPA designation is in compliance with the Birds
Directive regul ations, the allocation of Natura 2000 sites is not definitely completed by this step since these sites
33
34
35
ECJ, C -355/90 case.
S tandpoint of the public prosecutor in the case No. C -57/89.
ECJ, case No. C -57/89.
11
might as well become part of the SAC designation process where they meet the criteria determined by the Habitats
Directive.
3.3.3. The protection system to be applied on SPAs (the first sentence of Paragraph 4 of Article 4 of the Birds
Directive)
In the original version of the Birds Directive the first sentence of Paragraph 4 of Article 4 referring to the SPA sites
includes the following: ”In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States
shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in
so far as these would be significant having regard to the objectives of this Article.” These provisions were substituted
by Article 7 of the Habitats Directive to the provisions given in Paragraphs 2, 3 and 4 of Article 6 of the Habitats
Directive, starting from the effectuation of the Habitats Directive or in case it will occur later, starting from the date
of the classi fication or announcement of the Member State of the Birds Directive.
According to Paragraph 2 of Article 6 ”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.” The drafting of the above-m entioned Article differs in a few elem ents from the drafting
of the first sentence of Paragraph 4 of Article 4 of the Birds Directive. First of all the Habitats Directive mentions
only the ”deterioration” of the habitats instead of their ”pollution or deterioration” as it is stated in the Birds
Directive. Probably it can be explained by the fact that pollution can be one form of the deterioration, so it is
suffi cient to mention the result which cannot only be caused by the pollution but by other activities and effects too.
Secondly, and this is a much more important difference compared to the previous regulation, the significance as a
relevance criteria with respect to the Directive can only be applied referring to the significance of the disturbance,
and not to the deterioration of the sites. However, the first sentence of Paragraph 4 of Articl e 4 of the Birds Directive
36
was interpreted by the Court as concerning the significant (pollution or) deterioration of the habitats.
According to Paragraph 3 of Article 6 ”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.”
36
S ee the position of the Advocate concerning the case No. C -57/89.
12
In order to understand Paragraph 4 of Article 6 of the Habitats Directive it needs to be read with respect to the case
law of the Court concerning the first sentence of Paragraph 4 of Article 4 of the Birds Directive. The relevant
decision is the case No. C-57/89 between Germany and the Commission which affected the Council in the
37
acceptance of the Habitats Directive . The United Kingdom also took part in this case as an intervener on the side
of the defendant (Germany). The site of the Wadden Sea in the North Sea was certi fied protected by Germ any as a
Ramsar site in accordance with the Ramsar Convention and as an SPA in accordance with the Birds Directive.
Afterwards, dredged mud was unloaded onto the site called Nacken in the Wadden Sea in order to increase the
altitude of the site. In Leybucht, in a bay of 2,800 ha of extension, the German government in 1985 decided to
enlarge the existing barrage. The operations began in 1986. The Commission objected to both plans.
Because of the works, the area of the SPA site decreased and disturbance was temporarily caused on the site. The
Court explained that significant pollution, demolition or disturbance could be justifiable only in exceptional cases
with respect to the first sentence of Paragraph 4 of Articl e 4. In such cases justification is adequate only if it is based
upon a general interest which is superior to the general interest represent ed by the ecological objective of the
38
Directive . Therefore, other criteria defined in Article 2 of the Birds Directive, such as economic and recreational
39
criteria cannot be seen as overruling ecological criteria . (See cases C-247/85 and C-262/85 against Spain and
Belgium). In the case the Court had not questioned whether the enhancement of the barrage was necessary for the
sake of the people living behind the barrage and whether this had been the purpose of the project. The Court
accepted this as a sufficiently serious reason. There was clear evidence that the defence of the coastal path was not
the only relevant element for defining the line of the barrage but it had also been taken into consideration to ensure
that there was a path for fishing-boats to reach the near ports. Although this economic interest cannot justify the
project in the first place, the Court accepted the secondary function of this interest in defining the line of the barrage
becaus e a part of the project had significant positive effects on the habitat of birds, which according to the judgement
40
of the Court could be considered as supplement to the ”ecological benefits” .
Returning to Paragraph 4 of Article 6 of the Habitats Directive, the statement made there concerning the interest to
be taken into consideration ”either of social or economic nature” was inverted into a possibility with which a project
41
with adverse effects can be justifi ed . However, in such a case a number of prohibitive conditions exist:
First, the reasons for the project need to be of ”overriding public interest”, which cannot differ from those reasons
defined by the Court which are ”based upon a general interest which is superior to the general interest represented
by the ecological objective of the Directive.”
Secondly, the reasons and causes need to be ”dogmatic” (cogent and compulsive) and there has to be an absence of
alternative solutions.
Deterioration and disturbance shall be confined to the minimum.
Thirdly, if the site hosts a priority habitat or species, the Member State has to consult the Commission.
Fourthly, compensatory measures are required.
37
38
39
40
41
S ee D. B adcock, Journal of Environm ental Law, 1992, p 142-144.
"T hose grounds m ust correspond to a general interest which is superior to the general interest represented by the ecological
objective of the Directive" (see the point 22. of the verdict).
In that context the interest represented to in Article 2 of the Directive, nam ely economic and recreational requirem ents, do not
enter into consideration.
"Offsetting ecological benefit".
S ee the case No. C -355/90.
13
It is worth making a few additional comments on the analysis of the provisions of the Birds Directive and the
Habitats Directive. These provisions shall not only be applied to existing SPAs, but also to those, which need to be
designated with respect to Paragraphs 1 and 2 of Article 4 of the Birds Directive, but the Member State has not
42
designated them yet .
For achieving the obligations of Paragraph 2 of Article 6 as well as for financing the necessary measures, every
Member State is liable on the SPA sites (and on sites to be assigned) in its territory. These statements originate from
the decision No. C-355/90 of the Court. Spain has not ceased polluting the flows of Santoña with wastewater from
nearby settlements, although the site itself should have been assigned as an SPA site. The Court had condemned
Spain because it infringed the regulations of Paragraph 4 of Article 4 of the Birds Directive. Spain based its defence
on the fact that the flood control would have been too expensive and that the EU had disapproved its application for
structural funds. However, this did not protect Spain from being condemned by the Court.
Paragraph 2 of Article 6 of the Habitats Directive obligates Member States to take necessary measures in order to
avoid ”deterioration” and ”disturbance”, this drafting is the same as that in the first sentence of Paragraph 4 of
Article 4, so the relating decisions are still effective.
Finally, it should be noted that the provisions of Paragraphs 2, 3 and 4 of Article 6 of the Habitats Directive should
be applied directly on Member States. As mentioned above, concerning the cases C-57/85 and C-355/90 the Court
has explained that the first sentence of Paragraph 4 of Article 4 is sufficiently clear and objective to be applied alone
43
to certain cases . The mentioned provisions of the Habitats Directive do not differ from this point of view.
3.3.4. Further obligations concerning bird habitats
Paragraph 1 of Article 3 of the Birds Directive includes the following provision: ”In the light of the requirements
referred to in Article 2, Member States shall take the requisite measures to preserve, maintain or re-establish a
44
sufficient diversity and area of habitats for all the species of birds referred to in Article 1” .
In this question, as far as we know, there is no case law precedent. In case C-355/90 the complaint was based upon
both Articles 3 and 4. The Court explained that Article 3 refers to all species of wild birds while Article 4 only refers
to the species listed in Annex I and to other migrant bird species. In the case in question it was verifiable that the site
hosts both groups of species, so the Court determined that “it was sufficient to analyse the objectives of the
Commission referring to Article 4 of the Directive.” This statement should be read as follows: “ there was no need to
refer to Article 3, it was sufficient for the Commission to base its complaint directly on Article 4 so that Spain be
condemned by the Court. This decision does not mean that Article 3 cannot be applied to the SPAs or to the species
”45
listed in Annex I .
The second sentence of Article 4 includes the following: ”Outside these protection areas, Member States shall also
strive to avoid pollution or deterioration of habitats.” This statement imposes too big a discretionary right on
46
Member States, so it cannot be applied directly . However, the direct application of Article 3 should not be
excluded.
42
43
44
45
46
C ase No. C -355/90.
C ase No. C -57/89.
P aragraph 2 of Article 3 lists those four activities which need to get priority: the configuration of reserved areas, the
m aintenance and m anagem ent of the ecological needs of the habitats interior and exterior to the sites reserved, the
reconstruction of the dem olished biotopes and the configuration of biotopes.
P osition of Van Gerven Advocate concerning the case No. C -57/89.
Kräm er, p. 29 and 46
14
3.4. Protection of species (Articles 5-9)
3.4.1. The general system of protection (Article 5)
Member States were requi red by the Court to implement down-the-line the obligations listed in Article 5 to their
national legislation: “Member States have to create frameworks of law which support the implementation of this
Article of the Directive to their national law, and they have to ensure the working of the implemented rules as well;
on the other hand the fact that in a certain Member State the prohibitions listed in the Directive are unknown cannot
47
confirm that the Member State does not create the appropriate frameworks of law for the prohibition” .
3.4.2. Hunting (Article 7) (Case 157/89, Case C-435/92, Case C-38/99, Case C-182/02)
The first sentence of Paragraph 1 of Articl e 7 of the Birds Directive includes the following: ”the species listed in
Annex II may be hunted under national legislation”. Articles 2 and 3 distinguish the species which can be hunted on
the territory of all Member States – species listed in Annex II/1 – and species which can only be hunted in Member
48
States where it is indicated. For the hunting of all other species the prohibition of Article 5 should be respected .
49
Derogation (exemption) is possible only according to Article 9 .
The Court interpreted Paragraph 4 of Article 7 during its decision in case C-435/92 that the starting and closing dates
for hunting should be defined according to such a method which guarantees the complete protection of species in
their period of reproduction (including the breeding of the fledglings as well) and in the period of migration. The
method whose objective or result is to support the hunting of a certain percentage of the bird species despite the
50
requirem ents mentioned does not correspond to the Birds Directive .
Complete and effective protection concerning the hunting season means that the hunting period should be timed so
51
that the protecting system has priority and includes all birds of the species . This means in practice that the starting
and closing dates for hunting should be defined according to a method which ensures that the protection covers all
52
bird species and, within one species, all independent or returning birds to their site of breeding . It is important to
note, concerning the closing date for the hunting season, that the national authorities do not have the means to define
the closing date so that it should be different for each species of bird. This could only be possible if the Member
State gives scientific or practical evidence of the fact that it does not contrast with the complete protection
53
54
principle . The principle, which was defined by the Court in the case against the Belgian Kingdom seems to be
very interesting. According to this principle, Member States need to confirm (concerning the bird species to be
hunted listed in Annex II of the Birds Directive) that the total population, the dispersion and the reproductive time
are of a certain scale so that species in danger are excluded.
The Court’s position concerning the closing date for hunting is that the national authorities do not have the right to
define the closing dates dependent from the bird species. Unless the Member State gives scientific or practical
55
evidence of the fact that this periodic closing does not contrast with the complete protection principle .
3.4.3. Hunting methods (Article 8)
47
48
49
50
51
52
53
54
55
C ase No. C -338/87.
The C ourt condem ned B elgium because it created an ambiguous situation of law by not excluding the possibility to hunt the
species not listed in Annex II. The B elgian law defines the species not listed as ”gam e” too, but they cannot be hunted without
the permission of the relevant authorities which assigns every year the season of hunting for the certain species. (C ase No.
247/85).
ECJ, C ase No. C -252/85.
ECJ, point 13 of case No. C -435/92; The C ourt dismissed the F rench practice which defined the closing date for hunting of
waterfowls and species migrant for the tim e the "migration can be regarded as significant", which m eans it is relevant for 10%
of the birds.
“ (… ) protection against hunting activities cannot be confined to the majority of the birds of a given species, as determined by
average reproductive cycles and migratory movements”.
As the C ourt said: “ It would be incompatible with the objectives of the Directive if, in situations characterised by prolonged
dependence of the fledglings on the parents and early migration, part of the population of a given species should fall outside
the protection laid down”. S ee C -157/89 case of law: C ommission versus the Italian R epublic. P aragraph 14.
“ As regards the staggering of closing dates for hunting, it must be borne in mind that the national authorities are not
empowered by the Birds Directive to lay down dates which vary according to species of birds, unless the Member States
concerned can adduce evidence, based on scientific and technical data relevant to each individual case, that staggering the
closing date for hunting does not impede the complete protection of species of birds liable to be effected by such staggering”
C -38/99 case of law: Comm ission versus the F rench R epublic. P aragraph 43.
C -247/85 case of law.
S ee the case No. C -38/99 C ommission versus the F rench R epublic.
15
The Court explained concerning Article 8 “ that the prohibitions shall be introduced as compulsory provisions to the
national law in accordance with the principle of assurance”. The fact that practice inconsistent with the Directive
56
does not cover the prohibitions mentioned, does not exempt the Member State from its obligation. It should also be
noted that the list in Annex IV(a) is of illustrative nature which means that those procedures and methods whose
purposes are other than hunting birds can also be included in Paragraph 1 of Article 8 if they are likely to cause the
local disappearance of wild birds.
3.4.4. Exemptions (Article 9) (Case 262/85, Case 339/87, Case C-118/94, Case C-149/94, Case C-10/96, Case C159/99, Case C-117/00)
Article 9 authorises Member States to depart from the provisions of Articles 5, 6, 7 and 8. This possibility depends
on three criteria: First, Member States have to restrain derogations (exemptions) to situations where no alternative
solutions exist. Secondly, exemptions must be based upon one of the reasons listed in points (a), (b) or (c) of Article
9, (this list is exclusive). Thirdly, exemptions must be in the precise form given in Paragraph 2 of Article 9. Formal
conditions must be respected in order to restrain exemptions to indispensable cases and to support the examination
of the Commission. However, Article 9 authorises a wide range of exemptions from the general protection system, so
57
it is necessary to proceed according to the precise requirements and to the situation in question .
58
The reasons upon which exemptions are based cannot be general objectives of agriculture, silviculture or fishing .
59
These do not have either historic or cultural traditions . Article 2 of the Directive cannot be used to complete the list
given in Article 9 without further reasons. Among the reasons listed the one which cannot be understood easily is
under the point c): ”to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or
other judicious use of certain birds in small numbers”. The Court explained that “the small number criteria is not an
absolute criteria but refers to the sustainable level of the total population and to the reproductive situation of the
60
61
species in question” , and the small number has to be specified for each speci es . Finally, it should be mentioned
that point c) of Paragraph 1 of Article 9 does not allow the exemption from the provisions given in Paragraph 1 of
62
Article 8 because the condition mentioned in Article 9 is upon a selective basis .
56
57
58
59
60
61
62
C ase No. ECJ, C -339/87.
ECJ, cases No. C -247/85 and C -262/85, but Article 9 was applied to m any other cases (C -236/85, C -252/87 and C -339/87) as
well by the C ourt and the national courts.
ECJ, verdict in the case No. C -412/85, "serious dam age to the agriculture, forests, water farm s and water”, should be seen as a
gravity criteria, see cases No. C -247/85 and a 236/85.
ECJ, case No. C -236/85.
ECJ, case No. C -252/85.
C onseil d'Etat (B elgium ), case No. 31.573 LBPO/R égion W allonne, 9. Decem ber 1988.
C onseil d'Etat (F rance), case No. 91.974, 26. October 1990.
16
63
Article 9 does not refer to any social or collective consultation concerning the exemption . Paragraph 3 of Article 9
64
obligates Member States to send their annual report to the Commission about the application of the Article .
3.4.5. Direct impact/effect
The provisions given in Articles 5, 6, 7, 8 and 9 of the Birds Directive can all be applied directly. The commercial
prohibitions (Article 6), the hunting of species not listed in Annex I (Article 5 and 7), hunting in the reproductive
period (Paragraph 4 of Articl e 7), non-selective hunting methods (Article 8) as well as the other provisions of Article
65
5 are all clear, unambiguous and sufficiently operative to be applied directly by the national courts .
These conclusions do not alter the fact that Member States have the ability to introduce exemptions according to
Article 9. As mentioned above the provisions of Article 9 include several requi rements which restrain exemptions to
66
indispensable cases. These requirements can all be applied directly as well . All exemptions, that do not meet the
requirem ents of Article 9 shall be abolished and the provisions of Articles 5-8 shall substitute them by being applied
67
directly .
3.5. Closing provisions
Articles 10-19 of the Birds Directive include several closing provisions. In this document only Articles 13 and 14
are considered (as they are about the stricter national protecting provisions), and Article 18, which explains the
application and validation of the provisions of the Directive.
3.5.1. Stricter protecting provisions in the national law (Articles 13 and 14)
According to Article 14: ”Member States may introduce stricter protective measures than those provided for under
this Directive.” In 1990, the Court decided upon ”assigning the power (based upon this Article) of the Member
States.” It explained that the Birds Directive authorises Member States to introduce stricter national protecting
provisions concerning the migrant species and those listed in Annex I in order to protect them more effectively.
Concerning other species, Member States do not have the authority to introduce stricter national protecting
provisions than given in the Birds Directive. This excludes the wild species covered by the Directive which naturally
occur in the territory of Member States. The Court excluded the possibility of Member States increasing protection
levels compared to the level of the Directive of those species, which are neither migrant nor listed in Annex I.
63
64
65
66
67
C onseil d'Etat (B elgium ), case No. 36.467; Naturally the national law can order a certain level of publicity but Article 3 of EU
Directive No. 90/313 about accessing environm ental inform ation orders that the national authorities have to m ake exem ptions
concerning Article 9 of the B irds Directive attainable for natural and legal persons for their application without them having to
prove their relative interests.
When accepting the Birds Directive the C ouncil objected the proposal in which the C ommission would have had an approving
function for the provisions of Article 9 (ex ante); see the first and second programm es of the Comm ission and the attitudes of
the P arliam ent.
S ee L. Kräm er.
S ee the concerning decisions in the footnote 71.
The direct im pact of Articles 5-9. was recognised by several highest national (adm inistrative) courts (e.g. in F rance, in
Netherlands and in B elgium ): Conseil d'Etat (F rance), 7 December 1984, case No. 41.971; Afdeling R echtspraak R aad van
S tate (Netherlands), 6 M arch 1986, C.A-1.0511; C onseil d'Etat (B elgium ) 9 December 1988, case No. 31.573; in 1991 the
suprem e Italian adm inistrative court refused the direct application of the B irds Directive (27 F ebruary 1991), C -100
WWF/Regione M arche. The incorrect case was comm ented by R. C aranta és C. Di P aolo, Rivista italiana di dritto pubblico
com unitario, 1992, 508 and 524.
17
It turned out that according to Paragraphs 2 and 3 of Article 6 of the Birds Directive and to Annex III/1, the
Netherlands cannot prohibit the commercial use of the woodcock on its own territory (this species does not have a
68
habitat in the Netherlands) even though this species is legally destroyed in the territory of the United Kingdom .
According to Article 13 ”Application of the measures taken pursuant to this Directive may not lead to deterioration
in the present situation as regards the conservation of species of birds referred to in Article 1”. The existing
situation originally meant the conditions of 2 April 1979 but referring for example to Hungary the expression means
the conditions at the time of adhesion. This provision is also supported by a decision of the Hungarian Constitutional
69
Court .
3.5.2. Application and validation
Article 18 orders Member States to ”bring into force the laws, regulations and administrative provisions necessary
to comply with this Directive within two years of its notification.” For the accession countries, this provision will take
effect at adhesion. That means that regulations have to answer the mentioned requirements and laws must be in
practice by then.
70
It should be noted that the application and validation of the Birds Directive has always been problematic .
Approximately 28 questions were brought before the Court by the Commission. In more than two thirds of these
cases, Member States were condemned.
More than 500 questions were sent to the Commission from the European Parliament concerning the Birds Directive.
These referred mostly to the wrong-doing of Member States. In some Member States (e.g. France, Belgium and the
Netherlands ), national courts bore a significant part in validating the Birds Directive, most of the cases concerned the
regulations in Articles 5-9. This means that the national courts of the accession countries have to prepare themselves
for these cases because as we have already mentioned some Articles of the Birds Directive can be applied directly to
the national courts.
Further issues highlighted in the Case Law:
1.
2.
3.
4.
68
69
70
Evidence (Case 157/89, Case C-166/97.
Environmental Impact Assessment (Case 256/98.
Duality of Birds Directive and Habitats Directive (Case 374/98).
Applications for adoption of Interim Measures (Cas e 57/89R).
ECJ, case No. C -169/89.
AB (Tv): 28/1994. (V. 20) AB decision.
C omparing to the EU practice on the application and validation of law m ore problem s cam e up than the average concerning the
B irds Directive, see R . M acrory: The enforcem ent of Comm unity environm ental law: som e critical issues.
18
4.
’Judicial Acquis’
The first and most important principle, which may be considered jus cogens (interpretation in a strict narrower sense)
with respect to the protection of birds is the transposition of the Birds Directive. Concerning the implementation of
71
the Directive the Court has stated several times that it should be a faithful transposition because wild birds have to
be considered as part of the common heritage of the world. This is the first principle elaborated by the Court to
which the decisions of the 1980s refer. It can be observed that the task of developing the law was undertaken by the
Court in this time. The principle of ”complete and effective protection” can be considered as jus cogens as well.
72
This was firstly elaborated in two cases against France and Italy . As we have explained above this principle
consists of several elements. The “secondary principles” originate from here. There exist such procedures which do
not affect exclusively the sector of bird protection but to which the Court refers frequently in the lawsuits. These
principles and norms elaborated by the Court constitute collectively the so called “judicial acquis”. This “judicial
acquis” will be presented in the further part of this document by the case law of the court.
Prepared by Zsolt Szilvácsku and Remo Savoia Ubrizsy
Based on the following documents:
Website of the European Court of Justice – http://curia.eu.int/en/instit/presentationfr/cj e.htm
17 Wouter P.J. Wils (1994), 'T he Birds Directive 15 Years Later: A Survey of the Case Law and a Comparison with
the Habitats Directive', Journal of Environmental Law, 6, pp. 219-42.
Heidinger, Franz J.: Introduction to the law and language of the European Union / von Franz J. Hiedinger; Andrea
Hubalek; Michael Pramberger. – 2., überarb. Und erw. Aufl. – Wien: Orac, 1998
71
72
C ase of law C -252/85: the Comm ission versus the F rench R epublic; C ase of law C -262/85: the C ommission versus the Italian
R epublic; C ase of law C -247/85: the Comm ission versus the B elgian Kingdom ; C ase of law C -236/85: the Comm ission versus
the Dutcher Kingdom . “ The transposition of a Directive into national law does not necessarily require the provisions of the
Directive to be enacted in precisely the same words in a specific, express legal provision; a general legal context may be
sufficient if it actually ensures the full application of the Directive in a sufficiently clear and precise manner. However, a
faithful transposition becomes particularly important in a case such as the transposition of Directive 79/409 concerning the
conservation of wild birds in which the management of the common heritage is entrusted to the Member States in their
respective territories.”
“ The importance of complete and effective protection of wild birds throughout the Community, irrespective of the areas they
stay in or pass through, causes any national legislation which delimits the protection of wild birds by reference to the concept
of national heritage to be incompatible with the Directive.” C ase of law C -252/85: the Comm ission versus the F rench
R epublic P aragraph 15. “ The Directive is based on the consideration that effective bird protection, and in particular
protection of migratory species, is typically a transfrontier environment problem entailing common responsibilities for the
Member States” C ase of law C -262/85: the Comm ission versus the Italian R epublic, § 6.
19
OVERVIEW TABLE OF CASES RELEVANT TO THE
DIRECTIVE
20
NATURE
JUDGMENT
Directive
Case Number
Parties
Conclusion
Operational Part of the Judgment
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case 236/ 85
and Case
247/85 under
Article 169
(now 226) of
the EEC Treaty
Commission of the
European
Communities,
(applicant) v
Kingdom of the
Netherlands
(defendant)
On those ground THE COURT hereby:
Conclusion Summary
(1) Declares that, by not adopting within the
prescribed period all the laws, regulations and
administrative provisions needed to comply with
Council Directive 79/409/EEC of 2 April 1979 on
the conservation of wild birds, the kingdom of
the Netherlands has failed to fulfil its obligations
under the EEC Treaty.
The transposition of a Directive into national law does
not necessarily require the provisions of the Directive to
be enacted in precis ely the same words in a specific,
express legal provision of national law; a general legal
context may be suffici ent if it actually ensures the full
application of the Directive in a sufficiently clear and
precise manner. However, a faithful transposition
becomes particularly important in a case such as the
transposition of Directive 79/ 409 concerning the
conservation of wild birds in which the management of
the common heritage is entrusted to the member states
in their respective territories. Moreover, the court said
that Directive 79/409 seeks to establish a general system
of protection for all birds species, although for certain
species listed in Annex II of the Directive hunting is
allowed and national authorities are obliged to guarantee
that only those species are hunted. To be legally
founded under the Directive a derogation must comply
with the formal requirem ents and the criteria and
conditions laid down in the respective article of the
Directive.
Commission of the
European
Communities
(applicant) v
Kingdom of
Belgium
(defendant)
(2) Orders the Kingdom of Belgium to pay the costs.
The Court held similarly in a separate hearing
against the Kingdom of Belgium.
21
NATURE
JUDGMENT
Directive
Case Number
Parties
Conclusion
Operational Part of the Judgment
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case 252/85
under Article
169 (now 226)
of the EEC
Treaty
Commission of the
European
Communities
(applicant) v
French Republic
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that, by not adopting within the
prescribed period all the laws, regulations and
administrative provisions needed to comply with
Council Directive 79/409/EEC of 2 April 1979 on
the conservation of wild birds, the French
republic has failed to fulfil its obligations under
the EEC Treaty.
The complete protection principle is reaffirm ed,
speci fying its application and extension. An
uninterrupted protection of the birds’ habitat is
necess ary and suspension of protection for part of the
year is not compatible with the Directive. The
provisions of the Directive must be expressly embodied
in national law for complete and effective protection of
birds. The protection of migratory species is a
trans frontier environm ental problem and each Member
State must provide complete protection to all species of
birds living in the EC territory, even if some species do
not live in the territory. National legislation which
restricts the protection of birds by referring to national
heritage is incompatible with the Directive.
(2) Orders each party to bear its own costs.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Council Directive
79/409/EEC of
2 April 1979 on
conservation of
wild birds
Case 262/85
under Article
169 (now 226)
of the EEC
Treaty
Case 412/85
under Article
169 (now 226)
of the EEC
Treaty
Commission of the
European
Communities
(applicant) v
Italian Republic
(defendant)
Commission of the
European
Communities
(applicant) v
Federal Republic
of Germany
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that, by not adopting within the
prescribed period all the laws, regulations and
administrative provisions needed to comply with
Council Directive 79/409/EEC of 2 April 1979 on
the conservation of wild birds, the Italian
Republic has failed to fulfil its obligations under
the EEC Treaty.
(2) Orders each party to bear its own costs.
The conditions to derogate to Directive 79/409
provisions are limited. National legislation may not
extend the list of bird species that may be hunted, found
in Annex II of the Directive. The Directive does allow
Member States to derogate from the general schem e of
protection, but derogation must comply with the three
conditions laid down in Article 9 of the Directive.
These conditions are necessary to ensure that derogation
is applied in a selective and strictly controlled manner.
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that by authorizing in Paragraph 22 (3)
of the Bundesnaturschutzgesetz derogations
from the measures for the protection of birds
provided for by Council Directive 79/409/EEC of
2 April 1979 on the conservation of wild birds,
the Federal Republic of Germany has failed to
The obligation of each Member State to interpret its
national law in the light of the wording and purpose of
the Directive does not affect the obligation imposed on
the other authorities of that Member State (particularly
the legislature) to adopt all measures that are necessary
to ensure compliance with Community rule.
22
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
fulfil its obligations under the EEC Treaty.
(2) The Federal Republic of Germany is ordered to
bear the costs.
Council Directive
79/409/EEC on
2 April 1979 on
conservation of
wild birds
Case 339/87
under Article
169 (now 226)
of the EEC
Treaty
Commission of the
European
Communities
(applicant) v
Kingdom of
Netherlands
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that by failing to bring into force within
the prescribed period all the laws, regulations
and administrative provisions necessary to
comply with the provisions of Council Directive
79/409/EEC of 2 April 1979 on the conservation
of wild birds, the Kingdom of the Netherlands
has failed to fulfil its obligations under the EEC
Treaty.
(1) It may be sufficient for the general legal context of a
Directive to be transposed into national law if this
ensures the full application of the Directive in a
clear and precise manner. For example, this may
include where a Directive is transposed by
legislative provision. Mere administrative practices
would not constitute sufficient transposition.
(2) Orders the Kingdom of the Netherlands to pay
the costs.
(2) There must be a faithful transposition of the
Directive. Derogations from the general provisions
laid down in the Directive to protect wild birds must
meet the criteria of Article 9(1) and 9(2) of the
Directive. This limits derogations to what is
necess ary and enables any derogations to be
supervised by the Commission.
(3) The principle that the relevant prohibitions inherent
in the Directive must be transposed into national
law applies even where hunting (which is prohibited
by the Directive) is unknown to the Member State.
Council Directive
79/409/EEC on
2 April 1979 on
conservation of
wild birds
Case 57/89
under Article
169 (now 226)
of the EEC
Treaty
Commission of the
European
Communities
(applicant) v
Federal Republic
of Germany
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Dismisses the application.
(1) Member States have a discretion as to which
territories are most suitable for classi fi cation as
Special Protection Areas (pursuant to Article 4(4) of
the Directive), but this discretion does not extend to
the power of Member States to modify or reduce the
extent of those areas.
(2) Orders the Commission to pay the costs,
including the costs of the intervener and those
relating to the application for interim measures.
23
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
(2) Member States can only reduce the extent of Special
Protection Areas i f there are exceptional grounds
corresponding to a general interest which is greater
than the general interest inherent in the ecological
objective of the Directive. The economic and
recreational requi rements mentioned in Article 2 of
the Directive do not come into consideration
becaus e that provision does not constitute an
autonomous derogation from the system of
protection provided in the Directive.
Council Directive
79/409/EEC on
2 April 1979 on
conservation of
wild birds
Case 57/89R
under Article
186 of the EEC
Treaty and
Article 83 of
the Rules of
Procedure
Commission of the
European
Communities
(applicant) v
Federal Republic
of Germany
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) The application for interim measures is rejected.
Applications for the adoption of interim measures must,
in accordance with Article 83(2) of the Rules of
Procedure, state the circumstances giving rise to
urgency and the factual and legal grounds establishing a
prima-facie cas e for the interim measures. The
submitted evidence and the history of the events are
indications of whether a party meets the criteria of
urgency.
Case 157/89
under Article
169 (now 226)
of the EEC
Treaty
Commission of the
European
Communities
(applicant) v
Italian Republic
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that, by authorising the hunting of
various species of birds during the rearing season
and the various stages of reproduction and of
various migratory species during their return to
their rearing grounds, the Italian Republic has
failed to fulfil its obligations under Council
Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds.
(1) The principle of “ complete protection” is “the
second and third sentences of Article 7(4) of the
Directive [which] are designed to secure a complete
system of protection in the periods during which the
survival of wild birds is particularly under threat ”.
(2) Costs are reserved.
(2) Orders the Italian Republic to pay the costs.
24
(2) This principle means that protection against hunting
activities cannot be confined to the majority of the
birds of a given species, as determined by average
reproductive cycles and migratory movements. It
would be incompatible with the Directive if part of
the population of a given species should fall outside
the protection laid down.
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
(3) National law which declares the hunting of certain
species open in principle, without prejudice to
provisions to the contrary laid down by the regional
authorities, does not satisfy the requirements of
protection laid down by the Directive.
(4) On the nature of evidence that can be adduced to
support a claim, an applicant may refer to
ornithological works dealing with a general area of
distribution which includes that Member State
where there is no specific literature available
relating to the territory of the Member State.
Council Directive
79/409/EEC on
2 April 1979 on
conservation of
wild birds
Case C-334/89
under Article
169 (now 226)
of the EEC
Treaty
Commission of the
European
Communities,
applicant, v Italian
Republic,
defendant
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that by failing to adopt within the
prescribed period the measures needed to
implement in national law Commission Directive
85/411/EEC of 25 July 1985 amending Council
Directive 79/409/EEC on the conservation of wild
birds, the Italian Republic has failed to fulfil its
obligations under the EEC Treaty.
(1) This case reaffirms the principle that the
transposition of a Directive into national law does
not necessarily require the provisions of the
Directive to be enacted in precis ely the same words
in a specific, express legal provision of national law.
A general legal context may be sufficient i f it
ensures the full application of the Directive in a
suffi ciently clear and precise manner.
(2) Orders the Italian Republic to pay the costs.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-355/90
under Article
169 (now 226)
of the EEC
Treaty
Commission of the
European
Communities,
(applicant) v
Kingdom of Spain
(defendant)
(2) A faithful transposition becomes particularly
important in a case such as the transposition of
79/409/EEC Wild Birds Directive in which the
management of the common heritage is entrusted to
the member states in their respective territories.
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that, by not classifying the Santoña
marshes as a special protection area and by not
taking appropriate steps to avoid pollution or
deterioration of habitats in that area, contrary to
(1) Articles 3 and 4 of Directive 79/409 on the
conservation of wild birds require Member States to
preserve, maintain and re-establish the habitats of
the said birds as such, because of their ecological
25
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
the provisions of Article 4 of Council Directive
79/ 409/ EEC of 2 April 1979 on the conservation
of wild birds, the Kingdom of Spain has failed to
fulfil its obligations under the EEC Treaty.
Council Directive
Case 75/91
Commission of the
value. The obligations on Member States under
those articles exist even before any reduction is
observed in the number of birds or any risk of a
protected speci es becoming extinct has materialized.
2. Orders the Kingdom of Spain to pay the costs.
(2) In implementing Directive 79/409 on the
conservation of wild birds, Member States are not
authorized to invoke, at their option, grounds of
derogation based on taking other interests into
account. With respect, more specifi cally, to the
obligation to take special conservation measures for
certain speci es under Article 4 of the Directive, such
grounds must, in order to be acceptable, correspond
to a general interest which is superior to the general
interest repres ented by the ecological objective of
the Directive. In particular, the interests referred to
in Article 2 of the Directive, namely economic and
recreational requi rements, do not enter into
consideration, as that provision does not constitute
an autonomous derogation from the general system
of protection established by the Directive.
(3) In choosing the territories which are most suitable
for classi fication as special protection areas
pursuant to Article 4(1) of Directive 79/409 on the
conservation of wild birds, Member States have a
certain discretion which is limited by the fact that
the classification of those areas is subject to certain
ornithological criteria determined by the Directive,
such as the presence of birds listed in Annex I to the
Directive, on the one hand, and the designation of a
habitat as a wetland area, on the other. However,
Member States do not have the same discretion
under Article 4(4) of the Directive to modify or
reduce the extent of such areas.
On those grounds, THE COURT hereby:
Conclusion Summary
26
NATURE
JUDGMENT
Directive
Case Number
Parties
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
under Article
169 (now 226)
of the EEC
Treaty
European
Communities
(applicant) v
Kingdom of the
Netherlands
(defendant)
Conclusion
Operational Part of the Judgment
(1) Declares that by failing to adopt the measures
required to comply with the judgment of the
Court of Justice of 13 October 1987, the
Kingdom of the Netherlands has failed to fulfil
its obligations under Article 171 of the EEC
Treaty
The immediate and uniform application of Community
law requires that the process of complying with a
judgement be initiated at once and completed as soon as
possible.
(2) Orders the Kingdom of the Netherlands to pay
the costs.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case 345/92
under Article
169 (now 226)
of the EEC
Treaty
Commission of the
European
Communities
(applicant) v
Federal Republic
of Germany
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that, by failing to adopt the laws,
regulations and administrative provisions
necessary to comply with the judgment of the
Court of Justice of 17 September 1987 in Case
412/85, and hence necessary for the full
implementation of Council Directive 79/409/EEC
of 2 April 1979 on the conservation of wild birds,
the Federal Republic of Germany has failed to
fulfil its obligations under the EEC Treaty.
The immediate and uniform application of Community
law requires that the process of complying with a
judgement be initiated at once and completed as soon as
possible.
(2) Orders the Federal Republic of Germany to pay
the costs.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-435/92
under Article
177 (now 234)
of the EEC
Treaty
Association pour
la Protection des
Animaux Savages
and Others v
Préfet de Maineet-Loire, Préfet de
la LoireAtlantique
On those grounds, THE COURT, in answer to the
questions referred to it by the Administrative Court
of Nantes by judgments of 17 December 1992, hereby
rules:
(1) Pursuant to Article 7(4) of Council Directive
79/409/EEC of 2 April 1979 on the conservation
of wild birds, the closing date for the hunting of
migratory birds and waterfowl must be fixed in
accordance with a method which guarantees
complete protection of those species during the
27
Conclusion Summary
Pursuant to Article 7(4) of Council Directive
79/409/EEC of 2 April 1979 on the conservation of wild
birds, the closing date for the hunting of migratory birds
and waterfowl must be fixed in accordance with a
method which guarantees complete protection of those
species during the period of pre- mating migration.
Methods whose object or effect is to allow a certain
percentage of the birds of a speci es to escape such
protection, such as those consisting in fixing the closing
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
period of pre- mating migration. Methods whose
object or effect is to allow a certain percentage of
the birds of a species to escape such protection do
not comply with that provision.
(2) It is incompatible with the third sentence of
Article 7(4) of the Directive for a Member State
to fix closing dates for the hunting season which
vary according to the species of bird, unless the
Member State concerned can adduce evidence,
based on scientific and technical data relevant to
each individual case, that staggering the closing
dates for hunting does not impede the complete
protection of the species of bird liable to be
affected by such staggering.
(3) On condition that complete protection of the
species is guaranteed, the fixing of closing dates
which vary between the different parts of the
territory of a Member State is compatible with
the Directive. If the power to fix the closing date
for the hunting of migratory birds is delegated to
subordinate authorities, the provisions which
confer that power must ensure that the closing
date can be fixed only in such a way as to make
possible complete protection of the birds during
pre- mating migration.
28
date for hunting by reference to the period during which
migratory activity reaches its highest level, or those
taking into account the moment at which a certain
percentage of birds have started to migrate, or those
consisting in ascertaining the average date of the
commencem ent of pre-mating migration, accordingly do
not comply with that provision. It is incompatible with
the third sentence of Articl e 7(4) of the Directive,
concerning migratory species in particular, for a
Member State to fix closing dates for the hunting season
which vary according to the species of bird, unless the
Member State concerned can adduce evidence, based on
scientifi c and technical data relevant to each individual
case, that staggering the closing dates for hunting does
not impede the complete protection of the species of
bird liable to be affected by such staggering. The fixing
of closing dates which vary between the different parts
of the territory of a Member State is compatible with the
Directive on condition that complete protection of the
species is guaranteed. If the power to fix the closing
date for the hunting of migratory birds is delegated to
subordinate authorities, the provisions which confer that
power must ensure that the closing date can be fixed
only in such a way as to make possible complete
protection of the speci es during pre- mating migration.
NATURE
JUDGMENT
Directive
Case Number
Parties
Conclusion
Operational Part of the Judgment
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-118/94
under Article
177 (now 234)
of the EEC
Treaty
Associazione
Italiana per il
World Wildlife
Fund, Ente
Nazional e per la
Protezione
Animali, Lega per
l'Ambiente
Comitato
Regionale, Lega
Anti Vivisezione
Delegazione
Regionale, Lega
per l'Abolizione
States to della
Caccia,
Federnatura
Veneto, Italia
Nostra Sezione di
Venezia v Regione
Veneto
On those grounds, THE COURT (Fifth Chamber), in
answer to the question referred to it by the Tribunale
Amministrativo Regionale per il Veneto, by order of
27 May 1993, hereby rules:
Conclusion Summary
(1) Article 9 of Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds is to
be interpreted as meaning that it authorizes the
Member States to derogate from the general
prohibition on hunting protected species laid
down by Articles 5 and 7 of the Directive only by
measures which refer in sufficient detail to the
factors mentioned in Article 9(1) and (2).
(1) Pursuant to the division of judicial functions
between national courts and the Court of Justice
provided for by Article 177 of the Treaty, the Court
gives preliminary rulings where the questions
referred concern the interpretation of a provision of
Community law without, in principle, having to
look into the circumstances in which the national
courts were prompted to submit questions and
envisage applying the provision of Community law
which they have asked the Court to interpret. The
matter would be different only if it were apparent
either that the procedure provided for in Article 177
had been misused and was in fact being used to
have the Court give a ruling when there was no
genuine dispute or that the provision of Community
law referred to the Court for interpretation was
manifestly incapable of applying.
(2) Article 9(1) of Directive 79/409 on the conservation
of wild birds, which provides for the possibility for
the Member derogat e from the general prohibition
on hunting protected species laid down in Articles 5
and 7 of the Directive where there is no other
satisfactory solution and for one of the reasons
listed exhaustively therein, and Article 9(2), which
defines the precise formal conditions for such
derogations, must be interpreted as authorizing the
Member States to grant those derogations only by
measures which refer in sufficient detail to the
factors mentioned in Article 9(1) and (2). In a
sphere in which the management of the common
heritage is entrusted to the Member States in their
respective territories, faithful transposition of
Directives becom es particularly important.
29
NATURE
JUDGMENT
Directive
Case Number
Parties
Conclusion
Operational Part of the Judgment
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-149/94
under Article
177 (now 234)
of the EC
Treaty
The Tribunal de
Grande Instance,
Caen (France) for
a preliminary
ruling in the
criminal
proceedings
pending before
that court v Didier
Vergy
On those grounds, THE COURT (Third Chamber)
in answer to the questions referred to it by the
Tribunal de Grande Instance, Caen, by decision of 22
March 1994, hereby rules:
Conclusion Summary
(1) Council Directive 79/409/EEC of 2 April 1979 on
the conservation of wild birds requires the
Member States to prohibit trade in specimens
belonging to a species of bird which is not listed
in the annexes thereto in so far as the species
concerned is a species of naturally occurring
birds in the wild state in the European territory
of the Member States to which the Treaty applies
subject to the option to derogate provided for by
Article 9.
(2) Directive 79/409/EEC is not applicable to
specimens of birds born and reared in captivity.
(3) Directive 79/409/EEC requires each Member
State to ensure the protection of a species of bird
naturally occurring in the wild state in the
European territory of the Member States to
which the Treaty applies, even if the natural
habitat of the species in question does not occur
in the territory of the Member State concerned.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-44/95
under Article
177 (now 234)
of the EC
Treaty
Regina v Secretary
of State for the
Environment ex
parte Royal
Society for the
On those grounds, THE COURT in answer to the
questions submitted to it by the House of Lords, by
order of 9 February 1995, hereby rules:
(1) Article 4(1) or (2) of Council Directive
30
Directive 79/409 on the conservation of wild birds
requires the Member States to prohibit trade in
specimens belonging to a species of bird which is not
listed in the annexes thereto in so far as the species
concerned is a species of naturally occurring birds in the
wild state in the European territory of the Member
States to which the Treaty applies subject to the option
to derogate provided for by Article 9. The duty to
provide such protection is unaffected by the fact that the
natural habitat of the speci es in question may not occur
in the territory of the Member State concerned. The
importance of complete and effective protection of wild
birds throughout the Community, irrespective of the
areas they stay in or pass through, causes any national
legislation which delimits the protection of wild birds by
reference to the concept of national heritage to be
incompatible with the Directive. However, Directive
79/409 is not applicable to specimens of birds born and
reared in captivity. To extend the protective regime
beyond bird populations present in their natural
environment would not serve the environmental
objective underlying the Directive. Furthermore, since
the Community legislature has taken no action with
regard to trade in specimens of birds born and raised in
captivity, the Member States remain competent to
regulate that trade, subject to Article 30 et seq. of the
Treaty concerning products imported from other
Member States.
Conclusion Summary
Article 4(1) or Article 4(2) of Directive 79/409 on the
conservation of wild birds, which requires the Member
States to take special conservation measures for certain
NATURE
Directive
JUDGMENT
Case Number
Parties
Protection of
Birds. Intervener:
The Port of
Sheerness Limited
Conclusion
Operational Part of the Judgment
79/409/EEC of 2 April 1979 on the conservation
of wild birds is to be interpreted as meaning that
a Member State is not authorized to take account
of the economic requirements mentioned in
Article 2 thereof when designating a Special
Protection Area and defining its boundaries.
(2) Article 4(1) or (2) of Directive 79/409 is to be
interpreted as meaning that a Member State may
not, when designating a Special Protection Area
and defining its boundaries, take account of
economic requirements as constituting a general
interest superior to that repres ented by the
ecological objective of that Directive.
(3) Article 4(1) or (2) of Directive 79/409 is to be
interpreted as meaning that a Member State may
not, when designating a Special Protection Area
and defining its boundaries, take account of
economic requirements which may constitute
imperative reasons of overriding public interest
of the kind referred to in Article 6(4) of Directive
92/43/EEC of 21 May 1992 on the conservation of
the natural habitats of wild fauna and flora.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-3/96
under Article
169 (now 226)
of the EC
Treaty
Commission of the
European
Communities
(applicant) v
Kingdom of the
Netherlands
(defendant).
Intervener: Federal
Republic of
Germany
species, and in particular to designate as Special
Protection Areas the most suitable territories for their
conservation, must be interpreted as meaning that a
Member State is not authorized to take account of the
economic requirements mentioned in Article 2 of the
Directive when choosing and defining the boundaries of
a Special Protection Area or even to take account of
economic requirements constituting a general interest
superior to that represented by the ecological objective
of that Directive. Similarly, a Member State may not
take account of economic requirem ents in so far as they
amount to imperative reasons of overriding public
interest of the kind referred to in Article 6(4) of
Directive 92/43 on the conservation of the natural
habitats of wild fauna and flora, as inserted in Directive
79/409. Although the latter provision widened the range
of grounds on which it may be justified to encroach
upon Special Protection Areas already designat ed as
such, by expressly including therein reasons of a social
or economic nature, it nevertheless did not make any
change regarding the initial stage of classi fication
referred to in Article 4(1) and (2) of Directive 79/ 409,
and therefore the classi fication of sites as Special
Protection Areas must in all circumstances be carried
out in accordance with the criteria accepted by those
provisions.
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by classifying as special protection
areas territori es whose number and total area
are clearly smaller than the number and total
area of the territories suitable for classification
as special protection areas within the meaning of
Article 4(1) of Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds, the
Kingdom of the Netherlands has failed to fulfil
(1) The aim of the pre-litigation procedure provided for
in Article 169 of the Treaty is to give the Member
State concerned an opportunity to justify its position
or, as the case may be, to comply of its own accord
with the requirements of the Treaty. If that attempt
to reach a settlement proves unsuccess ful, the
Member State is requested to comply with its
obligations as set out in the reasoned opinion which
31
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
its obligations under that Directive.
(2) Orders the Kingdom of the Netherlands to pay
the costs;
(3) Orders the Federal Republic of Germany to bear
its own costs.
concludes the pre-litigation procedure, within the
period prescribed in that opinion. The proper
conduct of that procedure constitutes an essential
guarantee intended by the Treaty not only to protect
the rights of the Member State concerned but also to
ensure that any contentious procedure will have a
clearly defined dispute as its subject- matter, the
subject- matter being determined by the
Commission's reasoned opinion. Where it is not
disputed that the reasoned opinion and the
procedure leading up to it were properly conduct ed,
a Member State's right to a fair hearing is not
infringed by the circumstance that the contentious
procedure is opened by an application which takes
no account of any new matters of fact or law put
forward by the Member State concerned in its reply
to the reasoned opinion. It is fully open to that State
to raise those matters in the contentious procedure,
to begin with in its first pleading in defence.
(2) Article 4(1) of Directive 74/409 on the conservation
of wild birds requires Member States, if species
mentioned in Annex I occur on their territory, to
classi fy as special protection areas the most suitable
territories in number and size for their conservation,
an obligation which it is not possible to avoid by
adopting other special conservation measures. Nor
may the economic requirements mentioned in
Article 2 of the Directive be taken into account in
this respect. As regards the Member States' margin
of discretion in choosing the most suitable
territories, that does not concern the appropri ateness
of classi fying as special protection areas the
territories which appear the most suitable according
to ornithological criteria, but only the application of
those criteria for identi fying the most suitable
32
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
territories for conservation of the speci es in
question. Consequently, where it appears that a
Member State has classified as special protection
areas sites the number and total area of which are
manifestly less than the number and total area of the
sites considered to be the most suitable, it will be
possible to find that that Member State has failed to
ful fil its obligation under Article 4(1) of the
Directive; for assessing the extent to which the
Member State has complied with that obligation, the
Court may use as a basis of reference the Inventory
of Important Bird Areas in the European
Community, 1989, which draws up an inventory of
areas of great importance for the conservation of
wild birds in the Community.
33
NATURE
JUDGMENT
Directive
Case Number
Parties
Conclusion
Operational Part of the Judgment
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-10/96
under Article
234 of the EC
Treaty
Ligue Royale
Belge pour la
Protection des
Oiseaux ASBL
and Societe
d’etudes
ornithologiques
AVES ASBL
(applicant) v
Region Wallonne
(defendant).
Intervener:
Federation Royale
Ornithologique
Belge ASBL
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Council Directive 79/409/EEC of 2 April 1979 on
the conservation of wild birds, and in particular
Article 9(1)(c) thereof, must be interpreted as
meaning that a Member State may not, on a
decreasing basis and for a limited period,
authorize the capture of certain protected species
in order to enable bird fanciers to stock their
aviaries, where breeding and reproduction of
those species in captivity are possible but are not
yet practicable on a large scale by reason of the
fact that many fanciers would be compelled to
alter their installations and change their habits.
(1) This case deals with the meaning of “ other
satisfactory solution” in Article 9 of the Directive
which provides that “ Member States may derogate
from the provisions of Articles 5, 6, 7 and 8, where
there is no other satisfactory solution …”.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-166/97
under Article
169 (now 226)
of the EC
Treaty
Commission of the
European
Communities
(applicant) v
French Republic
(defendant)
(2) National authorities are authorised under
Directive 79/409, and in particular under Article
9(1)(c) thereof, to permit the capture of protected
species with a view to obviating, in bird breeding
for recreational purposes, the problems of
consanguinity which would result from too many
endogenous crossings, on condition that there is
no other satisfactory solution, it being
understood that the number of specimens which
may be captured must be fixed at the level of
what proves to be objectively necessary to
provide a solution for those problems, subject
always to observance of the maximum limit of
`small numbers' referred to in that provision.
(2) Breeding and reproduction in captivity can be
regarded as constituting “other satisfactory
solution”. Where breeding and reproduction in
captivity of the species concerned are not feasible
on a large scale by reason of the installations and
inveterate habits of bird fanciers, this is insufficient
by itself to cast doubt on the satisfactory nature of
the alternative solution to capturing birds in the
wild.
(3) The “other satisfactory solution” principle has not
been met if it is possible to obviate the problems of
consanguinity by cooperation and exchanges of
specimens between breeding establishments. The
use of the derogation will not be justified where it is
possible to demonstrate that the cited cooperation
and exchanges of specimens will be of a significant
extent.
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by failing to classify as a special
protection area a sufficiently large area of the
Seine estuary and by failing to adopt measures to
provide the classified special protection area with
(1) Weight can be given to surveys or studies carried
out by independent organisations during the
procedure before the court.
34
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
an adequate legal regime, the French Republic
has failed to fulfil its obligations under Article
4(1) and (2) of Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds.
(2) Dismisses the remainder of the application.
(3) Orders the parties to bear their own costs.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-96/98
under Article
169 (now 226)
of the EC
Treaty
Commission of the
European
Communities
(applicant) v
French Republic
(defendant)
(2) This evidence can play an important role, especially
if the other party cannot produce evidence against
such studies.
(3) The question whether a Member State has failed to
ful fil obligations must be determined by reference
to the situation prevailing in the Member State at
the end of the period laid down in the reasoned
opinion and the Court cannot take account of any
subsequent changes.
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by failing, within the prescribed
period, to classify a sufficient area in the Poitevin
Marsh as special protection areas, by failing to
adopt measures conferring a sufficient legal
status on the special protection areas classified in
the Poitevin Marsh, and by failing to adopt
appropriate measures to avoid deterioration of
the sites in the Poitevin Marsh classified as
special protection areas and of certain of those
which should have been so classified, the French
Republic has failed to fulfil its obligations under
Article 4 of Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds.
(1) Article 4 of the Directive requires Member states to
provide Special Protection Areas with a legal
protection regime that is capable of ensuring
survival and reproduction of the bird species listed
in Annex I to the Directive and the breeding,
moulting and wintering of migratory species which
are not listed in Annex I but which are regular
visitors;
(2) Dismisses the remainder of the application.
(3) Orders the French Republic to pay the costs.
35
(2) Member States have to take appropriate steps to
avoid, inter alia, deterioration of habitats in the
areas which are most suitable for the conservation
of wild birds. This principle applies even where the
areas in question have not been classifi ed as Special
Protection Areas, provided that they should have
been classi fied.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds, and
Council Directive
92/43/EEC of
21 May 1992 on
the conservation of
natural habitats
Case 256/98
under Article
169 (now 226)
of the EC
Treaty
Commission of the
European
Communities
(applicant) v
French Republic
(defendant)
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by not adopting within the period
prescribed all the laws, regulations and
administrative measures necessary to comply
with Article 6(3) and (4) of Council Directive
92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora, the
French Republic has failed to fulfil its obligations
under that Directive.
The inherent discretion (in the Directives) of Member
States cannot be used to justify the waiving of
environmental impact assessments for certain projects
becaus e of their low cost or purpose.
(2) Dismisses the remainder of the action.
(3) Orders each of the parties to bear its own costs.
Council Directive
92/43/EEC of
21 May 1992 on
the conservation of
natural habitats
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds, and
Case C-371/98
under Article
234 of the EC
Treaty
Case C-374/98
under Article
169 (now 226)
of the EC
Treaty
R (on an
application from
First Corporate
Shipping Limited)
(applicant) v
Secretary of State
for the
Environment,
Transport and the
Regions
(defendant)
Commission of the
European
Communities
(applicant) v
French Republic
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) On a proper construction 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, a Member State may not take
account of economic, social and cultural
requirements or regional and local
characteristics, as mentioned in Article 2(3) of
that Directive, when selecting and defining the
boundaries of the sites to be proposed to the
Commission as eligible for identification as sites
of Community importance.
(1) Court should have regard to the fact when a
Member State creates the national list of sites, it is
not in a position to have precise detailed knowledge
of the situation of habitats in the other Member
States. A Member State cannot, on its own accord,
delete sites which at national level have ecological
interest relevant from the point of view of the
objective of cons ervation without jeopardising the
realisation of that objective at Community level.
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by not classifying any part of the
Basses Corbières site as a special protection area
and by not adopting special conservation
(1) On a literal interpretation of Article 7 of Directive
92/43/EEC, only areas classifi ed as Special
Protection Areas come within Article 6(2)-(4) of
36
(2) The Advocate General, in his opinion, stressed the
importance and necessity of sustainable
development which is a fundamental concept of
environmental law and the principle of integration
of environm ental requirem ents (in Article 130r(2) of
the EEC Treaty) in relation to the second and
following stage by implementation of the Habitats
Directive.
NATURE
Directive
Council Directive
92/43/EEC of
21 May 1992 on
the conservation of
natural habitats
JUDGMENT
Case Number
Parties
(defendant)
Conclusion
Operational Part of the Judgment
measures for that site sufficient in their
geographical extent, the French Republic has
failed to fulfil its obligations under Article 4(1) of
Council Directive 79/409/EEC of 2 April 1979 on
the conservation of wild birds.
(2) Dismisses the remainder of the application.
(3) Orders the parties to bear their own costs.
that Directive. Areas which have not been
classi fied as Special Protection Areas but which
should have been so classified continue to fall under
the regime of the first sentence of Articl e 4(4) of
Directive 79/409/EEC.
(2) A duality of applicable regimes is not without
justification. The Court and the Advocate General
recognised the Commission’s argument that the
protection regime inherent in the Directive
79/409/EEC is stricter than that under Directive
92/43/EEC, and it would be paradoxical to place
areas of ornithological interest that have not been
the subject of a national classi fication measure such
as a special protection scheme that are applicable to
areas which have actually been cl assifi ed as Special
Protection Areas by Member States. Further, the
Court and Advocate General decided that the
duality of regimes applicable to areas classi fied as
Special Protection Areas and those which should
have been so classi fied gives Member States an
incentive to carry out classifi cations, in so far as
they thereby acquire the possibility of using a
procedure which allows them to adopt a plan or
project advers ely affecting a Special Protection
Area.
(3) The Court observed that if it were lawful for a
Member State (which, in breach of Directive
79/409/EEC, has failed to classify a site which
should have been classifi ed as a Special Protection
Area) to rely on Article 6(3) and (4) of Directive
92/43/EEC, that State might enjoy an advantage
from a failure to comply with Community
obligations.
37
NATURE
JUDGMENT
Directive
Case Number
Parties
Conclusion
Operational Part of the Judgment
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-38/99
under Article
169 (now 226)
of the EC
Treaty
Commission of the
European
Communities
(applicant) v
French Republic
(defendant)
On those grounds, THE COURT (Sixth Chamber)
hereby:
Conclusion Summary
(1) Declares that, by failing correctly to transpose
Article 7(4) of Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds, by
omitting to communicate all the transposition
measures relating to the whole of its territory
and by failing correctly to implement the
aforesaid provision, the French Republic has
failed to fulfil its obligations under that
Directive.
(2) Orders the French Republic to pay the costs.
(1) Article 7(4) of Directive 79/409 on the conservation
of wild birds seeks in particular to impose a
prohibition of hunting of all species of wild birds
during the rearing periods and the various stages of
reproduction and dependency and, in the case of
migratory species, during their return to their
rearing grounds. Moreover, that article is designed
to secure a complete system of protection in the
periods during which the survival of wild birds is
particularly under threat. Accordingly, protection
against hunting activities cannot be confined to the
majority of the birds of a given species, as
determined by average reproductive cycl es and
migratory movements. (see para 23).
(2) The national authorities are not empowered by
Directive 79/409 on the conservation of wild birds
to lay down closing dates for hunting which vary
according to species of migratory birds or waterfowl
unless the Member State concerned can adduce
evidence, based on scientific and technical data
relevant to each individual case, that staggering the
closing dates for hunting does not impede the
complete protection of species of bird liable to be
affected by such staggering. (see para 43).
(3) The transposition of a Directive into domestic law
does not necessarily require the provisions of the
Directive to be enacted in precis ely the same words
in a specific, express provision of national law and a
general legal context may be sufficient i f it actually
ensures the full application of the Directive in a
suffi ciently clear and precise manner. However,
faithful transposition becomes particularly
38
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
important in the case of Directive 79/409 on the
conservation of wild birds where management of
the common heritage is entrusted to the Member
States in their respective territori es. (see para. 53).
39
Council Directive
92/43/EEC of
21 May 1992 on
the conservation of
natural habitats
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds, and
Council Directive
92/43/EEC of
21 May 1992 on
the conservation of
natural habitats
Case 67/99
under Article
226 of the EC
Treaty
Case 71/99
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v
Ireland
(defendant)
Commission of the
European
Communities
(applicant) v
Federal Republic
of Germany
(defendant)
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by failing to transmit to the
Commission, within the period prescribed, the
list of sites mentioned in the first 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, together
with the information on those sites required by
the second subparagraph of Article 4(1) thereof,
Ireland has failed to fulfil its obligations under
that Directive
(1) Member States should have a clear and adequat e
strategy and a list or priorities for designating the
SCI. These priorities should include the national
conservation priorities, which also have Community
importance. The Member States must inform the
Commission about the national proceedings and the
results of them within the time allocated.
2. Orders Ireland to bear the costs.
(2) The question whether a Member State has failed to
ful fil its obligations must be determined by
reference to the situation in that Member State as it
was at the end of the period laid down in the
Reasoned Opinion. The Court cannot take account
of any subsequent changes after the end of the
period.
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by failing to transmit to the
Commission, within the prescribed period, the
list of sites mentioned in the first 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, together
with the information on those sites required by
the second subparagraph of Article 4(1) thereof,
the Federal Republic of Germany has failed to
fulfil its obligations under that Directive.
(1) The Court provided an interpretation of the Member
States’ discretion concerning the designation of a
list of sites under Directive 92/43/EEC and
informing the Commission thereof.
(2) Orders the Federal Republic of Germany to bear
the costs.
(2) Directive 92/43/EEC seeks to establish a coherent
European ecological network of SAC’s under the
title “ Natura 2000”, pursuant to a three-stage
procedure. During the first stage (only stage in
issue in this case) Member States are required (in
accordance with Article 4(1) of Directive
92/43/EEC) to forward to the Commission a list of
sites within their territory hosting the types of
natural habitats and wild species set out in Annexes
I and II to that Directive. That list must also include
inform ation on the national sites listed.
(3) The Commission criticised the Federal Republic of
Germany for having forwarded to it incomplete lists
and for having failed to attach the relevant
inform ation required. First, the Commission
40
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
criticises the Federal Republic of Germany for their
failure to submit a complete list of sites featuring
the natural habitat types referred to in Annex I and a
complete list of sites hosting the native species
mentioned in Annex II, as required by the first
subparagraph of Article 4(1) of Directive
92/43/EEC. Secondly, the Commission argued that
the Governments concerned failed to transmit the
inform ation relating to those lists, as required by the
second subparagraph of Article 4(1) of that
Directive. The Court upheld the pleas submitted by
the Commission and ruled that the Federal Republic
of Germany had failed to ful fil its obligations under
Directive 92/43/EEC.
41
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-159/99
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v
Italian Republic
(defendant)
On those grounds, THE COURT hereby
Conclusion Summary
(1) Declares that, by laying down rules permitting
the capture and keeping of the species Passer
italiae, Passer montanus and Sturnus vulgaris,
contrary to the combined provisions of Articles 5
and 7 of Council Directive 79/409/EEC of 2 April
1979 on the conservation of wild birds and
Annex II thereto, the Italian Republic has failed
to fulfil its obligations under that Directive.
(1) The provisions of Directives must be implemented
with unquestionable binding force, and the
speci ficity, precision and clarity necessary to satisfy
the requirements of legal cert ainty. Mere
administrative practices (whi ch can be alterable and
may not be given the necessary publicity) do not
constitute the proper ful filment of a Member States’
obligations under the Treaty.
(2) Dismisses the remainder of the application.
(2) Article 9 of Directive 92/43/EEC authorises wide
derogations from the general system of protection,
and it must be applied appropriately to deal with
precise requirements and speci fi c situations. The
essential features of Articl e 9 must be transposed
clearly, completely and unequivocally.
(3) Orders each of the parties to bear its own costs.
(3) The Court commented on the Court of Justice
procedural rules. The purpose of the pre-litigation
stage of the procedure is to afford the Member State
concerned an opportunity to (i) fulfil its obligations
under Community law and (ii) to make a proper
statement of its defence to the complaints stated by
the Commission. The purpose of the formal letter
of notice is to lay down the limits of the subject
matter of the dispute and to indicate to the Member
State invited to submit its observations which
details are needed in preparing its defence.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-101/00
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v
Ireland
(defendant)
On those grounds, THE COURT (Sixth Chamber)
hereby:
(1) Declares that, by failing to take the measures
necessary to safeguard a sufficient diversity and
area of habitats for the Red Grouse and by
failing to take appropriate steps to avoid, in the
Owenduff-Nephin Beg Complex special
protection area, the deterioration of the habitats
of the species for which the special protection
area was designated, Ireland has failed to fulfil
42
Conclusion Summary
APPLICATION for a declaration that, by failing to take
all the measures necessary to comply with Article 3 of
Council Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds (OJ 1979 L 103, p. 1), in
respect of the Red Grouse, and with the first sentence of
Article 4(4) of that Directive and Article 6(2) of Council
Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and
flora (OJ 1992 L 206, p. 7), in respect of the Owenduff-
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
its obligations under Article 3 of Council
Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds and Article 6( 2) of
Council Directive 92/43/EEC of 21 May 1992 on
the conservation of natural habitats and of wild
fauna and flora.
2. Orders Ireland to pay the costs.
43
Nephin Beg Complex special protection area, Ireland
has failed to comply with those Directives and has failed
to ful fil its obligations under the EC Treaty. It must,
therefore, be held that, by failing to take the measures
necess ary to safeguard a suffi cient diversity and area of
habitats for the Red Grouse and by failing to take
appropriat e steps to avoid, in the Owenduff- Nephin Beg
Complex SPA, the deterioration of the habitats of the
species for which the SPA was designated, Ireland has
failed to ful fil its obligations under Article 3 of the Birds
Directive and Article 6(2) of the Habitats Directive.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds, and
Council Directive
92/43/EEC of
21 May 1992 on
the conservation of
natural habitats
Case 117/00
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v
Ireland
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that, by failing to take the measures
necessary to safeguard a sufficient diversity and
area of habitats for the Red Grouse and by
failing to take appropriate steps to avoid, in the
Owenduff-Nephin Beg Complex special
protection area, the deterioration of the habitats
of the species for which the special protection
area was designated, Ireland has failed to fulfil
its obligations under Article 3 of Council
Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds and Article 6(2) of
Council Directive 92/43/EEC of 21 May 1992 on
the conservation of natural habitats and of wild
fauna and flora.
(1) The Court explained the importance of the measures
to preserve, maintain or re-establish a suffi cient
diversity and area of habitats for all the species of
both birds covered by Directive 79/409/EEC, in
accordance with Article 3 of that Directive. The
Member States should ensure they have taken
adequat e measure before any reduction is observed
in the number of birds. This is for all birds (not just
those species listed in Annex I of Directive
79/409/EEC) where a risk of a protect ed species
becoming extinct exists.
(2) Orders Ireland to pay the costs.
(2) The systematic survey (monitoring) of the Special
Protected Area or SAC and it s regular
documentation and publication are indispensable to
analyse the effects and threats and take the measures
for protected areas.
(3) Member States do not have a discretion to only
select the voluntary measures from the protection
measures. Member States should take measures to
ensure the preservation, maintenance, and reestablishment of all species of birds covered by
Directive 79/409/EEC.
(4) Member States should take preventative action in
time to prevent the reduction in the range of speci es,
in accordance with Article 3 of Directive
79/409/EEC.
(5) The protection and management measures should be
suffi cient in terms of coverage of the areas to be
protected and in the content of their prescriptions
and conditions of implementation.
Council Directive
79/409/EEC of
2 April 1979 on
Case C-117/00
under Article
226 of the EC
Ligue pour la
protection des
oiseaux and
On those grounds, THE COURT (Sixth Chamber),
in answer to the questions referred to it by the
Conseil d'État by decision of 25 January 2002,
44
Conclusion Summary
By decision of 25 January 2002, received at the Court
NATURE
JUDGMENT
Directive
Case Number
Parties
Conclusion
Operational Part of the Judgment
the conservation of
wild birds
Treaty
Others v Premier
ministre, Ministre
de l'Aménagement
du territoire et de
l'Environnement.
Interveners:
Union nationale
des federations
départem ental es
de chasseurs,
Association
nationale des
chasseurs de gibier
d'eau
hereby rules:
on 15 May 2002, the Conseil d'État (Council of State)
referred to the Court for a preliminary ruling under
Article 234 EC two questions on the interpretation of
Article 9(1)(c) of Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds (OJ 1979
L103, p.1, hereinaft er `the Directive'). It is clear from
the foregoing that the hunting of wild birds for
recreational purposes during the periods mentioned in
Article 7(4) of the Directive may constitute a judicious
use authorised by Article 9(1)(c) of that Directive, as do
the capture and sale of wild birds even outside the
hunting season with a view to keeping them for use as
live decoys or to using them for recreational purposes in
fairs and markets (see Case 262/85 Commission v Italy
[1987] ECR 3073, paragraph 38). The answer to the first
question must therefore be that Article 9(1)(c) of the
Directive permits a Member State to derogate from the
opening and closing dates for hunting which follow
from consideration of the objectives set out in Article
7(4) of the Directive. In the light of the foregoing, the
answer to the second question Just be that Article 9 of
the Directive must be interpreted as allowing hunting to
be authorised pursuant to Article 9(1)(c) where:
(1) Article 9(1)(c) of Council Directive 79/409/EEC
of 2 April 1979 on the conservation of wild birds
permits a Member State to derogate from the
opening and closing dates for hunting which
follow from consideration of the objectives set
out in Article 7(4) of that Directive.
2. Article 9 of Directive 79/409 must be interpreted
as allowing hunting to be authorised pursuant to
Article 9(1)(c) where:
- There is no other satisfactory solution. That
condition would not be met, inter alia, if the
sole purpose of the derogation authorising
hunting were to extend the hunting periods for
certain species of birds in territories which
they already frequent during the hunting
periods fixed in accordance with Article 7 of
Directive 79/409.
- It is carried out under strictly supervised
conditions and on a selective basis.
- It applies only to certain birds in small
numbers.
-
There is no other satisfactory solution. That
condition would not be met, inter alia, if the sole
purpose of the derogation authorising hunting were
to extend the hunting periods for certain species of
birds in territories which they already frequent
during the hunting periods fixed in accordance with
Article 7 of the Directive.
-
It is carried out under strictly supervised conditions
and on a selective basis.
-
It applies only to certain birds in small numbers; -
- Mention is made of:
(a) The species which are subject to the
derogations.
(b) The means, arrangements or methods
authorised for capture or killing.
(c) The conditions of risk and the
circumstances of time and place under
45
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
which such derogations may be granted.
(d) The authority empowered to declare that
the required conditions obtain and to
decide what means, arrangements or
methods may be used, within what limits
and by whom.
(e) The controls which will be carried out.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-240/00
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v
Finland
(defendant)
mention is made of:
(a) The species which are subject to the
derogations.
(b) The means, arrangements or methods
authorised for capture or killing.
(c) The conditions of risk and the circumstances of
time and place under which such derogations
may be granted.
(d) The authority empowered to declare that the
required conditions obtain and to decide what
means, arrangements or methods may be used,
within what limits and by whom.
(e) The controls which will be carried out.
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by failing to classify fully and
definitively the SPAs in its territory, the
Republic of Finland has failed to fulfil its
obligations under Article 4(1) and (2) of Council
Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds.
(1) A contingent classification of the Special Protection
Area sites which could be amended in accordance
with the judgements in actions brought against it,
could not constitute proper ful filment of the
obligation to classify sites under Article 4(1) and (2)
of Directive 79/409/EEC.
(2) Orders the Republic of Finland to pay the costs.
(2) Member States must classify, in full, as Special
Protection Areas, the most suitable sites within the
meaning of Articl e 4(1) and (2) of the Directive.
46
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-202/01
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v
French Republic
(defendant)
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by not in sufficient measure
classifying as special protection areas the
territories most suitable for the conservation of
the species of wild bird referred to in Annex I to
Council Directive 79/409/EEC of 2 April 1979 on
the conservation of wild birds, as amended by
Commission Directive 97/49/EC of 29 July 1997,
and of migratory species, and, in particular, by
not classifying a sufficiently large area of the
Plaine desMaures (France) as a special
protection area, the French Republic has failed
to comply with its obligations under Article 4(1)
and (2) of that Directive.
(1) Article 4 of Directive 79/409/EEC necessitates the
classi fication of Special Protection Areas sufficient
in both quantitative and qualitative terms in light of
the scientifically determined charact eristics of sites.
The best means of obtaining the objective laid down
in Article 4(1) and (2) of this Directive is to classify
Special Protection Areas listed for their objective
ornithological importance as habitats for the wild
birds mentioned in Annex I to this Directive or for
migratory birds.
(2) Orders the French Republic to pay the costs.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case 378/01
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v Italy
(defendant)
(2) Member States must classify the most suitable
territories in number and size as Special Protection
Areas under the Directive.
(3) On admissibility, the Court decided that according
to Article 19 of the Protocol on the Statute of the
Court of Justice of the EC and Article 38(1)(c) of
the Rules of Procedure, an application must state,
inter alia, the grounds on which the application is
based. In any application made under Article 226
EC, the Commission must indicate the specific
complaints on which the Court is called upon to rule
and, at the very least in summary form, the legal
particulars on which those complaints are based.
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, by failing to classify as special
protection areas the most suitable territories, in
number and size, for the protection of those
species mentioned in Annex I to Council
Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds, as subsequently
amended, and of the other migratory species
which regularly occur in Italy, and by failing to
send to the Commission all necessary
information relevant to most of the said areas
classified by it, the Italian Republic has failed to
(1) Member States must classify adequately as Special
Protection Areas the most suitable territories, in
number and size for the protection of those species
mentioned in Annex I to Directive 79/409/EEC, and
of the other migratory speci es which regularly occur
in the Member State.
47
(2) Member States should send to the Commission all
necess ary information relevant to the areas
classi fied by it, in accordance with Article 4(1) and
(3).
NATURE
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JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
fulfil its obligations under Article 4(1) to (3) of
that Directive.
(2) Orders the Italian Republic to pay the costs.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case 415/01
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v
Belgium
(defendant)
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, in so far as the Région flamande
has failed to transpose Article 4(1) and (2) of and
Annex I to Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds, to
demarcate special protection areas within its
territory capable of being relied upon as against
third parties, and to adopt the measures
necessary to ensure that the classification of a
site as a special protection area automatically
and simultaneously entails the application of a
system of protection and conservation complying
with Community law, the Kingdom of Belgium
has failed to fulfil its obligations under Article
4(1) and (2) of Directive 79/409 and the first
sentence of Article 4(4) thereof, as amended, in
accordance with Articl e 7 of Council Directive
92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora, by
Article 6(2) to (4) of the latter Directive;
(1) Provisions of Directives have to be implemented
with unquestionable binding force, and the
speci ficity, precision and clarity necessary to satisfy
the requirements of legal cert ainty to ensure that
persons concerned by such measures are able to
ascertain the scope of their rights and obligations in
the particular area governed by Community law
(reaffirming Commission v Italy Case C-159/00).
(2) Orders the Kingdom of Belgium to pay the costs.
Council Directive
92/43/EEC of
21 May 1992 on
the conservation of
natural habitats
Case C-143/02
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v Italy
(defendant)
(2) In principle in this case, only the publication of a
measure in Belgium was sufficient to creat e an
irrebuttable presumption that third parties were
inform ed of that measure. Although the Cour de
Cassation might have accept ed that in certain
circumstances a local management plan could
acquire binding force when other means of
publication were used, that was insufficient to show
that the same would apply to maps delimiting
Special Protection Areas. Even if other means of
publication were insufficient to establish a
rebuttable presumption, that would not satisfy the
requirem ent to give Community law rules
unquestionable binding force in the national legal
order.
On those grounds, THE COURT, hereby:
Conclusion Summary
(1) Declares that, in adopting a measure transposing
Council Directive 92/43/EEC of 21 May 1992 on
the conservation of natural habitats and of wild
The Court decided that Italy had failed to ful fil its
obligations under Articles 5, 6 and 7 of Directive
92/43/EEC because it had:
48
NATURE
Directive
JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
fauna and flora, which:
- Excludes from the scope of the rules on the
assessment of the implications for the
environment projects other than those listed in
the Italian legislation implementing Directives
on environmental impact assessment that are
likely to have a significant effect on sites of
Community importance.
- Fails to impose upon the competent authorities
of the Member State any obligation to take
appropriate steps in respect of special
protection areas to avoid the deterioration of
natural habitats and of the habitats of species
or disturbance of the species for which the
areas were designated, in so far as such
disturbance could be significant in relation to
the objectives of Directive 92/43.
- Fails to provide that the conservation
measures referred to in Article 6(2) of that
Directive apply to the sites referred to in
Article 5(1) of that Directive.
The Italian Republic has failed to fulfil its
obligations under Articles 5, 6 and 7 of that
Directive.
2. Orders the Italian Republic to pay the costs.
49
(1) Excluded from the scope of the rules on the
assessment of the implications for the environment
projects other than those listed in the Italian
legislation implementing Directives on
environmental impact assessment that were likely to
have a significant effect on sites of Community
importance.
(2) Failed to impose upon the competent authorities of
the Member State any obligation to take appropriate
steps in respect of Special Protection Areas to avoid
the deterioration of natural habitats and of the
habitats of species or disturbance of the species for
which the areas were designated, in so far as such
disturbance could be significant in relation to the
objectives of Directive 92/43/EEC.
(3) Failed to provide that the conservation measures
referred to in Article 6(2) of that Directive applied
to sites referred to in Article 5(1) of that Directive.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds
Case C-182/02
under Article
234 of the EC
Treaty
Ligue pour la
protection des
oiseaux and
Others (applicant)
v France
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Article 9(1)(c) of Council Directive 79/409/EEC
of 2 April 1979 on the conservation of wild birds
permits a Member State to derogate from the
opening and closing dates for hunting which
follow from consideration of the objectives set
out in Article 7(4) of that Directive.
(1) The hunting of wild birds for recreational purposes
during periods of particular protection constituted a
“judicious use” permitted under Directive
79/409/EEC. Such hunting could only be
authorised if certain conditions were met, in
particular that there was no alternative satisfactory
solution, that the hunting was carried out under
strictly supervised conditions and on a selective
basis and that it applied only to certain birds in
small numbers.
(2) Article 9 of Directive 79/409 must be interpreted
as allowing hunting to be authorised pursuant to
Article 9(1)(c) where:
- There is no other satisfactory solution. That
condition would not be met, inter alia, if the
sole purpose of the derogation authorising
hunting were to extend the hunting periods for
certain species of birds in territories which
they already frequent during the hunting
periods fixed in accordance with Article 7 of
Directive 79/409.
- It is carried out under strictly supervised
conditions and on a selective basis.
- It applies only to certain birds in small
numbers.
- Mention is made of:
(a) The species which are subject to the
derogations.
(b) The means, arrangements or methods
authorised for capture or killing.
(c) The conditions of risk and the
circumstances of time and place under
which such derogations may be granted.
(d) The authority empowered to declare that
the required conditions obtain and to
decide what means, arrangements or
50
(2) The condition that there was no other satisfactory
solution was not satisfied if the sole purpose of the
derogation authorising hunting was to extend the
hunting periods for cert ain species of birds in
territories which they already frequented during the
hunting periods authorised under the Directive.
(3) Hunting authorised under a derogation had to ensure
the maintenance of the population of the species
concerned at a satisfactory level.
NATURE
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JUDGMENT
Case Number
Parties
Conclusion
Operational Part of the Judgment
methods may be used, within what limits
and by whom.
(e) The controls which will be carried out.
Council Directive
79/409/EEC of
2 April 1979 on
the conservation of
wild birds, and
Council Directive
92/43/EEC of
21 May 1992 on
the conservation of
natural habitats
Case C-209/02
under Article
226 of the EC
Treaty
Commission of the
European
Communities
(applicant) v
Austria
(defendant)
On those grounds, THE COURT hereby:
Conclusion Summary
(1) Declares that, by authorising the proposed
extension of the golf course in the district of
Wörschach in the Province of Styria despite a
negative assessment of its implications for the
habitat of the corncrake (cr ex crex) in the
Wörschacher Moos special protection area
situated in that district and classified as provided
for in Article 4 of Council Directive 79/409/EEC
of 2 April 1979 on the conservation of wild birds,
the Republic of Austria has failed to fulfil its
obligations under Article 6(3) and (4), in
conjunction with Article 7, of Council Directive
92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora.
(1) The Court stated that it can be seen from Article
6(3) of Directive 92/43/EEC, read in conjunction
with Article 7, that any plan or project not directly
connect ed with or necessary to the management of a
Special Protection Area classi fied under Article 4 of
Directive 79/409/EEC but likely to have a
significant effect thereon, either individually or in
combination with other plans or projects, is to be
subject to appropriate assessment of its implications
for the Special Protection Area in view of the
Special Protection Area’s conservation objectives.
In the light of the conclusions of the assessment of
the implications for the Special Protection Area, the
competent national authorities are to agree to the
plan or project only after having ascertained that it
will not adversely affect the integrity of the Special
Protection Area concerned and, if appropriat e, aft er
having obtained the opinion of the general public.
(2) Orders the Republic of Austria to pay the costs.
(2) The Court decided that Austria had failed to
implement Article 4 of Directive 79/409/EEC by
authorising the proposed extension of a golf cours e
despite a negative assessment of its implications for
the habitat in the local area.
51
CASE SUMMARIES
Case C-236/85
Commission of the European Communities v. Kingdom of the Netherlands
Case C-247/85
Commission of the European communities v. Kingdom of Belgium
Case C-252/85
Commission v. French Republic
Case C-262/85
The Commission of the European Communities v. the Italian Republic
Case C-412/85
Commission of the European Communities v. Federal Republic of Germany
Case C-339/87
Commission of the European Communities v. Kingdom of the Netherlands
Case C-288/88
Commission of the European Communities v. Federal Republic of Germany
Case C-57/89 Commission of the European Communities v. Federal Republic of Germany
Case C-57/89R
Commission of the European Communities v. Federal Republic of Germany
Case C-157/89
Commission v. Italian Republic
Case C-334/89
Commission v. Italian republic
Case C-355/90
Commission v. Kingdom of Spain
Case C-75/91 Commission of the European Communities v. Kingdom of the Netherlands
Case C-345/92
Commission of the European Communities v. Federal Republic of Germany
Case C-435/92
Association pour la Protection des Animaux Sauvages and Others v. Préfet de Maine-et -Loire,
Préfet de la Loire-Atlantique
Case C-118/94
Associazione Italiana per il World Wildlife Fund and Others v. Regione Veneto
Case C-149/94
Ministère Public v. Didier Vergy
Case C-44/95
Regina v Secretary of State for the Environment ex parte Royal Society for the Protection of
Birds (Intervener: The Port of Sheerness Limited)
Case C-3/96
Commission of the European Communities v. Kingdom of the Netherlands
Case C-10/96
Ligue royale belge pour la protection des oiseaux ASBL and Société d'études ornithologiques
AVES ASBL v. Région Wallonne, intervener: Fédération royale ornithologique belge ASBL
Case C-166/97
Commission v. the French Republic
Case C-96/98 Commission of the European Communities v. French Republic
Case C-371/98
The Queen v. Secretary of State for the Environment, Transport and the Regions, ex parte First
Corporate Shipping Ltd (Interveners: World Wide Fund for Nature UK (WWF) and Avon
Wildlife Trust)
Case C-374/98
Commission v. French Republic
Case C-38/99 Commission v. French Republic
Case C-67/99 Commission of the European Communities v. Ireland
Case C-71/99 Commission of the European Communities v. Federal Republic of Germany
Case C-159/99
Commission of the European Communities v. Italian Republic
Case C-117/00
Commission of the European Communities v. Ireland
Case study: Italy
Birds Directive and EC Court Project
Case: 236/85
Parties: Commission of the European Communities v. Kingdom of the Netherlands.
Background: In the Netherlands, prohibiting the use of the hunting methods referred to in Article 8 of Council
Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ('the Birds Directive') are regulat ed by
administrative rules.
Pursuant to Article 18 of the Birds Directive, the Member States are to adopt all the laws, regulations and
administrative provisions needed to comply with the Directive within a period of two years as from notification
thereof. Finding that the Netherlands laws and administrative provisions on the protection of birds were not entirely
in conformity with the provisions of the Birds Directive, the Commission commenced the procedure provided for in
Article 169 of the EEC Treaty. After giving formal notice to the Kingdom of the Netherlands to submit its
observations, the Commission delivered a Reasoned Opinion. The Netherlands Government announced in its reply
that it was going to issue administrative rules prohibiting the use of hunting methods referred to in Article 8 of the
Birds Directive, pending the adoption of a new Vogelwet (Law on Birds); but it did not communicate the amending
regulation to the Commission until September 1985. The Commission then submitted five complaints in respect of
the Netherlands rules on the protection of birds.
Before examining the claims, the Court stated that the transposition of community legislation into national law does
not necessarily require the provisions of that legislation to be enacted in precisely the same words in an express and
speci fic enactment; a general legal context may be sufficient i f it is sufficiently clear and precise in order to ensure
effectively the full application of the Birds Directive. (See the judgement of 23 May 1985 in Case 29/84 Commission
v. Germany ((1985)) ECR 1661, At p. 1667). However, a faithful transposition becomes particularly important in a
case as this in which the management of the common heritage is entrusted to the Member States as regards their
respective territories.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Article 6(2)
Article 6(3)
Article 8
Article 9
Article 9(1)
Position of the parties
First complaint: failure to transpose the concept of "serious damage"
Relevant Articl e of the Birds Directive:
Î Article 9(1)
Commission position: The Commission argues that under Article 2 of the Law on Birds, in conjunction with Articles
2 and 3 of the Order on Birds, certain species of birds are designated as species not protected by law, with a view to
enabling damage to agriculture, horticulture, forestry, hunting and fishing to be avoided, whereas Article 9(1) of the
Birds Directive refers to the prevention of serious damage. The Netherlands legislation does not therefore comply
with the Birds Directive.
Netherlands position: The Netherlands Governm ent claims that the exceptions from the provisions regarding the
protection of birds allowed by Article 2 of the Law on Birds relate only to certain species which do not indeed cause
serious damage, so that the requirements of Article 9 of the Birds Directive are satis fied.
53
Birds Directive and EC Court Project
Advocate General position: Not available.
Court position: The Court observes that referen ce must be made to the interpretation of the concept of "serious
damage" given in the Court's judgement of 8 July 1987 in Case 247/85 Commission v. Belgium ((1987)) ECR,
paragraph 56, according to which Article 9(1) of the Birds Directive is not designated to prevent the threat of minor
damage and the fact that a cert ain degree of dam age is required for that derogation from the general system of
protection accords with the extent of the protection sought by the Birds Directive. The Court however notes that the
Commission has not made any submissions that might establish that Netherlands’ legislation attributes to the
permitted derogations greater scope than is given to them by the Birds Directive as so interpreted, therefore the first
complaint cannot be upheld.
Decision: The first complaint therefore cannot be upheld.
Second complaint: authorization provided for in Article 10 of the Law on Birds
Relevant Articl e of the Birds Directive:
Î Article 9(1)
Commission position: The Commission considers that Article 10 of the Law on Birds providing that permits to kill
or capture birds and to disturb their nests are to be granted at the request of the owners or users of land or water in
cases where protected birds cause or are liable to cause damage or a nuisance, is not in conformity with Article 9(1)
of the Birds Directive.
Netherlands position: The Government contends that the permits provided for in Article 10 of the Law on Birds are
granted only with a view to preventing serious damage and only to the extent to which their issue is not precluded by
the criteria for allowing derogations laid down in Article 9(1) of the Birds Directive. The Government further states
that the administrative practice of the compet ent authorities in issuing permits is restrictive and complies with the
requirem ents of that provision.
Advocate General position: Not available.
Court position: The Court observes that whilst it is true that the requirements of the existence risk of dam age or
nuisance is in conformity with the measure of protection sought by the Birds Directive mentioned in connection with
the first complaint in these proceedings, it must nevertheless be pointed out that the wording of Article 10 of the Law
on Birds, unlike Article 9(1) of the Birds Directive, does not make the grant of permit conditional upon the absence of
any other satisfactory solution. The second complaint must therefore be upheld.
Decision: The complaint must therefore be upheld.
Third complaint: cage birds and stuffed protected birds
Relevant Articl es of the Birds Directive:
Î Article 6(2)
Î Article 6(3)
Commission position: The Commission points out that the list of birds that pursuant to Articles 9 and 10 of the
Order on Birds which apply Articles 11 and 12 of the Law on Birds are not protected as far as capture for caging or
hunting are concerned, is not identical to the list of birds referred to in Article 6(2) and (3) of the Birds Directive and
contained in Annex III. Moreover, the Commission considers that Articles 15, 15 bis and 16 of the Law on Birds,
which allow permits to be issued for trade in protected dead and stuffed birds, are not in conformity with the criteria
laid down in Article 9(1) of the Birds Directive.
Netherlands position: The Netherlands Governm ent states that in fact no permit has been granted for more than 45
years for wild birds to be captured for caging or for trade in such birds, moreover, the way in which Articles 11 and
12 of the Law on Birds are applied is therefore compatible with Article 6(2) and (3) of the Birds Directive. It further
contends that the only birds, which may be stuffed, are birds, which have manifestly died from natural causes or died
without his being responsible for their death.
Advocate General position: Not available.
Court position: The Court notes that the fact that the list of birds in Articles 9 and 10 of the Order on Birds is not
identical to the list in Annex III to the Birds Directive constitutes an inadequate transposition of Article 6(2) and (3)
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Birds Directive and EC Court Project
of the Birds Directive into Netherlands law. Further the Court observes that the derogations concerning the protection
of birds allowed by Articles 15, 15 bis and 16 of the Law on Birds can be justified only on the basis of the criteria
laid down in Article 9(1) of the Birds Directive. However, those criteria are not satisfied in this case.
The Court - noting that even if the administrative practice followed in the Netherlands appears to be in conformity
with the provisions of the Birds Directive - called to remember that the 'mere administrative practices, which by their
nature are alterabl e at will by the authorities and are not given the proper ful filment of obligations under the Treaty'
(See case 168/85 Commission v. Italy ((1986)) ECR 2945).
Decision: The complaint must therefore be upheld.
Fourth complaint: taking of eggs and the disturbing of nests
Relevant Articl e of the Birds Directive:
Î Article 9
Commission position: The Commission considers that the Dutch law concerning the collection of eggs of certain
birds and the rules on disturbing the nests do not transpose the criteria for allowing derogation laid down in Article 9
of the Birds Directive.
Netherlands position: The Netherlands Governm ent states that only the taking of nests of the lapwing is authorised,
for a limited periods. In practice that exception relates only to the area of Friesland where the collection of lapwing
eggs is a historical and cultural tradition. As regards permits for seeking and collecting the eggs of certain birds, the
Government contends that the permits are issued only in order to remedy damage caused by gulls in nature reserves.
Advocate General position: Not available.
Court position: The Court points out that all Member States are empowered to derogat e from the prohibitions
concerning the collection of eggs and the disturbing of nests only under the conditions laid down in Article 9 of the
Birds Directive. However, the permits for such activities provided for by the Netherlands legislation cannot be
justified by reference to the criteria for derogation laid down in that Article. The fact that administrative practice in
the Netherlands appears to be in conformity with the criteria laid down in Article 9 of the Birds Directive- a situation
which, moreover, the Commission acknowledges- is not sufficient to ensure adequate transposition of the Birds
Directive into national law.
Decision: The complaint must therefore be upheld.
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Fifth complaint: means of capture
Relevant Articl e of the Birds Directive:
Î Article 8
Commission position: The Commission criticises the Netherlands Government for not mentioning in Dutch law all
the methods of capture which are prohibited by virtue of Article 8 and Annex IV to the Birds Directive, and for
granting exceptions to the prohibition laid down in Article 8 of the Birds Directive on the use of certain means of
capture which are incompatible with Article 9(1) of the Birds Directive.
Netherlands position: An amendment to Article 14 of the Order on Birds has brought the Netherlands legislation
into line with Annex IV of the Birds Directive.
Advocate General position: Not Available.
Court position: The subject matter of an action brought under Article 169 is defined by the Commission's Reasoned
Opinion, and since the Commission has not withdrawn its complaint, it must be declared well-founded.
Decision: The complaint must therefore be upheld.
Judgment
By failing to bring into force within the prescribed period all the laws, regulations and administrative provisions
necess ary to comply with the provisions of the Birds Directive, the Kingdom of the Netherlands has failed to ful fil its
obligations under the EEC Treaty.
Comment: The Court called the attention to the fact that the transposition of community legislation into national law
does not necessarily require the provisions of that legislation to be enacted in precisely the same words in an express
and speci fic enactment; a general legal context may be sufficient i f it is sufficiently clear and precise in order to
ensure effectively the full application of the Birds Directive. However, a faithful transposition becomes particularly
important in a case as this in which the management of the common heritage is entrusted to the Member States as
regards their respective territories.
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Case 247/85
Parties: Commission of the European communities v. Kingdom of Belgium.
Background: In Belgium, hunting is regulated by the law of 28 February 1882, the law has been amended on several
times and powers in hunting matters have been conferred on the regions which may repeal, supplement, amend or
replace the statutory provisions and regulations in force in this field.
After examining the provisions of the relevant Belgian legislation and deciding that it was not entirely in conformity
with the Council Birds Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (‘the Birds
Directive’), the Commission sent a letter of Formal Notice to the Kingdom of Belgium with its Opinion. This letter
was followed by a Reasoned Opinion, and since the Commission did not receive any answer, it submitted eight
complaints against the legislation in force in Belgium.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Î
Î
Î
Î
Article 1
Article 2
Article 5
Article 6
Article 7
Article 9(1)(a)
Article 9(1)(b)
Article 9(1)(c)
Article 9(2)
Position of the parties
First complaint: the list of birds which may be hunted
Relevant Articl es of the Birds Directive:
Î Article 7
Commission position: According to the Belgian law certain species of wild birds may in principle be hunted,
although those birds are not listed in annex II to the Birds Directive and cannot therefore be hunted under Article 7 of
the Birds Directive. In concrete, the Commission observes that, under several ministerial orders, the hunting of
blackbirds, jackdaws and magpies which are not listed in annex II, was authorised in the years 1981 to 1984.
Belgian position: There is no provision in the Birds Directive requiring cert ain species of birds to be classified in a
category of birds which may not be hunted. The fact that certain birds not listed in annex II have been classi fied as
"gibier" (game) under the Belgian rules is not an infringement of the Birds Directive. Only an express decision of the
competent authority could authorise the hunting of the species concerned so that only such a decision could come into
conflict with the provisions of Article 7 of the Birds Directive.
Advocate General position: Not Available.
Court position: National legislation must guarantee that the species of birds not listed in annex II may not be hunted,
in Article 1 bis of the Belgian law species of birds not listed in annex II to the Birds Directive are classi fied as
"game" so that in principle they may be hunted. Even if those species may in fact be hunted only if the competent
authorities lay down each year, for each species and for a defined area, the opening and closing dates of the hunting
season, the competent authorities still have the power to authorise the commencement of hunting of species which are
not listed in annex II to the Birds Directive the law creat es a legally ambiguous situation by not excluding the
possibility that species other than those listed in annex II to the Birds Directive may be hunted in Belgium.
Decision: The complaint must therefore be upheld.
Second complaint: the list of protected birds
Relevant Articl es of the Birds Directive:
Î Article 2
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Commission position: The Belgian law is only concerned with the protection of birds living in the wild state in the
Benelux countries, whereas the protection should be extended to all species of birds living naturally in the wild state
in the European territory of member states in accordance with Article 1(1) of the Birds Directive.
Belgian position: The Belgian authorities use the Avifaune de Belgique, a scientific work in which almost all bird
species covered by the Birds Directive appear, to define the population of the bird species living naturally in the wild
state in their territory. Secondly, a member state can only take speci fic measures to protect birds within its territory.
Finally, the Commission itself had not been able to present a complete list of bird species living naturally in the wild
state in the member states.
Advocate General position: Not Available.
Court position: The Birds Directive covers bird species living naturally or usually in the European territory of the
member states and also covers birds which are only passing through the Benelux countries. These birds must be
regarded as living naturally in the wild state in the Benelux countries albeit for a limited period. The protective effect
of the Birds Directive also covers speci es of naturally occurring birds in the wild state in the European territory of
another member state which are not naturally or usually to be found in the territory of the Benelux countries but
which are transport ed there, kept there or marketed there, whether alive or dead. The Belgian law does not transpose
the wider protection required by the Birds Directive completely into the Belgian legal order.
Decision: The complaint must therefore be upheld.
Third complaint: protection of nests
Relevant Articl es of the Birds Directive:
Î Article 5
Î Article 9(1)
Î Article 9(2)
Commission position: The Belgian law allows birds' nests built against houses and adjoining buildings to be
disturbed, removed or destroyed in contravention of Article 5(b) of the Birds Directive.
Belgian position: The provision in question is justified by reasons of public health and safety within the meaning of
the first indent of Article 9(1)(a) of the Birds Directive. The presence of nests in chimneys and pipes has led on many
occasions to fires and floods and they have also caused problems of hygiene, for example in the food industry.
Advocate General position: Not Available.
Court position: The removal or destruction of nests is necessary only in specific cases in which the higher-ranking
interests of public health and security must override the protection of birds and their habitats. The Belgian rules
provide for a derogation which is not suffi ciently delimited in fact, the derogation is not limited to specific situations
in which there is no other satisfactory solution than the destruction or removal of nests, in fact, it cannot be
maintained that all nests built against houses and adjoining buildings always represent a danger to health.
Furthermore, the derogation does not comply with the formal requirements sets up by the Birds Directive that is it
does not specify the conditions of risk and the circumstances of time and place in which the derogations may be
granted or the controls which will be carried out. The derogation provided for in the Belgian law does not comply
with the prohibition contained in Article 5 of the Birds Directive and is too general in nature to be justified by Article
9 of the Birds Directive.
Decision: the complaint must therefore be upheld.
Fourth complaint: the derogations regarding certain species of birds
Relevant Articl es of the Birds Directive:
Î Article 5
Î Article 6
Î Article 7
Commission position: The Belgian law allow certain persons to capture, kill, destroy or drive away house sparrows,
tree sparrows and starlings and to destroy their eggs, nests and broods and therefore derogate from Articles 5, 6 and 7
of the Birds Directive. Such a derogation is not covered by Article 9 of the Birds Directive.
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Belgian position: The provisions complained of are justified under Articl e 9 of the Birds Directive. Serious damage
is caused to crops and orchards by the bird species concerned. Moreover, the derogation concerning the starling is
justified by reasons of public health since this species is responsible for pollution and noise in a large number of
towns and on the coast.
Advocate General position: Not Available.
Court position: If the three species speci fi ed in annex 1 to the royal decrees cause serious damage to crops and
orchards or are responsible for pollution and noise in towns or certain regions, Belgium is in principle authorised to
provide for a derogation from the general system of protection provided for in Articles 5, 6 and 7 of the Birds
Directive.
However derogation under Article 9 must comply with the requirements stated therein. The Belgian rules do not
indicate the reasons regarding the protection of public health or the prevention of serious damage to crops or other
fi elds mentioned in Article 9. Furthermore, the derogations do not comply with the criteria and conditions of Article
9(2) in so far as they mention neither the circumstances of time and place in which they may be granted nor the
controls which will be carried out
Decision: the complaint must therefore be upheld.
Fifth complaint: the list of birds which may be kept and the capture of birds in small quantities
Relevant Articl es of the Birds Directive:
Î Article 9(1)(c)
Commission position: It is permitted under Belgian law to keep or exchange bird species, not one of these species
appears in annex III to the Birds Directive (Article 6 (2), (3) and (4) are linked to Annex III).
Belgian position: The allowable capture is not a threat to the Belgian bird population and is justified by Article
9(1)(c) and there are imposed very restrictive conditions for the grant of the related permits. Furthermore capture is
justified by recreational requirements mentioned in Article 2 of the Birds Directive.
Court position: The Belgian law rises to an uncertain and ambiguous legal situation by allowing the list of birds
which may be hunted and kept to be changed as and when the competent administration considers fit. The general and
permanent rules laid down by the legislation does not guarantee that the number of birds which may be captured is
limited to small quantities, that the period during which their capture is allowed does not coincide with periods in
which the Birds Directive seeks to provide particular protection for birds (the nesting period and the various stages of
breeding and rearing) or that capture and keeping are restri cted to cases in which there is no other satisfactory
solution, in particular the possibility that the bird species concerned may reproduce in captivity. The criteria and
conditions laid down in Article 9 of the Birds Directive are not therefore fully transposed into the rules concerned.
Decision: The complaint must therefore be considered well founded.
Sixth complaint: the transport of birds
Relevant Articl es of the Birds Directive:
Î Article 5(e)
Î Article 6
Î Article 9(1)(c)
Commission position: The Belgian law authorises birds belonging to the species specified by the legislation to be
transported provided that certain conditions are ful filled. Since birds cannot be transported without being kept, not
one of the species of birds listed by the law, corresponds to the species listed in annex III to the Birds Directive.
Belgian position: In so far as the capture and keeping of certain species is authorised under Article 9(1)(c) of the
Birds Directive the transport of those species is also authorised.
Advocate General position: Not Available.
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Court position: The Belgian government is right to point out that if the capture and keeping of certain species may
be authorised under Article 9 of the Birds Directive, their transport may be authorised as well as the capture and
keeping of such species, this provision allows any other judicious use. The transport of birds which have been
lawfully captured or kept constitutes such judicious use. However, the Commission correctly objects that Belgian law
permits the transport of birds which have not been lawfully captured or kept. If the keeping of birds permitted by the
Belgian legislation does not accord with Articles 5 and 6 of the Birds Directive, the transport of these birds, which
presupposes that they are kept, does not accord with those Articles either.
Decision: The complaint must therefore be upheld.
Seventh complaint: derogation for birds of a particular colour
Relevant Articl es of the Birds Directive:
Î Article 1
Î Article 5(e)
Î Article 6(1)
Commission position: The Belgian law allow birds of a markedly different colour from birds of the same species,
subspecies or variety living in the wild to be kept, transported and bought and sold throughout the year. The
Commission maintains that this provision is incompatible with Article 5(e) and Article 6(1) of the Birds Directive.
Belgian position: The Belgian government argues that the majority of the birds of a markedly different colour from
birds of the same species are not naturally occurring birds in the wild state within the meaning of Article 1 of the
Birds Directive.
Advocate General position: Not Available.
Court position: The general system of protection which the Birds Directive seeks to establish concerns all bird
species, including those with chromatic aberrations, even if such species are rare.
Decision: The complaint must therefore be upheld.
Eighth complaint: derogation for the prevention of damage
Relevant Articl es of the Birds Directive:
Î Article 9(1)(a)
Commission position: Belgian provisions allow the competent authorities to authorise temporary derogations from
the general provisions concerning the protection of birds in order to prevent damage or for a purpose of local interest.
According to the Commission, it is essential that the expression "serious damage", which appears in the third indent
of Articl e 9(1)(a) of the Birds Directive, should be used in the Belgian legislation. Moreover, that Article does not
recognise local interest as a valid reason for a derogation.
Belgian position: The concept of serious damage is not defined in the Birds Directive so that interpretations other
than those of the Commission are possible.
Advocate General position: Not Available.
Court position: The Commission has not proved that the concept of "dam age" in the Belgian rules is not interpreted
and applied in the same way as the concept of "serious damage" in the third indent of Article 9(1)(a) of the Birds
Directive.
This part of the complaint cannot therefore be upheld.
As regards the concept of local interest, it must be observed that this does not appear amongst the reasons, listed
imitatively in Article 9 of the Birds Directive, for which member states may derogate from the protective provisions
of the Birds Directive. It follows that the Belgian government may not justify Article 9 of the royal decree of 20 July
1972 on the basis of Article 9 of the Birds Directive.
Decision: The complaint must therefore be upheld in part.
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Judgment
By not adopting within the prescribed period all the laws, regulations and administrative provisions needed to comply
with the Birds Directive, the Kingdom of Belgium has failed to ful fil its obligations under the EEC treaty.
Comment: This case belongs to the very first group of cases dealing with the Birds Directive judged by the court.
The Court identifies both the limite ratione materiae and loci of the Birds Directive. As we saw in the second
complaint, the Court underlines how the provisions of the Birds Directive applies to “ bird species living naturally or
usually in the European territory of the Member states” as also expressly stated in the text of the Birds Directive and
also to those species of naturally occurring birds in the wild state in the European territory of another member state
which are not naturally or usually to be found in the territory of the – a specific Member states - but which are
transported there, kept there or marketed there, whether alive or dead. Moreover with respect the limite ratione
materiae, in the last complain the Court said that the Birds Directive seeks to establish a general system of protection
for all bird species, although for certain species listed in annex II of the Birds Directive hunting is aloud and hence
national authorities are obliged to guarantee that only those species are hunted (first complaint). The rest of the
complaints are mostly related to the derogation system fores een by Article 9 of the Birds Directive. The Belgian law
tried to bypass several Birds Directive provisions referring several times to Article 9. But as the Court mentioned, to
be legally founded under the Birds Directive a derogation must not only comply with the formal requirem ents, but
also to the criteria and conditions laid down in Article 9 of the Birds Directive (fi fth complaint).
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Case 252/85
Parties: Commission v. French Republic.
Background: After examining the provisions of the relevant French legislation and deciding that it was not in
conformity with the Birds Directive in a number of respects, the Commission commenced the procedure provided for
in Article 169 (numeration changed after Amsterdam) of the EEC Treaty. After giving formal notice to the French
Republic to submit its observations, the Commission delivered a Reasoned Opinion on 20 February 1985. The French
authorities decided not to response to the Reasoned Opinion.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Î
Î
Article 1
Article 5(b)
Article 5(c)
Article 5(e)
Article 8(1)
Article 9
Article 9(1)(c)
Position of the parties
First complaint: failure to transpose Article 5(b) and (c) of the Directive
Relevant Articl es of the Birds Directive:
Î
Î
Î
Î
Article 5(b)
Article 5(c)
Article 5(e)
Article 9
Commission position: The French legislation, only provides for the protection of nests and eggs during the close
season. Secondly, the nests and eggs of a certain number of birds are not protected.
French position: The objective set out in Article 5 of the Directive is achieved by the French legislation. The
protected speci es of birds in question do not nest during the hunting season and there would therefore be no real
purpose in protecting their nests and eggs throughout the year. The possibility of destroying nests under national
legislation, is justified by the threat which the birds represent to mussel farming, other species of sea birds and air
safety.
Advocate General position: Not available.
Court position: The prohibitions set out in Article 5(b) and (c) of the Directive must apply without any limitation in
time. An uninterrupted protection of the birds' habitat is necessary since many species re-use each year nests built in
earlier years. To suspend that protection throughout a particular period of the year cannot be considered to be
compatible with the abovementioned prohibition. In determining whether this derogation is compatible with Article 9
of the Directive it should be noted that, the French rules in question do not specify the reasons set out in Article 9(1)
or the criteria and conditions referred to in Article 9(2), particularly as regards the circumstances of time and place in
which a derogation may be granted.
Decision: The complaint must therefore be upheld.
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Second complaint: the term "national biological heritage"
Relevant Articl es of the Birds Directive:
Î Article 1
Commission position: The protection provided by French legislation, is limited to the preservation of the national
biological heritage whereas Article 1 of the Directive extends the protection of the Directive to all species of naturally
occurring birds in the wild state in the European territory of the Member States.
French position: The list of species protected by virtue of the national rules contains numerous migratory species
which nest in the other Member States but not in France.
Advocate General position: Not available.
Court position: The protection of migratory species is typically a transfrontier environment problem entailing
common responsibilities for the Member States. The importance of complete and effective protection of wild birds
throughout the Community, irrespective of the areas they stay in or pass through, causes any national legislation
which delimits the protection of wild birds by reference to the concept of national heritage to be incompatible with
the Directive.
Decision: The second complaint must therefore be upheld.
Third complaint: failure to transpose Article 5(e) of the Directive
Relevant Articl es of the Birds Directive:
Î Article 5(e)
Commission position: French legislation contains a general authorization concerning the keeping of protected birds.
However, under Article 5(e) of the Directive Member States are obliged to prohibit the keeping of species of birds
the hunting and capture of which is prohibited. Such a general prohibition on the keeping of birds other than species
referred to in Annex III to the Directive, pursuant to Article 6(2) and (3), is not to be found in the French legislation
which limits such protection to a restricted number of birds.
French position: The French rules allow the result sought by the Directive to be achieved. The legislation prohibits
the capture, the removal, the use and in particular the offering for sale or the purchase of cert ain species. Taken in
conjunction, those prohibitions make the keeping of those protected species impossible.
Advocate General position: Not available.
Court position: In order to guarantee complet e and effective protection of birds on the territory of all the Member
States it is vital that the prohibitions set out in the Directive be expressly embodied in national law. However, the
French rules contain no prohibition relating to the keeping of the protected birds, and thus allow the keeping of birds
captured or obtained illegally, in particular those captured or obtained outside French territory.
Decision: The complaint must be upheld.
Fourth complaint: failure to comply with Article 8(1) of the Directive
Relevant Articl es of the Birds Directive:
Î Article 8(1)
Î Article 9(1)(c)
Commission position: Certain French départements, authorises the use of limes for the capture of thrushes and allow
the capture of skylarks by means of horizontal nets known as "pantes" or "matoles". However, the use of limes and
horizontal nets is expressly forbidden by Article 8(1) of the Directive in conjunction with Annex IV(a) thereto. In
fact, those means of capture do not constitute selective methods and do not therefore allow "judicious use of certain
birds in small numbers" within the meaning of the Directive.
French position: Those measures, which were noti fied to the Commission, are justified under Article 9(1)(c) of the
Directive because such capture is subject to strict territorial, temporal and personal controls in order to guarantee the
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Birds Directive and EC Court Project
selective nature of the capture. The capture of birds with limes and horizontal nets is subject to an extremely strict
and controlled system of individual authorisations.
Advocate General position: Not available.
Court position: The Commission has not shown that the French rules permit the capture of birds in a manner
incompatible with a judicious use of certain birds in small numbers. The French authorities, notified the Commission
of those derogations in accordance with Article 9(4) of the Directive and showed its willingness to reach agreem ent
with the Commission regarding the detailed rules concerning those two hunting methods. However, the Commission
did not respond to that initiative.
Decision: The complaint must be dismissed.
Judgment
By not adopting within the prescribed period all the laws, regulations and administrative provisions needed to comply
with the Directive, the French Republic has failed to ful fil its obligations under the EEC Treaty.
Comment: In this case the Court reaffi rms the complete protection principle and specify its application and
extension. Regarding the extension, according to the court (first complaint) an uninterrupted protection of the birds'
habitat is necessary and to suspend that protection throughout a particular period of the year cannot be considered to
be compatible with the Directive, moreover in order to guarantee complete and effective protection of birds in the
territory of all the Member States it is vital that the prohibitions set out in the Directive be expressly embodied in
national law (third complaint). Regarding the application of the principle (second complaint), each Member State has
to concede complete protection to all the species of birds living in the EC territory also if some species do not leave
in its territory. As cited above the protection of migratory species is typically a transfrontier environmental problem
entailing common responsibilities for the Member States. The importance of complete and effective protection of
wild birds throughout the Community, irrespective of the areas they stay in or pass through, causes any national
legislation which delimits the protection of wild birds by reference to the concept of national heritage to be
incompatible with the Directive.
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Case 262/85
Parties: The Commission of the European Communities v. the Italian Republic.
Background: After examining the provisions of the relevant Italian legislation, the Commission formed the view that
they did not wholly comply with the Birds Directive. Hence, the Commission commenced the procedure provided for
in Article 169 of the EEC Treaty. After giving the Italian Republic Formal Notice to submit its observations, the
Commission delivered a Reasoned Opinion on 16 October 1984. Having received no response to the Reasoned
Opinion the Commission brought the case before the Court.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Î
Î
Î
Article 6(1)
Article 6(2)
Article 6(3)
Article 6(4)
Article 7
Article 7(4)
Article 8(1)
Article 9(1)(a)
Position of the parties
First complaint: the list of birds which may be hunted
Relevant Articl es of the Birds Directive:
Î Article 7
Î Article 9(1)(a)
Commission position: Italian legislation mentions 11 bird species, not listed in annex II to the Birds Directive,
which may be hunted. However, according to Article 7 of the Birds Directive, only the species listed in annex II may
be hunted.
Italian position: 2 of the 11 species in question (jay and magpie) were included in the list of birds which may be
hunted because of their potentially harm ful character. This derogation is therefore justifi ed under the third indent of
Article 9(1)(a) of the Birds Directive.
Advocate General position: Not available.
Court position: The Italian government has not put forward any evidence proving that it was necessary to include jay
and magpie on the Italian list of birds which may be hunted in order to prevent serious damage to crops, livestock,
forests, fisheri es or water and that no other satisfactory solution existed. Neither has it indicated the reasons for which
the listing of those species was, in its view, the only satisfactory solution to prevent serious damage. Finally, the
provision in question does not specify the conditions of risk and the circumstances of time and place under which the
derogation may be granted or the controls which will be carried out. Therefore, the inclusion of jay and magpie
amongst the birds which may be hunted cannot be justified by the third indent of Article 9(1)(a) of the Directive.
Decision: The first complaint is well founded.
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Second complaint: the marketing of birds
Relevant Articl es of the Birds Directive:
Î
Î
Î
Î
Article 6(1)
Article 6(2)
Article 6(3)
Article 6(4)
Commission position: Italian legislation allows the marketing of all the species of birds which may be hunted, and
this is not in line with the provision of Article 6 of the Birds Directive that prohibits trade in all live or dead birds or
parts of such birds with the exception of the species listed in Annex III to the Directive. Moreover, the provisions of
Article 6(2) to (4) of the Directive are not to be found in the Italian legislation.
Italian position: Italian legislation prohibits the sale of woodcock and of dead birds smaller than thrushes, except
starlings, sparrows and skylarks, during the period when the hunting of those birds is allowed.
Advocate General position: Not available.
Court position: Article 6(2) of the Directive, provides that marketing is not to be prohibited in respect of the seven
species referred to in Annex III/1, provided that the birds have been legally killed or captured or otherwise legally
acquired. Since the list in Annex III/1 concerns only seven bird species, whereas the list of birds which may be
hunted according to Italian legislation includes 72 species, it is plain that the provision of Italian Law in question does
not comply with the requirements of the Birds Directive. Furthermore, it is clear from the protection to be afforded
under the Directive that it is intended to avoid a situation in which all the species that may be hunted may also be
marketed because of the pressure which marketing may exert on hunting and consequently on the population level of
the species in question. As regards the 10 species specifi ed in Annex III/2, it is not disputed that the Italian legislation
does not comply with the obligations arising under Article 6(3) of the Directive.
Decision: The complaint must therefore be upheld.
Third complaint: hunting seasons
Relevant Articl es of the Birds Directive:
Î Article 7(4)
Commission position: Italian legislation fixes the dates when hunting may begin without taking account of the
rearing season, the various stages of reproduction and, in the case of migratory species, the return to their rearing
grounds, as required by Article 7(4) of the Directive.
Italian position: Article 7(4) of the Directive does not specify particular dates on which the hunting season should
begin or end. Italian law provides for different dates for the opening and closing of the hunting season for the various
species precisely becaus e their rearing seasons and stages of reproduction differ. Anyway, the complaint is ill founded
becaus e it does not address itself to the question whether the dates chosen for the opening and closing of the hunting
season are appropriate.
Advocate General position: Not available.
Court position: The Italian legislation takes account of the various periods mentioned in Article 7(4) of the Birds
Directive in which birds are to be protected. The Italian legislation does fix different dates for the opening and
closing of the hunting season for the various species of birds having regard to their different rearing seasons and their
different stages of reproduction and, in the case of migratory birds, their return to their rearing grounds. In this regard
the Commission's complaint cannot be upheld.
Decision: The complaint must be dismissed.
Fourth complaint: use of automatic and semi-automatic weapons
Relevant Articl es of the Birds Directive:
Î Article 8(1)
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Commission position: Italian legislation authorises the use of repeating and semi-automatic weapons capable of
firing three shots and that this provision of Italian Law is not a correct application of Article 8(1) of the Birds
Directive and Annex IV thereto.
Italian position: The Italian provisions provide for the fitting of a technical device in order to reduce the number of
shots. That mechanism is intended to make it impossible to introduce more than two rounds of ammunition into the
magazine whilst a third may be introduced directly into the firing chamber. The Italian rules are therefore not contrary
to the provision in the Directive.
Advocate General position: Not available.
Court position: Italian legislation, does prohibit weapons capabl e of discharging more than three rounds of
ammunition. Moreover, it is undisputed that the Directive does not prohibit the insertion of a third round of
ammunition into the gun's firing chamber. Therefore, legislation authorising weapons capable of firing three
consecutive rounds is not contrary to the Directive, provided that it is ensured that the magazines of those weapons
can hold only two rounds of ammunition. It must be noted in this regard that the Italian provision clearly restricts the
use of weapons to those which can discharge only three consecutive rounds. Since a round of ammunition may be in
the gun's firing chamber, the reference in the Italian provision in question to a device preventing more than three shots
from being fired is sufficient to guarantee that the magazine cannot hold more than two rounds of ammunition. In
those circumstances, Italian legislation must be regarded as providing a proper guarantee of the full implementation
of Articl e 8(1) of the Directive.
Decision: The complaint is unfounded.
Fifth complaint: the powers given to the regions to permit the capture and sale of migratory birds
Relevant Articl es of the Birds Directive:
Î Articles 7
Î Article 8
Î Article 9(1)
Commission position: Italian legislation is incompatible with Articles 7 and 8 of the Directive in so far as it confers
on the Italian regions a wide power to authorise the capture by any method and the sale of migratory birds even in the
close season.
Italian position: Italian provisions does not confer a wide discretion on the regions, in fact the regions may not
depart from the wording of the Directive and the rule-making power may only be exercised in consultation with a
scientifi c institute. They must lay down precise rules governing arrangements for capturing migratory birds. Finally,
migratory species may be captured only in limited numbers fixed in advance for each species. This provision is
therefore a derogation provided for by Article 9(1) of the Directive.
Advocate General position: Not available.
Court position: Even though the regions are obliged to consult a scientific institute before implementing their rules,
the Opinion of the institute is not binding and therefore that obligation does not guarantee that the requirements o f the
Directive will be respected. Italian provisions, makes no reference to Article 9(1), which provides that a derogation
from Articles 7 and 8 of the Directive may be granted only if there is no other satisfactory solution. Secondly, Italian
provisions, which authorise the regions to permit the use of means and arrangements for capturing birds, to fix the
periods in which capturing is permitted and to draw up the list of birds which may be hunted, do not, contrary to the
requirem ents of Article 9(2) of the Directive, speci fy the means, arrangem ents or methods authorised for the capture
or killing of birds, the circumstances of time and place under which the derogations may be granted or the species
covered by the derogations. Such criteria and conditions are necess ary to ensure that the derogation is applied in a
strictly controlled and selective manner. Since the national provisions do not themselves establish the criteria and
conditions provided for in Article 9(2) of the Directive or require the regions to take account of those criteria and
conditions, they introduce an element of uncertainty as regards the obligations which the regions must observe when
adopting their regulations. Therefore, there is no guarantee that the capture of certain species of birds will be limited
to the strict minimum, that the period of capture will not coincide unnecessarily with periods in which the Directive
aims to provide particular protection or that the means, arrangements or methods for capture are not large-s cale, nonselective or capable of causing the local disappearance of a species. It follows that the essential elements of Article 9
of the Directive have not been transposed completely, clearly and unequivocally into the Italian rules.
Decision: The complaint must be upheld.
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Sixth complaint: the use of migratory birds as live decoys
Relevant Articl es of the Birds Directive:
Î Article 8
Commission position: Italian legislative provisions authorise the use of migratory birds as live decoys for hunting
and the blinding and mutilation of birds used as decoys, in breach of Article 8 of the Directive.
Italian position: National legislation, only authorises the use of migratory birds as live decoys but does not authorise
the blinding or mutilation of those birds.
Advocate General position: Not available.
Court position: National legislation allow the regions to authorise the use of migratory birds as live decoys in covershooting and prohibits only the use of blinded live decoys. It therefore follows that Italian provisions do not expressly
prohibit the regions from authorising the keeping and a fortiori the use of migratory species as mutilated live decoys
in cover shooting. Such use is prohibited by the Directive.
Decision: The complaint must therefore be upheld.
Judgment
By not adopting within the prescribed period all the laws, regulations and administrative provisions needed to comply
with the Birds Directive the Italian Republic has failed to ful fil its obligations under the EEC Treaty.
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Comment: In this case the court explains the limit and the conditions to derogate to the Birds Directive provisions.
According to the court interpretation, it is clear from the general scheme of protection provided for in the Directive
that national legislation may not extend the list contained in annex II indicating the bird species which may be
hunted. It should be noted the Directive does indeed allow member states to derogate from the general scheme of
protection. However, as stated above, such a derogation must comply with the three conditions mentioned in Article
9. Such criteria and conditions are necess ary to ensure that the derogation is applied in a strictly controlled and
selective manner.
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Case 412/85
Parties: Commission of the European Communities v. Federal Republic of Germany.
Background: The Commission of the European Communities brought an action under Article 169 of the EEC Treaty
for a declaration that, by authorising derogation from the measures for the protection of birds without providing for
the restrictions prescribed by Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ('the
Birds Directive'), the Federal Republic of Germ any has failed to ful fil its obligations under the EEC Treaty.
Originally, the Commission's action concerned three provisions of the Germ an Federal Law on the protection of
nature (Federal law) authorising derogation from the legislation concerning the protection of birds. Following an
amendment made to the Federal law after the written procedure had ended, the Commission considered the case
settled in regard to the second and third complaints and only one point remained in disagreement, namely the
conformity of the first sentence of paragraph 22(3) of the Federal law with Article 5 of the Birds Directive read in
conjunction with Article 9 thereof.
Article 5 of the Birds Directive provides for general prohibitions on the deliberate killing or capture of the species of
birds referred to in Article 1 of the Birds Directive and on the deliberate destruction of, or damage to their nests and
eggs and the deliberate disturbance of those birds insofar as their disturbance would be significant having regard to
the objectives of the Birds Directive.
Those general obligations were transposed into German law by paragraph 22(2) of the Federal law. The provision
prohibits inter alia, the deliberate commission of the acts set out in Article 5 of the Birds Directive. The first sentence
of paragraph 22(3) of the Federal law provides that the prohibitions contained in subparagraph (2) do not apply where
the acts concerned take place in the course of 'the normal use of the land for agricultural, forestry or fishing purposes'
or in the context of the 'exploitation of the products obtained from such activities'.
The Birds Directive Arti cles relevant to this case:
Î Article 5
Î Article 9
Position of the parties
Commission position: The Commission claims that Article 9 of the Birds Directive authorises Member States to
provide for derogation only if the protective criteria laid down in Article 9 are met. Thus, the Commission finds that
there is no reference in the German legislation to the fact that derogation may be granted only, where there is no other
satisfactory solution or to one of the reasons set out in Article 9(1) of the Birds Directive.
German position: The Federal Republic of Germany replies that paragraph 22(3) of the Federal law does not
constitute a derogation from the prohibitions laid down in subparagraph (2). The derogation provided for in paragraph
22(3) presuppose the absence of any intentional acts. The activities defined in the before-mentioned paragraph, such
as the normal use of land, can never be regarded as constituting a deliberate failure to protect birds, because actions
perform ed with the intention of killing, capturing, disturbing, keeping or selling wild birds cannot be described as
forming part of normal agricultural, forestry or fishing activities.
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Advocate General: The Advocate General claims that the whole problem of the case resides in the interpretation to
be given to the term "normal use of the land", by which the scope of the derogation is defined. It is not disputed that
according to a strict interpretation that term, and hence the derogation linked to it, can include only negligent acts or,
at most, acts committed recklessly. That result could thus be consistent with the customs prevalent among the farmers
and fishermen of the Federal Republic of Germany. Basically, it would be the idea of "inevitable consequence" - or,
possibly, the "impossibility of any other conduct" - which would enable the scope of the derogation to be defined so
as to avoid any incompatibility with the Birds Directive.
However, the Advocate General claims that the distinction - which is in any event difficult to establish - is not
apparent from the wording of the provision or from any other legislative text. It cannot be excluded that a wider
interpretation of the term "normal use of the land" would enable intentional acts, especially those committed without
heed to the consequences or even wilfully, to be included therein. The derogation would then have to satisfy the
criteria laid down in Article 9, in particular the reference to any of the reasons set out therein and the in-existence of
any other satisfactory solution. This clearly is not the case, in the opinion of the Advocate General.
Thus under the law acts which are not in need of protection become lawful, which is precisely what the Directive
seeks to avoid. The obligation imposed on the courts of each Member State to interpret its own national law in the
light of the wording and purpose of the Directive which that law was intended to implement does not affect the
obligation imposed on all the other authorities of that Member State, particularly the legislature, to adopt all the
measures necessary, within the scope of their competence, to ensure that the Community rule is implemented and the
objectives thereof are attained.
The Advocate General sums up that the German national law fails to remove an ambiguity as regards the scope o f the
obligations which it imposes, and therefore cannot be regarded as satis fying fully the requirem ents of clarity and
certainty of the rights and obligations flowing from the Birds Directive, which according to the judgements of the
Court may be considered a condition for recognising the conformity with Directives of the legislative text by which
they are supposed to be implemented. For the above reasons the Advocate General proposes that the Court should
declare that the Federal Republic of Germany has failed to adopt within the period prescribed the provisions
necess ary to fully comply with the obligations arising from the Birds Directive and has therefore failed to comply
with an obligation under the EEC Treaty.
Court position: The Court declares that it is necessary to consider fi rst the question whether paragraph 22(3) of the
Federal law constitutes a derogation from the prohibitions laid down in subparagraph (2) of the same provision. More
precisely, it must be determined whether paragraph 22(3) concerns intentional acts inimical to the protection of birds.
The Court declares that with regard to paragraph 22(3) of the Federal law, the terms of that provision refer expressly
to the previous subparagraph, which contains the general prohibitions provided for in Article 5 of the Birds Directive.
Since those prohibitions concern intentional acts, the exception necessarily covers the same acts.
The Court states that the German legislation permits derogation from the provisions for protection of birds as long as
the acts concerned are carried out 'in the course of the normal use of the land for agricultural, forestry or fishing
purposes’. That reference to a particular use of the land does not provide a precise indication of the extent to which
damage to the environment is permitted. The concept of the normal use of the land and the concept o f an
unintentional infringement of the provisions for the protection of the birds belong to two different legal planes. Since
the German legislation does not define the concept 'normal use', unintentional damage to the life and habitat of birds
is not excluded from the scope of paragraph 22(3) of the Federal law in so far as such damage is necess ary in the
course of the normal use of the land.
Consequently, since paragraph 22(3) of the Federal law constitutes a derogation from the prohibitions laid down in
Article 5 of the Birds Directive, the German rules must meet the criteria laid down in Article 9 of the Birds Directive
in order to be justified. According to that provision, Member States must restrict the derogation to cases in which
there is no other satisfactory solution. The derogation must be based on at least one of the reasons listed exhaustively
in subparagraphs (A), (B) and (C) of Articl e 9(1) and it must meet the criteria laid down in Article 9(2), the purpose
of which is to limit derogation to what is strictly necessary and to enable the Commission to supervise them. In that
regard, the Court declares that the derogation provided for in paragraph 22(3) of the Federal law do not meet the
requirem ents laid down in Article 9 of the Birds Directive, since the activities defined in paragraph 22(3) cannot be
attributed to any of the reasons set out in Article 9 of the Birds Directive.
Decision: Complaint upheld.
Judgment
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By authorising in a national law derogation from the measures for the protection of birds provided for by the Birds
Directive, the Federal Republic of Germany has failed to ful fil its obligations under the EEC Treaty.
Comment: The case concerns the obligation imposed on the courts of each Member State to interpret its own national
law in the light of the wording and purpose of the Directive which that law was intended to implement does not affect
the obligation imposed on all the other authorities of that Member State, particularly the legislature, to adopt all the
measures necessary, within the scope of their competence, to ensure that the Community rule is implemented and the
objectives thereof are attained.
In this case the German national law failed to remove an ambiguity as regards the scope of the obligations which it
imposes, and therefore was not regarded as satisfying fully the requirements of cl arity and certainty of the rights and
obligations flowing from the Birds Directive, which according to the judgements of the Court may be considered a
condition for recognising the conformity with Directives of the legislative text by which they are supposed to be
implemented.
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Case 339/87
Parties: Commission of the European Communities v. Kingdom of the Netherlands.
Background: In the Netherlands, the hunting of birds are regulated by a Ministerial Decree of 8 August 1977 and a
Ministerial Regulation of 24 February 1987 authorised by the Dutch Hunting Law (Jachtwet). The combined Dutch
provisions authorise the competent Minister to adopt measures exceeding the limits laid down by Council Directive
79/409/EEC of 2 April 1979 on the conservation of wild birds ('the Birds Directive'). The Commission argues that
the Birds Directive introduces a general system of protection from which it is possible to derogate only in certain
speci fic cas es and in certain speci fic circumstances.
Finding that the Netherlands laws and administrative provisions on hunting were not entirely in conformity with the
provisions of the Birds Directive, the Commission commenced the procedure provided for in Article 169 of the EEC
Treaty. After giving form al notice to the Kingdom of the Netherlands to submit its observations, the Commission
delivered a Reasoned Opinion to which there was no response. The Commission then submitted six complaints in
respect of the Netherlands rules on the hunting of birds.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Î
Article 5
Article 5(c)
Article 6(2)
Article 7
Article 8(2)
Article 9
Position of the parties
First complaint: species of birds which may be hunted
Relevant Articl e of the Birds Directive:
Î Article 7
Commission position: The Commission argues that a number of species, which may be hunted under Dutch law, are
protected by Article 7 of the Birds Directive, since they are not listed in Annex II thereto. The species in question are
black grouse, several speci es of geese and ducks, great snipe, carrion crow and hooded crow, rook, jackdaw, jay and
magpie.
Netherlands position: The Netherlands Governm ent considers that the Dutch Hunting Law and its implementing
provisions adequately transpose the prohibitions laid down in the Birds Directive. It stresses that the birds in respect
of which hunting permits may be granted by the competent Minister belong to species which all the year round cause
or may cause serious damage to agriculture throughout the territory of the Netherlands.
Advocate General position: The Advocate General states that the question whether the provisions of the Birds
Directive have been transposed into the Netherlands legal order must be evaluated on the basis of both the Hunting
Law and the rule-making provisions adopted thereunder. He therefore does not share the view that Article 20(1) of
the Hunting Law is in conflict with the Directive simply on account of the fact that this provision in principle permits
a number of protected speci es of birds to be hunted. However, the Advocate General finds that, when this provision
is read in conjunction with the decree of 8 August 1977, a number of provisions of the Birds Directive have not been
transposed into the Netherlands legal order. Thus, as currently provided for, carrion crows, jackdaws and magpies
may be hunted throughout the year and jays for part of the year . This state of affairs conflicts with the Birds
Directive, which permits birds not mentioned in Annex II to the Birds Directive to be hunted only under the
conditions laid down in Article 9 of the Directive. The Advocate General further finds that, under the current rules,
the wood pigeon may be hunted throughout the whole of the year, whereas Article 7(4 ) of the Directive prohibits this
species of bird from being hunted during a certain period of the year, save under the conditions laid down in Article 9
of the Directive.
The Advocate General concludes that reference to the existence of a policy is not sufficient. The conditions laid down
in Article 9 of the Birds Directive for the grant of derogations or the decision not to grant derogations must be
contained in rule-making provisions.
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Court position: As regards the hunting of species which may not be hunted by virtue of Article 7 of the Birds
Directive in conjunction with Annex II, the Court examined the Commission's complaint in respect of the species in
question under separate heads as follows:
(i)
Black grouse, great snipe, hooded crow
These three types of bird fall within the field of application of Article 20(2) of the Dutch Hunting Law, which
provides that the hunting of those species is prohibited, in the absence of a measure of the competent Minister
providing otherwise. In the present case no measure of that kind has been adopted. In the current state of the
applicable national rules, the birds in question are protected in conformity with the terms of the Directive. This part
of the first complaint must therefore be rejected.
(ii)
Geese and ducks
These birds likewise fall within the field of application of Article 20(2) of the Dutch Hunting Law. In accordance
with the Ministerial Decree of 8 August 1977 certain species (greylag goose, white-fronted goose and bean goose,
together with mallard, shoveler, widgeon, pintail and gadwall) may be hunted during a certain period of the year. That
decree is in conformity with Annex II to the Directive, which authorises the hunting of those birds in all the Member
States and in particular in the Netherlands. Accordingly, that part of the first complaint must also be rejected.
(iii)
Carrion crow, jackdaw, magpie, jay
The first three species may be hunted throughout the year under Articles 8(1) and 20(1) of the Dutch Hunting Law.
As for jays, the Ministerial Decree of 8 August 1977 provides for only a partial closure of the season from 1 May to
14 July. However, under Article 7 of the Directive none of those species may be hunted, therefore the fi rst complaint
must be regarded as well founded.
(iv)
Rook
The hunting of rook was authorised by a regulation dated 24 February 1987 adopted by the competent Minister by
virtue of the power conferred on him by Article 20(2) of the Dutch Hunting Law. However, it must be held that the
provisions of that regulation comply with the various requirements for derogations authorised by Article 9 of the
Birds Directive for the purpose of preventing serious damage. Consequently, the complaint made in that respect must
be reject ed.
Decision: The first complaint is well founded only as regards the hunting of carrion crow, jackdaw, jay and magpie.
The complaint must therefore be upheld.
Second complaint: derogations in respect of certain species of birds
Relevant Articl e of the Birds Directive:
Î Article 9
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Commission position: The Commission points out that Dutch law allows the user of land to hunt certain species of
protected birds without any limitation as to time and with the aid of any appropriate means of flushing out or killing
the game, and also by using ferrets, nets and traps. It considers that although the hunting of certain species (nam ely
wood pigeon, carrion crow, jackdaw, jay and magpie) may be authorised under Article 9 of the Birds Directive in
order to avoid serious damage, the Dutch legislation does not satisfy the requirements laid down in that provision.
Netherlands position: The Government observes that the Minister may prohibit the hunting of the species in
question for a particular period or in certain parts of the country and that he has made use of that power to prohibit the
hunting of jay for a particul ar period. It adds that the hunting of the other species covered by the Dutch law has not
been prohibited in view of the damage they cause and the extrem ely small risk of their being hunted where no serious
damage is caused. Finally, the Government states that the means of hunting prohibited by Annex IV to the Birds
Directive, such as traps, are not used in the Netherlands.
Advocate General position: The Advocate General notes that the Netherlands Government does not demonstrate
that hunting with bird traps cannot take place in the Netherlands, therefore this defence submission can in the
circumstances not succeed. The prohibition of the use of bird traps must therefore be contained in a rule-making
provision.
Court position: It should be recalled that, according to the case law of the Court (C-412/85 Commission v. Germany
(1987)), any derogations from the prohibitions prescribed by the Birds Directive must meet the requirements laid
down in Article 9 thereof. However, the Netherlands legislation contains no particulars in that regard.
As regards to the means used for hunting the abovementioned species which are permitted under Dutch law, it should
be emphasized that the prohibitions of means of capture which are laid down in the Birds Directive must be laid down
in legislative provisions. The fact that a practice incompatible with the Directive is not carried on does not release the
Member State in question from its obligation to adopt laws or administrative provisions in order to ensure that the
provisions of the Directive are adequat ely transposed. In view of the principle of legal certainty the relevant
prohibitions must be reproduced in mandatory legal provisions.
Decision: The complaint must therefore be upheld.
Third complaint: the seeking, collection and possession of the eggs of certain species of birds
Relevant Articl es of the Birds Directive:
Î Article 5(c)
Î Article 6(2)
Commission position: The Commission points out that the Dutch law authorises the seeking, collection and
possession of eggs of certain species, even though under Article 6(2) of the Birds Directive and Annex III/1 thereto
such authorisation may be granted only in respect of wood pigeon.
Netherlands position: The Netherlands Governm ent states that in fact eggs of the named species are not sought or
collected.
Advocate General position: The Advocate General states that such a prohibition is not imposed by the current
regulatory arrangements. The prohibited acts are allowed in so far as hunting is permitted and the hunting of species
of birds mentioned in Article 8 of the law is in principle permitted by the current arrangements.
Court position: It is common ground that the seeking, the collection and the possession of eggs of wood pigeon,
carrion crow, jackdaw, jay and magpie, which are authorised under the national legislation, are contrary to Article
5(c) of the Birds Directive. The fact that a number of activities incompatible with the prohibitions contained in the
Birds Directive are unknown in a particular Member State, cannot justify the absence of appropriate legal provisions
in order to secure the full implementation of Directives in law and not only in fact, Member States must establish a
speci fic legal framework in the area in question.
Decision: The complaint must therefore be upheld.
Fourth complaint: derogations concerning the prevention of damage
Relevant Articl e of the Birds Directive:
Î Article 9
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Commission position: The Commission maintains that the provisions of the Dutch law relating to the prevention of
damage do not correspond with the wording of Article 9 of the Birds Directive. It considers that it is very important
that the conditions of derogation set out in that Article should be reproduced accurately in the national legislation and
that they should be the subject of speci fic assessment in which a distinction is drawn inter alia between the need for
hunting as such, on the one hand, and the need to use a particular means of hunting, on the other.
Netherlands position: In the view of the Dutch Government, under Dutch law the hunting permits are granted only
for the purpose of preventing and combating serious damage by certain species which under Annex II of the Birds
Directive may be hunted in the Netherlands and in respect of which hunting is permitted for all or part of the year. It
adds that such permits, which are subject to a number of conditions, are issued only if there is no other satisfactory
solution.
Advocate General position: The Advocate General states that the conditions laid down in Article 9 of the Birds
Directive governing the grant of derogations, or a decision not to grant derogations, must be contained in rule-making
provisions.
Court position: It must be observed that neither serious damage nor any of the other reasons on which derogations
may be based that are set out in Article 9 of the Birds Directive appear in the relevant Dutch law. It appears from the
case-law of the Court on the conservation of wild birds that the criteria which the Member States must meet in order
to derogate from the prohibitions laid down in the Directive must be reproduced in specific national provisions, since
a faithful transposition becomes particularly important in a case where the management of the common heritage is
entrusted to the Member States in their respective territories.
The explanation that the requirements as to protection set out in Article 9 of the Birds Directive are observed in fact
by ministerial practice with regard to the use of hunting permits cannot be accept ed, since mere administrative
practices, cannot be regarded as constituting proper compliance with the obligation on Member States.
Decision: The complaint must therefore be upheld.
Fifth complaint: hunting from aircraft
Relevant Articl es of the Birds Directive:
Î Article 8(2)
Commission position: The Commission maintains that the Dutch law does not prohibit the hunting of birds from
aircraft, although the combined provisions of Article 8(2) of the Birds Directive and Annex IV(b) thereto impose an
obligation on the Member States to prohibit this type of hunting.
Netherlands position: In the Netherlands aircraft are not used to pursue game. The Government therefore considers
it superfluous to include such a prohibition in the national legislation.
Advocate General position: The Advocate General states that the prohibition must consequently be contained in a
rule-making provision.
Court position: The fact that in a Member State a particular means of hunting is unknown does not constitute a
reason for not transposing that prohibition into the national legal order. Consequently, the fi fth complaint must be
upheld.
Decision: The complaint must therefore be upheld.
Sixth complaint : derogations for hunting dog trials
Relevant Articl es of the Birds Directive:
Î Article 5
Commission position: The Commission points out that the authorities may, in pursuance of the power conferred on
them by the Dutch Hunting Law, derogate from that law in order to authorise the organisation of hunting dog trials or
the training of hunting dogs even though the Birds Directive does not provide for such a derogation. The Commission
considers that the relevant national provisions are so general in terms that it is unclear whether the obligations defined
in the Directive are observed.
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Netherlands position: According to the Netherlands Government, when a ministerial permit for the training of
hunting dogs is issued, it covers only the training of the dogs and the tracking of game. Such permits are issued in
order to provide the holders with an opportunity to give their dogs experience of tracking game, but do not, however,
authorise the capture or killing of birds which may not be hunted.
Advocate General position: The Advocate General states that the prohibition must consequently be contained in a
rule-making provision.
Court position: Under Article 5 of the Birds Directive Member States must take the requisite measures to establish a
general system of protection for birds whereby in particular it is prohibited to kill, capture or disturb them.
As the Court made clear in its judgment of 13 October 1987 in Case 236/85 Commission v Netherlands (1987),
irrespective of the fact that an administrative practice may be in conformity with the requirements of protection laid
down in the Directive, the circumstances in which permits relating to hunting dog trials or the training of hunting
dogs may be granted must be laid down in legislative provisions. In view of the absence of a precise legal fram ework
laid down by law or administrative provision governing the above mentioned activities, the sixth complaint must
therefore be regarded as well founded.
Decision: The complaint must therefore be upheld.
Judgment
By failing to bring into force within the prescribed period all the laws, regulations and administrative provisions
necess ary to comply with the provisions of the Birds Directive, the Kingdom of the Netherlands has failed to ful fil its
obligations under the EEC Treaty.
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Comment: The present case concerns a number of provisions of the Dutch Hunting Law and a decree of 8 August
1977 opening and closing the hunting season made by the Minister for Agriculture and Fisheries in pursuance of
Article 20 of the Hunting Law. A regulation of 24 February 1987 made by the same Minister on the granting of
permits for the hunting of birds is also relevant to this case although it was issued after the Commission's Reasoned
Opinion of 11 February 1987.
In its decision the Court finds that the transposition of a Directive into national law does not necessarily require the
provisions of the Directive to be enacted in precisely the same words in a specifi c express legal provision, a general
legal context may be suffici ent if it actually ensures the full application of the Directive in a suffici ently clear and
precise manner. That may be the case where transposition is effected by a legislative provision serving as the basis for
the adoption of administrative measures which are officially published, general in scope and capable of creating rights
and obligations for individuals . In contrast, mere administrative practices, which by their nature may be changed at
will by the authorities, do not constitute proper transposition.
Further the case refl ects that this is an area where the faithful transposition of Directives is particularly important,
since a common heritage is at stake whose management is entrusted to the Member States as regards their respective
territories. Consequently, any derogations made by the legislation of a Member State from the general prohibitions set
out in the Birds Directive in order to ensure the conservation of wild birds must be based on at least one of the
reasons listed exhaustively in Article 9(1) of the Directive and must meet the criteria laid down in Article 9(2), the
purpose of which is to limit derogations to what is strictly necessary and to enable the Commission to supervise them.
The fact that certain means of hunting or means of killing which are prohibited by the Birds Directive are unknown in
a Member State does not release that Member State from its obligation to adopt laws or administrative procedures in
order to ensure that the provisions of the Directive are adequately transposed. In view of the principle of legal
certainty the relevant prohibitions must be reproduced in mandatory legal provisions.
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Case 288/88
Parties: Commission of the European Communities v. Federal Republic of Germany.
Background: The Commission submitted an application for a declaration that the Federal Republic of Germany has
failed to ful fil its obligations under the EEC Treaty by not adopting all the laws, regulations and administrative
provisions needed to comply with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds
(Birds Directive). The grounds of the judgment are not reproduced.
The Birds Directive Arti cles relevant to this case:
Î Not available.
Position of the parties
Commission position: Not available.
German position: Not available.
Advocate General position: The Advocate General proposed that the Court should grant the Commission' s
application and order the Federal Republic of Germany to pay the costs.
Court position: Not available.
Judgment
Complaint upheld. The Court declares that the Federal Republic of Germany has failed to ful fil its obligations under
the EEC Treaty by not adopting all the measures necessary to implement the Birds Directive.
Comment: The grounds of the judgement, the position of the parties and the relevant legislation is not reproduced.
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Case 57/89
Parties: Commission of the European Communities v. Federal Republic of Germany.
Background: The Commission of the European Communities brought an action under Article 169 of the EEC Treaty
for a declaration that by planning or undertaking works detrimental to the habitat of protected birds in special
protection areas (’SPAs’), contrary to Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation
of wild birds (’the Birds Directive’), the Federal Republic of Germany has failed to ful fil its obligations under the
EEC Treaty.
The concerned Leybucht is an area of about 2,800 hectares in the Land of Lower Saxony. The area is of particular
importance as habitat for cert ain bird species mentioned in Annex I of the Birds Directive. The Leybucht is part of
the Niedersaechsisches Wattenmeer National Park, which is designated in a regulation of 13 December 1985 of the
Land of Lower Saxony (hereinafter referred to as ’the Protective Regulation’) as a protected area. The Leybucht
represents about 1% of the protected area, which covers a total of about 240,000 hectares. Article 3 of the Protection
Regulation defines its boundaries by reference to attached topographic maps. As a general criterion it is assumed that
the area is bounded on the landward side by the seaward side of the dyke.
The dyke project was approved by the Bezirksregierung Weser-Ems in its planning decision of 25 September 1985.
There was a great loss (about 450 hectares) in the Greetsieler Nacken, where the "nose" of the dyke is to be built. This
is mainly an area of wet sands which are an important feeding area for birds but cannot normally be regarded as a
nesting area. However, the building of the "nose" of the dyke will also result in the loss of part of the Hauener Hooge
which has an important role as a nesting, rest and refuge area for birds. A second cause of loss of protected area is the
decision to build the new dyke for the protection of the Leybucht polder parallel to the existing dyke but 50 metres
seawards. That will result in the loss of valuable salt marshes over a length of more than two kilometres. Finally,
there is a further loss of protected area as a result of the decision to round off the line of the dyke over a distance of
about two kilometres in the area of Leybuchtsiel. Here again there is a loss of valuable salt marshes over an area
estimated by the German Government during the interlocutory proceedings as about 45 hectares.
However, the project is not entirely detrimental from the ecological point of view. The completion of the project will
permit the closure of the two channels crossing the Leybucht, which until now were regularly dredged. Disruptive
dredging work will thus no longer be necessary in the future, and the dredged material will no longer need to be
dumped elsewhere in the area. The German Government does not exclude the possibility that in those circumstances
seals may once again establish themselves in the Leybucht. In the planning decision of 25 September 1985 it is
further expressly provided that the areas situated in the "nose" of the dyke will be protected. The dyke which
previously protected the area of the Hauener Hooge will be opened, so that an area of about 100 hectares will once
again become tidal, permitting the formation of valuable salt marshes. Finally, the planning decision states that the
pits on the landward side from which clay was taken to strengthen the dyke will not be filled in, but will be declared a
protection area?
Article 4 of the Birds Directive provides for the following: "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 special
protection areas for the conservation of these species, taking into account their protection requirements in the
geographical sea and land area where this Directive applies. Member States shall take similar measures for regul arly
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. Member States shall send the Commission all relevant
inform ation so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the
areas provided for in paragraphs 1 and 2 above form a coherent whole which meets the protection requirements of
these species in the geographical sea and land area where this Directive applies. In respect of the protection areas
referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration
of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the
objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or
deterioration of habitats."
The Birds Directive Arti cles relevant to this case:
Î Article 2
Î Article 4(1)
Î Article 4(3)
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Î Article 4(4)
Position of the parties
First claim: dredging and filling operations in the Rysumer Nacken
Relevant Articl e of the Birds Directive:
Î Article 4(4)
Commission position: The Commission, at the hearing, formally acknowledges that the Rysumer Nacken is not
covered by the Protective Regulation creating the Niedersaechisches Wattenmeer National Park and that,
consequently, the Rysumer Nacken is not designated as a SPA, therefore the Commission formerly withdrews its
application in this respect. However, the Commission argues that that is a new argument put forward by the defendant
in its rejoinder, so that the defendant must bear the costs relating to this point.
German position: The German Government replies that the Commission was aware, even before the commencement
of proceedings before the Court, of all the information concerning the legal status of the Rysumer Nacken, in
particular of maps showing the boundaries of the national park. It is clear from those maps that the Rysumer Nacken
is not designated as a SPA. According to the German Government, the details it provided in its rejoinder do not
therefore constitute a new argument.
Advocate General position: The Advocate General mentions that at the time of the Commission' s letter of Formal
Notice (7 August 1987) the Federal Republic of Germany had not yet informed the Commission that the Leybucht
formed part of a protected area. In a letter of 26 September 1983 the German Government had informed the
Commission that 48 areas in the Land of Lower Saxony were under consideration as SPAs. One of them was the
"Ostfriesisches Wattenmeer mit Dollart" area, to which both the Leybucht and the Rysumer Nacken belong
geographically. With regard to the Leybucht the Commission considered, however, that the German Government had
not, by that letter, designated that area as a SPA in accordance with the Directive. The first complaint stated in the
Reasoned Opinion (4 July 1988) is accordingly the failure to designate that area as a SPA. In a letter of 6 September
1988 the German Government informed the Commission that the Leybucht came under the protective scheme
established by the Protective Regulation. That letter states that the boundaries of the protection area are defined in
detail by the maps attached to the Protective Regulation. In the Commission' s application lodged at the Court
Registry on 28 February 1989 the failure to designate the Leybucht as a SPA is no longer raised as a ground of
complaint against the Federal Republic of Germany. In those circumstances the Commission cannot maintain that the
discontinuance of that part of its application was justified by the conduct of the German Government. It could not, on
the basis of the information in its possession when it submitted its application, assume that the Rysumer Nacken
formed part of an area designated as a SPA.
Under Article 69(4) of the Rules of Procedure, a party who discontinues or withdraws from proceedings is to be
ordered to pay the costs, unless the discontinuance or withdrawal is justified by the conduct of the opposite party. The
Court has held that provision to be applicable also where the applicant does not discontinue or withdraw from the
proceedings entirely but simply abandons part of its claim. Therefore the Advocate General proposes that the Court
dismiss the application and order the Commission to pay the costs.
Court position: The Court finds that at the time it lodged its application, the Commission had at its disposal inter alia
the maps appended to the abovementioned regulation, defining the boundaries of the protected area. It is evident from
that information that the Rysumer Nacken is not one of the sites designated as a SPA. Consequently, since the
withdrawal of this part of the application is not the consequence of the conduct of the German Government, the
Commission must bear the costs relating thereto.
Decision: The claim must be dismissed.
Second claim: dyke-building operations carried out in the Leybucht
Relevant Articl es of the Birds Directive:
Î
Î
Î
Î
Article 2
Article 4(1)
Article 4(3)
Article 4(4)
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Commission position: With regard to the dyke-building operations in the Leybucht, the Commission claims that they
disturb birds which enjoy special protection under the provisions of Article 4(1) of the Birds Directive, in
conjunction with Annex I, and damage the habitat of the birds, which is designated as a SPA. The Commission
emphasizes that the first sentence of Article 4(4) of the Birds Directive requires Member States to take positive steps
to avoid any deterioration or pollution of habitats as part of the management of SPAs.
The Commission states that coastal defence measures such as the strengthening of a dyke are accept able in the case of
a threat to human life, but only on condition that the necessary measures are restricted to those which cause only the
minimum necessary deterioration of the SPA in question. According to the Commission, those conditions have not
been ful filled in the present case. It is of the opinion that both the construction work in the Leybucht and its results
entail deterioration in the living conditions of protected birds and the loss of land areas of considerable ecological
importance, thereby leading to lower population densities for some of the species of birds listed in Annex I to the
Birds Directive, in particular the avocet.
German position: The German Government observes that according to the information sent to the Commission
pursuant to Article 4(3) of the Birds Directive, the new line of the dyke in the Leybucht and the areas located on the
landward side of the dyke are excluded from the SPA. It states that the boundaries of the area in question are defined
in the Protective Regulation creating the national park in such a way that the protected area extends only to the foot of
the dyke, in the form it will have once the construction work in question has been completed.
According to the German Governm ent, the sole purpose of the operations is to secure the safety of the dyke. It
emphasizes that during the planning stage of the project at issue the competent authorities took account of all bird
conservation requirements and balanced them against the requirements of coastal protection. The German
Government states that the new line of the dyke and the temporary disturbances caus ed by the works constitute the
smallest possible interference for bird life in the Leybucht. It adds that the Commission has not furnished any
evidence at all that the measures at issue significantly impair the protection of those birds. With regard to the
interpretation of Article 4(4) of the Birds Directive, the German Government claims that that provision requires a
balance to be struck between the various public interests likely to be affect ed by the management of a SPA, so that the
Member States must have a wide discretionary power in this field.
Intervening United Kingdom (’UK’) position: The UK considers that the Commission has not established that the
project at issue has a significant effect within the meaning of the first sentence of Articl e 4(4) of the Birds Directive.
It states that that condition must be interpreted as meaning that the deterioration of a SPA must be such as to threaten
the survival or reproduction of protected species within their area of distribution. In the UK's view, the material
supplied by the Commission does not appear suffi cient to support the conclusion that the operations in the Leybucht
involve such deterioration.
The UK emphasizes the importance of the evidence supplied by the defendant which shows that the works at issue
will significantly improve ecological conditions in the Leybucht. It considers that it is legitimate, when assessing
whether a particul ar project will cause deterioration to a SPA and whether any such deterioration will be significant,
to consider whether the works will at the same time bring compensatory ecological improvements. In the submission
of the UK, within the context of Article 4(4) of the Birds Directive account can be taken of other important public
interest considerations, including those referred to in Article 2 of the Birds Directive. It considers that the Member
States must be able to take into account the interests of persons living in or around a SPA.
Advocate General position: The Advocate General underlines that the Court has already had to decide a number of
cases concerning compliance with the obligations arising out of the Birds Directive. These cases, however, have dealt
essentially with the obligations in relation to the protection of birds themselves. In this case we are concerned for the
first time with the provisions of the Directive aimed at the protection of the habitat of certain bird species.
In the opinion of the Advocate General there are two main problems of interpretation. First of all, may a Member
State reduce the extent of an area designated as a protection area, and if so, under what conditions? Secondly, may a
Member State carry out works which damage an area designat ed as a protection area and disturb the birds in that
area, and if so, under what conditions? The Advocate General concludes that this case, however, is concerned not
with the discretion of the Member States in the designation of the boundaries of a protection area but with their
discretion to change - more speci fically, reduce - the extent of an area previously designated as a protection area.
To what extent are the boundaries of an area designated by the Member State itself as a protection area sacrosanct?
The answer to the question raised above must therefore be that the reduction in extent of an area designated as a
protected area is permitted only on mandatory grounds arising from a general interest which is more important than
the environmental interest at which the Directive is aimed or the economic and recreational interests referred to in
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Article 2 of the Birds Directive. Support for that point of view is to be found in the Ramsar Convention, on which the
provisions of the Directive on habitat are in part based.
The Advocate General claims that it is for the Member States to lay down a system of protection for the areas
designated by them. Unlike the provisions of the Birds Directive concerning the introduction of a system of protection
for birds themselves (Article 5 et seq.), Article 4(4) contains no indication of concrete measures to be taken by the
Member States. It appears from the Council Resolution of 2 April 1979 that the Commission intended to submit
appropriat e proposals, but it has not yet done so. In those circumstances it is for the Member States, taking full
account of the environmental interest with which the Birds Directive is concerned, to determine what speci fic
measures must be taken to ensure the most suitable living conditions in the designated areas and to prevent pollution,
deterioration and disturbances which would significantly affect those circumstances.
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The Advocate General is in agreement with the Commission that the reduction in extent of a designated SPA or a
diminution in the quality of living conditions in such an area is only permitted where the work carried out can be
justified by compelling reasons arising from a general interest which is more important than the environmental
interest protected by the Directive. The Advocate General is also in agreement with the Commission that the
protection of human life is (of course) such a higher interest, that (in the absence of special or exceptional
circumstances which are di fficult to foresee) economic or recreational interests do not constitute such an interest and
that the work carried out must in any event be necessary, that is to say of such a nature as to implement the higher
interest which it is sought to protect, and indispensable for that purpose.
However, there is a difference in his opinion from the Commission in so far as in his view, account may be taken of
those other general interests in drawing up a project required by an interest superior to the environmental interest on
condition that the additional harm to the environment so caused is not disproportionate in comparison with the
considerabl e harm to those other interests should no account be taken of them.
The Advocate General sums up that in drawing up a project which is indispensable for the safety of human beings,
the German authorities also took into account the continuation in that area of fishing and agricultural activities. It
appears that that took place in a manner whereby, after a thorough public inquiry, it could reasonably be concluded
that no disproportionately great additional harm to the environment would be caused. Consequently, the German
authorities did not act contrary to Article 4 of the Birds Directive. The Advocate General therefore propos es that the
Court dismiss the Commission' s application.
Court position: The Court finds that with regard to the boundaries of the SPA in question, the boundary of the
Leybucht is defined by the Protective Regulation creating the national park and the maps appended thereto. Although
the plan of the area does include a reference to the regional planning scheme, the legal measure designating the SPA
neverthel ess sets out its precise territorial delimitation, constituted by the present line of the dyke. The displacement
of the dyke towards the sea as part of the coastal defence project thus entails a reduction in the protected area.
Consequently, in order to resolve this dispute it is necessary to settle a number of questions of principle concerning
the obligations of the Member States under Article 4(4) of the Birds Directive in relation to the management of the
SPAs. It must be determined whether - and if so, under what conditions - the Member States are authorized to reduce
the size of a SPA and to what extent other interests may be taken into account.
With regard to the powers of the Member States to review in that way a decision to classify an area as a SPA, it must
be stated that a reduction in the geographical extent of a protect ed area is not expressly envisaged by the terms of the
Birds Directive. Although the Member States do have a certain discretion with regard to the choice of the territories
which are most suitable for classi fication as SPAs pursuant to Article 4(1) of the Birds Directive; they do not have the
same discretion under Article 4(4) of the Directive in modifying or reducing the extent of the areas, since they have
themselves acknowledged in their declarations that those areas contain the most suitable environments for the species
listed in Annex I to the Directive.
If that were not so, the Member States could unilaterally escape from the obligations imposed on them by Article 4(4)
of the Birds Directive with regard to SPA. That interpretation of Articl e 4(4) of the Birds Directive is borne out,
moreover, by the ninth recital in the preamble, which underlines the special importance which the Directive attaches
to special conservation measures concerning the habitats of the birds listed in Annex I in order to ensure their
survival and reproduction in their area of distribution. It follows that the power of the Member States to reduce the
extent of a SPA can be justified only on exceptional grounds.
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Those grounds must correspond to a general interest which is superior to the general interest repres ented by the
ecological objective of the Directive. In that context the interests referred to in Article 2 of the Birds Directive,
namely economic and recreational requirements, do not enter into consideration. As the Court pointed out in its
judgments in Case 247/85 (Commission v Belgium [1987] ECR 3029) and Case 262/85 (Commission v Italy [1987]
ECR 3073), that provision does not constitute an autonomous derogation from the general system of protection
established by the Birds Directive.
The Court states that the danger of flooding and the protection of the coast constitute suffi ciently serious reasons to
justify the dyke works and the strengthening of coastal structures as long as those measures are confined to a strict
minimum and involve only the smallest possible reduction of the SPA.
With regard to the part of the project concerning the Leyhoern area, the line of the dyke was influenced by
considerations relating not only to coastal protection but also to the concern to ensure that fishing vessels from
Greetsiel had access to the harbour. In the light of the principles for the interpretation of Article 4(4) of the Birds
Directive, to take account of such an interest is in principle incompatible with the requirements of the provision.
However, that part of the project has at the same time specific positive consequences for the habitat of birds. Once
the works are completed it will be possible to close two navigation channels which cross the Leybucht, with the result
that the Leybucht will be left in absolute peace. Moreover, the decision approving the proposed works envisages a
strict protection scheme for the Leyhoern area. The dyke which previously protected the Hauener Hooge site will be
opened, thus once more exposing an extensive area to tidal movements and allowing the formation of salt meadows
of considerable ecological importance. The desire to ensure the survival of the fishing port of Greetsiel could thus be
taken into account in order to justify the decision on the line of the new dyke becaus e there were the abovementioned
offsetting ecological benefits, and solely for that reason. Finally, the disturbance arising from the construction work
itself does not exceed what is necessary to carry it out. The information concerning the number of avocets in that
sector of the Wattenmeer shows, moreover, that during the period in question there was no significant change, within
the meaning of Article 4(4) of the Birds Directive, in population trends for that species. Furthermore, the Commission
has not supplied any other evidence rel ating to population trends for protected species. It follows from the foregoing
that the application must be dismissed.
Decision: The application must be dismissed.
Judgment
The application must therefore be dismissed, the Commission must bear the costs.
Comment: The case is the very first case dealing with the interpretation of the provisions of the Birds Directive
aimed at the protection of the habitat of certain bird species, particularly the obligations arising out of Article 4.
The Court declares that although the Member States do have a certain discretion with regard to the choice of the
territories which are most suitable for classi fi cation as SPAs pursuant to Article 4(4) of the Birds Directive, they do
not have the same discretion to modify or reduce the extent of such areas, which contain the most suitable
environments for the species listed in Annex I, and thus unilaterally escape from the obligations imposed on them by
Article 4(4) of the Directive.
It is also maintained that the power of the member States to reduce the extent of SPA can be justified only on
exceptional grounds corresponding to a general interest which is superior to the general interest represented by the
ecological objective of the Birds Directive. In that context the economic and recreational requi rements referred to in
Article 2 of the Directive do not enter into consideration, since that provision does not constitute an autonomous
derogation from the system of protection established by the Directive.
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The case is rare from another aspect as well, namely that the Court dismissed the application of the Commission,
finding its arguments insufficient for proving a breach of obligations. It should also be mentioned that the
Commission separately submitted an application for interim measures and requested the Court to order the Federal
Republic of Germ any to take the necessary measures to suspend dyke construction work in the area of the Leybucht
and in particular to refrain temporarily from starting work on stage IV of the construction programme until the Court
has given its decision on the main application. The Court in its order of 57/89R rejected that application of the
Commission as well.
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Case 57/89R
Parties: Commission of the European Communities v. Federal Republic of Germany.
Background: The Commission of the European Communities brought an action under Article 169 of the EEC Treaty
for a declaration that by planning or undertaking construction work which damages the habitat of protect ed birds in
special protection areas (’SPAs’), contrary to Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds (’the Birds Directive’), the Federal Republic of Germany has failed to ful fil its obligations
under the EEC Treaty.
By a separate application the Commission sought the adoption of interim measures under Article 186 of the EEC
Treaty and Article 83 of the Rules of Procedure and requested the Court to order the Federal Republic of Germ any to
take the necessary measures to suspend dyke construction work in the area of the Leybucht and in particular to refrain
temporarily from starting work on stage IV of the construction programme until the Court has given its decision on
the main application.
The concerned area, the Leybucht is a bay in the Wattenmeer in East Friesland, to the north of Emden, and is
approximately five kilometres in diameter. It has long been a nesting, feeding and staging area for various species of
both sedentary and migratory birds and is in particular an important breeding area for the avocet. The Leybucht was
placed under special protection on 21 December 1985 by legislation of Lower Saxony establishing the
"Nieders aechsisches Wattenmeer" national park. The area covered by this park is shown on the maps appended to the
legislation. On 6 September 1988 the German Government informed the Commission under Article 4(3) of the Birds
Directive that it had classified the Leybucht as a SPA.
The disputed construction work resulted from the introduction by the Bezirksregierung Weser-Ems, the competent
regional authority, of a coastal defence project which included development of the Leybucht. That project was
approved on 25 September 1985 after planning proceedings which had, inter alia, given all interested parties the
opportunity to submit comments and raise objections. The project provides for the construction, to the west of the
Leybucht, of a res ervoir enclos ed by a dyke with locks leading to the sea and a ship canal from the small fishing port
of Greetsiel to these locks; to the south-east, the project provides for the reinforcement, heightening and extension of
the existing dyke and the construction of a drainage channel behind the new dyke; and to the north-east, the closure of
part of the bay by a new dyke, along with some sluices and drainage work . Work on the first stage, which covers the
construction of the res ervoir, started at the beginning of 1986.
The Birds Directive Arti cles relevant to this case:
Î Article 3(1)
Î Article 4(1)
Î Article 4(4)
Position of the parties
Commission position: The Commission claims that the construction work in question contravenes Article 4(4) of the
Birds Directive, since it will result in a sizeable reduction in the ecologically useful area and a fall in the population
density of cert ain birds referred to in Annex 1 to the Birds Directive, in particular the avocet, white-fronted goose
and two species of tern. That work, the Commission claims, thus has a significant effect on the protection of birds
within the meaning of Article 4(4).
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The Commission argues that the general structure of the Birds Directive, in particular the gradation of protective
measures of a general nature (Article 3(1)) and those of a speci fic nature (Article 4(1)), makes it clear that Member
States must comply with specific obligations in regions which they themselves have designated as SPAs in order to
ensure active prot ection for species of birds which are particularly endangered, listed in Annex 1 to the Birds
Directive. In accordance with the first sentence of Articl e 4(4) of the Birds Directive, any active interference with
these protection areas which is motivated by economic or tourist interests and is likely to disturb the habitat of the
birds must be prohibited.
The Commission submits that the urgency of interim measures is dictated, as the Court has consistently held, by the
risk that serious and irreparable damage might be caused if it were necessary to wait for the Court to reach a decision
in the main application. In the present case, there is reason to fear that the rapid progress of work, in particular the
completion of stage IV, could result in the disappearance of the habitat of bird species which are specially protected
and that the birds could be systematically driven out of the SPA by disturbances directly attributable to the work.
Completion of stage IV would itself affect almost 10% of the breeding pairs which have settled in the Leybucht. A
subsequent decision by the Court stating that the defendant ought not to have adopted the measures in question could
not put right the disturbance and damage caused.
The Commission states that the sole disadvantage of a temporary suspension of the work would be to delay
completion of the project; it would not have any appreciable financial repercussions. Even if the Court were to adopt
interim measures but reject the Commission' s main application, the damage incurred by the defendant would amount
only to a delay in completion of the project of approximately 18 months.
German position: The German Government stresses that the measures envisaged are designed to ensure the safety
of the dyke; there is no tourist project or any other economic project in the Leybucht area. The violent storms of 1953,
1962 and 1976 demonstrated that the existing dykes were no longer thick and high enough to ensure protection for the
land and its inhabitants. Since the level of storm tides has risen considerably over the last few decades, it was vital to
heighten and strengthen the dykes so that they might be capable of protecting the population against the worst storm
tides. The German Government accepts as undeniable that the dyke works may disturb the birds. However,
completion of the work will bring an end to regular dredging of the navigable channels, which will be beneficial from
the ecological point of view.
The German Government further disputes the interpretation of Article 4 of the Birds Directive put forward by the
Commission, and takes the view that measures required to protect the coastline take priority over the protection of
birds, even in protection areas within the meaning of Article 4(1) of the Birds Directive. An interpretation which
allows interference only in so far as it is designed to protect the habitat of birds would, it is claimed, be incompatible
not only with the letter and intention of the Directive, but also with higher principles of Community law. The defence
of birds, the German Government submits, can never take precedence over the protection of human lives.
The German Government disputes the urgency of the measures sought and points out that at present almost two-thirds
of the total dyke construction work has been completed. With regard to the section of the dyke up to kilometre 10.7,
construction has been substantially completed . On the next section of work, from kilometre 10.7 to kilometre 13,
work is due to commence at the start of 1990. The result of the essential heightening and strengthening of the dyke
will be that the dyke base will be extended out to sea by approximately 40 to 50 metres. According to the German
Government, extension of the dyke on the landward side is not possible since the available space is restricted by a
main road running behind the dyke and the drainage channel, for technical drainage reasons, must flow between the
main road and the dyke. Work on the section from kilometre 13 to kilometre 15 is not due to start before the
beginning of 1991. The line of the dyke in this section will run approximately 2,000 metres away from the present
line in order to form a rounded shape.
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The German Government accepts that it is not impossible, from a purely technical point of view, to suspend the work
at kilometre 10.7, subject, however, to a number of rather costly temporary adjustments. However, the disadvantage
of such a solution lies not only in the financial cons equences of cessation of work and interference with the
perform ance of contracts concluded with construction companies, but also in the delay in the completion of the
coastal defence structures, which could lead to the loss of human life in the event of storm tides.
Advocate General position: Not available.
Judgment
The Court is empowered under Articl e 186 of the EEC Treaty to prescribe any necessary interim measures in cases
before it. For a measure of this type to be ordered, applications for the adoption of interim measures must, in
accordance with Article 83(2) of the Rules of Procedure, state the circumstances giving rise to urgency and the factual
and legal grounds establishing a prima-facie cas e for the interim measures applied for.
The Court notes that the main problem which the present application for interim measures pres ents is that of urgency.
The project for the works in the Leybucht was drawn up in September 1985; work started in 1986; the construction of
the reservoir to the west of the Leybucht, which extends a few kilometres into the sea, is almost complete. German
nature and environmental protection groups pointed out to the Commission as early as September 1984 the potential
threat to the bird population in the area. It was not until August 1987, roughly two years after the contested project
had been adopted, that the Commission, by way of a letter of formal notice, set in motion the procedure outlined in
Article 169 of the EEC Treaty; the Reasoned Opinion was delivered in July 1988. The application for interim
measures dates from July 1989, although the main application was lodged on 28 February 1989. This chronology of
events shows that the Commission submitted its application after the regional government's project was well under
way, through conclusion of the necessary contracts and the start of construction work. It did not apply for interim
measures until a large part of the work had already been complet ed. In effect, the Commission is requesting the Court
to stop work which has already been partially completed. In those circumstances, the application for interim measures
can only be allowed if it is precisely the next stage in the construction work, that is to say the stage due to be carried
out in 1990, which will cause serious harm to the protection of birds in the Leybucht. There is nothing in the file
relating to the case or in the arguments presented before the Court to show that that is in fact true. Three different
factors must be considered in this regard. In the first place, it is necessary to remember that the work scheduled for
1990 involves the heightening, extension and reinforcement of an existing sea dyke . This work is not designed to
reduce the area of the bay, as in the case of the work already completed and that scheduled for 1991, but only to
extend the base of the dyke by between 40 and 50 metres into the sea. Information provided by the German
Government concerning the breeding grounds of avocets - the only species for which data were supplied to the Court
- shows that, in general, the distance separating these areas from the work scheduled for 1990 is no less than that
which separat es them from the other work under the 1985 project. Secondly, statistics drawn up by the Lower Saxony
authorities show that there has been a steady fall since 1984 in the number of avocets breeding in the Leybucht, with a
slight tendency to stabilization since 1987, and that the most significant fall occurred before the disputed work began.
Consequently, there are no grounds for the view that the start of work on stage IV will have the effect of driving the
avocet away from its traditional breeding areas in the Leybucht. Finally, the Commission has been unable to
substantiate the fears expressed in its application concerning the development, in the short term, of mass tourism
likely to disturb the birds. It is agreed that one of the speci fic objectives of the 1985 project was to reduce
considerably the scope for pleasure-boat sailing in the Leybucht. With regard to the dry land, the Commission merely
mentioned rumours to the effect that large car parks were to be constructed close to Greetsiel, rumours, moreover,
which the German Governm ent says are unfounded. The Court finds that the Commission has failed to establish that
there is an urgent need to interrupt the work already started. The application for interim measures must therefore be
reject ed.
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Order of the president of the Court: The application for interim measures must therefore be dismissed.
Comment: The case concerns an application of the Commission for interim measures in an ongoing case against the
Republic of Germ any. The Court is empowered under Article 186 of the EEC Treaty to prescribe any necessary
interim measures in cases before it. Applications for the adoption of interim measures must, in accordance with
Article 83(2) of the Rules of Procedure, state the circumstances giving rise to urgency and the factual and legal
grounds establishing a prima-facie case for the interim measures applied for. In the present cas e the Court examined
the submitted evidence, the history of the events and found that major part of the work has already been completed
and the Commission has failed to establish that there is an urgent need to interrupt the work already started, therefore
the criteria of urgency had not been met, the application of the Commission was rejected.
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Case 157/89
Parties: Commission v. Italian Republic.
Background: The Commission maintains that the Italian legislation on hunting is incompatible with the second and
third sentences of Article 7(4) of the Birds Directive in so far as that legislation authorises, first, the hunting of certain
birds as from 18 August, even though the species concerned are still at the stage of reproduction and rearing at that
date, and secondly the hunting of cert ain migratory birds until 28 February or 10 March, depending on the species,
even though at those dates birds of the species in question are already flying over Italy on their way back to their
rearing grounds.
The Birds Directive Arti cle relevant to this case:
Î Article 7(4)
Position of the Parties
First complaint: admissibility
Relevant Articl e of the Birds Directive:
Î Article 7(4)
Italian position: The complaints have already been rej ected by the Court in the judgment of 8 July 1987 in Case
262/85, with the result that they may not be raised for a second time.
Commission position: In Case 262/85, the Commission raised that complaint in the reply. Consequently it was
dismissed by the Court simply because it had not been raised during the pre-litigation procedure or in the application.
Advocate General position: Not Available.
Court position: It appears in the above mentioned judgement, that the complaint concerning the need to prohibit
hunting during certain periods was disregarded in that case on procedural grounds. Accordingly, the Court did not
rule on whether that complaint was well founded.
Decision: The Italian Government's objection cannot be upheld.
Second complaint: opening of the hunting season for four species as from 18 August
Relevant Articl e of the Birds Directive:
Î Article 7(4)
Commission position: National provisions authorising the hunting of coot, moorhen, mallard and blackbird as from
18 August are incompatible with the second sentence of Article 7(4) of the Birds Directive, on the ground that the
reproduction and rearing period for those species has not yet finished on that date.
Italian position: The Italian legislation complies with the requirements laid down in the second and third sentences
of Articl e 7(4) of the Directive, since on the one hand, most fledglings of the species in question normally have
become independent of their parents by 18 August. Moreover, the regions are empowered to vary the dates for the
opening and closing of the hunting season which are fixed by the national legislation, in order to take account of
particular rearing cycles or migratory movements.
Advocate General position: Not available.
Court position: According to the scientific data provided by the Commission in respect of the above species, a
significant fraction of fl edglings of three of the speci es mentioned, namely young coots, moorhen and mallards, will
possibly still be in the nest or dependent on their parents for food on 18 August. In contrast, it appears from the same
data that young blackbirds become independent before that date.
Decision: Except as regards the blackbird, the Commission's first complaint must be upheld.
Third complaint: the opening of the hunting season for 19 species up until 28 February or 10 March
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Relevant Articl e of the Birds Directive:
Î Article 7(4)
Commission position: National provisions authorising the hunting until 28 February of 10 migratory species and
until 10 March of nine other speci es which, during the months of January, February and March, cross Italy on their
way back to their rearing grounds in central and northern Europe do not comply with the third sentence of Article 7(4)
of the Directive.
Italian position: Depending on the species, the migratory birds in question normally do not fly over Italy in
substantial numbers before 28 February or 10 March. The Italian legislation adapted the hunting seasons to suit the
requirem ents relating to the protection of migratory birds which are laid down in the International Convention for the
Protection of Birds of 18 October 1950. It argues that in the absence of speci fic requirements in the Directive the
requirem ents of the above Convention may be accepted as criteria for the adequate protection of migrant birds within
the context of the Directive. Moreover, the regions are empowered to vary the dates for the opening and closing of the
hunting season which are fixed by the national legislation, in order to take account of particular rearing cycles or
migratory movements.
Advocate General position: Not available.
Court position: The Convention in question, which requires migrants to be protected particularly in March, cannot
constitute a fundament al element for the interpretation of the Directive, which embodies stricter requirem ents in terms
of protection.
According to the scientific dat a provided by the Commission for the migratory species mentioned in the application
and in particular the report of the Istituto Nazionale di Biologia della Selvaggina, a substantial fraction of those
species may be flying over Italian territory as early as February, with the result that the Italian legislation does not
comply with the aforementioned provision of the Directive. Next to it, it must however be held that non-compliance
with the Directive has not been made out suffici ently as regards two of them, namely redshank and curlew, since it is
stated in the aforem entioned report that redshank do not cross Italian territory until the first half of March and that
they cross Italian territory in late March/early April.
Decision: Except as regards redshank and curlew, the Commission's second complaint must be upheld.
Judgment
By authorising the hunting of various species of birds during the rearing season and the various stages of
reproduction and of various migratory species during their return to their rearing grounds, the Italian Republic has
failed to ful fil its obligations under the Directive.
Comment: In this case, the Court developed one of the most important principle related to bird protection policy: the
complete protection principle.
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The premises to this principle lay to ornithological considerations: birds' reproductive cycles and migratory
movements are subject to a degree of variability which, owing to meteorological circumstances, affects in particular
the periods during which reproduction and migration take place. Thus, some young birds of a given species may still
be in the nest or dependent on their parents for food aft er the end of the average reproduction period. Likewise, a
number of birds of a given migratory species may begin their return journey to their rearing grounds comparatively
early relative to average migratory flows.
Starting from these premises the court pronounced the principle of complete protection, that is “the second and third
sentences of Article 7(4) of the Directive are designed to secure a complete system of protection in the periods during
which the survival of wild birds is particularly under threat.”
According to this principle, protection against hunting activities cannot be confined to the majority of the birds of a
given species, as determined by average reproductive cycles and migratory movements. It would be incompatible
with the objectives of the Directive if, in situations characterised by prolonged dependence of the fledglings on the
parents and early migration, part of the population of a given species should fall outside the protection laid down.
Always in relation to the complete protection principle, according to the court interpretation, national legislation,
which declares the hunting of certain speci es open in principle, without prejudice to provisions to the contrary laid
down by the regional authorities, does not satisfy the requirements of protection laid down by the Directive. In fact, it
would be contrary to the principle of legal safety i f a Member State could rely on the regional authorities' power to
issue regulations in order to justify national legislation which does not comply with the prohibitions laid down in a
Directive.
To conclude, in this case the court gave an interpretation with respect to the nature of the evidence to be adduced to
support a complaint. According to the court, where is no specific literature availabl e relating to the territory of the
Member State concerned the applicant may refer to ornithological works dealing with a general area of distribution
which includes that Member State.
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Case C-334/89
Parties: Commission v. Italian republic.
Background: The Commission in its activity of “ Guardian of the Treaty” noticed that Italy did not implemented in
time Directive 85/411/EEC that modified Annex I of the Birds Directive. The deadline for the implementation into
st
domestic legislation the Directive’s provisions expired on 31 of July 1986.
The Birds Directive Arti cle relevant to this case:
Î Article 4(1)
Position of the parties
First complaint: special protection measures
Relevant Articl e of the Birds Directive:
Î Article 4(1)
Commission position: Italy failed to select special protection areas (‘SPAs’) for the protection of birds and to adopt
special protection measures within the SPAs for the birds enlisted in annex I of the Birds Directive as stated in
Article 4(1).
Italian position: Annex I as modified by the 85/411/EEC Directive contains many species not living within the
Italian borders. It was the Commission’s task to indicate to each of the Member State the species to protect and the
way to protect them. The Commission did not indicate such species.
Advocate General position: Not available.
Court position: According to a general interpretation of the Court Member States are obliged to a faithful
transposition of the Directive. Article 4(1) of the Directive imposes on Member States a duty to adopt special
conservation measures for species present in Annex I. Italy does not assert that no one of the species enlisted in
Annex I is living within its territory. Next to it, the Italian government does not present any evidence that it has
adopted any conservation measures for any of the species pres ent in Annex I.
Judgment
By not adopting within the prescribed period special protection measures for species enlisted in Annex I of the
Directive as modifi ed by Directive 85/411/EEC, the Italian Republic has failed to ful fil its obligations under the EEC
Treaty.
Comment: In this very short case the Court reaffirms a very important principle, a real cornerstone principle for
birds conservation law: the transposition of a Directive into national law does not necessarily require the provisions
of the Directive to be enacted in precisely the same words in a specific, express legal provision of national law; a
general legal context may be sufficient i f it actually ensures the full application of the Directive in a suffici ently clear
and precise manner. However, a faithful transposition becomes particularly important in a case such as the
transposition of the Birds Directive in which the management of the common heritage is entrusted to the member
states in their respective territories.
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Case C-355/90
Parties: Commission v. Kingdom of Spain.
Background: Spain joined the EEC on 1 January 1986, from that day the environmental acquis applied to the new
Member. In that respect the Commission, in its normal activity of monitoring the implementation of the EEC acquis
into nation law noticed that the Kingdom of Spain has failed to ful fil the obligations of protection arising under
Articles 3 and 4 of the Birds Directive in relation with the Santoña Marshes.
Santoña Marshes are one of the most important ecosystems in the Iberian Peninsula for many aquatic birds. The
marshes serve as a wintering area or staging post for many birds on their migrations from European count ries to the
southern latitudes of Africa and the Iberian Peninsula itself. The birds observed in the area include various species
that are becoming extinct, in particular the spoonbill, which feeds and rests in the Santoña Marshes in the course of its
migrations.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Article 3
Article 4(1)
Article 4(2)
Article 4(3)
Article 4(4)
Position of the parties
First complaint: the interpretation of Articles 3 and 4 of the Birds Directive
Relevant Articl es of the Birds Directive:
Î
Î
Î
Î
Articles 3
Article 4(1)
Article 4(2)
Article 4(4)
Commission position: The Kingdom of Spain was under an obligation to comply with the provisions of the Birds
Directive from 1 January 1986. Hence, as a result of the obligations arising under Articles 3 and 4 of the Directive,
speci fic measures must be taken to conserve the habitats of wild birds. Lastly, it is possible for a Member State to
infringe both Article 4(1) and (2), relating to the classification of a territory as speci al protection areas (‘SPAs’), and
Article 4(4) of the Directive, which concerns the protection measures rel ating to such an area.
Spanish position: The obligations laid down in Articles 3 and 4 of the Directive can, by their nature, be ful filled only
gradually, not immediately. Furthermore, the ecological requirements laid down in Article 4 must be subordinate to
other interests, such as social and economic interests, or must at the very least be balanced against them. A Member
State cannot be accused of having infringed both Article 4(1) and (2) and Article 4(4) at the same time, because the
protection measures cannot be implemented until the decision has been taken to classify a territory as a SPA.
Advocate General position: Not available.
Court position: The Act concerning the conditions of accession of the Kingdom of Spain to the European
Communities contains no specific provision on the applicability of the Directive in that Member State, which was
required under Article 395 of that Act to put into effect the measures necessary for it to comply with the Directive
from the date of accession. Moreover, the Directive itsel f contains no indication of any speci fic time being allowed
for the national authorities to fulfil the obligations laid down in Articles 3 and 4, for which, in common with all the
provisions of the Directive, the necessary transposition measures had to be taken within the two-year period
prescribed by Article 18 of the Directive.
Member States are not authorised to invoke, at their option, grounds of derogation based on taking other interests into
account. In order to be acceptable, such grounds must correspond to a general interest which is superior to the general
interest repres ented by the ecological objective o f the Directive. In particular, the interests referred to in Article 2 of
the Directive, namely economic and recreational requirements, do not enter into consideration.
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The objectives of protection set out in the Directive, as expressed in the ninth recital in its preamble, could not be
achieved if Member States had to comply with the obligations arising under Article 4(4) only in cases where a SPA
had previously been established.
Decision: The Commission’s complaint must be upheld.
Second complaint: the obligation to classify the Santoña Marshes as a SPA pursuant to
Article 4(1) and (2) of the Birds Directive
Relevant Articl es of the Birds Directive:
Î Article 4(1)
Î Article 4(2)
Commission position: Santoña Marshes are not only a habitat that is essential for the survival of several species in
danger of extinction within the meaning of Article 4(1) of the Birds Directive but also wetlands of international
importance for regul arly occurring migratory species in that area within the meaning of Article 4(2).
Spanish position: Santoña and Noja marshes were classifi ed as nature res erves in 1992, because of the importance of
those wetlands as habitats for many species of animals. However, it considers that the national authorities have a
margin of discretion with regard to the choice and delimitation of SPAs and the timing of their classifi cation as such.
Advocate General position: Not available.
Court position: Although Member States do have a certain margin of discretion with regard to the choice of SPAs,
the classification of those areas is nevertheless subject to certain ornithological criteria determined by the Directive,
such as the presence of birds listed in Annex I of the Directive, on the one hand, and the designation of a habitat as a
wetland area, on the other. The classification of the Santoña marshes as a nature res erve cannot be regarded as
satisfying the requirem ents laid down in the Directive, either in respect of the territorial extent of the area or as
regards its legal status as a protected area.
Decision: The Kingdom of Spain has failed to ful fil its obligations under Article 4(1) and (2) of the Directive by not
classi fying the Santoña marshes as a SPA.
Third complaint: the obligation to protect the Santoña Marshes pursuant to
Article 4(4) of the Birds Directive
Relevant Articl es of the Birds Directive:
Î Article 4(4)
Commission position: The Spanish authorities has takes actions that jeopardise the conservation of the Santoña
Marshes not in line with provisions of Article 4(4) of the Birds Directive, in particular:
a) The second section of the road between Argoños and Santoña
Commission position: The new road between Argoños and Santoña results not only in a considerable reduction
in the surface area of the Santoña Marshes but also in disturbances affecting the peaceful nature of the area and
consequently the wild birds protected by the provisions of the Directive.
Spanish position: The new road is necessary to improve access to the town of Santoña. Also, the new route is
the best of various possible alternatives, mainly because it affects only a small proportion of the total surface area
of the marshes.
Advocate General position: Not available.
Court position: Although Member States do have a certain discretion with regard to the choice of the territories
which are most suitable for classi fication as SPAs, they do not have the same discretion under Article 4(4) of the
Directive in modifying or reducing the extent of those areas. Such action cannot be justified by the need to
improve access to the municipality of Santoña.
Decision: Complaint must be upheld.
b) The industrial estates at Laredo and Colindres
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Commission position: The establishment of industrial estates at Laredo and Colindres is resulting in the
disappearance of a substantial part of the marshland
Spanish position: The competent authorities have abandoned the idea of est ablishing these industrial estates as
they were originally planned.
Advocate General position: Not available.
Court position: Although it is no longer proposed to carry out those projects, the fact remains that, after the
Kingdom of Spain joined the Communities, the local authorities re-sealed the dykes previously built round the
land earmarked for the industrial estates. Nor is it disputed that no steps have so far been taken to demolish those
dykes, even though the local authorities have acknowledged their harm ful impact on the aquatic environment and
have undertaken to demolish them.
Decision: There has been a failure to ful fil obligations by Spanish authorities.
c) The aquaculture facilities
Commission position: The granting of authorisation by the Spanish authorities to a fishermen's association to
farm clams in the middle of the marshes, as well as the projects for other acquaculture operations in the estuary,
jeopardise the ecological equilibrium of the marshes.
Spanish position: This activity it has only a small impact on the ecological situation of the marshes.
Advocate general position: Not available.
Court position: The installation of aquaculture facilities, which not only reduce the surface area of the
marshland and cause variations in the natural sedimentation processes there, but also modify the structure of the
existing marsh bed, has the effect of destroying the particular veget ation of those areas, which is an important
source of food for the birds.
Decision: The complaint is well founded.
d) The tipping of solid waste
Commission position: The tipping of solid waste affects the currents produced by the interaction of the tides and
the waters from the rivers and consequently caus es a significant change in the physical and chemical paramet ers
of the marshes.
Spanish position: The problem was solved in 1988. It claims that measures were taken under the plan for the
management of urban solid waste from the municipalities in the Santoña bay area. Only a small amount of illegal
tipping took place until 1990.
Advocate general position: Not available.
Court position: The authorised tipping of waste ceas ed in 1988, that is to say before the Commission delivered
its Reasoned Opinion.
Decision: The complaint must therefore be reject ed as inadmissible.
e) The discharge of waste water
Commission position: The discharge of untreated waste wat er, has had detrimental effects on the quality of the
water in Santoña Bay.
Spain position: The Directive does not contain any provision obliging Member States to equip themselves with
systems for treating waste in order to preserve the quality of the water in a SPA.
Advocate General position: Not available.
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Court position: The discharge of waste wat er containing dangerous toxic substances is highly detrimental to the
ecological conditions in the Santoña Marshes and has a significant effect on the quality of the water in the area.
The Kingdom of Spain is under a duty, where necessary, to provide systems for treating waste in order to prevent
pollution of those habitats.
Decision: The complaint is well founded.
f) The in-filling works at Escalante and the activities of the Montehano quarry
Commission position: The in-filling operations carried out on marshland by the municipality of Escalante,
together with the exploitation of the quarry and the tipping of unused material into the marshes, have reduced the
extent of the protect ed area.
Spanish position: These allegations refer to facts that occurred before Spain joined the Community. The tipping
of this material into the marshes was prohibited in 1986 and is therefore now illegal.
Advocate General position: Not available.
Court position: The works carried out by the municipality of Escalante were completed in 1986 and no
authorisation has been granted for any further work and, on the other, the activities of the Montehano quarry are
controlled and the tipping of dry matter into the marshes has been definitively prohibited.
Decision: This complaint must be rejected.
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Court position: The Kingdom of Spain has failed to ful fil its obligations under Article 4(4) of the Directive by not
taking appropriate steps to avoid pollution or deterioration of habitats in the Santoña Marshes.
Decision: The complaint must be upheld.
Judgment
By not classifying the Santoña Marshes as a SPA and by not taking appropriate steps to avoid pollution or
deterioration of habitats in that area, contrary to the provisions of Article 4 of the Birds Directive the Kingdom of
Spain has failed to ful fil its obligations under the EEC Treaty.
Comment: With the enlargement of the EU to 10 new members by May 2004, this case is an important example of
the problems that new Members could face regarding the interpretation and implementation of the EC law in general
and environmental law in particular. The Court in the judgement reaffirms important principles ruling the
Community nature protection policy, first of all in relation with the selection of SPAs “ although Member States do
have a certain margin of discretion with regard to the choice of SPAs, the classification of those areas is nevertheless
subject to certain ornithological criteria determined by the Directive”. This ornithological criteria are not subordinated
to other interests, such as social and economic interests, in fact as the court said in the second complaint this other
interests, must “ correspond to a general interest which is superior to the general interest represented by the ecological
objective of the Directive”. Another important element arising from the case is related to the Spanish claims that is
not possible to infringe at the same time the provisions related to the appointment of a site as protected site and the
provisions related to the implementation of protection measures, as we saw the court reject ed this logical
argumentation, affirming that “the objectives of protection set out in the Directive, could not be achieved if Member
States had to comply with the obligations arising under Article 4(4) only in cases where a SPA had previously been
established”.
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Case 75/91
Parties: Commission of the European Communities v. Kingdom of the Netherlands.
Background: In its judgment of 13 October 1987 in Case 236/85, Commission of the European Communities v
Kingdom of the Netherlands [1987] ECR 3989, the European Court of Justice upheld that by not adopting within the
prescribed period all the laws, regulations and administrative provisions needed to comply with Council Directive
79/409/EEC of 2 April 1979 on the conservation of wild birds ('the Birds Directive'), the Kingdom of the
Netherlands had failed to ful fil its obligations under the EEC Treaty.
The Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a
declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the
judgment of the Court of Justice, the Kingdom of the Netherlands has failed to ful fil its obligations under the EEC
Treaty.
The Birds Directive Arti cles relevant to this case:
Î Directly none, it involves Art. 171 of the EEC Treaty
Position of the parties
Commission position: Since no measure for transposing the Birds Directive was taken as a result of the
aforementioned judgement, the Commission gave the Netherlands Government notice, by a letter of 24 April 1989,
that it should fulfil its obligations in that respect. The Commission considered the replies from the Netherlands
Government to be unsatisfactory and sent it a Reasoned Opinion on 27 February 1990.
The Commission subsequently received no further information indicating that the draft laws complying with the Birds
Directive had been placed before the Parliament and therefore it initiated the procedure provided for by Article 169 of
the Treaty for failure to ful fil obligations.
Netherlands position: In reply to the Reasoned Opinion, the Netherlands Government stated, in a letter of 2 May
1990, that two draft laws intended to amend the Jachtwet (Law on Hunting) and the Vogelwet (Law on Birds) would
be put before Parliament very shortly. The Netherlands Government admits however, that the measures required to
comply with the judgment have not yet been taken and explains that that is due to the constraints imposed by
domestic legislative procedure, which have repercussions for the time needed to amend the aforementioned laws.
Advocate General position: The Advocate Genaral states that the Netherlands Government, whilst pointing out that
it has prepared a draft law containing the requisite measures, concedes that it has not yet complied with the Court' s
judgment; therefore it proposes that the Court should uphold the application and order the defendant to pay the costs.
Court position: Even if Article 171 of the EEC Treaty does not specify the period within which a judgment must be
complied with, the common interest attaching to the immediate and uniform application of Community law requires
that the process of complying with a judgment be initiated at once and completed as soon as possible (see, the
judgment of 30 January 1992 in Case C-328/90 Commission v Greece [1992] ECR I-425).
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Judgment
Complaint upheld. By failing to adopt the laws, regulations and administrative provisions necessary to comply with
the judgment of the Court of Justice, and hence necessary for the full implementation of the Birds Directive, the the
Kingdom of the Netherlands has failed to ful fil its obligations under Article 171 of the EEC Treaty.
Comment: The case concerns a Member State's failure to comply with the judgement of the Court of Justice. There is
no concrete provision in the Treaty regulating the period within which a Member State has to comply with a
judgement of the Court. However, it is pointed out in this judgement that the immediate and uniform application of
Community law requires that the process of complying with a judgment be initiated at once and completed as soon as
possible. Therefore due to the fact that there has been no sign or notification of measures taken by the Netherlands
authorities to fulfil their obligations, the Court decided to upheld the complaint of the Commission.
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Case 345/92
Parties: Commission of the European Communities v. Federal Republic of Germany.
Background: In its judgment of 17 September 1987 in Case 412/85 Commission v Germany [1987], the Court of
Justice upheld that the Federal Republic of Germany has by authorising derogations from the measures for the
protection of birds failed to fully implement Council Directive 79/409/EEC of 2 April 1979 on the conservation of
wild birds ('the Birds Directive').
The Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a
declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the
judgment of the Court of Justice, the Federal Republic of Germany has failed to ful fil its obligations under the EEC
Treaty.
The Birds Directive Arti cles relevant to this case:
Î Directly none, it involves Art. 171 of the EEC Treaty
Position of the parties
Commission position: The Commission argues that since it did not receive notification of the measures which should
have been taken by the German authorities in order to ensure compliance with the above mentioned judgement, it
initiated the procedure provided for by Article 169 of the EEC Treaty for failure to ful fil obligations.
German position: The Federal Republic of Germany states that the provisions required for compliance with the
Court's judgement should soon be approved by the legislative authorities.
Advocate General position: Not Available.
Court position: Even if Article 171 of the EEC Treaty does not specify the period within which a judgment must be
complied with, the common interest attaching to the immediate and uniform application of Community law requires
that the process of complying with a judgment be initiated at once and completed as soon as possible (see the
judgment in Case 169/87 Commission v France [1988] ECR 4093, paragraph 14).
Decision: Complaint upheld.
Judgment
By failing to adopt the laws, regulations and administrative provisions necessary to comply with the judgment of the
Court of Justice, and hence necess ary for the full implementation of the Birds Directive, the Federal Republic of
Germany has failed to ful fil its obligations under the EEC Treaty.
Comment: The case concerns a Member State's failure to comply with the judgement of the Court of Justice. There is
no concrete provision in the Treaty regulating the period within which a Member State has to comply with a
judgement of the Court. However, it is pointed out in this judgement that the immediate and uniform application of
Community law requires that the process of complying with a judgment be initiated at once and completed as soon as
possible. Therefore due to the fact that there has been no sign or notification of measures taken by the German
authorities to fulfil their obligations, the Court decided to upheld the complaint of the Commission.
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Case C-435/92
Parties: Association pour la Protection des Animaux Sauvages and Others v. Préfet de Maine-et-Loi re, Préfet de la
Loire-Atlantique.
Background: The Administrative Court of Nantes referred to the Court for a preliminary ruling under Article 234 (ex
177) of the EEC Treaty three questions on the interpretation of Article 7(4) of the Birds Directive. The proceedings
essentially concern the compliance of those dates with the provisions of the Directive relating to the protection of
migratory birds during their return to their rearing grounds.
The Birds Directive Arti cle relevant to this case:
Î Article 7(4)
Questions before the Court
First question: the closing date for the hunting
Relevant Articl e of the Birds Directive:
Î Article 7(4)
Question: The closing date for the hunting of migratory birds and waterfowl should be fixed as the date of the
commencem ent of pre-mating migration or the varying date of commencem ent of migration.
Court position: The method consisting in fixing the closing date for hunting by reference to the period during which
migratory activity reaches its highest level cannot be considered to be compatible with Article 7(4) of the Directive.
The same is true of those methods which take into account the moment at which a certain percentage of birds have
started to migrate and of those which consist in ascertaining the average date of the commencement of pre-mating
migration.
The closing date for the hunting of migratory birds and waterfowl must be fixed in accordance with a method which
guarantees complete protection of those species during the period of pre-mating migration and that, as a result,
methods whose object or effect is to allow a certain percentage of the birds of a species to escape such protection do
not comply with that provision.
Second question: staggering the closing dates for hunting seasons
Relevant Articl e of the Birds Directive:
Î Article 7(4)
Question: The principle of staggering the closing dates for hunting seasons by reference to species is compatible with
the system of protection provided by the Directive and, if so, within what limits.
Court position: There are two difficulties with the principle of staggering: first the disturbances caused by hunting to
other species of bird for which hunting has already closed and secondly the risks of confusion between di fferent
species.
So far as concerns disturbances, those consequences are particularly serious for groups of birds which, during the
season of migration and wintering, tend to gather together in flocks and rest in areas which are often very confined or
even enclosed. Disturbances caused by hunting force these animals to devote most of their energy to moving to other
spots and to fleeing, to the detriment of time spent feeding and resting for the purpose of the migration. Those
disturbances are report ed to have an adverse impact on the level of energy of each individual and the mortality rate of
all the populations concerned. With regard to the risk of confusion, certain species for which hunting has already
closed will be subject to indirect depletion owing to confusion with the species for which hunting is still open.
National authorities are not empowered by the Directive to fix closing dates for the hunting season which vary
according to the species of bird, unless the Member State concerned can adduce evidence, based on scientific and
technical data relevant to each individual case, that staggering the closing dates for hunting does not impede the
complete protection of the species of bird liable to be affected by such staggering.
Third question: the power of the Prefects
Relevant Articl e of the Birds Directive:
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Birds Directive and EC Court Project
Î Article 7(4)
Question: The power of the Prefects to set the closing dates for hunting in their department is compatible with the
system of protection provided by the Directive.
Court position: The fact that the closing dates for hunting vary from one region to another is in itself compatible
with the third sentence of Article 7(4) of the Directive, in fact, if it appears that the pre-mating migration begins at
different times in different parts of the territory of a Member State, that Member State is permitted to set different
closing dates for hunting. Moreover, nothing prevents a Member State from conferring on subordinate authorities the
power to fix the closing date for the hunting of migratory birds, provided that it guarantees, by legislation which is
general in scope and not limited in time, that that date will be fixed in such a way as to ensure complete protection of
the species of bird referred to in the Directive during pre-mating migration. Hence, the fixing of closing dates which
vary between the different parts of the territory of a Member State is compatible with the Directive. If the power to fix
the closing date for the hunting of migratory birds is delegated to subordinate authorities, the provisions which confer
that power must ensure that the closing date can be fixed only in such a way as to make possible complete protection
of the birds during pre-mating migration.
Judgment
Pursuant to Article 7(4) of the Directive, the closing date for the hunting of migratory birds and waterfowl must be
fixed in accordance with a method which guarantees complete protection of those species during the period of premating migration. Methods whose object or effect is to allow a certain percentage of the birds of a species to escape
such protection do not comply with that provision.
It is incompatible with the third sentence of Article 7(4) of the Directive for a Member State to fix closing dates for
the hunting season which vary according to the species of bird, unless the Member State concerned can adduce
evidence, based on scientific and technical data relevant to each individual case, that staggering the closing dates for
hunting does not impede the complete protection of the species of bird liable to be affected by such staggering.
On condition that complete protection of the species is guaranteed, the fixing of closing dates which vary between the
different parts of the territory of a Member State is compatible with the Directive. If the power to fix the closing date
fo r the hunting of migratory birds is delegated to subordinate authorities, the provisions which confer that power
must ensure that the closing date can be fixed only in such a way as to make possible complete protection of the birds
during pre-mating migration.
Comment: In giving the answers to the national court, the Court refers to the concept of “ complete protection”.
According to it, the protection against hunting activities could not be confined to the majority of the birds of a given
species, and the Article 7(4) of the Directive is designed to secure a complete system of protection in the periods
during which the survival of wild birds is particularly under threat. For that reason, as said by the Court “the closing
date for the hunting of migratory birds and waterfowl must be fixed in accordance with a method which guarantees
complete protection” (first question), moreover regarding the staggering is not in line with the complete protection
principle unless “ Member State concerned can adduce evidence, based on scientific and technical data relevant to
each individual case” that the principle is respected (second question). At the contrary, the possibility to fix different
closing day of hunting between the different parts of the territory of a Member State is compatible with the Directive
if it appears that the pre-mating migration begins at different times in different parts of the territory and as long the
complete protection of the species is guaranteed (third question). To summarise, we can say that in general, according
to the Court’s interpretation, the staggering of the closing date of hunting by reference to species is not permitted
while by reference to different territories it is permitted.
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Case C-118/94
Parties: Associazione Italiana per il World Wildlife Fund and Others v. Regione Veneto.
Background: The Tribunale Administrativo Regionale per il Veneto (Regional Administrative Court for the Veneto
Region) referred to the Court for a preliminary ruling under Article 234 (ex 177) of the EC Treaty a question on the
interpretation of Article 9 of the Birds Directive. That question was raised in proceedings brought by Associazione
Italiana per il World Wildlife Fund ("WWF Italiana") and other associations for the protection of nature ("the
applicants") against the Regione Veneto, supported by Federazione Italiana della Cacci a (Italian Hunting Federation,
hereinafter "the Federation"), for annulment of the measure adopted by the Regional Council of the Veneto on 21
July 1992 fixing the hunting calendar for the 1992/1993 season for infringem ent inter alia of the principles referred to
in the Birds Directive. Before the Tribunale Administrativo Regionale per il Veneto, the applicants claimed that the
hunting calendar drawn up by the Regione Veneto authorised the hunting of certain species of birds which were not
among the species listed in Annex II of the Birds Directive, whereas in the circumstances it was not possible for the
Federation to rely on the right to derogate laid down in Article 9 of the Directive, since the special and overriding
conditions which might justify such derogation had not been met and had been neither investigated nor appropriately
demonstrated.
The Birds Directive Arti cles relevant to this case:
Î Article 9
Î Article 5
Î Article 7
Questions before the Court
First question: derogation regime
Relevant Articl es of the Birds Directive:
Î Article 9
Î Article 5
Î Article 7
Question: To clarify the conditions under which Article 9 authorises Member States to derogate from the general
prohibition on hunting protected species laid down in Articles 5 and 7 of the Birds Directive.
Court position: National legislation which authorises the hunting of certain species of birds not included in the list
in Annex II to the Directive without, however, listing the criteria for derogation or clearly and speci fically obliging
the regions to take account of those criteria and to apply them, does not satisfy the conditions to which the
derogations provided for by Article 9 of the Directive are subject.
Judgment
In the light of the foregoing, the answer to the question must be that Article 9 of the Directive is to be interpreted as
meaning that it authorises the Member States to derogate from the general prohibition on hunting protected species
laid down by Articles 5 and 7 of the Directive only by measures which refer in suffi cient detail to the factors
mentioned in Article 9(1) and (2).
Comment: The court, in this case, recalled important interpretations related to the implementation into domestic law
of an EC Directive in general and the Birds Directive in particular.
In applying the national law and in particular the provisions of a national law specifically introduced in order to
implement a Community Directive, the national court called upon to interpret and apply that law must do so, as far as
possible, in the light of the wording and the purpose of the Directive so as to achieve the result intended by the
Directive and thereby comply with the third paragraph of Article 249 (ex 189) of the Treaty. Moreover, wherever the
provisions of a Directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently
precise, those provisions may be relied upon by an individual against any authority of a Member State where that
State has either failed to implement the Directive in national law by the end of the period prescribed or has failed to
implement it correctly. This is the principle of direct application of a Directive (also known as direct effect).
Furthermore, a national court which is called upon, within the limits of its jurisdiction, to apply provisions of
Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply
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any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the Court to
request or await the prior setting aside of such provisions by legislative or other constitutional means.
Regarding the speci fic implementations of the Birds Directives, as mentioned several times the cornerstone principle
is that the faithful transposition of the Directive in a suffi ciently clear and precise manner, becomes particularly
important in a case such as this in which the management of the common heritage is entrusted to the Member States
in their respective territories. Hence the criteria which the Member States must meet in order to derogate from the
prohibitions laid down in the Directive must be reproduced in specifi c national provisions, and national legislation
which declares the hunting of certain speci es open in principle, without prejudice to provisions to the contrary laid
down by the regional authorities, does not satisfy the requirements of protection laid down by the Directive and is
contrary to the principle of legal certainty.
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Birds Directive and EC Court Project
Case C-149/94
Parties: Ministère Public v. Didier Vergy.
Background: The Tribunal de Grande Instance (Regional Court), Caen, referred for a preliminary ruling under
Article 234 (ex 177) of the EC Treaty two questions on the interpretation of Council Directive 79/409/EEC of 2 April
1979 on the conservation of wild birds (’the Birds Directive’). Those questions were raised in criminal proceedings
against Mr Vergy, who is charged with having, in 1992, at Landes-sur-Ajonc (France), offered for sale and sold a live
specimen of a species of bird protected under French legislation. Before the Tribunal de Grande Instance, Caen, Mr
Vergy submitted that French legislation did not apply to such specimens and, if it did, it was contrary to the Birds
Directive. Taking the view that the outcome of the criminal proceedings depended on the interpretation o f the
Directive, the national court decided to stay the proceedings and refer two questions to the Court for a preliminary
ruling.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Article 1
Article 2
Article 5
Article 6
Article 9
Question before the Court
First question: restriction or prohibition of trade
Relevant Articl es of the Birds Directive:
Î Article 1(1)
Î Article 6
Î Article 9
Question: Must the Directive and particularly Articles 1, 2, 5 and 6 thereof, be interpreted as permitting a Member
State to enact rules restricting or prohibiting trade in specimens belonging to a species which is not listed in the
annexes to that Directive?
Court position: Member States are under an obligation to impose a general prohibition on trade in all the species of
naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies,
subject to the exceptions permitted in certain circumstances for the species listed in Annex III, and to the option to
derogate provided for by Article 9.
It should therefore be stated in reply to the first question that the Directive requires the Member States to prohibit
trade in specimens belonging to a species of bird which is not listed in the annexes thereto - in so far as the species
concerned is a species of naturally occurring birds in the wild state in the European territory of the Member States to
which the Treaty applies - subject to the option to derogate provided for by Article 9.
Second question: birds born and reared in captivity
Relevant Articl es of the Birds Directive:
Î Article 2
Î Article 5
Question: Would the answer to the first question be any different by reason of the fact that the specimens of the
species in question were born and reared in captivity or that the natural habitat of the species in question did not occur
in the country concerned?
Court position: The aim of the Directive is to protect bird populations present in their natural environment and that
the extension of the protective regime to specimens of wild birds born and reared in captivity is not consistent with
that environmental objective.
To extend the protective regime in that way would serve neither the need for the conservation of the natural
environment, as described in the second recital in the preamble to the Directive, nor the objective of long-term
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Birds Directive and EC Court Project
protection and management of natural resources as an integral part of the heritage of the peoples of Europe, referred
to in the eighth recital. Hence, the Directive is not applicable to specimens of birds born and reared in captivity,
while it requires each Member State to ensure the protection of a speci es of bird naturally occurring in the wild state
in the European territory of the Member States to which the Treaty applies, even if the natural habitat of the speci es in
question does not occur in the territory of the Member State concerned.
Judgment
The Directive requires the Member States to prohibit trade in specimens belonging to a species of bird which is not
listed in the annexes thereto - in so far as the species concerned is a species of naturally occurring birds in the wild
state in the European territory of the Member States to which the Treaty applies - subject to the option to derogate
provided for by Article 9.
The Directive is not applicable to specimens of birds born and reared in captivity. The Directive requires each
Member State to ensure the protection of a species of bird naturally occurring in the wild state in the European
territory of the Member States to which the Treaty applies, even if the natural habitat of the speci es in question does
not occur in the territory of the Member State concerned.
Comment: From a legal point of view this case is interesting because the Court gives an important indication on the
limite ratione materie and loci of the Directive. First of all delimits the application of the Directive from a negative
point of view (non facere): since the Community legislature has taken no action with regard to trade in specimens of
species of wild birds which have been born and reared in captivity, the Member States remain competent to regulate
that trade, subject to Article 30 et seq. of the EC Treaty concerning products imported from other Member States.
Next to it, the Court reaffi rms the Directive application from the positive side (facere), “ …the Directive requires each
Member State to ensure the protection of a species of bird naturally occurring in the wild state in the European
territory of the Member States to which the Treaty applies, even if the natural habitat of the speci es in question does
not occur in the territory of the Member State concerned. This last interpretation is linked to a fundamental principle
ruling the birds protection policy within the EC: the complete and effective protection. As the Court pointed out
during the proceedings “the importance of complete and effective protection of wild birds throughout the
Community, irrespective of the areas they stay in or pass through, causes any national legislation which delimits the
protection of wild birds by reference to the concept of national heritage to be incompatible with the Directive.”
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Birds Directive and EC Court Project
Case 44/95
Parties: Regina v Secret ary of State for the Environment ex parte Royal Society for the Protection of Birds.
Intervener: The Port of Sheerness Limited.
Background: On 15 December 1993, the Secretary of State decided to designate the Medway Estuary and Marshes
as a Special Protection Area (hereinaft er "SPA"). At the same time, he decided to exclude from it an area of about 22
hectares known as Lappel Bank.
According to the order for reference, the Medway Estuary and Marshes are an area of wetland of international
importance covering 4,681 hectares on the north coast of Kent and listed under the Ramsar Convention. They are
used by a number of wildfowl and wader speci es as a breeding and wintering area and as a staging post during spring
and autumn migration. The site also supports breeding populations of the avocet and the little tern, which are listed in
Annex I to the Birds Directive.
Lappel Bank is an area of inter-tidal mudflat immediately adjoining, at its northern end, the Port of Sheerness and
falling geographically within the bounds of the Medway Estuary and Marshes. Lappel Bank shares several of the
important ornithological qualities of the area as a whole. Although it does not support any of the species referred to in
Article 4(1) of the Birds Directive, some of the bird species of the area are represented in significantly greater
numbers than elsewhere in the Medway SPA. Lappel Bank is an important component of the overall estuarine
ecosystem and the loss of that inter-tidal area would probably result in a reduction in the wader and wildfowl
populations of the Medway Estuary and Marshes.
The Port of Sheerness is at present the fi fth largest in the United Kingdom for cargo and freight handling. It is a
flourishing commercial undertaking, well located for sea traffi c and access to its main domestic markets. The Port,
which is also a significant employer in an area with a serious unemployment problem, plans extended facilities for car
storage and value added activities on vehicles and in the fruit and paper product market, in order better to compete
with continental ports offering similar facilities. Lappel Bank is the only area into which the Port of Sheerness can
realistically envisage expanding.
Accordingly, taking the view that the need not to inhibit the viability of the port and the significant contribution that
expansion into the area of Lappel Bank would make to the local and national economy outweighed its nature
conservation value, the Secretary of State decided to exclude that area from the Medway SPA.
The RSPB applied to the Divisional Court of the Queen' s Bench Division to have the Secretary of State' s decision
quashed on the ground that he was not entitled, by virtue of the Birds Directive, to have regard to economic
considerations when classi fying an SPA. The Divisional Court found against the RSPB. On appeal by the RSPB, the
Court of Appeal upheld that judgement. The RSPB therefore appealed to the House of Lords.
Uncert ain as to how the Directive should be interpreted, the House of Lords stayed proceedings pending a preliminary
ruling from the Court of Justice on two in following mentioned questions.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Article 2
Article 3
Article 4(1)
Article 4(2)
Article 4(4)
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Birds Directive and EC Court Project
The Habitats Directive Articles rel evant to this case:
Î Article 6(3)
Î Article 6(4)
Î Article 7
Position of the parties
First question: classification of an area as a Special Protection Area
Question: Is a Member State entitled to take account of the considerations mentioned in Article 2 of Directive
79/409/EEC of 2 April 1979 on the conservation of wild birds in classification of an area as a Special Protection Area
and/or in defining the boundaries of such an area pursuant to Article 4(1) and/or 4(2) of that Directive?
Relevant Articl es of the Birds Directive:
Î
Î
Î
Î
Î
Article 2
Article 3
Article 4(1)
Article 4(2)
Article 4(4)
Court position: The point of this question is whether Article 4(1) or (2) of the Birds Directive is to be interpreted as
meaning that a Member State is authorised to take account of the economic requirements mentioned in Article 2
thereof when designating an SPA and defining its boundaries.
The Court expressed, as a preliminary point, it must be borne in mind that, according to the ninth recital in the
preamble to the Birds Directive, "the preservation, maintenance or restoration of a sufficient diversity and area of
habitats is essential to the conservation of all species of birds [covered by the Directive]", that "certain species of
birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival
and reproduction in their area of distribution", and, finally, that "such measures must also take account of migratory
species".
That recital is formally refl ected in Articles 3 and 4 of the Directive. In paragraph 23 of its judgement in Case C355/90 Commission v Spain [1993] ECR I-4221 (hereinaft er "Santońa Marshes") the Court pointed out that the first
of those provisions imposes obligations of a general character, namely the obligation to ensure a suffici ent diversity
and area of habitats for all the birds referred to in the Directive, while the second contains specific obligations with
regard to the species of birds listed in Annex I and the migratory species not listed in that annex.
United Kingdom Government and the Port of Sheerness Limited common position: Article 4 cannot be
considered in isolation from Article 3. They state that Article 4 provides, in relation to certain species of particular
interest, for the speci fic application of the general obligation imposed by Article 3. Since the latter provision allows
account to be taken of economic requirements, the same should apply to Article 4(1) and (2).
French Government position: The French Government reaches the same conclusion as United Kingdom
Government, observing that, when an SPA is created, the Member States take account of all the criteri a mentioned in
Article 2 of the Birds Directive, which is general in scope, and, therefore, inter alia, of economic requirements.
Advocate General position: Not available.
Court position: The Court noted the arguments of the French and United Kingdom Governments cannot be upheld. It
must be noted first that Article 4 of the Birds Directive lays down a protection regime which is specifically targeted
and reinforced both for the speci es listed in Annex I and for migratory speci es, an approach justified by the fact that
they are, respectively, the most endangered species and the speci es constituting a common heritage of the Community
(see Case C-169/89 Van den Burg [1990] ECR I-2143, paragraph 11).
Whilst Article 3 of the Birds Directive provides for account to be taken of the requirem ents mentioned in Article 2 for
the implementation of general cons ervation measures, including the creation of protection areas, Article 4 makes no
such reference for the implementation of special cons ervation measures, in particular the creation of SPAs.
Consequently, having regard to the aim of special protection pursued by Article 4 and the fact that, according to
settled case-law (see in particular Case C-435/92 APAS v Préfets de Maine-et-Loire and de la Loire Atlantique
[1994] ECR I-67, paragraph 20), Article 2 does not constitute an autonomous derogation from the general system of
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Birds Directive and EC Court Project
protection established by the Directive, it must be held (see paragraphs 17 and 18 of Santońa Marshes) that the
ecological requirements laid down by the former provision do not have to be balanced against the interests listed in
the latter, in particular economic requirements.
It is the criteria laid down in paragraphs (1) and (2) of Article 4 which are to guide the Member States in designating
and defining the boundaries of SPAs. It is clear from paragraphs 26 and 27 of Santońa Marshes that, notwithstanding
the divergences between the various language versions of the last subparagraph of Article 4(1), the criteria in question
are ornithological criteri a.
Second question: Article 2 considerations in the classification process
Question: If the answer to Question 1 is 'no', may a Member State nevertheless take account of Article 2
considerations in the classification process in so far as:
•
they amount to a general interest which is superior to the general interest which is represented by the ecological
objective of the Directive (i.e. the test which the European Court has laid down in, for example, Commission v
Germany (' Leybucht Dykes' ) Case 57/89, for derogation from the requirem ents of Article 4(4)); or
•
they amount to imperative reasons of overriding public interest such as might be taken into account under Article
6(4) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and
flora?"
Relevant Articl es of the Birds Directive:
Relevant Articl es of the Habitats Directive:
Î
Î
Î
Î
Article 2
Article 4(1)
Article 4(2)
Article 4(4)
Î Article 6(3)
Î Article 6(4)
The first part of the second question: By the first part of the second question, the national court seeks to ascertain
whether Article 4(1) or (2) of the Birds Directive must be interpreted as allowing a Member State, when designating
an SPA and defining its boundaries, to take account of economic requi rements as constituting a general interest
superior to that represented by the ecological objective of that Directive.
Court position: In its judgment in Case C-57/89 Commission v Germany [1991] ECR I-883, paragraphs 21 and 22
(hereinafter "Leybucht Dykes"), the Court held that the Member States may, in the context of Article 4(4) of the Birds
Directive, reduce the extent of a SPA only on exceptional grounds, being grounds corresponding to a general interest
superior to the general interest represented by the ecological objective of the Directive. It was held that economic
requirem ents cannot be invoked in that context.
It is also clear from paragraph 19 of Santońa Marshes that, in the context of Article 4 of that Directive, considered as
a whole, economic requirements cannot on any view correspond to a general interest superior to that represented by
the ecological objective of the Directive.
Accordingly, without its being necessary to rule on the possible relevance of the grounds corresponding to a superior
general interest for the purpose of classi fying an SPA, the answer to the first part of the second question must be that
Article 4(1) or (2) of the Birds Directive is to be interpreted as meaning that a Member State may not, when
designating an SPA and defining its boundaries, take account of economic requirements as constituting a general
interest superior to that represented by the ecological objective of that Directive.
The second part of the second question: By the second part of the second question, the House of Lords asks
essentially whether Article 4(1) or (2) of the Birds Directive is to be interpreted as meaning that a Member State may,
when designating an SPA and defining its boundaries, take account of economic requirem ents to the extent that they
reflect imperative reasons of overriding public interest of the kind referred to in Article 6(4) of the Habitats Directive.
United Kingdom Government position: The United Kingdom Government considers that that question is relevant
only to cases of classification decisions made aft er the expiry of the period for transposition of the Habitats Directive.
Since that is not the case in the main proceedings, it considers that it is unnecessary to answer the question.
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Court position: It is well settled that it is for the national courts alone, before which the proceedings are pending and
which will be responsible for the eventual judgement, to determine, having regard to the particular features of each
case, both the need for a preliminary ruling to enable them to give judgement and the relevance of the questions
which they refer to the Court. A request for a preliminary ruling from a national court may be reject ed only if it is
clear that the interpretation of Community law requested bears no relation to the true nature of the case or the subjectmatter
of
the
main
action
(see
in
particular
Case
C-129/94 Ruiz Barnáldez [1996] ECR I-0000, paragraph 7).
That is, however, not the case in the main proceedings.
Consequently, it is necessary to examine the second part of the second question submitted by the national court.
Advocate General position: Advocate General express ed, it is important first to bear in mind that Article 7 of the
Habitats Directive provides in particular that the obligations arising under Article 6(4) thereof are to apply, in place of
any obligations arising under the first sentence of Article 4(4) of the Birds Directive, to the areas classi fied under
Article 4(1) or similarly recognised under Article 4(2) of that Directive as from the date of implementation of the
Habitats Directive or the date of classi fication or recognition by a Member State under the Birds Directive, whichever
is the later.
As the Commission submits in its observations, Article 6(4) of the Habitats Directive, as inserted in the Birds
Directive, has, following Leybucht Dykes where the point in issue was the reduction of an area already classi fied,
widened the range of grounds justifying encroachm ent upon SPAs by expressly including therein reasons of a social
or economic nature.
Thus, the imperative reasons of overriding public interest which may, pursuant to Article 6(4) of the Habitats
Directive, justify a plan or project which would significantly affect an SPA in any event include grounds relating to a
superior general interest of the kind identified in Leybucht Dykes and may where appropriat e include grounds of a
social or economic nature.
Next, although Article 6(3) and (4) of the Habitats Directive, in so far as it amended the first sentence of Articl e 4(4)
of the Birds Directive, established a procedure enabling the Member States to adopt, for imperative reasons of
overriding public interest and subject to certain conditions, a plan or a project adversely affecting an SPA and so
made it possible to go back on a decision classifying such an area by reducing its extent, it nevertheless did not make
any amendments regarding the initial stage of classi fication of an area as an SPA referred to in Article 4(1) and (2) of
the Birds Directive.
It follows that, even under the Habitats Directive, the classification of sites as SPAs must in all circumstances be
carried out in accordance with the criteria permitted under Article 4(1) and (2) of the Birds Directive.
Economic requirem ents, as an imperative reason of overriding public interest allowing a derogation from the
obligation to classify a site according to its ecological value, cannot enter into consideration at that stage. But that
does not, as the Commission has rightly pointed out, mean that they cannot be taken into account at a later stage
under the procedure provided for by Article 6(3) and (4) of the Habitats Directive.
Judgment
1.
Article 4(1) or (2) of the Birds Directive is to be interpreted as meaning that a Member State is not authorized to
take account of the economic requi rements mentioned in Article 2 thereof when designating a Special Protection
Area and defining its boundaries.
2.
Article 4(1) or (2) of the Birds Directive is to be interpreted as meaning that a Member State may not, when
designating a Special Protection Area and defining its boundaries, take account of economic requirements as
constituting a general interest superior to that represented by the ecological objective of that Directive.
3.
Article 4(1) or (2) of the Birds Directive is to be interpreted as meaning that a Member State may not, when
designating a Special Protection Area and defining its boundaries, take account of economic requirements which
may constitute imperative reasons of overriding public interest of the kind referred to in Article 6(4) of Directive
92/43/EEC of 21 May 1992 on the conservation of the natural habitats of wild fauna and flora.
Comment: In this important judgement noted the Court, that the ecological requirem ents laid down of the Birds
Directive do not have to be balanced against the other interests listed, in particular economic requirements. The
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Member States could be take into account the requirements mentioned in Article 2 of the Birds Directive according to
the Article 3 for the implementation of general conservation measures, but Article 4 makes no such reference for
implementation of special conservation measures, in particular the creation of SPAs.
The Court stressed that the criteria laid down in paragraphs (1) and (2) of Article 4 which are to guide the Member
States in designating and defining the boundaries of SPAs. The Court noted that the criteria in the Article 4 are
ornithological criteria.
The Court expressed with reference to former judgements (C-57/89 ‘Leybucht Dykes’, and C-355/90 ‘Santońa
Marshes’): the Member States may not, when designating an SPA and defining its boundaries, take account of
economic requirements as constituting a general interest superior to that represented by the ecological objective of
that Directive.
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The present and the mentioned judgement of the Court stressed the important and priority of the ecological criteri a
against the economic requirements. The balance could be find between the ecological and economical requirem ents if
the Member States take into account the ecological requirements as basis and the economical requirements have to
have respect for ecological conditions.
The Court stressed – but expressed not – the right timing of the consideration of the economic requirements.
Economic requirem ents, as an imperative reason of overriding public interest allowing a derogation from the
obligation to classify a site according to its ecological value, cannot enter into consideration at that stage. But that
does not, as the Commission has rightly pointed out, mean that they cannot be taken into account at a later stage
under the procedure provided for by Article 6(3) and (4) of the Habitats Directive.
The Court has not expressed clearly – although it was not a question – the criteria of ‘the imperative reasons of
overriding public interest’. It could be clarified during the case law and the implementation of the Habitats Directive.
This present case could help to the NGOs to argue the importance and priority of the ornithological and ecological
criteria.
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Case 3/96
Parties: Commission of the European Communities v. Kingdom of the Netherlands.
Background: The Commission of the European Communities considered that the Kingdom of the Netherlands had
not classified a sufficient number of speci al protection areas ('SPAs') for the species of birds referred to in Annex I to
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ('the Birds Directive'), and on 25
September, 1989 gave the Netherlands Government form al notice to submit its observations within two months.
By letter of 29 December, 1989 the Netherlands Government denied the alleged infringement and it submitted that it
was not in breach of its obligations under Article 4 (1) of the Birds Directive, in that it had classified as SPAs a
suffi cient number of suitable territories for conservation of the species referred to in Annex I, taking into account the
balance between the interests of conservation of protected species and economic and recreational interests, and that it
had also introduced other instruments for the protection of birds.
The Commission sent the Netherlands Government on 14 June 1993 a Reasoned Opinion requiring the Kingdom of
the Netherlands, within two months from notification of the Opinion, to take the necessary action on the complaint of
not having classified as SPAs suffi cient territories to ensure effective protection of the species mentioned in Annex I
to the Birds Directive. The Netherlands Government states that it replied to the Reasoned Opinion by letter of 1
December 1993, however, the Commission asserts, that it never received that reply.
Following the previous procedure, the Commission brought an action under Article 169 of the EEC Treaty for a
declaration that, by failing suffi ciently to designate SPAs within the meaning of Article 4(1) of the Birds Directive,
the Kingdom of the Netherlands had failed to ful fil its obligations under the Birds Directive and Articles 5 and 189 of
the EEC Treaty.
By order of the President of the Court of 15 July 1996 the Federal Republic of Germany was granted leave to
intervene in support of the form of order sought by the defendant State.
The Birds Directive Arti cle relevant to this case:
Î Article 4 (1)
Position of the parties
First complaint: admissibility of the application
Relevant Articl e of the Birds Directive:
Î Article 4 (1)
(a) Failure to take account of reply by the Kingdom of the Netherlands to the Reasoned Opinion
Netherlands position: The Netherlands Governm ent submits that, by omitting to take account of its reply to the
Reasoned Opinion, the Commission failed to respect its right to a fair hearing, so that the action is inadmissible.
Commission position: The Commission replies that, even supposing it did receive that letter, the fact that its
application to the Court does not take account of the Netherlands Governm ent's reply to the Reasoned Opinion cannot
constitute a ground of inadmissibility. The period set in the Reasoned Opinion serves merely to give the Member
State to which it is addressed a last opportunity to conform with the Commission's point of view. Besides, the only
new element in the letter, which was brought to its knowledge during the present proceedings, was the statement that
three more territori es had been classi fied as SPAs in the meantime. The Commission says that it did in fact take that
into account in its application.
Court position: The Court points out that the procedure laid down in Article 169 of the EEC Treaty comprises two
consecutive stages, the pre-litigation or administrative stage and the contentious stage before the Court. Under the
first paragraph of Articl e 169, '[i]f the Commission considers that a Member State has failed to fulfil an obligation
under this Treaty, it shall deliver a Reasoned Opinion on the matter after giving the State concerned the opportunity
to submit its observations'.
The aim of the pre-litigation procedure is thus to give the Member State an opportunity to justify its position or, as the
case may be, to comply of its own accord with the requirements of the EEC Treaty. If that attempt to reach a
settlement proves unsuccess ful, the Member State is requested to comply with its obligations as set out in the
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Reasoned Opinion which concludes the pre-litigation procedure provided for in Article 169, within the period
prescribed in that Opinion (see inter alia Case 74/82 Commission v Ireland [1984] ECR 317, paragraph 13, and Case
85/85 Commission v Belgium [1986] ECR 1149, paragraph 11). As the Court has previously held, the proper conduct
of the pre-litigation procedure constitutes an essential guarantee intended by the Treaty not only to protect the rights
of the Member State concerned but also to ensure that any contentious procedure will have a clearly defined dispute
as its subject-matter (see the judgment in Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 15). It
should be borne in mind that the subject-matter of an action for failure to ful fil obligations is determined by the
Commission's Reasoned Opinion (see Case 154/85 Commission v Italy [1987] ECR 2717, paragraph 6).
In the present case, it is not disputed that the Reasoned Opinion and the procedure leading up to it were properly
conducted. In those circumstances, even assuming that the contentious procedure was opened by a Commission
application which took no account of any new matters of fact or law put forward by the Member State concerned in
its reply to the Reasoned Opinion, that State's right to a fair hearing has not been infringed. It is fully open to the State
to raise those matters in the contentious procedure, to begin with in its first pleading in defence. It will be for the
Court to examine their relevance for the outcome of the action for failure to ful fil obligations.
Decision: The first plea of inadmissibility must therefore be reject ed.
(b) Nature of the obligation laid down in Article 4(1) of the Directive
Netherlands position: The Netherlands Governm ent submits, that the alleged infringement consists not of a single
act or omission but rather of a group of infringements of an obligation to take individual classification decisions. In
order to guarantee the right to a fair hearing, it is essential in law to establish infringements of Article 4(1) o f the
Birds Directive territory by territory. The Government submits essentially that the Commission is complaining that it
failed generally to ful fil its obligations under Article 4(1), without first having engaged in an exchange of views with
it on the specific complaints on which the action is founded.
Commission position: According to the Commission, the submission that infringements of Articl e 4(1) of the Birds
Directive can only be established territory by territory is incorrect. An infringem ent may equally well be established if
it is apparent that a Member State has clearly classi fied as SPAs many fewer habitats than required by ornithological
criteria.
Advocate General position: The Advocate General notes that since this plea of inadmissibility concerns the proper
interpretation of Article 4(1) of the Birds Directive and goes to the substance of the Commission's complaints, it
should be examined in connection with the merits of the present action.
(c) New matters
Netherlands position: The Netherlands Governm ent submits, that it was at the stage of its application to the Court
that the Commission raised for the first time the complaint concerning the insufficient total area and quality of the
areas classi fied as SPAs, as well as the specifi c complaints concerning the failure to classi fy the Friesian IJsselmeer
coast and the Hooge Platen on the Western Scheldt, so preventing the defendant State from reacting at the prelitigation stage.The same is true as regards the complaint that freshwater lakes and marshes and moorland were
classi fied as SPAs only to a very limited extent. Those complaints - according to the Netherlands Goverment - are
therefore inadmissible.
Commission position: The Commission replies that the alleged new pleas are in fact merely examples or
developments of the single plea which has been consistently relied on since the beginning of the procedure, namely
that the Netherlands has not designated sufficient SPAs from the point of view of Articl e 4(1) of the Birds Directive.
Advocate General: The Advocate General states that given the general character of the complaint formulated in the
application, which asks the Court to find a breach of the Directive and of Articles 5 and 189 of the EEC Treaty on the
sole ground that the Netherlands has not designated suffi cient SPAs, he agrees with the Commission that the
references to the Friesian IJsselmeerkust and Hooge Platen are merely examples to illustrate the breach alleged, and
that the Court is not invited to make speci fic findings in relation to either area.
However, the Advocate General points out that in so far as the Commission's complaint concerns the financing the
Netherlands has received in respect of these two areas under Council Regulation (EEC) No 1872/84 of 28 June 1984
on action by the Community relating to the Environment, he states that it is inadmissible, as neither of these areas is
mentioned in either the letter of formal notice or the Reasoned Opinion.
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Court position: The Courts notes that the Commission referred expressly, in both the letter of formal notice and the
Reasoned Opinion, to the obligation of the Kingdom of the Netherlands to ensure that the number and size of
classi fied areas in the Member States are in accordance with Article 4(1) of the Birds Directive. The plea of
inadmissibility must therefore be rejected, in so far as it concerns the complaint that the Kingdom of the Netherlands
did not classify a suffici ent total area of SPAs.
As to the Commission's complaint that the SPAs classified by the Kingdom of the Netherlands were qualitatively
insuffi cient, and more specifi cally that freshwat er lakes and marshes and moorland have been classi fied as SPAs only
to a limited extent, it must be stated that while, in order to comply with Article 4(1), Member States must classify as
SPAs suffici ent territories, in terms of quantity and quality, to ensure conservation of the species listed in Annex I, it
does not follow that a complaint that a Member State has not classified sufficient SPAs from the point of view of that
provision necessarily covers the qualitative aspect of the obligation in question.
The Court states that it appears that in the course of the pre-litigation stage the Commission based its complaint
against the Kingdom of the Netherlands on the alleged insuffici ent number and size of the territories classi fi ed as
SPAs by that State, in other words a quantitative insufficiency. By contrast, the alleged qualitative insufficiency of the
SPAs classified by that State was raised for the first time in the present case when the contentious procedure was
initiated.
The action must therefore be decl ared inadmissible in this respect.
Decision: The plea of inadmissibility must be partially rejected and be partially declared admissible.
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(d) Substance
Netherlands position: The Netherlands Governm ent contends that the designation of SPAs is only one of the
measures by which a Member State may perform its obligation under Article 4(1) of the Birds Directive to take
special conservation measures. Member States may also have recourse to other conservation measures to comply with
that obligation. There can therefore be an infringem ent of that provision only if a Member State has not taken any
special conservation measures at all. The Netherlands Government contends that by taking other measures of
relevance in this context, such as the Nature Conservation Law, the sale of sites to nature conservation organisations
and bird conservation plans, it has complied with the Birds Directive.
The Netherlands Government further observes that the Member States have a margin of discretion in implementing
Article 4(1) of the Directive. With respect more particularly to the designation of SPAs, Article 4(1) merely requires
designation of the most suitable territories. The scheme of the provision is thus based on an assessment in the specific
case of the question whether a particular site is one of the most suitable territories. On this point, the Netherlands
Government observes that the previous cases before the Court all related to whether a Member State should have
classi fied a particular site as an SPA. In the present case, however, the Commission has not shown, let alone proved,
that in implementing Article 4(1) the Kingdom of the Netherlands exceeded the limits of its discretion in any specific
cases.
The Netherlands Government further contends that, when adopting the special conservation measures provided for in
Article 4(1), Member States must take account not only of the specifi c factors mentioned in that provision but also of
economic and recreational requirem ents, in accordance with Article 2 of the Birds Directive.
The Netherlands Government observes, moreover, that the criterion applied by the Commission, namely that Member
States must designate as SPAs at least half in number and area of the territories listed by Inventory of Important Bird
Areas in the European Community, 1989 ('IBA 89'), does not appear in the Directive.
Finally, the Netherlands Government contends that to find that nine species have declined by over 50%, without
taking account of the various factors which may be responsible, is not enough to establish that the Kingdom of the
Netherlands has infringed Articl e 4(1) of the Directive. In particular, the fall in numbers of Tetrao tetrix is the
consequence of a disastrous hatching season probably caused by an atmospheric deposit originating outside the
territories in question. As to Botaurus stellaris, the Government observes that despite the fact that 10% of that species
are in SPAs, its population is falling, as in all other European territories. That shows that the decline of that species is
not due to the inadequacy of the special conservation measures adopted by the Kingdom of the Netherlands.
Commission position: The Commission observes that it follows from Article 4(1) of the Birds Directive that each
Member State has a speci fic obligation to designate suffi cient SPAs to ensure the survival and reproduction of all the
species of birds mentioned in Annex I which are on its territory. It states that, with respect to the Netherlands, IBA 89
identifies, on the basis of the ornithological criteria used and explained in that study, 70 territories with a total area of
797,920 hectares suitable for classi fication as SPAs. The Commission points out that the Netherlands Ministry of
Agriculture and Fisheries has drawn up its own list of potentially classifiable territories, which contains 53 sites with
a total area of 398,180 hectares. Those 53 sites correspond in part to 57 sites mentioned in IBA 89. However, the
Netherlands Government has given no explanation of the scienti fic criteri a on which its list of territories potentially
classi fiable as SPAs is based.
In any event, the Commission submits that, by designating only 23 territories with a total area of 327,602 hectares as
SPAs, the Kingdom of the Netherlands has mani festly exceeded the limits of the discretion conferred on Member
States by Article 4 of the Directive.
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According to the Commission, the obligation to classify is infringed i f a Member State manifestly disregards the
number and area of the territories listed in IBA 89. That is the case where a Member State designates as SPAs only
less than half the sites listed by IBA 89, with respect to both the number of sites and their total area.
In the Commission's submission, another indication that the protection given by the Netherlands to the species of
birds listed in Annex I to the Directive is insuffi cient is the fact that the population of nine of those species has
declined by over 50%. Of particul ar significance in this respect is the fall in the population of sedentary species such
as Tetrao tetrix and Botaurus stellaris.
Intervener German position: The German Government contends, on the basis of the Member States' margin of
discretion, that Article 4(1) leaves the choice of SPAs to Member States and that the only decisive factor is that the
areas must be suitable in number and area for conservation of the species concerned and capabl e, together with the
areas classi fied by the other Member States, of constituting a coherent network of protection areas. In its contention,
the provision does not require a particular number of areas to be classifi ed, but rather requires Member States to
ensure that the SPAs which are created are suitable for the conservation of endangered species of birds.
Advocate General: The Advocate General states that the central point for this case is that Member States are under a
speci fic obligation to classify the most suitable territories as SPAs. The Advocate General is of the view that the
fourth subparagraph of Article 4(1) imposes on the Member States an autonomous obligation to classify as SPAs the
most suitable territories, taking account of the protection requirem ents of Annex I speci es within the territory where
the Birds Directive applies. That obligation extends to all of the `most suitable territories', though not necessarily all
the sites which provide suitable living conditions for Annex I species. The Advocate General proposes the Court that
the Commission should be granted the declaration which it has requested and declare that, by failing to classify a
suffi cient number and area of SPAs in accordance with Article 4(1) of the Birds Directive, the Kingdom of the
Netherlands has failed to comply with its obligations under the EC Treaty.
Court position: The Court first observes that, contrary to the contention of the Kingdom of the Netherlands, Article
4(1) of the Birds Directive requires Member States to classify as SPAs the most suitable territories in number and size
for the conservation of the species mentioned in Annex I, an obligation which it is not possible to avoid by adopting
other special conservation methods. It follows from that provision, as interpreted by the Court, that if such species
occur on the territory of a Member State, it is obliged to define inter alia SPAs for them.
Besides if Member States could escape the obligation to classify SPAs if they considered that other special
conservation measures were sufficient to ensure survival and reproduction of the species mentioned in Annex I, the
objective of creating a coherent network of SPAs, referred to in Article 4(3) of the Directive, might not be achieved.
The Court points out secondly that the economic requirements mentioned in Article 2 of the Birds Directive may not
be taken into account when selecting an SPA and defining its boundaries. Moreover, while the Member States have a
certain margin of discretion in the choice of SPAs, the classification of those areas is nevertheless subject to certain
ornithological criteria determined by the Directive (s ee Case C-355/90 Commission v Spain [1993] ECR I-4221,
paragraph 26). It follows that the Member States' margin of discretion in choosing the most suitable territories for
classi fication as SPAs does not concern the appropriateness of cl assifying as SPAs the territories which appear the
most suitable according to ornithological criteria, but only the application of those criteria for identifying the most
suitable territories for conservation of the species listed in Annex I to the Directive.
Consequently, Member States are obliged to classify as SPAs all the sites which, applying ornithological criteria,
appear to be the most suitable for cons ervation of the species in question.
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Thus where it appears that a Member State has classified as SPAs sites the number and total area of which are
manifestly less than the number and total area of the sites considered to be the most suitable for conservation of the
species in question, it will be possible to find that that Member State has failed to ful fil its obligation under Article
4(1) of the Birds Directive.
Third, it should be observed, that the Netherlands Government, while not questioning the scientific reliability of IBA
89, contends that the application of the criteria on which that report is based cannot, in view of their general character,
lead to unequivocal results as regards the classifi cation of SPAs. It has maintained that, although it applied the same
criteria as those on which IBA 89 is based, it arrived in its inventory of sites potentially classifiable as SPAs at a
result which was very different from that indicated by that report. At the hearing, however, it admitted that its criteria
differed from those used in IBA
In that regard, it is significant that the Kingdom of the Netherlands has failed to produce a single document from the
national procedure for classi fying SPAs which indicates the criteria which governed the designation of SPAs in that
Member State.
The Court holds that it must be pointed out that IBA 89 draws up an inventory of areas which are of great importance
for the conservation of wild birds in the Community. That inventory was prepared for the competent directorategeneral of the Commission by the Eurogroup for the Conservation of Birds and Habitats in conjunction with the
International Council of Bird Preservation and in cooperation with Commission experts.
In the circumstances, IBA 89 has proved to be the only document containing scientific evidence making it possible to
assess whether the defendant State has ful filled its obligation to classify as SPAs the most suitable territories in
number and area for conservation of the protect ed species. The situation would be different i f the Kingdom of the
Netherlands had produced scienti fic evidence in particular to show that the obligation in question could be ful filled by
classi fying as SPAs territories whose number and total area were less than those resulting from IBA 89.
It follows that that inventory, although not legally binding on the Member States concerned, can, by reason of its
acknowledged scienti fic value in the present case, be used by the Court as a basis of reference for assessing the extent
to which the Kingdom of the Netherlands has complied with its obligation to classify SPAs.
Since it thus appears that the Netherlands has classifi ed as SPAs territories whose number and total area are clearly
smaller than the number and total area of the territories suitable, according to IBA 89, for classifi cation as SPAs, the
requirem ents of Article 4(1) of the Directive cannot be regarded as satis fied.
Consequently, without there being any need to consider the other arguments which have been put forward, it must be
held that by classifying as SPAs territories whose number and total area are clearly smaller than the number and total
area of the territories suitable for cl assifi cation as SPAs within the meaning of Article 4(1) of the Directive, the
Kingdom of the Netherlands has failed to ful fil its obligations under that Directive.
Judgment
The Court declares that, by classifying as SPAs territories whose number and total area are clearly smaller than the
number and total area of the territories suitable for classi fication as SPAs within the meaning of Article 4(1) of the
Birds Directive, the Kingdom of the Netherlands has failed to ful fil its obligations under that Directive.
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Comment: This pre-litigation case seeks to provide interpretation on the obligations arising out of Article 4(1) of the
Birds Directive. The provision requires Member States, if species mentioned in Annex I occur on their territory, to
classi fy as SPAs the most suitable territories in number and size for their conservation, an obligation which it is not
possible to avoid by adopting other special conservation measures. Nor may the economic requirements mentioned in
Article 2 of the Directive be taken into account in this respect.
As regards the Member States' margin of discretion in choosing the most suitable territories, that does not concern the
appropriat eness of classi fying as SPAs the territories which appear the most suitable according to ornithological
criteria, but only the application of those criteria for identi fying the most suitable territories for conservation of the
species in question.
Consequently, where it appears that a Member State has classified as SPAs sites the number and total area of which
are mani festly less than the number and total area of the sites considered to be the most suitable, it will be possible to
find that that Member State has failed to ful fil its obligation under Article 4(1) of the Directive; for assessing the
extent to which the Member State has complied with that obligation, the Court may use as a basis of reference the
IBA 89, which draws up an inventory of areas of great importance for the conservation of wild birds in the
Community.
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Case C-10/96
Parties: Ligue royal e belge pour la protection des oiseaux ASBL and Société d'études ornithologiques AVES ASBL
v. Région Wallonne, intervener: Fédération royale ornithologique belge ASBL.
Background: By decision of 10 November 1995, the Belgian Conseil d'État submitted for a preliminary ruling under
Article 234 (ex 177) of the EC Treaty two questions on the interpretation of the Birds Directive. Those questions
arose in an action for annulment brought by the Ligue Royale Belge pour la Protection des Oiseaux ASBL (the Royal
Belgian League for the Protection of Birds) and the Société d'Études Ornithologiques AVES ASBL against two
orders of the Region of Wallonia, which, inter alia, authorise the capture, under specified conditions, of certain
species of birds protected by the Directive. The Ligue Royale and AVES requested the Conseil d'État to annul
certain provisions of the two orders on the ground that they infringed Articl es 5(a) and 9(1) of the Directive. They
argued that the contested provisions authorised the capture of wild birds, even though such capture was in principle
prohibited by the Directive and derogations from that prohibition could, according to Article 9 of the Directive, be
permitted only if there was no other satisfactory solution, such as breeding in captivity. According to the applicants in
those proceedings, there were extensive and adequate opportunities for breeding the species whose capture was
authorised by the contested Orders.
The Region of Wallonia, supported by the Fédération Royale Ornithologique Belge (Royal Belgian Ornithological
Federation), replied that breeding was not yet in itself a satisfactory solution, but that it would become so on
condition that the captures envisaged were authorised from 1994 to 1998. According to both those parties, it would be
possible to avoid capture entirely at the end of this period, which would be marked by transitional legal arrangements.
The Birds Directive Arti cles relevant to this case:
Î Article 5(a)
Î Article 9(1)
Î Article 18
Questions before the Court
First question: the prohibition of capturing birds
Relevant Articl es of the Birds Directive:
Î Article 5
Î Article 9
Î Article 18
Question: Do Articles 5, 9 and 18 of the Directive allow a Member State to take account, on a decreasing basis and
over a speci fied period, of the fact that the prohibition of capturing birds for recreational purposes would compel
numerous fanciers to alter their installations and to abandon certain habits where that State recognises that breeding is
possible but is not yet feasible on a large scale for that reason?
Court position: It cannot be ruled out that the capture of certain protect ed species for recreational purposes, such as
that intended to enable fanciers to stock their aviaries, may also constitute judicious use within the meaning of Article
9(1)(c).
It must, however, be pointed out that a derogation from the system of protection established by the Directive and, in
particular, from the prohibition of killing or capturing protected species, as laid down in Article 5(a), can be accorded
only if there is no other satisfactory solution. The breeding and reproduction of protected speci es in captivity may
constitute such a solution if they prove to be possible. In fact, the breeding and reproduction in captivity of the species
concerned in the main proceedings are not only scientifically and technically feasible, but those activities have also
been success fully carri ed on by some breeders in Wallonia and, on a larger scale, by breeders in Flanders.
Second question: authorization to capture birds
Relevant Articl es of the Birds Directive:
Î Article 5
Î Article 9
Î Article 18
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Question: Do Articles 5, 9 and 18 of Directive allow Member States, and if so to what extent, to authorise the capture
of birds living naturally in the wild state within European territory with a view to obviating, in bird breeding for
recreational purposes, the problems of consanguinity which would result from too many endogenous crossings?
Court position: It is for the competent authorities of the Member State concerned to fix the number of wild
specimens which may be captured at the level of what proves to be objectively necessary in order to ensure sufficient
genetic diversity of the species bred in captivity, subject always to observance of the maximum limit of `small
numbers' referred to in Article 9(1)(c) of the Directive.
Judgment
Article 9(1)(c), must be interpreted as meaning that a Member State may not, on a decreasing basis and for a limited
period, authorise the capture of cert ain protected speci es in order to enable bird fanciers to stock their aviaries, where
breeding and reproduction of those species in captivity are possible but are not yet practicable on a large scale by
reason of the fact that many fanciers would be compelled to alter their installations and change their habits.
National authorities are authorised under Articl e 9(1)(c), to permit the capture of protected species with a view to
obviating, in bird breeding for recreational purposes, the problems of consanguinity which would result from too
many endogenous crossings, on condition that there is no other satisfactory solution, it being understood that the
number of specimens which may be captured must be fixed at the level of what proves to be objectively necess ary to
provide a solution for those problems, subject always to observance of the maximum limit of `small numbers' referred
to in that provision.
Comment: Article 9 of the Directive establishes that ”Member States may derogate from the provisions of Articles 5,
6, 7 and 8, where there is no other satisfactory solution ...”. This case deals with the meaning of other satisfactory
solution.
According to the Court, breeding and reproduction in captivity could be regarded as not constituting an `other
satisfactory solution' only if it were established that, were it not for the capture of birds in the wild, those activities
could not prosper. The fact that the breeding and reproduction in captivity of the species concerned are not yet
feasible on a large scal e by reason of the installations and the inveterate habits of bird fanciers, is not in itself such as
to cast doubt on the satisfactory nature of the alternative solution to capturing birds in the wild.
Moreover in relation to the second question, the court, underlines how the “ other satisfactory solution” principle
should not be met if it were possible to obviate the problems of consanguinity by cooperation and exchanges of
specimens between breeding establishments.
Hence, once it will be possible to demonstrate that the cited cooperation and exchanges of specimens will be of a
significant extent, the use of the derogation will not be justified any more.
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Case C-166/97
Parties: Commission v. the French Republic.
Background: The Seine estuary is, from the ornithological point of view, one of the most important wetlands of the
French coast. A 1994 study published by the French Ministry of the Environment identified the sites of major
importance which accommodated specimens of wild birds deemed to be of Community and international importance
according to criteria which corresponded to those of the Birds Directive. An area of some 21,900 hectares in the Seine
estuary figures under reference HN 03 in the inventory. The European ornithological inventory 'Important Bird Areas
in Europe, published in 1989, mentioned an area of 7,800 hectares in the estuary. On 11 April 1985, the Ministry of
the Environment entered into an agreement, of ten years' duration, with the Autonomous Ports of Le Havre and Rouen
for the protection of 3,300 hectares, the property of the French State. Some 2,000 hectares of this land were
designated as being of long-term ecological interest, while the remaining 1,300 hectares were to be preserved pending
their use by industry or the ports. Part of this territory, an area of some 2,750 hectares, was formally classi fied as an
SPA in 1990. The Commission wrote to the French authorities on 23 August 1991, following receipt of two
complaints regarding the construction at Le Hode in the Seine estuary of a plant for the treatment and deposit of
titanogypsum. In their replies of 7 and 22 November 1991, the French authorities argued that the plant was outside
the SPA which had been classifi ed, though they provided the Commission with a copy of the environmental impact
assessment for the plant. That study noted the presence on the plant site of the Corncrake (Crex cr ex), a species
protected under Annex I to the Directive. On 23 December 1992, the Commission sent France a formal letter of
complaint pursuant to Article 169 of the Treaty establishing the European Economic Community, to which the French
authorities replied on 18 November 1993. The Commission delivered a Reasoned Opinion on 3 July 1995 alleging the
insuffi ciency of the area and of the legal protection regime of the Seine estuary SPA, as well as the failure to prevent
the deterioration of the area; the French authorities were invited to take the necessary measures to comply with the
Opinion within two months. In their reply of 19 October 1995, they informed the Commission of their intention to
classi fy an additional 10,000 hectares as an SPA, while contesting the remainder of the Commission's allegations.
Following a further scienti fic study, Decree No 97-1329 of 30 December 1997 established the Nature Reserve of the
Seine Estuary, and classified an additional 14,500 hectares as an SPA.
The Birds Directive Arti cles relevant to this case:
Î Article 4(1)
Î Article 4(2)
Î Article 4(4)
The Habitats Directive Articles rel evant to this case:
Î Article 6(3)
Î Article 6(4)
Position of the parties
First complaint: the extent of the SPA
Relevant Articl es of the Birds Directive:
Î Article 4(1)
Î Article 4(2)
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Commission position: The Seine estuary is one of the most important wetlands of the French coast from an
ornithological point of view and is a site particularly favoured by a very large number of the species listed in Annex I
to the Birds Directive and also by migratory species. The creation by the French Republic in 1990 of an SPA of 2,750
hectares does not ful fil that country's obligations under Article 4(1) and (2) of the Directive.
French position: The area of 2,750 hectares classi fied as an SPA in the Seine estuary was insuffi cient. However, the
extension of the SPA which took place in November 1997 had been delayed in order for the local population
principally affected to be consulted and their support obtained.
Advocate General position: France has expressly admitted that the first SPA classified in 1990 was insufficient in
area and recognised that the SPA should cover an area of approximately 16,800 hectares. This state of affairs
persisted until after the expiry of the period allowed for compliance with the requirem ents of the Reasoned Opinion.
Court position: It is common ground that the Seine estuary is a particularly important ecosystem as a migration
staging post, wintering area and breeding ground for a large number of the bird species referred to in Article 4(1) and
(2) of the Directive. It must therefore be held that France failed to classify, within the period laid down, a suffici ently
large area of the Seine estuary as an SPA within the meaning of Article 4(1) and (2) of the Directive.
Decision: Commission's application must be upheld.
Second complaint: the legal protection regime of the SPA created in 1990
Relevant Articl es of the Birds Directive:
Î Article 4(1)
Î Article 4(2)
Commission position: France failed to establish for the Seine estuary a legal regime which would satisfactorily
preserve the integrity of the SPA created in 1990. More speci fically, the protection regime which the Agreement
provides for that SPA fails to meet the conservation requirements defined in Article 4(1) and (2) of the Birds
Directive. Moreover, no other measure designed to provide the SPA with an adequate legal protection regime has
been adopted.
French position: The Agreement did, in fact, provide effective protection of the SPA which, in any event, is Stateowned land. Furthermore, an area of 7,800 hectares including the SPA has since 1973 had the status of a maritime
game reserve, as a result of which all forms of hunting are prohibited there. In addition, the Brotonne Nature Reserve
in the Seine estuary has, since 1974, enjoyed the status of a regional nature reserve. Lastly, the implementation of
various measures of the managem ent of the SPA has ensured compliance with the obligations laid down by Article
4(1) and (2) of the Directive. The SPA thus enjoys the benefit of a diversi fied and effective protection regime.
Advocate General position: Without some concrete suggestion that the contractual arrangements entered into by the
French Government with the port authorities of Le Havre and Rouen in respect of State-owned land were such as to
allow identifiable damage to be caused to ornithological interests, or, put otherwise, that the French State failed to
protect those interests on its own land. It cannot see any purpose in entering on the abstract question of whether a
contractual regime can secure adequate protection. In any event, some 80% of the affected area (3,300 hectares) was
included at all material times in the SPA (2,750 hectares) classi fied in 1990. The Commission has not made any
speci fic point regarding the 550 hectares omitted from the SPA, an issue which relates to the first ground of
complaint.
The Court should reject the Commission's complaint concerning the insuffici ency of the legal protection regime of the
SPA under the Agreement of 11 April 1985, on the ground that it was no longer in force on the expiry of the deadline
for compliance with the Reasoned Opinion.
Court position: The Agreement, which was entered into for a term of ten years and was not renewed, expired on 11
April 1995. Consequently, it was no longer in force on 3 September 1995, the date on which the two months' period
laid down in the Reasoned Opinion expired. There is, therefore, no need to consider whether the protection regime
which the Agreement provides for the SPA satisfies the conservation requirements defined in Article 4(1) and (2) of
the Directive.
As regards the other measures which, according to the French Government, are intended to provide the SPA with an
adequat e protection regime. It is not disputed that the Brotonne Nature Reserve does not include the SPA created in
1990 but only those parts of the Seine estuary classified as an SPA in November 1997. It follows that, on the expiry
of the period laid down in the Reasoned Opinion, the only status enjoyed by the SPA created in 1990 was that of
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State-owned land and of a maritime game res erve. For want of any speci fic substantive measures, except in relation to
hunting, such a regime is incapable of providing adequate protection for the purposes of Article 4(1) and (2) of the
Directive.
Decision: The Commission's application must therefore must be upheld.
Third complaint: the titanogypsum plant at Le Hode
Relevant Articl es of the Birds Directive:
Relevant Articl es of the Habitats Directive:
Î Article 4(1)
Î Article 4(2)
Î Article 4(4)
Î Article 6(3)
Î Article 6(4)
Commission position: The titanogypsum plant, its appurtenances and the access road to the site, were built in wet
prairies within the ZICO which are very important for the staging, feeding and breeding of numerous endangered and
migratory species of wild birds. These lands should therefore have been included within the Seine estuary SPA in
accordance with Article 4(1) and (2) of the Birds Directive, and that the harm occasioned by the above mentioned
constructions, taken as a whole, is incompatible with the conservation requirements set out in the first sentence of
Article 4(4) of that Directive. In addition, no assessment of the titanogypsum plant's implications for the SPA was
carried out in accordance with Article 6(3) of the Habitats Directive. Nor could the plant be justified for imperative
reasons of overriding public interest under Article 6(4) of that Directive.
French position: The titanogypsum plant construction project was the subject of two impact studies carried out in
1991 and 1993, the second of which found that there would be no significant deterioration in the habitat of the species
concerned. This was confirm ed by an independent assessor following a public inquiry into the operation of the plant,
conducted in December 1994 and January 1995. What is more, the mere fact that the site of the titanogypsum plant
was included in one of the ZICOs registered by the French authorities does not imply any obligation to classify it as
an SPA. The lands classified as ZICOs are not all of the same ornithological value for the purposes of the obligations
under the Birds Directive.
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Furthermore, the Commission has not adduced any scientific evidence to show that the site should have been
classi fied as an SPA. Lastly the storage of synthetic gypsum at the plant at Le Hode does not contravene the
conservation requirements of Article 4 of the Birds Directive because the product is not eco-toxic, its storage up to a
height of 25 metres is not such as to disturb the migratory behaviour of birds, the discharges into the Seine are not
very pollutant and the commissioning of the plant has caused the volume of road traffic to increase by only 2.3%.
Advocate General position: It is not contested that a plant for the treatment and storage of titanogypsum has been
constructed on an enclave in the Seine estuary SPA; it is also clear from a study published in 1995 that the enclave
falls within the nesting area of the Corncrake. But the Commission has not shown that the site was itself amongst the
most suitable territories for classi fication. Hence, the Commission's third head of complaint should be rejected, on the
ground that it has failed to show that the titanogypsum plant was constructed on a site which should have been
classi fied as or within an SPA.
Court position: As regards the alleged infringement of Article 6(3) and (4) of the Habitats Directive, it should be
pointed out that the documents before the Court show that work on the construction of the plant started before the
Habitats Directive was adopted. As regards the alleged infringement of Articl e 4(4) of the Birds Directive the mere
fact that the site in question was included in the inventory of ZICOs does not prove that it ought to have been
classi fied as an SPA. Furthermore, it does not appear that the Commission has proved to the requisite legal standard
that the site in question is one of the most suitable territories for the conservation of the protected speci es. Moreover,
the Commission has not shown that the French Republic did not endeavour to avoid pollution or deterioration of the
habitat where the titanogypsum treatment plant was constructed.
Decision: The complaint alleging infringement o f Article 4(4) of the Birds Directive must be rejected.
Judgment
By failing to classify as a SPA a suffici ently large area of the Seine estuary and by failing to adopt measures to
provide the classifi ed SPA with an adequate legal regime, the French Republic has failed to ful fil its obligations under
Article 4(1) and (2) of the Birds Directive.
Comment: An important aspect related to this case is the weight given to surveys or studies carried out by
independent organisations, during the procedure before the court. From the French side, 2 studies has been presented
before the court to back its position: the study carried out by the Regional Environmental Department ('Direction
Régionale de l'Environnement', hereinafter 'DIREN') and a study made by the Museum of Natural History.
As said by both the Advocate General and the Court, the Commission, “ has not responded to France's citation of the
study by the Museum of Natural History on which the 1993 environmental impact assessment was based”. The
commission did not bring any concrete evidence and as said by the Court “ [T]he Commission has confined itself to
claiming that the French Republic ought to have chosen for the plant in question the site which would have given rise
to the least harm from the point of view of the conservation objectives of the SPA, that is to say, the area to the west
of the wet prairies, which is of no ornithological interest.”. Such a kind of studies, as shown in this case, can play an
important role especially if the other part cannot produce evidence against them.
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Case C-96/98
Parties: Commission of the European Communities v. French Republic.
Background: On 23 December 1992, the Commission sent to the French Government a letter of formal notice in
which it raised a complaint of failure to comply with, Article 4 of the Directive in regard to the Poitevin Marsh. In
that letter the Commission expressed the view, in particular, that the 4 500 or so hectares classi fied in the Poitevin
Marsh as a special protection area ('SPA') were insuffi cient to satisfy ornithological requirements and that the policy
of hydraulic and agricultural management pursued in the Poitevin Marsh had resulted in and continued to result in
deterioration of habitats. The Commission also pointed out that the French authorities had failed to adopt the special
protection measures which would make it possible to ensure the survival and reproduction of the protected species.
In its reply of 27 September 1993, the French Government acknowledged the ornithological importance of the
Poitevin Marsh. It pointed out that the area covered by SPAs in that region had been increased to 28 693 hectares and
also stated that a new extension was planned.
On 28 November 1995 the Commission issued a Reasoned Opinion in which it found that, by failing to adopt either
the special measures necessary to conserve bird habitats in the Poitevin Marsh or the measures appropriat e to prevent
deterioration of those habitats, the French Republic had failed to ful fil its obligations under Article 4 of the Birds
Directive. The Commission stated that the 28 693 (rivedere il dato)hect ares classi fi ed as SPAs represented only onethird of the area of the Poitevin Marsh which was of ornithological interest and that the protection regime for the
SPAs had to satisfy mandatory requirements of bird conservation and could not be changed in favour of projects for
infrastructures, as appeared to be the case in the Marsh. The Commission also pointed out that the entire ecosystem of
the Poitevin Marsh had, for several years, been under threat from systematic drainage and intensive cultivation,
without appropriate measures having been adopt ed to prevent deterioration of habitats and disturbance of the species
of wild birds intended to benefit from protection of the area. The Commission also pointed out that a proposed route
of the A 83 motorway across the Poitevin Marsh was incompatible with the Community provisions.
By letter of 11 June 1996, the French Government pointed out in particular that a further 3 540 hectares in the
département of Charente-Maritime had been classi fi ed as an SPA and that, because of the drainage and cultivation of
the meadows of the Poitevin Marsh, it was no longer possible, except in marginal respects, to designate new areas
under existing environmental circumstances. The French Government also disputed the finding that it had not adopted
appropriat e measures to conserve the habitats of protected species. Finally, it stressed that the proposed (north) route
of the A 83 motorway avoided all contact with an SPA. The problem concerning the network of the A 83 motorway
was, it claimed, the result of a cartographical oversight, because the declaration that this infrastructure was in the
public interest predated the designation of the SPA.
The Birds Directive Arti cles relevant to this case:
Î Article 2
Î Article 4
Position of the parties
First complaint: the extent of the SPAs
Relevant Articl e of the Birds Directive:
Î Article 4
Commission position: The classification of 28 693 hectares of the Poitevin Marsh as SPAs fails, to meet the French
Republic's obligations under Article 4(1) and (2) of the Birds Directive. 77 900 hectares of the Poitevin Marsh were
recognised by the French authorities in 1994 as constituting an important area for bird conservation (zone importante
pour la conservation des oiseaux, hereinafter 'ZICO'). In addition, 57 830 hectares of the Poitevin Marsh were
included in the European ornithological inventory entitled 'Important Bird Areas in Europe' published in 1989. The
entire ZICO of the Poitevin Marsh or, at the very least, the entire area featuring in the IBA inventory should be
classi fied as an SPA.
French position: In April 1996, the total area of the sites in the Poitevin Marsh classified as SPAs was
33 742 hectares. Such classification already satis fied in large measure the Community obligations devolving on the
French Republic. French authorities intend in the near future to notify the further classi fication of almost 15 000
hectares considered relevant both in the light of ornithological criteria and at the operational level.
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Advocate General position: By the intent to classify new territories as special protection area in the poitevin Marsh,
the French Republic implicitly admitted that the extension of the SPAs was not in line with the requirements of the
Directive.
Court position: the French Government does not, in substance, deny that the area of land in the Poitevin Marsh
classi fied as SPAs is inadequate in the light of Article 4 of the Birds Directive.
Decision: The Commission's application must be upheld on that point.
Second complaint: the legal status of the protection of the SPAs already classified
Relevant Articl e of the Birds Directive:
Î Article 4
Commission position: Those areas of the Poitevin Marsh which the French Republic has classified as SPAs do not
have a legal status such as to guarantee protection of habitats and the survival and reproduction of the protected
species. In particular, the agri-environment al measures and Law on Water do not make it possible to ensure the
effective protection of bird life required by Article 4 of the Birds Directive.
French position: Agri-environmental measures are contracts concluded between the State and farm ers which are
designed to develop environmentally-conscious farming methods, in particular by limiting the use of nitrogen-based
fertilisers and the frequency of mowings and reapings. These contracts contribute to the maintenance of extensive
farming and make it possible to avoid the ploughing-up of wet meadows and drainage and hydraulic modi fications,
thus ensuring the maintenance of wetlands and natural bird habitats. Moreover, to the extent to which it protects
wetlands, the Law on Water contributes directly to the conservation of wild birds.
Advocate General position: With respect the agri-environmental measures, they do not represent an adequat e
instrument for the protection of the birds in fact, they only work on voluntary base.
On regards the Law on Water, it does not make it possible to ensure the effective protection of bird life required by
Article 4 of the Birds Directive. In fact, the law applies only to wet areas while in the Potevein marsh are not only
composed by wet areas.
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Court position: The objective of the Law is ground waste management in general. Even if it were to be assumed that
the SPAs classified consist entirely of wetlands and that the Law on Water enables water resources in these areas to
be preserved in an effi cient manner, the fact still remains that, to the extent to which it includes only provisions
relating to water management, that Law is not in itself such as to ensure suffici ent protection for the purposes of
Article 4(1) and (2) of the Birds Directive. So far as the agri-environment al measures are concerned, it must be held,
that these are voluntary and purely hortatory in nature in relation to farmers working holdings in the Poitevin Marsh.
Those measures cannot therefore, in any event, be capable of supplementing effectively the protection regime for the
classi fied SPAs.
Decision: The Commission's application must be upheld on this point.
Third complaint: the deterioration of the Poitevin Marsh
Relevant Articl e of the Birds Directive:
Î Article 4
Commission position: The Commission maintains that the natural habitats of wild birds have suffered deterioration
throughout the Poitevin Marsh. With a view to facilitating agricultural activity, drainage was carried out, wetlands
were reclaimed and ditches filled in. One of the important direct consequences of the reduction of wetlands has been
the appreci able fall in certain bird populations.
The French Republic had not adopted the measures necessary to prevent deterioration of the Poitevin Marsh in regard
to both the areas already classi fied as SPAs and those which were to be so classified, thereby failing to ful fil its
obligations under Article 4 of the Birds Directive.
French position: The responsibility for the reduction in the wetlands rests primarily with the common agricultural
policy ('CAP') and not solely with the French authorities. Agri-environmental aid requires a considerabl e financial
effort on the part of the State, whereas even aid for intensive agriculture, aid which is often more substantial, is
financed entirely by the Community budget under the CAP. This difference in manner of implementation between the
European policies on intensive agriculture and those supporting environmentally friendly agriculture lies behind the
diffi culties in conserving the Poitevin Marsh.
Advocate General position: The Advocate General, treated this complaint as part of complaint No. 4, see next
complaint for Advocate General’s position.
Court position: Parts of the Marais Poitevin intérieur SPA, are at present drying out. Moreover, the documents
before the Court show that marine-farming construction and embankment works have been extended in the concerned
areas, thereby disturbing bird life. Furthermore, the study by the Bird Protection League indicates that the average
population of wintering ducks has fallen from 67 845 for the period 1977-1986 to 16 551 for the period 1987-1996.
As for the French Government's argument that Community aid measures for agri culture are disadvantageous to
agriculture compatible with the conservation requirements laid down by the Birds Directive, it should be pointed out
that, even assuming that this were the case and a certain lack of consistency between the various Community policies
were thus shown to exist, this still could not authorise a Member State to avoid its obligations under that Directive, in
particular under the first sentence of Article 4(4) thereof.
Decision: The Commission's application must be upheld on this point.
Fourt complaint: the declassification of part of the Marais Poitevin intérieur SPA
Relevant Articl e of the Birds Directive:
Î Article 2
Commission position: French authorities approved the project for the motorway link between Sainte-Hermine and
Oulmes. This project, led the French authorities, to declassify a portion of the Marais Poitevin intérieur SPA,
corresponding to a 300-metre wide strip. This declassification of the SPA in question not only results in a reduction
in its surface area but will also disturb birds in the region by reason of the completion of works and the isolation of
the remainder of the SPA, which will be cut off entirely from the rest of the SPA by the motorway.
French position: The motorway link did not involve declassification of the Marais Poitevin intérieur SPA. The
classi fication of that area as an SPA dates from November 1993 and is thus subsequent both to the studies conducted
for realising that motorway project and to the decree decl aring the works necessary to complete it to be of public
utility and urgent. The route finally chosen avoided all areas which the French Governm ent intended to classify as
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SPAs. as the result of a mistake, a 300-metre wide area was included in the Marais Poitevin intérieur SPA when it
was notified to the Commission in November 1993. The French authorities notified the Commission of this mistake
as soon as they became aware of it. Thus, what is involved here is not a declassification but rather the correction of a
mistake in notified information, since the area in question had not been selected for classi fi cation as an SPA.
Advocate General position: Taking into consideration that all the information on a site are possessed by the public
authorities of a Member State, it should be appropriate to change the “ charge of the prove” in favour of the
Commission. The fact that the involved area is beetwen two SPAs, allow to think that also this area enjoys the same
ornithological characteristics, and hence it deserves to be classified as SPA. And taking into consideration the change
in the “ charge of the prove” the Franch did not submit any evidence of the contrary. The declassification of a site is
permitted only if there is a general interest which is superior to the general interest represent ed by the ecological
objective of the Directive. In particular, the interests referred to in Article 2 of the Directive, namely economic and
recreational requi rements, do not enter into consideration. The French authorities did not try to prove that the
declassi fication laid on a superior general interest as cited above.
Court position: In the present case, it is, first of all, common ground that the decree declaring construction work was
of public utility and urgent. Furthermore, the compatibility of the land use in the municipalities affected was taken
into consideration through public inquiries and studies, including an impact assessment pursuant to Council Directive
85/337/EEC on the assessment of the effects of certain public and private projects on the environment. Hence, the
strip of land earmarked for construction of the motorway was mistakenly referred to as forming part of the Marais
Poitevin intérieur SPA at the time when that SPA was notified to the Commission.
Decision: The complaint must be rejected.
Judgment
By failing, within the prescribed period, to classify a suffi cient area in the Poitevin Marsh as special protection areas,
by failing to adopt measures conferring a suffi cient legal status on the special protection areas classi fied in the
Poitevin Marsh, and by failing to adopt appropriate measures to avoid deterioration of the sites in the Poitevin Marsh
classi fied as special protection areas and of cert ain of those which should have been so classified, the French
Republic has failed to ful fil its obligations under Article 4 of the Directive.
Comment: This case deals with the meaning of Article 4 of the Directive. As the Court stated in the second
complaint, the Directive requires the Member States to provide SPAs with a legal protection regime that is capable,
in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the Directive and
the breeding, moulting and wintering of migratory species not listed in Annex I which are, nevertheless, regular
visitors.
Next
to
this
principle
the
court
recalled
another
one
(Third
Complaint)
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Member States have to take appropriate steps to avoid, inter alia, deterioration of habitats in the areas which are most
suitable for the conservation of wild birds, even where the areas in question have not been classified as SPAs,
provided that they should have been so classified. Last remark, in the last complaint the Court did not accepted the
progressive interpretation given by the advocate general in relation to the “ charge of the prove”, although it was well
argumented and well founded. It is suitable that in the future the Court’s position will change.
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Case 371/98
Parties: The Queen v. Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate
Shipping Ltd.
Interveners: World Wide Fund for Nature UK (WWF) and Avon Wildlife Trust.
Background: By order of 21 July 1998, received at the Court on 16 October 1998, the Queen's Bench Division
(Divisional Court) of the High Court of Justice of England and Wales referred to the Court for a preliminary ruling
under Article 177 of the EC Treaty (now Article 234 EC) a question on the interpretation of Articles 2(3) and 4(1) 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, hereinafter 'the Habitats Directive' ).
The question arose in proceedings brought by First Corporate Shipping Ltd (hereinafter 'FCS') for judicial review of
the act by which the Secretary of State for the Environment, Transport and the Regions indicated that he was minded
to propose the Severn Estuary to the Commission of the European Communities as a site eligible for designation as a
special area of conservation (SAC) under Article 4(1) of the Habitats Directive.
FCS is the statutory port authority for the port of Bristol, on the Severn Estuary, and owns considerable land in the
neighbourhood of the port. Since acquiring the port, FCS has invested, in partnership with other undertakings, nearly
220 million in capital in developing its facilities. It employs 495 permanent full-time employees. The number of
workers employed at the port, including FCS's own employees, is between 3,000 and 5,000.
The Secretary of State indicated that he was minded to propose the Severn Estuary to the Commission as a site
eligible for designation as an SAC under Article 4(1) of the Habitats Directive, most of the intertidal part of the
estuary having already been classi fied as a special protection area under Council Directive 79/409/EEC of 2 April
1979 on the conservation of wild birds (OJ 1979 L 103, p. 1). FCS thereupon applied to the Queen's Bench Division
(Divisional Court) of the High Court of Justice of England and Wales for leave to apply for judicial review.
FCS submitted before that court that Article 2(3) of the Habitats Directive obliged the Secretary of State to take
account of economic, social and cultural requirem ents when deciding which sites should be proposed to the
Commission pursuant to Article 4(1) of that Directive.
The Secretary of State contended that, in the light of the Court's reasoning in Case C-44/95 R v Secretary of State for
the Environment, ex parte Royal Society for the Protection of Birds [1996] ECR I-3805, he could not take economic,
social and cultural requirements into account when deciding which sites should be proposed to the Commission
pursuant to Article 4(1) of the Habitats Directive.
In those circumstances, the High Court of Justice stayed proceedings and referred in the following section mentioned
question to the Court for a preliminary ruling.
The Habitat Directive Articles relevant to this case:
Î Article 2(1)
Î Article 2(2)
Î Article 2(3)
Î Article 4(1)
Î Article 4(2)
Î Article 4(3)
Î Article 4(4)
Î Article 4(5)
Î Article 6(2)
Î Article 6(3)
Î Article 6(4)
Question: Is a Member State entitled or obliged to take account of the considerations laid down in Article 2(3) of
Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p.
7), namely, economic, social and cultural requirements and regional and local charact eristics, when deciding which
sites to propose to the Commission pursuant to Article 4(1) of that Directive and/or in defining the boundaries of such
sites?
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Position of the parties
First Corporate Shipping Ltd position: FCS submits that identifying and defining the boundaries of the sites to be
notified to the Commission with a view to designation as SACs, as required by Article 4(1) of the Habitats Directive,
constitute a measure taken pursuant to the Directive within the meaning of Article 2(3). It follows that Article 2(3)
imposes an obligation on a Member State to take account of economic, social and cultural requirem ents and regional
and local characteristics when it applies the criteria in Annex III to the Directive when drawing up the list of sites to
be transmitted to the Commission.
Finnish Government position: According to the Finnish Government, it is open to a Member State, when proposing
its list of sites to the Commission, to take account of economic, social and cultural requirements and regional and
local characteristics, provided that it does not compromise realisation of the Habitats Directive's nature protection
objectives. The Government observes that there may, for example, be such a large number of sites eligible to be
considered of Community importance within the territory of a Member State that that State is entitled to exclude some
of them from its list of proposed sites without jeopardising realisation of those objectives.
Advocate General position: In Advocate General opinion, the solution arrived at by the Court in the Lappel Bank
judgement cannot be applied in the context of the Habitats Directive.
The Advocate General considers that it is not excluded – except where a site hosts priority species or priority natural
habitat types – that economic, social or cultural considerations or regional and local characteristics may already be
taken into account at the stage of designation of SACs and that they may allow a site hosting one of the natural habitat
types in Annex I or native species in Annex II to be excluded from designation as an SAC. I shall explain this below.
The Advocate General considers, however, that in the first stage of the procedure for designating SACs such
considerations do not allow a site which hosts natural habitat types in Annex I or native species in Annex II to be
removed from the list of sites selected by the Member States. I shall therefore propos e that the Court answer the High
Court's question in the negative.
In Advocate General opinion, in the first stage described in Article 4(1) of the Habitats Directive, the role of the
Member States is not to draw up definitively the list of SACs, but consists only of:
-
Establishing an exhaustive list of the sites which, on the national territory of each of the Member States, host the
natural habitat types in Annex I and the native species in Annex II.
-
Providing the Commission with all the necessary scienti fic, ecological, economic and social information on the
sites thus listed.
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Firstly, the suggested interpretation follows clearly from the wording of Article 4(1) of the Habitats Directive. The
first subparagraph of Articl e 4(1) expressly states that '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, that
list showing the sites containing priority habitat types and priority species'.
Again, the second subparagraph of Article 4(1) speci fies that 'the list shall be transmitted ... together with information
... [which] shall include a map of the site, its name, location, extent and the data ... provided in a format established by
the Commission …
According to the data form instructions, the Member States must include with the list information not only of a
scientifi c and ecological and geographical nature, but also of an economic and social nature.
Thus, the Member States are recommended to communicate inform ation on impacts and activities in and around the
site, which are understood as including 'all human activities and natural process that may have an influence, either
positive or negative, on the conservation and management of the site (listed in Appendix E)'. To that end, Member
States are requested to supply information on activities connected with agriculture and forestry; fishing, hunting and
collecting; mining and extraction of minerals; urbanisation, industrialisation and similar activities; and transportation
and communication (relating inter alia to port areas and shipping).
The criteria which Member States must take into account undeniably include scientific, ecological and geographical
elements. However, they are also asked to make a global assessment of the 'value of the site, and not only, as
speci fied in Annex III (Stage 2), a global assessment of the 'ecological value of the site.
In Advocate General opinion, since it is not stated that the assessment relates only to the ecological value of the site,
it may reasonably be supposed that in the first stage of designation of SACs the fullest information relating inter alia
to human activities, which indisputably includes economic data, must be communicated to the Commission. It also
follows from the wording of Articl e 4(1) of the Habitats Directive that in this first stage the discretion of the Member
States as to the choice of sites to propose to the Commission is very limited.
Thus the first subparagraph of Article 4(1) of the Habitats Directive authorises a Member State to leave off the list of
sites to be communicated to the Commission only sites which do not host a natural habitat type in Annex I or a native
species in Annex II, or sites within which no clearly identifiable areas can be defined which pres ent the physical and
biological factors essential to the life and reproduction of protect ed animal or plant species.
Moreover, the purpose of the task allotted to the Member States in this first stage militates in favour of this
interpretation.
The purpose of Article 4(1) of the Habitats Directive is set out in Article 4(2) thereof and in the Introduction section
of the data form.
Thus the first subparagraph of Article 4(2) pres cribes that 'the Commission shall establish, in agreement with each
Member State, a draft list of sites of Community importance drawn from the Member States' lists. Again, the third
subparagraph of Article 4(2) states that it is only after the second stage that the list of SCIs is to be definitively
adopted by the Commission in accordance with a procedure of concert ation between the Commission and the
Member States.
Similarly, the data form expressly states that it 'will initially be used to supply the necessary information for sites
eligible for identi fication as sites of Community importance'.
The conclusion must be that the procedure laid down in Article 4(1) constitutes a preparatory phase in the taking of
the final decision, relating to the determination and definition of the boundaries of SACs, with the intention of
providing a complete panorama of the site.
The Advocate General notes, however, that the sites identified as priority sites by the Member States in the first stage
are automatically considered as SCIs in the second stage and will consequently be designated as SACs in the third
stage of the procedure. Advocate General does not know whether the sites at issue in the main proceedings fall into
that category. That is in any event for the national court to ascertain. If that is the case, because of the priority nature
of the sites as a consequence of the natural habitat types or species concerned, the Member State will not be able to
take the requirements listed in Article 2(3) into account to delete a site hosting those natural habitat types or species
from the list of SACs.
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It follows that the purpose of Article 4(1) of the Habitats Directive is to enable the Commission and the Member
States, in the second stage of the procedure for designating SACs, to carry out the selection of the SCIs and then,
following the third stage, to adopt the list of the SACs to be designated by the Member States, no consideration of an
economic or social nature being capable of influencing the eligibility of a site to appear on that list.
Finally, for the Member States and the Commission to be able to assess the interests concerned as accurat ely as
possible in the second stage, it is essential that in the first stage the Member States do not proceed by 'elimination' but
list as fully, objectively and descriptively as possible all the sites which satisfy the criteria in Annex III and
correspond to the species and habitats defined in Annexes I and II.
The conclusion I draw is that Article 4(1) of the Habitats Directive must be interpreted as precluding a Member State,
during the first stage, from deciding not to list as sites eligible for designation as SCIs in the second stage those
which, while satisfying the criteria mentioned above, are the scene of important economic and social interests, such as
the site formed by the Severn Estuary.
On the other hand, for the sake of complet eness, I consider that it is not excluded that in the second stage, at the time
of concert ation between the Member States and the Commission on the selection of the SCIs, economic and social
requirem ents may justify a site which hosts one of the natural habitat types in Annex I or native species in Annex II
not being selected as an SCI, and consequently not being designated as an SAC.
As FCS observes, Article 2(3) is worded in general terms and does not exclude account being taken of economic,
social and regional requirem ents when measures are taken to designate SACs and define their boundaries.
Similarly, the third recital in the preamble to the Habitats Directive expressly states that the Directive, the aim of
which is to 'promote the maintenance of biodiversity, taking account of economic, social, cultural and regional
requirem ents, makes a contribution to the general objective of sustainable development'.
The concept 'sustainable development' does not mean that the interests of the environment must necessarily and
systematically prevail over the interests defended in the context of the other policies pursued by the Community in
accordance with Article 3 of the EC Treaty (now, after amendment, Article 3 EC). On the contrary, it emphasises the
necess ary balance between various interests which sometimes clash, but which must be reconciled.
The concept originates in a communication of the Commission to the Council of 24 March 1972 on an environmental
programme of the European Communities, in which it stated that 'the proposals made on 22 July 1971 on the policy
of the Community in this respect should henceforth be implemented in accordance with the principle of integration:
implementation of these proposals must not constitute a new common policy separate from the others'.
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Rather, all Community activities aimed at promoting throughout the Community harmonious development of
economic activities, accelerated raising of the standard of living and closer relations between Member States under
Article 2 of the EEC Treaty must now take into consideration the protection of the environment.
Sustainable development, a fundamental concept of environment law, was taken up and defined in 1987 in the
Brundtland Report. According to that report, sustainable development is development which meets the needs of the
present without compromising the capacity of future generations to meet their needs. It states that the concept means
that the conduct of the various policies must, at the very least, not endanger the natural systems which give us life, the
atmosphere, water, earth and living creatures. The report stresses that it is necessary not to set development against
the environment but on the contrary to let them evolve in co-ordinated fashion.
To reconcile these diverse interests in the context of sustainable development, the Treaty on European Union
introduced the principle of 'integration in Article 130r(2) in fine. That principle requires the Community legislature to
conform with environmental protection requirem ents in the definition and implementation of other policies and
actions. Integration of the environmental dimension is thus the basis of the strategy of sustainable development
enshrined in both the Treaty on European Union and the Fifth Environment Programme, entitled 'T owards
Sustainability'. The Fifth Programme expressly states, moreover, that the success of that undertaking depends on the
five key sectors of the economy - industry, energy, transport, agriculture and tourism - making a full contribution to
it. It is hoped that harmful trends and practices of those sectors may thus be modified.
So it seems that the approach of the Commission and the Member States in the second stage of the procedure for
designating SACs must, observing the objective of sustainable development and the principle of integration, consist
of assessing the interests concerned, ascertaining whether or not the maintenance of human activities in the area
concerned may be reconciled with the objective of conservation or restoration of natural habitats and wild fauna and
flora, and drawing the necessary consequences as regards setting up an SAC.
Court position: It should be noted that the question of interpretation referred for a preliminary ruling relates only to
Stage 1 of the procedure for classi fying natural sites as SACs laid down by Article 4(1) of the Habitats Directive.
Under that provision, on the basis of the criteria set out in Annex III (Stage 1) together with relevant scientific
inform ation, each Member State is to propose and transmit to the Commission a list of sites, indicating which natural
habitat types in Annex I and native species in Annex II are to be found there.
Annex III to the Habitats Directive, which deals with the criteria for selecting sites eligible for identi fication as sites
of Community importance and designation as SACs, sets out, as regards Stage 1, criteria for the assessment at
national level of the relative importance of sites for each natural habitat type in Annex I and each species in Annex II.
Those assessment criteria are defined exclusively in relation to the objective of conserving the natural habitats or the
wild fauna and flora listed in Annexes I and II respectively. It follows that Article 4(1) of the Habitats Directive does
not as such provide for requirem ents other than those relating to the conservation of natural habitats and of wild fauna
and flora to be taken into account when choosing, and defining the boundaries of, the sites to be proposed to the
Commission as eligible for identi fication as sites of Community importance.
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It should be noted that the first subparagraph of Article 3(1) of the Habitats Directive provides for the setting up of a
coherent European ecological network of SACs to be known as 'Natura 2000', composed of sites hosting the natural
habitat types listed in Annex I and habitats of the species listed in Annex II, to enable them to be maintained or,
where appropriate, restored at a favourabl e conservation status in their natural range.
Moreover, Article 4 of the Habitats Directive sets out the procedure for classi fying natural sites as SACs, divided into
several stages with corresponding legal effects, which is intended in particular to enable the Natura 2000 network to
be realised, as provided for by Article 3(2) of the Directive.
In particular, the first subparagraph of Article 4(2) prescribes that the Commission is to establish, on the basis of the
lists drawn up by the Member States and in agreement with each Member State, a draft list of sites of Community
importance.
To produce a draft list of sites of Community importance, capable of leading to the creation of a coherent European
ecological network of SACs, the Commission must have available an exhaustive list of the sites which, at national
level, have an ecological interest which is relevant from the point of view of the Habitats Directive's objective of
conservation of natural habitats and wild fauna and flora. To that end, that list is drawn up on the basis of the criteria
laid down in Annex III (Stage 1) to the Directive.
Only in that way is it possible to realise the objective, in the first subparagraph of Article 3(1) of the Habitats
Directive, of maintaining or restoring the natural habitat types and the species' habitats concerned at a favourable
conservation status in their natural range, which may lie across one or more frontiers inside the Community. It
follows from Article 1(e) and (i), read in conjunction with Article 2(1), of the Directive that the favourable
conservation status of a natural habitat or a species must be assessed in relation to the entire European territory o f the
Member States to which the Treaty applies. Having regard to the fact that, when a Member State draws up the
national list of sites, it is not in a position to have precise detailed knowledge of the situation of habitats in the other
Member States, it cannot of its own accord, whether because of economic, social or cultural requirements or because
of regional or local characteristics, delete sites which at national level have an ecological interest relevant from the
point of view of the objective of conservation without jeopardising the realisation of that objective at Community
level.
In particular, if the Member States could take account of economic, social and cultural requirements and regional and
local characteristics when selecting and defining the boundaries of the sites to be included in the list which, pursuant
to Article 4(1) of the Habitats Directive, they must draw up and transmit to the Commission. The Commission could
not be sure of having available an exhaustive list of sites eligible as SACs, with the risk that the objective of bringing
them together into a coherent European ecological network might not be achieved.
Judgment
On a proper construction 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, a Member State may not take account of economic, social and cultural
requirem ents or regional and local characteristics, as mentioned in Article 2(3) of that Directive, when selecting and
defining the boundaries of the sites to be proposed to the Commission as eligible for identification as sites of
Community importance.
Comment: The question of the preliminary ruling has the same objective as in the case C-44/95 Lappel Bank, namely
the question is the possibility of economical priority against the ecological requirements and the discretion of the
Member States in this aspect.
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The Court expressed: Having regard to the fact that, when a Member State draws up the national list of sites, it is
not in a position to have precise detailed knowledge of the situation of habitats in the other Member States, it cannot
of its own accord, whether becaus e of economic, social or cultural requirements or becaus e of regional or local
characteristics, delete sites which at national level have an ecological interest relevant from the point of view of the
objective of cons ervation without jeopardising the realisation of that objective at Community level.
This judgement gives an answer the actual question, but this problem is bound to recur during the implementation of
Habitats Directive. The Advocate General, in his opinion, stressed the important and necessity of the sustainable
development, a fundam ental concept of environment al law and the principle of integration of environm ental
requirem ents in to the sectors (in Article 130r(2) of the EEC Treaty) in relation to the second and following stage by
implementation of the Habitats Directive.
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Case C-374/98
Parties: Commission v. French Republic.
Background: The Basses Corbières region is home to various species of birds meriting special protection, some of
which are listed in Annex I to the Birds Directive, in particular a pair of Bonelli's eagles, which belong to a species
threatened with extinction. The area also lies in an important European corridor for migrating birds. The French
authorities have included the Basses Corbières as an area covering 47,400 hectares in a register of sites of importance
for the conservation of wild birds (Zones Importantes pour la Conservation des Oiseaux sauvages; 'ZICO) under the
designation ZICO LR07.
The Commission learned that the OMYA company had on 4 November 1994 obtained a licence to quarry limestone
in the communes of Vingrau and Tautavel and also to erect processing facilities on site. The OMYA company has
been operating a limestone quarry in the commune of Tautavel since 1968. Since the limestone deposits will be
exhausted in the foreseeable future, the company applied for a licence to quarry limestone in the area referred to
above, as there are deposits of a similar type and quality there.
Opponents of the project have appeal ed against the granting of the licence before the courts of the Member State.
They have exhausted the legal redress available to them there. The Commission presupposed that the limestone
quarry will have serious consequences for the environment. It therefore brought the project to the attention of the
French authorities in its letter of 10 November 1994. The French authorities replied with a letter dated 19 September
1995. The Commission did not consider the letter suffi cient to eliminate suspicions of a Treaty infringem ent, hence it
instituted proceedings against the French Republic for failure to ful fil its obligations under the Birds Directive by a
letter of Formal Notice dated 2 July 1996, followed by a Reasoned Opinion delivered on 19 December 1997. Both
answers of the French authorities were not satisfactory so the Commission brought the issues before the Court.
The Birds Directive Arti cles relevant to this case:
Î Article 4
Î Article 4(1)
The Habitats Directive Articles rel evant to this case:
Î Article 6
Î Article 7
Position of the parties
First complaint: the classification as an SPA
Relevant Articl e of the Birds Directive:
Î Article 4
Commission position: The Basses Corbières site both shelters several species listed in Annex I to the Directive,
particularly a pair o f Bonelli's eagles, of which there are about 20 pairs in France, and constitutes an important area
for the migration of birds of prey. The French authorities failed, contrary to their obligations under the Birds
Directive, to classify the Basses Corbières site as a special protection area (‘SPA’), thereby infringing not only
Article 4(1) of the Birds Directive, because several species meriting protection according to Annex I to the Directive
had their habitats there, but also Article 4(2), since the area is also important to the migratory movements of
migratory species.
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French position: The classification of the Basses Corbières as an SPA has been delayed on account of fi erce local
controversy. This delay was due to a conflict between supporters and opponents of the planned extension to the
limestone quarry. Opponents of the project had used the Birds Directive to prevent its implementation, although even
local bird protection societies were of the view that the project was consistent with bird protection. Nevertheless, it
had been possible to classify a major part of the Basses Corbières site as an SPA. Furthermore, under Article 4 of the
Birds Directive, it is for the Government to classify as SPAs the territories which appear to be the most suitable in
number and size for the conservation of birds. The French authorities were therefore not required to classify the
whole of the area listed in the national inventory of ZICOs as an SPA. Regarding the migratory corridor, the area is
more one of passage than of stopping or feeding.
Advocate General position: Since the clear establishment of a Treaty infringement depends on the situation at the
deadline set in the Reasoned Opinion, even the subsequent classification of SPAs cannot rectify the infringement. An
infringement of the Treaty on the grounds of failure to observe the obligations arising from Article 4(1) of the Birds
Directive can therefore be immediately established on this basis, without having to conduct an evaluation of the
geographical location and size of the SPAs requiring classification.
Court position: First, a Member State may not plead provisions, practices or circumstances existing in its internal
legal system in order to justify a failure to comply with the obligations and time-limits laid down in a Directive.
Second, the question whether a Member State has failed to ful fil its obligations must be determined by reference to
the situation prevailing in that State at the end of the period laid down in the Reasoned Opinion. On that point, it is
undisputed that no part of the Basses Corbières site had been classifi ed as an SPA before the expiry of the period laid
down by the Reasoned Opinion.
Third, it is undisputed that the Basses Corbières site contains natural areas of particul ar ornithological interest, at least
becaus e of the pres ence of Bonelli's eagle, which is a species listed in Annex I to the Birds Directive, while the
Commission has not proved that there are migratory species justifying the classi fication of the Basses Corbières site
as an SPA by virtue of Article 4(2) of the Directive. It must be concluded that the French Republic has not, within the
prescribed period, classified any territory in the Basses Corbières site as an SPA within the meaning of Article 4(1) of
the Directive.
Decision: The Commission's application must therefore be upheld on that point.
Second complaint: the special conservation measures
Relevant Articl e of the Birds Directive:
Î Article 4(1)
Commission position: Commission maintains that the measures adopted by the French authorities for the Basses
Corbières site are insufficient. In particular, the three prefectoral decrees for cons erving the biotope of Bonelli's eagle
on that site (see below), although they mention wild bird species other than Bonelli's eagle in their annexes, refer
only to those latter species in their provisions and provide for speci fic measures only in respect of the latter. Those
decrees do not ensure suffi cient and complete protection of all the bird species required to be protected in that site by
the Birds Directive, either in relation to the protection regime established or in relation to its geographical extent.
French position: The French Government adopted three decrees for the protection of the biotope that ensure
complete protection of the bird species present in the areas concerned. The protection measures laid down by those
decrees for the whole of those areas consist essentially of a prohibition on all forms of rock climbing from 15 January
to 30 June and more generally a prohibition on all works which might adversely affect the integrity of the biotope.
Such measures meet the objectives of cons erving not only the most remarkable species of the Basses Corbières,
namely Bonelli's eagle, but also the other species characteristic of that biotope. It also maintains that the areas defined
by the decrees protecting the biotope correspond to biotopes generally favourable to rock species sharing their
territory with Bonelli's eagle.
Advocate General position: The decrees mentioned by the French Government can be considered as protection
measures within the meaning of Article 4(2) of the Birds Directive. The important thing here is not essentially to
determine di fferences in the level of protection afforded by the biotope orders. Rather, it is the question of whether
adequat e protection is guaranteed for birds who have their habitat in the area and are to be regarded under
Community law as species meriting protection. All bans and sanctions contained in the biotope orders benefit the
flora and fauna in the protected regions. The closure of the site between 15 January and 30 June and the explicit ban
on mountaineering during that period was prompted by the need to protect nesting sites and observe the breeding
season of Bonelli's eagle. It follows that other species with similar nesting habits, birds of prey in particular, will also
benefit from the protection. Both the preferential position held by Bonelli's eagle and the associated material
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protection afforded the other protected species appear adequate. As regards the geographi cal extent, even if a
comparison of areas between the ZICO and the sites protected under the biotope orders were to be an indication of the
inadequacy of the conservation measures taken in relation to their geographical size, this would probably not be
suffi cient in itself to allow one to conclude the existence a Treaty infringem ent.
Court position: The three decrees for prot ecting the biotope are all aimed primarily at ensuring the conservation of
the biotope of Bonelli's eagle, and thus the protection of that species, their provisions nevertheless benefit all wild
birds frequenting the areas covered by that legislation, by laying down in some detail the prohibition of activities
capabl e of adversely affecting the integrity of the biotopes in question.
As regards the complaint that the geographical extent of those special cons ervation measures, according to the
Groupe Ornithologique du Roussillon ('GOR), which the French Government recognises as a naturalist association
independent of the administration that has shown scientific seriousness and objectivity for many years, that area,
which has already suffered det erioration around 1990, must be regarded as classi fiable as an SPA particularly on
account of the presence of large birds of prey such as Bonelli's eagle, golden eagle, peregrine and eagle owl, and of a
corvid such as the red-billed chough. It should also be noted that the inventory of areas which are of great importance
for the conservation of wild birds, more commonly known under the acronym IBA (Inventory of Important Bird
Areas in the European Community) includes the area in question. It follows from the general scheme of Article 4 of
the Birds Directive that, where a given area ful fils the criteria for classi fication as an SPA, it must be made the subject
of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species
mentioned in Annex I to that Directive. Of the three decrees for protecting the biotope issued in relation to the Basses
Corbières area, only one refers to the area indicated by the GOR as requiring classification as an SPA. Furthermore, it
does not appear that the part of the area indicated by the GOR which lies outside the scope of the decree in question is
subject to any special conservation measures whatsoever.
Decision: The complaint that the protection regime arising from the special conservation measures adopted by the
French authorities is insuffi cient must therefore be rej ected.
It appears that the French Republic has failed to ful fil its obligations under Article 4(1) of the Birds Directive by not
taking sufficient special conservation measures as to their geographical extent. It follows that the Commission's
application must be upheld on this point.
Third complaint: the disturbance and deterioration caused by the limestone quarries
Relevant Articl e of the Birds Directive:
Relevant Articl es of the Habitats Directive:
Î Article 4
Î Article 6
Î Article 7
Commission position: From the implementation date of the Habitats Directive, namely 10 June 1994, the obligations
under Article 6(2) to (4) of that Directive were substituted, pursuant to Article 7 thereof, for the obligations under the
first sentence of Article 4(4) of the Birds Directive.
The realisation of the project to open and work limestone quarries in the territory of the Vingrau and Tautavel
municipalities within the Basses Corbières site is likely to cause disturbance to the species present in that site and a
deterioration of their habitat. For Bonelli's eagle in particular, the opening of the quarries involves the disappearance
of part of its hunting territory and risks disturbing its reproduction on account of the visual and noise pollution
connect ed with the quarries' activity. An appropriate assessment of the impact of the project on the conservation of
the site concerned should have been carried out. The impact study prior to the authorisation to operate quarries, dated
1994, did not meet that requirement. The French Republic also infringed the obligation to adopt appropriate
compensatory measures. The Commission submits that the cultivation of prey for Bonelli's eagle, the scientific
monitoring of that species, the construction of a merlon and a plan for managing the natural environment, besides the
fact that they do not concern the other bird species requiring protection, cannot compensate for the disturbance and
deterioration caused, since the latter have not been assessed. The French authorities should have refus ed to give their
agreement to that project without demonstrating that there was no alternative solution and that a major public interest
was capabl e of justifying the project. In that respect, several reports emanating from qualifi ed universities conclude
that solutions do exist.
French position: The Commission does not present any scientific or other evidence to demonstrate that the quarries
create significant disturbance for the pair o f Bonelli's eagles or for the other species. In any event, the Government
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denies that the opening and operation of the quarries are capabl e of entailing serious consequences for the species
present in the site. In that respect, none of the scientific studies carri ed out concluded that operation of the quarri es
might involve such consequences for the wild birds and in particular Bonelli's eagle; second, that such operation was
preceded by a detailed impact study which concluded that the project had no significant effect on the environment;
and, finally, that important precautionary measures designed to avoid potential negative effects of the project on the
environment have been put into operation.
As regards possible alternative solutions to the deposit currently being worked by the OMYA company in the
Vingrau and Tautavel municipalities, the French Government claims that they have been seriously studied by that
company
Advocate General position: The important element, is to clarify whether the French authorities infringed their
obligations under Community law arising from Article 4(4) of the Birds Directive, by granting a licence for the
extension of the limestone quarry in the Vingrau and Tautavel municipalities. It is in no way contested that the site
was not classified as an SPA in November 1994. The duty incumbent on the Member State was and is, therefore, to
take appropriat e measures 'to avoid pollution or deterioration of habitats or any disturbance affecting the birds, in so
far as these would be significant having regard to the objectives of Article 4 of the Birds Directive. The fact is that
the provision does not prohibit interference of any sort with the environment, but only those cases that would have a
significant impact on the objectives of Article 4.
The power lines necessary in order to operate the plant were laid underground, so that they did not represent an acute
risk to the birds. Article 4(4) of the Birds Directive does not in itself make any provision for exceptions. It may
therefore be permissible for certain compensatory measures to be taken into account when examining the significance
of the effects. This is because, firstly, the provision contained in Article 4(4) of the Birds Directive is not to be
regarded as an absolute ban on any change. Secondly, the significance of the effects of the project must be seen in its
entirety. On this condition, compensatory measures prescribed or suggested by the French authorities may be taken
into consideration for the purposes of the overall assessment. If one takes account all the compensatory measure
adopted by the French authorities, it is quite possible that the habitat of the resident bird population will not be
disturbed to any 'significant’ extent.
Court position: On a literal interpretation of that passage of Article 7 of the Habitats Directive, only areas classi fied
as SPAs fall under the influence of Articl e 6(2) to (4) of that Directive. Areas which have not been classi fied as SPAs
but should have been so classified continue to fall under the regime governed by the fi rst sentence of Article 4(4) of
the Birds Directive. It follows, that Article 6(2) to (4) of the Habitats Directive do not apply to areas which have not
been classi fied as SPAs but should have been so classified.
Decision: The complaint alleging infringement of Article 6(2) to (4) of the Habitats Directive must therefore be
reject ed.
Judgment
It must therefore be held that, by not classifying any part of the Basses Corbières site as an SPA and by not adopting
special conservation measures for that site suffici ent in their geographical extent, the French Republic has failed to
ful fil its obligations under Article 4(1) of the Birds Directive.
Comment: The relevance of this case is connected to what the Advocate General called “ the rivalry between Article
4(4) of the Birds Directive and Article 6(2) to (4) of the Habitats Directive”.
The question arose during the third complaint. If in view of the fact that since the date of implementation of the
Habitats Directive, i.e. 10 July 1994, the obligations under Article 6(2), (3) and (4) of the Habitats Directive have
replaced those arising from the first sentence of Article 4(4) of the Birds Directive, should the provisions of Article
6(2) to (4) of the Habitats Directive also be applied to a site that should be appointed as SPA but the Member State
failed to appoint it?
The Court and the Advocate General arrived at the same conclusion: on a literal interpretation of Article 7 of the
Habitats Directive, only areas classi fied as SPAs fall under the influence of Article 6(2) to (4) of that Directive.
Therefore, areas which have not been classi fied as SPAs but should have been so classified continue to fall under the
regime governed by the first sentence of Article 4(4) of the Birds Directive.
Although from a legal point of view this is correct, the interpretation leaves the door open to a “ duality in the
protection schemes that would be hard to justify”, as underlined by the Commission. The protection regime laid down
in the Birds Directive is, stricter than that under the Habitats Directive, and it would be paradoxical to place areas of
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ornithological interest that have not been the subject of a national classi fication measure such as an SPA under a
stricter protection scheme than that applicable to areas which have actually been classi fi ed as SPAs by Member
States.
The Court and the Advocate General recognise that the Commission's argument concerning a duality of applicable
regimes, does not appear to be without justification. Using the Advocate general words “ It would be paradoxical i f the
stricter provision were to apply to sites that had not actually been classified than to formally classi fied [SPAs] or
those recognised as such”. Next to it, they underline the possibility that the duality of the regimes applicable,
respectively, to areas classified as SPAs and those which should have been so classified gives Member States an
incentive to carry out classifi cations, in so far as they thereby acquire the possibility of using a procedure which
allows them, for imperative reasons of overriding public interest, including those of a social or economic nature, and
subject to certain conditions, to adopt a plan or project adversely affecting an SPA. Furthermore the Court observed
that if it were lawful for a Member State, which, in breach of the Birds Directive, has failed to classify as an SPA a
site which should have been so classified, to rely on Article 6(3) and (4) of the Habitats Directive, that State might
enjoy an advantage from a failure to comply with Community obligations. In fact, it must be observed that, it is
particularly di fficult for the Commission, in accordance with Article 155 of the EC Treaty (now Article 211 EC), to
carry out effective monitoring of the application by Member States of the procedure laid down by Article 6(3) and (4)
of the Habitats Directive and to establish, in appropriate cases, the existence of possible failures to ful fil the
obligations arising there under. In particular, the risk is significantly increas ed that plans or projects not directly
connect ed with or necessary to the management of the site, and affecting its integrity, may be accepted by the national
authorities in breach of that procedure, escape the Commission's monitoring and cause serious, or irreparable
ecological damage, contrary to the conservation requirem ents of that site. Natural or legal persons entitled to assert
before the national courts interests connected with the protection of nature, and especi ally wild bird life, which in this
case means primarily environmental protection organisations, would face comparable di ffi culties. A situation of this
kind would be likely to endanger the attainment of the objective of special protection for wild bird life set forth in
Article 4 of the Birds Directive.
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Case 38/99
Parties: Commission v. French Republic.
Background: On 13 November 1997 the Commission sent the French Government a letter of Formal Notice
regarding its failure to comply with the Birds Directive, in particular the Commission stated, first, that no action had
been taken by the French authorities to transpose the principle of 'complete protection of species embodied in the
second and third sentences of Article 7(4) of the Birds Directive. Second, it observed that, in view of the failure to
transpose that principle, the French rules allowed the competent minister to exercise discretion in fixing an early
opening date for the hunting of waterfowl which might be incompatible with the prohibition of hunting during the
periods of rearing and breeding referred to in Article 7(4) of the Birds Directive. Third, the Commission stated that
the closing dates expressly mentioned in the French law setting closing dates for the hunting of migratory birds were
manifestly too late for a large number of species of bird which might be hunted. Fourth, the French authorities had
never noti fied the Commission of the dates of the season for the hunting of migratory birds in the departments of
Lower Rhine, Upper Rhine and Moselle. In response to that letter of formal notice, the French Government merely
sent the Commission, on 17 June 1998, a copy of the 'Government Report to Parliament on the application of hunting
law. By letter of 5 August 1998 the Commission issued a Reasoned Opinion, to this letter the French government
stated that, in the Government Report to Parliament, it had emphasised that French legislation contained provisions
which appeared to conflict with the obligations laid down by the Birds Directive.
The Birds Directive Arti cle relevant to this case:
Î Article 7(4)
Position of the parties
First complaint: the opening dates for hunting
Relevant Articl e of the Birds Directive:
Î Article 7(4)
Commission position: The early opening dates for the hunting of waterfowl set by French legislation had no
scientifi c basis and, in certain cases, were incompatible with the prohibition of hunting of waterfowl in the rearing
period and during the various stages of reproduction and dependency of the species of birds concerned laid down in
Article 7(4) of the Directive.
French position: The early opening dates for the hunting of waterfowl set by the ministerial orders were based on
scientifi c information. They were determined using a method based on annual observations made and acted upon in
accordance with a protocol drawn up by the National Museum of Natural History and the National Hunting Authority
(Office National de la Chasse) which was presented in a 1989 report entitled 'Pattern and timing of pre-mating
migration and reproduction of wat erfowl in France’. That method makes it possible to protect species that are rearing
their young and only a minority of individual birds are liable not to benefit from such protection. The killing of a
significant number of birds is thus obviated.
Advocate General position: Protection against hunting activities cannot be confined to the majority of the birds of a
given species. The Directive aims to achieve complete protection. Therefore, methods whose object or effect is to
allow a certain percentage of the birds of a species to fall outside such protection are contrary to the objectives of the
Directive.
Court position: Article 7(4) of the Birds Directive seeks in particular to impose a prohibition of hunting of all
species of wild birds during the rearing periods and the various stages of reproduction and dependency and, in the
case of migratory species, during their return to their rearing grounds. Moreover, the Court has held that that Article is
designed to secure a complete system of protection in the periods during which the survival of wild birds is
particularly under threat. Accordingly, protection against hunting activities cannot be confined to the majority of the
birds of a given species, as determined by average reproductive cycl es and migratory movements. Furthermore, it is
clear from a study by the National Hunting Authority of February 1998 regarding two species of birds which may be
hunted that the early opening dates for hunting given in the ministerial orders fairly frequently impinge upon the
periods in which a significant number of young birds are dependent in so far as they are not yet able to fly. Hence,
the system of earlier opening dates for the hunting of waterfowl, as established by French legislation is not capable of
ful filling the requirement laid down in Article 7(4) of the Birds Directive.
Decision: Commission's application must be upheld.
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Second complaint: closing dates for hunting
Relevant Articl e of the Birds Directive:
Î Article 7(4)
Commission position: The closing dates for hunting, in the case of the species of wat erfowl and birds of passage,
allowed an overlap between the hunting period and the return migration periods scientifically identified for 31
species. In practice, such rules do not ensure complete protection for species of birds during pre-mating migration,
contrary to the requirements of Article 7(4) of the Birds Directive. Moreover, since the closing dates for hunting are
staggered, and species displaying similarities may be hunted or not hunted depending on the closing date adopted for
each of them, there is a risk of confusion. Those dates should therefore be fixed in such a way as to ensure complete
protection for species, which means that the risk of confusing speci es must be taken into account. The Commission
also contends that the ORNIS method referred to by the French Government is based on express accept ance of an
overlap, described as insignificant, between hunting periods and migration periods for certain birds, except as regards
late migrating species and those in a poor state of conservation, the hunting of which must cease within the 10 days
preceding the 10-day period during which their migratory flights commence. However, Article 7(4) of the Directive
cannot be properly complied with on the basis of that method. Thus, all overlapping must be prohibited and no other
criterion, such as the state of conservation of species, can be relied on as a reason to allow the hunting of birds which
have started migrating.
French position: The staggering of closing dates for hunting is based on the ORNIS method, as described in the
“ Memorandum on Certain Biological Concepts Employed in the Wild Birds Directive”, which was adopted on 28
April 1993 by the Committee for the Adaptation to Technical and Scientifi c Progress, also known as the 'ORNIS
Committee, set up under Article 16 of the Birds Directive. The ORNIS method allows the capture, during the overlap
between the hunting season and the start of migration, of a number of birds not constituting a significant kill,
provided that the state of conservation of the species so allows, with the result that complete protection of the species
and not of each individual bird is ensured. As regards the argument that the practice of staggering closing dates for
hunting is liable to undermine the objective of complete protection of species, by reason of the risk of confusion
between some of them, it is not suffi cient, in Treaty-infringement proceedings, for the Commission to refer to the
existence of a risk: the Commission must also demonstrate specifi c materialisation of that risk by establishing that the
allegedly unlawful practice is in reality inimical to the desired protection. In view of the fact that the staggering of
closing dates for hunting is not a new practice, the Commission should be in a position to demonstrate that such
practices have had an impact on the population levels of the species concerned.
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Advocate General position: A method whose object or effect is to allow a certain percentage of the birds of a
species to be excluded from protection does not comply with the provisions of Article 7(4). Nor is the practice of
staggering closing dates by reference to species without problems regarding compatibility with the Community rule.
Court position: For 29 migratory species which may be hunted in France, the closing dates for hunting are fixed,
depending on the species concerned, 10, 20 or even 30 days later than the date of commencement of return migration
of the speci es. It follows that a greater or lesser percentage of birds, depending on the species involved, is not
protected against hunting in the pre-mating migration periods, during which the survival of birds is under particular
threat. As regards the staggering of closing dates for hunting, it must be borne in mind that the national authorities are
not empowered by the Directive to lay down dates which vary according to species of bird unless the Member State
concerned can adduce evidence, based on scienti fic and technical data relevant to each individual case, that staggering
the closing dates for hunting does not impede the complete protection of species of bird liable to be affected by such
staggering. The French Government has produced no such evidence.
Decision: The Commission's application must be upheld.
Third complaint: communication of the provisions for transposition of the Directive
in relation to the departments of Lower Rhine, Upper Rhine and Moselle
Relevant Articl e of the Birds Directive:
Î Article 7(4)
Commission position: French authorities have not communicated the dates of the hunting season for migratory birds
in the departments of Lower Rhine, Upper Rhine and Moselle.
French position: The French Government recognises that it had not forwarded any information of that kind by the
end of the period pres cribed in the Reasoned Opinion.
Advocate General position: The last sentence of Article 7(4) of the Directive imposes on the Member States the
obligation to send the Commission all relevant information on the practical application of their hunting regulations.
Court position: By failing to notify within the prescribed periods the dates of the hunting season for migratory birds
in the departments of Lower Rhine, Upper Rhine and Moselle, the French Republic has failed to ful fil its obligations
under Article 7(4) of the Directive.
Decision: The Commission's application is therefore well founded.
Fourth complaint: transposition of the provisions of the second and third sentences of
Article 7(4) of the Directive
Relevant Articl e of the Birds Directive:
Î Article 7(4)
Commission position: Transposition into French law of the principle of complete protection during hunting periods,
as embodied in the second and third sentences of Article 7(4) of the Directive, which has not taken place, is necessary
to ensure that the authorities responsible for determining dates for hunting are in a position to do so in accordance
with the clear provisions of the Directive and that every interested party should benefit from the full effect of those
provisions.
French position: The charge of failure to transpose the principle of complete protection into French law is purely
formal. In reality, the transposition of such a principle into national law is superfluous since the law in force ensures
that it is actually applied. The Directive is a well-known measure that citizens know that they are able to rely on it, as
is demonstrated by the increasing number of administrative actions based on that measure. Moreover, the French
courts have never declined to examine the compatibility of administrative measures with the Directive or, in
particular, with the principle of complete protection.
Advocate General position: The effectiveness of the principle of complete protection is achieved by setting hunting
season dates which respect the nesting, reproduction and rearing cycles, and also the return migration periods, of
migratory birds. The incorporation into French law of a principle such as the one contained in Article 7(4) of the
Directive is not a purely formal matter. It is not possible to guarantee the full application of the Directive unless the
principle of full protection is enunciated in French law. It is desirable that the uncertainty of the criteria for fixing the
hunting season for birds should be offset by fl exible regulations capabl e of adapting to differing circumstances and
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scientifi c discoveries, particularly i f the intention is to have the longest hunting season in the European Union. Only
an authority such as the legislature seems to be in a position to adopt, opportunely and rapidly, the protective
measures called for; and that authority, or any other called on to carry out a similar task, should act within a clear and
precise regulatory framework suited to the requirements of the Directive. For this reason, the complete transposition
of the Directive into national law requires the formulation, with suffi cient mandatory status, of the principle enshrined
in the second and third sentences of Article 7(4).
Court position: It is common ground that the provisions of the second and third sentences of Article 7(4) of the
Directive had not been formally incorporated in French law by the end of the period prescribed by the reasoned
opinion. The Court has indeed held that the transposition of a Directive into domestic law does not necessarily require
the provisions of the Directive to be enacted in precisely the same words in a specific, express provision of national
law and that a general legal context may be suffi cient if it actually ensures the full application of the Directive in a
suffi ciently clear and precise manner. However, the Court has also held that faithful transposition becomes
particularly important in the case of the Directive where management of the common heritage is entrusted to the
Member States in their respective territories.
In so far as domestic law contains no provision requiring the French authorities (prefects) to take account, in
adopting the annual order for opening of the hunting season, of the prohibition of hunting any species of bird during
the sensitive periods, that law is subject to a degree of legal uncert ainty as regards the obligations to be complied with
by prefects in adopting measures. As a result, there is no guarantee that the hunting of wild birds will be prescribed
during the rearing period or the various stages of reproduction and dependence or, in the case of migratory species,
during their return to their rearing grounds. It follows that essential provisions of the Birds Directive, such as those of
the second and third sentences of Article 7(4), have not in any event been completely, clearly and unambiguously
transposed into the French rules.
Decision: The application must be upheld on this point.
Judgment
Declares that, by failing correctly to transpose Article 7(4) of the Directive by omitting to communicate all the
transposition measures relating to the whole of its territory and by failing correctly to implement the aforesaid
provision, the French Republic has failed to ful fil its obligations under that Directive.
Comment: In this case two very important principles ruling the birds protecting law are recalled by both the Court
and the Advocate General.
The first one is in relation to the implementation into the national law of the Directive requirem ents.
The Court has indeed held that the transposition of a Directive into domestic law does not necessarily require the
provisions of the Directive to be enacted in precisely the same words in a specifi c, express provision of national law
and that a general legal context may be suffi cient if it actually ensures the full application of the Directive in a
suffi ciently clear and precise manner. However, the Court has also held that faithful transposition becomes
particularly important in the case of the Directive where management of the common heritage is entrusted to the
Member States in their respective territories. This is a jus cogens principle that the court has established since the very
first cas es relating to the implementation of the Directive.
The second principle is the “ complete protection”. In that connection, Article 7(4) of the Directive seeks in particular
to impose a prohibition of hunting of all species of wild birds during the rearing periods and the various stages of
reproduction and dependency and, in the case of migratory speci es, during their return to their rearing grounds. The
Article is designed to secure a complete system of protection in the periods during which the survival of wild birds is
particularly under threat. Accordingly, protection against hunting activities cannot be confined to the majority of the
birds of a given species, as determined by average reproductive cycl es and migratory movements.
As the Advocate General said, 'the principle of complete protection is achieved by setting hunting season dates which
respect the nesting, reproduction and rearing cycles, and also the return migration periods, of migratory birds.”
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Case 67/99
Parties: Commission of the European Communities v. Ireland.
Background: Having failed to receive from the Irish authorities either a full list of sites hosting the natural habitat
types and native species referred to in Annexes I and II to the Habitats Directive respectively or the inform ation on
those sites, and in the absence of anything else indicating to it that Ireland had adopted the measures necessary to
meet its obligations under Article 4 of the Directive, the Commission, on 24 April 1996, put the Irish Government on
formal notice to submit its observations on that matter within two months, in accordance with the procedure laid
down in Article 169 of the EC Treaty.
By letter of 28 April 1997, the Irish authorities communicated a list of 207 sites covering 5 530 km which had been
publicly proposed for designation as SACs and which hosted priority natural habitats.
The official format for transmission of the relevant data had been availabl e only from 19 December 1996. The
Commission sent to the Irish Government on 11 July 1997 an additional letter of formal notice in which it once again
complained that it had failed to transmit a full list of sites and relevant site information and called on it to submit its
observations on that infringement of Article 4(1) of the Directive within one month. The Commission stressed, in
particular, the need to use the format for transmission of the relevant data.
By letter of 5 September 1997, the Irish authorities informed the Commission of their intention to give effect to the
first subparagraph of Articl e 4(1) of the Directive by preparing the required list in three tranches:
•
•
•
The first consisting of sites hosting priority natural habitat types.
The second consisting of sites hosting non-priority natural habitats and species.
The third consisting of marine sites.
With regard to the list transmitted on 28 April 1997, concerning the first of the three tranches, the Irish authorities
pointed out that this had never been intended to replace or remove the need for the formal transmission mechanism.
Since its correspondence with the Irish authorities did not allow it to conclude that Ireland had transmitted a full list
of the sites hosting the natural habitat types and native species listed in Annexes I and II to the Directive respectively
or the information relating to those sites. The Commission, acting in accordance with Article 169 of the EC Treaty,
issued a Reasoned Opinion to Ireland on 19 December 1997, in which it called on that Member State to comply
therewith within two months of its notification.
By letter of 23 February 1998, the Irish authorities informed the Commission that their failure to transmit the list of
sites and the information relating to those sites was attributable to delays associated with the public consultation
process in Ireland, and indicated that they expected to be in a position to transmit a list by about mid-1998.
By a letter of 30 September 1998 Ireland transmitted a first partial definitive list of 39 sites for purposes of Article
4(1) of the Directive. Information on the 39 sites contained on this first partial definitive list had been transmitted
separately with a letter of 6 August 1998.
By letter of 12 October 1998, the Irish authorities submitted a second partial definitive list of nine sites for purposes
of Articl e 4(1) of the Directive. The information on the sites contained on this second list had been sent separately
with a letter of 6 October 1998.
Taking the view that these communications did not allow it to conclude that Ireland had put an end to the
infringement in question, the Commission decided to bring the present action before the Court.
The Habitats Directive Articles rel evant to this case:
Î Article 3(1)
Î Article 4(1)
Admissibility
Irish Government position: The Irish Government submits that the action must be declared inadmissible in its
entirety. It argues that the Reasoned Opinion fails to satisfy the requirem ents laid down in the Court's case-law. It
does not, it contends, contain a coherent and detailed statement of the reasons which led the Commission to conclude
that Ireland had failed to ful fil its Treaty obligations.
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Moreover, it continues, that Opinion does not contain the same grounds and complaints as those which feature in the
application. The Irish Government submits in that regard that the Reasoned Opinion merely mentions Ireland's
dilatory compliance with the provisions of Article 4(1) of the Directive but makes no reference to the specifi c heads
of complaint in the application which allege that Ireland has failed to comply with the substantive requirements of
Article 4(1).
Commission position: In its Reasoned Opinion, the Commission complained that Ireland had failed to forward either
the definitive and complete list of sites eligible for designation as SACs or the information relating to those sites, as
required under Article 4(1), first and second subparagraphs, of the Directive. The Commission has pointed out in that
regard that the indicative and partial list forwarded by the Irish authorities on 28 April 1997 could not be treated as
being a full list either from the geographical point of view or with regard to the types of natural habitats and species'
habitats to be covered, and that the site information communicated did not relate to all of the sites in question.
In its application, the Commission set out the same heads of claim as in the Reasoned Opinion. It pointed out that, in
view of the scienti fic reference sources, the definitive and partial list of sites proposed by Ireland was insuffi cient. It
stated that Ireland had not proposed any sites for 26 natural habitat types of Community interest - including seven
priority natural habitats extensively represent ed within its territory, such as coastal lagoons, Atlantic decalcified fixed
dunes (Cannulo-Ulicetea), decal ci fied fixed dunes with Empetrum nigrum, active raised bogs, bog woodland, and
Taxus baccata woods of the British Isles - or for 20 species of Community interest, such as Rhinolophus hipposideros,
Phoca vitulina, Alosa fallax, Geomalacus maculosus and Margariti fera margaritifera, of which it has sizeable
populations.
The Commission also noted that, for certain natural habitat types and certain speci es, the number of sites definitively
proposed by Ireland was inadequate.
Advocate General position: The purpose of the pre-litigation procedure under Article 169 of the Treaty is to give the
Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and,
on the other, to avail itself of its right to defend itsel f against the complaints made by the Commission.
The purpose of the letter of form al notice is to delimit the subject-matter of the dispute and to indicate to the
State, which is invited to submit its observations, the factors enabling it to prepare its defence. The Reasoned
must specify precisely the complaints contained in the letter of formal notice through a coherent and
statement of the reasons which have led the Commission to conclude that the State in question has failed
Community-law obligations.
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Opinion
detailed
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The rule that the regularity of the procedure under Article 169 of the Treaty requires the Commission to develop in its
application instituting proceedings the same complaints as those which it invoked in the Reasoned Opinion does not
preclude it from restating in greater detail the subject-matter of its action by invoking more precise matters than those
featuring in the Reasoned Opinion. In so doing, however, the Commission may not alter the subject-matter of the
proceedings.
Like the Commission, the Advocate General takes the view that the objection of inadmissibility raised by Ireland
lacks any basis and must be rejected.
The subject-matter of the proceedings, as set out by the Commission in its letter of form al notice of 24 April 1996, its
additional letter of formal notice of 11 July 1997, its Reasoned Opinion of 19 December 1997 and its application of
25 February 1999 instituting proceedings, is clearly defined. It is evident from those documents, in particular from the
Reasoned Opinion, that the Commission is criticising Ireland for its failure to forward a definitive and complete list of
sites capable of being treated as SACs and the information relating to such sites, as provided for under the first and
second subparagraphs of Article 4(1) of the Habitats Directive. The Commission highlights in particular the
construction to be placed on those provisions. Thus, in its view, compliance with those provisions presupposes that
Member States will draw up an exhaustive inventory of the list of sites within their territory which host the natural
habitats and the species' habitats that are very precisely and exhaustively defined in Annexes I and II. Each Member
State must also verify that the sites catalogued meet the scientific criteria set out in Annex III (Stage 1) to the Habitats
Directive. Likewise, the Commission criticises Ireland for not having used the format provided for under the second
subparagraph of Article 4(1) of the Habitats Directive, which must contain the information relating to the sites thus
listed. This format defines very precisely the information on those sites which the Member State is required to collect.
The Commission has pointed out, without being challenged, that the essential features of the format's content had
been determined by May 1994 and that Member States were aware of its content from that time on. Furthermore,
Ireland understood perfectly well the complaints which the Commission had levelled against it. During the prelitigation procedure, Ireland indeed acknowledged that the lists forwarded were not to be regarded as complete and
definitive. It also accepted that the site information provided required to be supplemented. Ireland cannot therefore
validly argue that the Commission's complaints, as set out in the Reasoned Opinion, were unclear or that they related
only to delays found to have occurred in giving effect to Article 4(1) of the Habitats Directive.
Furthermore, it does not appear that the Commission, in its action instituting proceedings, altered the subject-matter
of the dispute, but rather it seems that it clarified the Reasoned Opinion by providing precise examples of the
shortcomings in the lists submitted by Ireland. Thus, while the Commission indicated to Ireland, in its Reasoned
Opinion, that the list forwarded was incomplete, it stated in the action instituting proceedings that Ireland had not
proposed any sites for the types of priority habitats extensively repres ented within its territory.
It follows that the Commission set out clearly in its Reasoned Opinion the points on which it was critical of Irel and.
Likewise, the complaints detailed in the Reasoned Opinion and in the action instituting proceedings are identical. The
objection of inadmissibility raised by Ireland must for those reasons be rejected.
Court position: It first of all follows from the foregoing that, in this case, the Reasoned Opinion does satisfy the
requirem ents of the Court's case-law (see, inter alia, Case C-279/94 Commission v Italy 1997, ECR I-4743). Second,
this analysis makes possible the finding that the Commission did not, in its application, alter the subject-matter of the
dispute, but confined itsel f to illustrating the head of complaint set out in its Reasoned Opinion, concerning the failure
to transmit a list of all the sites eligible for designation as SACs, by providing precise examples of the shortcomings
in the lists which had already been forwarded by Ireland.
Decision: The plea of inadmissibility raised by Ireland must for those reasons be rejected.
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Substance
The first plea in law: failure to submit a complete list of sites featuring the natural habitat types referred to in Annex I
and a complete list of sites hosting the native species mentioned in Annex II, as required by the first subparagraph of
Article 4(1) of the Habitats Directive.
Relevant Articl es of the Habitats Directive:
Î Article 3(1)
Î Article 4(1)
Irish Government position: The Irish Government accepts that, when the period laid down in the Reasoned Opinion
expired, it had not forwarded to the Commission any list of sites capable of being designated as SACs. It argues that
this delay was attributable to domestic difficulties. In order to obtain approval of the population for the ambitious
objectives pursued by the Directive, it was considered necessary to launch a vast programme of public consultation. It
points out that the 362 Irish sites officially notified up to January 2001 are protect ed under Irish law, which goes
much further than what is required under the Directive.
Commission position: With regard to the obligation to transmit the site list referred to in Article 4(1), first
subparagraph, of the Directive, the Commission points out that each Member State's contribution to the setting up of a
coherent European ecological network depends on the representation on its territory of the natural habitat types and
species' habitats listed in Annexes I and II to the Directive respectively. It is clear from the combined provisions of
Article 4(1) of and Annex III to the Directive that Member States enjoy a certain margin of discretion when selecting
sites for inclusion in the list. The exercise of that discretion is, however, in the Commission's view, subject to
compliance with the following three conditions:
•
Only criteria of a scienti fic nature may guide the choice of the sites to be proposed.
•
The sites proposed must provide a geographical cover which is homogeneous and representative of the entire
territory of each Member State, with a view to ensuring the coherence and balance of the resulting network. The
list to be submitted by each Member State must therefore reflect the ecological variety (and, in the case of
species, the genetic variety) of the natural habitats and species present within its territory.
•
The list must be complete, that is to say, each Member State must propose a number of sites which will ensure
suffi cient representation o f all the natural habitat types listed in Annex I and all the species' habitats listed in
Annex II to the Directive which exist on its territory. So far as the Irish national list is concerned, the
Commission notes that, when the period laid down in the Reasoned Opinion expired on 19 February 1998,
Ireland had forwarded to it a list of 207 sites, but that this was no more than an indicative list. When the
Commission brought its action before the Court on 25 February 1999, Ireland had not confirmed this indicative
list but had merely sent a partial definitive list of 48 sites and related information, and at the date of the hearing,
18 January 2001, Ireland had transmitted in total a list of 362 sites.
The Commission states that it instituted the present proceedings with a view to securing a declaration that the Irish
national list was manifestly inadequat e, and that such inadequacy far exceeded the margin of discretion given to
Member States. Not only is such inadequacy evident with regard to the situation existing when the period set in the
Reasoned Opinion expired, but also a whole series of provisos concerning the list of 362 sites still remained to be
formulated. The Irish national list, the Commission concludes, did not therefore meet the criteri a set out in Article
4(1) of the Directive, read in conjunction with Annex III thereto.
Advocate General position: Ireland acknowledges that it did not forward the complete list of sites within its territory
which host the types of natural habitats and species in Annexes I and II to the Habitats Directive. It informed the
Commission of its intention to meet its obligations according to a timetable which did not respect the periods set by
that Directive.
It is clear that, at the expiry of the period laid down in the Reasoned Opinion, Ireland had not forwarded to the
Commission the list of all sites within its territory which host the types of natural habitats and species in Annexes I
and II to the Habitats Directive.
It follows that, by failing to transmit to the Commission a complete list of the sites in its territory within the period
laid down by the Habitats Directive, Ireland has failed to ful fil its obligations under the first subparagraph of Articl e
4(1) of that Directive.
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Court position: Although it follows from the rules governing the procedure for identi fying sites eligible for
designation as SACs, set out in Article 4(1) of the Directive, that Member States have a margin of discretion when
making their site proposals, the fact none the less remains, as the Commission has noted, that they must do so in
compliance with the criteria laid down by the Directive. It should be noted in this regard that, in order to produce a
draft list of sites of Community importance, capable of leading to the creation of a coherent European ecological
network of SACs, the Commission must have available an exhaustive list of the sites which, at national level, have an
ecological interest which is relevant from the point of view of the Directive's objective of cons erving natural habitats
and wild fauna and flora. To that end, that list is drawn up on the basis of the criteria laid down in Annex III (Stage 1)
to the Directive (Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraph 22). Only in that way,
moreover, is it possible to realise the objective, in the first subparagraph of Articl e 3(1) of the Directive, of
maintaining or restoring the natural habitat types and the species' habitats concerned at a favourable conservation
status in their natural range, which may lie across one or more frontiers inside the Community. It follows from Article
1(e) and (i) of the Directive, read in conjunction with Article 2(1) thereof, that the favourable conservation status of a
natural habitat or a species must be assessed in relation to the entire European territory of the Member States to which
the Treaty applies (First Corporate Shipping, cited above, paragraph 23). It is also necessary to recall that the question
whether a Member State has failed to ful fil its obligations must be determined by reference to the situation in that
Member State as it stood at the end of the period laid down in the Reasoned Opinion. The Court cannot therefore take
account of any subsequent changes (see, inter alia, Case C-266/99 Commission v France [2001] ECR I-1981,
paragraph 38).
When the period laid down in the Reasoned Opinion expired on 19 February 1998, the content of the Irish national
list sent to the Commission was manifestly inadequate, going well beyond the margin of discretion available to
Member States for the purpose of drawing up the list of sites mentioned in Article 4(1), first subparagraph, of the
Directive. In accordance with the case-law of the ECJ the lists of sites communicated to the Commission after the
expiry of that period are irrelevant for purposes of the pres ent action.
Decision: It must therefore be concluded that, by failing to transmit to the Commission, within the prescribed period,
the list of sites mentioned in the first subparagraph of Article 4(1) of the Directive, Irel and has failed to ful fil its
obligations under that Directive.
The second plea in law: failed to transmit the information relating to those lists, as required by the second
subparagraph of Article 4(1) of that Directive
Relevant Articl e of the Habitats Directive:
Î Article 4(1)
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Irish Government position: With regard to the obligation to transmit information on the sites eligible for designation
as SACs, the Irish Government acknowledges that it had not sent that information by the expiry of the period laid
down in the Reasoned Opinion, but at the same time argues that, since the format was not adopted until December
1996 and the Commission insisted that the information in question be transmitted by means of that format, it was not
possible to complete this important work within the set period.
Commission position: The Commission submits that the obligation to transmit the site information had to be met
before 11 June 1995. Even if certain Member States which already had the list of proposed sites and relevant
inform ation before 11 June 1995 wished to await adoption of the format, they could, after the format was notified on
19 December 1996, rapidly have incorporated that information in the format and forwarded it to the Commission. The
Commission adds that, in order to take account of the late adoption of the format, it extended the pre-litigation
procedure by addressing an additional letter of formal notice to Ireland on 11 July 1997, thus well after the date on
which the form at was notified. The Irish authorities were therefore fully in a position to meet their obligation to
transmit the information on each site. When the period laid down in the Reasoned Opinion expired on 19 February
1998, Ireland had not sent to the Commission the information on the sites to be proposed.
Advocate General position: The question whether a Member State has failed to ful fil its obligations must be
determined by reference to the situation prevailing in that State at the end of the period laid down in the Reasoned
Opinion.
Further, the fact that the Commission has not adopted all the provisions necessary for the application of a Directive
cannot, 'in the absence of [an] express provision to that effect, relieve Member States of their obligation to adopt
within the period prescribed the measures necessary to comply with the Directive. That obligation remains, whether
or not all the conditions for the implementation of the provisions of Community law have already been ful filled.
A solution of this kind makes it possible to avoid a situation in which implementation of a Directive is postponed
until such time as the final measure necess ary for its full application has been carried out.
Thus, once the text of the Habitats Directive had been published in the Official Journal of the European Communities
on 22 July 1992, the Member States knew what kinds of information they would be required to collect for forwarding
to the Commission within three years of notification of the Directive.
The second subparagraph of Article 4(1) of the Habitats Directive also provides that the above information must be
included on the format. Since the format was notifi ed to the Member States on 19 December 1996, the period within
which that obligation had to be met began to run from that date. A reasonable period must be given to Member States
to enable them to meet that obligation as best they can. For the Member States, that obligation consisted specifically
in the inclusion on the format notifi ed to them in 1996 of the information which they had already held for one year.
Indeed, Member States were aware of the essential content of the format as early as May 1994. Moreover,
inform ation on the sites had to be collected by 10 June 1995 at the latest. A six-month period for Member States to
comply with that obligation therefore appears to me to be capable of being adjudged reasonabl e.
It thus follows from the first and second subparagraphs of Articl e 4(1) of the Habitats Directive that Member States
are under two kinds of obligation:
•
•
The obligation to collect the information provided for under the first subparagraph of Article 4(1) and Annex III
(Stage 1) by 10 June 1995.
The obligation to incorporate that inform ation into the format and to send the format to the Commission.
It follows that Member States which had not forwarded to the Commission, by 19 June 1997, the format relating to
the information on sites selected at the conclusion of the first stage failed in their obligations under the first and
second subparagraphs of Article 4(1) of the Habitats Directive.
It remains to examine whether those obligations have in fact been met by the Member States concerned.
It is clear that, when the period laid down in the Reasoned Opinion expired on 19 February 1998, Ireland had not
forwarded to the Commission the formats relating to the sites within its territory hosting the types of natural habitats
and native species in Annexes I and II.
It must also be pointed out that Ireland did not request the Commission for an extension of that period.
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It thus follows that, by failing to transmit to the Commission the complete format of the sites within its territory
hosting the types of natural habitats and species in Annexes I and II within the period laid down by the Habitats
Directive, Irel and has failed to ful fil its obligations under the second subparagraph of Article 4(1) of that Directive.
Court position: It is necessary first to point out that, even though the Commission had initially sent to the Irish
Government a letter of formal notice on 24 April 1996, that is to say, before the format was notified, it sent to the
Irish Government a new letter of formal notice, following notification of the format, giving it a new period within
which to comply with Article 4(1), second subparagraph, of the Directive.
Next, it must be noted that, following notification of the Directive on 10 June 1992, the Member States were aware
which types of information they would be required to collate for purposes of transmission within three years o f that
notification, that is to say, by 11 June 1995. They also knew that this information had to be provided on the basis of
the form at once it had been drawn up by the Commission. Article 4(1), second subparagraph, of the Directive
expressly states that the information to be transmitted, in a format established by the Commission, must include a map
of the site, its name, location, extent and the data resulting from application of the criteria speci fied in Annex III
(Stage 1).
The period which the Commission gave to the Irish Government for meeting its obligation to include on the format
the site information, which it was required to have at its disposal prior to 11 June 1995, must consequently be
regarded as reasonable. From 19 December 1996, the date on which the format was notifi ed, to 19 February 1998,
when the period laid down in the Reasoned Opinion expired, the Irish Government benefited from a period of more
than one year to comply with that specific obligation.
Decision: Since the Irish Government acknowledges that, when the period laid down in the Reasoned Opinion
expired, it had not transmitted to the Commission, on the basis of the format, the inform ation on the sites to be
proposed, it must be held that, by failing to transmit to the Commission, within the period prescribed, the information
relating to the sites on the list mentioned in the first subparagraph of Articl e 4(1) of the Directive, pursuant to the
second subparagraph of that Article, Ireland has failed to ful fil its obligations under that Directive.
Judgment
Declares that, by failing to transmit to the Commission, within the period prescribed, the list of sites mentioned in the
first subparagraph of Articl e 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural
habitats and of wild fauna and flora, together with the information on those sites required by the second subparagraph
of Articl e 4(1) thereof, Ireland has failed to ful fil its obligations under that Directive.
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Comment: This case shows that the Member States should have a clear and adequate strat egy and a list of priorities
for designating the SCI, which priorities should include the national conservation priorities, which have community
importance too. The Member States must inform the Commission about the national proceedings and the results of
them within the time allocated.
During these proceedings, give to the Commission detailed criteria for selecting the Skis (see the text of the
Commission), which criteria should help the new Member States also.
It is necessary to recall that the question whether a Member State has failed to ful fil its obligations must be
determined by reference to the situation in that Member State as it stood at the end of the period laid down in the
Reasoned Opinion. The Court cannot therefore take account of any subsequent changes after the end of the period.
The Member States could not reference with result to the domestic problems and long period of the public
consultation in case delay of submission and lack of information and data submitted to the Commission.
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Case 71/99
Parties: Commission of the European Communities v. Federal Republic of Germany.
Background: The Commission of the European Communities brought an action under Article 169 of the EC Treaty
(now Article 226) for a declaration that, by failing to transmit to the Commission the full list of sites mentioned in the
first subparagraph of Articl e 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural
habitats and of wild fauna and flora ('the Habitats Directive'), together with the information on each site required by
the second subparagraph of Article 4(1) thereof, the Federal Republic of Germany has failed to ful fil its obligations
under that Directive.
According to Article 2, the aim of the Habitats Directive is to contribute towards bio-diversity through the
conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which
the EC Treaty applies. Article 3(1) and (2) of the Habitats Directive provides for: A coherent European ecological
network of special areas of conservation ('SACs') 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 to
favourable conservation status in their natural range. The Natura 2000 network shall include the special protection
areas classi fied by the Member States pursuant to Council Directive 79/409/EEC of 2 April 1979 on the conservation
of wild birds ('the Birds Directive').
The procedure governing the designation of SACs, which is laid down in Article 4 of the Habitats Directive, consists
of four stages.
•
First, each Member State must propose a list of sites indicating which natural habitat types in Annex I and which
species in Annex II native to its territory the sites host (Article 4(1)).
•
Second, the Commission, on the basis of the lists of the Member States and in agreement with each of them, must
establish a draft list of sites of community importance (‘SCIs’) (Article 4(2), first and second subparagraphs ).
•
Third, the list of sites selected as SCIs must be adopted by the Commission in accordance with the procedure
laid down in Article 21 of the Directive (Articl e 4(2), third subparagraph, and 4(3)).
•
Fourth, Member States are required to designate SCIs as SACs (Article 4(4)).
Since the Habitats Directive was notified on 10 June 1992, Member States ought to have transmitted the list of
proposed sites and the information on those sites to the Commission before 11 June 1995. The format was
established only by Commission Decision 97/266/EC of 18 December 1996 concerning a site information format for
proposed Natura 2000 sites. That decision was notified to the Member States on 19 December 1996 and published in
the Offi cial Journal of the European Communities on 24 April 1997.
Having failed to receive from the German authorities either the full list of sites hosting the natural habitat types and
native species referred to in Annexes I and II to the Directive respectively or the information on those sites, and in the
absence of any other inform ation indicating to it that the Federal Republic of Germany had adopted the measures
necess ary to meet its obligations under Article 4 of the Directive, the Commission, on 4 March 1996, put the German
Government on formal notice to submit its observations on that matter within two months, in accordance with the
procedure laid down in Article 169 of the EC Treaty.
The German authorities informed the Commission on 8 August 1996 that, under German law, the power to select sites
eligible for designation as SACs is vested in the Länder. In view of the fact that the Länder had informed them that
they would designate those areas only once the Directive had been implemented in national law, the German
authorities stated that they were not as yet in a position to submit the full list of national sites eligible for designation
as SACs.
By letters of 30 September 1996, 24 January, 28 January and 11 June 1997, the German authorities sent to the
Commission a number of lists of sites in the Länder of Bayern and Sachsen-Anhalt. Bearing in mind the fact that the
format had not been available until 19 December 1996, the Commission sent to the German Government on 3 July
1997 an additional letter of form al notice in which it reiterated its criticism of that Government for having failed to
send to it the full list of the sites and site information and called on it to submit, within one month, its observations on
that infringement of Article 4(1) of the Directive. The Commission stressed in particular the need to use the format
for transmission of the relevant data.
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By letter of 21 October 1997, the German authorities sent a list of sites in the Land of Schleswig-Holstein. By letter
of 27 October 1997 they reiterated the special features of their national law, under which competence in this matter is
conferred on the Länder. They pointed out in this regard that, since the transposing legislation had still not been
adopted, the Länder did not intend to forward the complete list of sites which they were considering for selection.
Forming the view that its correspondence with the German authorities did not allow it to conclude that the Federal
Republic of Germ any had forwarded a complete list of sites to the Commission, in accordance with Article 169 of the
EC Treaty, sent to that Member State on 19 December 1997 a Reasoned Opinion calling on it to comply therewith
within two months of its notification.
By letters of 28 January, 13 and 19 March, 10 and 22 September and 14, 20 and 27 October 1998, the German
authorities sent further lists of sites in the Länder of Hessen, Thüringen, Bayern, Sachsen-Anhalt, Saarland, Hamburg,
Rheinland-Pfalz, Bremen, Niedersachsen and Berlin. Further, by letters of 25 March, 7 April, 11 May and 23 June
1998, they forwarded files on the sites previously notified to the Commission. Finally, by letters of 14 and 15 April
1998, they sent to the Commission a schedule proposing a timetable for the measures envisaged by each Lander for
compliance with the obligations arising under Article 4(1) of the Habitats Directive. Since it formed the view that the
material thus forwarded did not allow it to conclude that the Federal Republic of Germ any had brought an end to the
infringement in question, the Commission decided to bring the present action before the Court.
The prelitigation case includes two pleas in law on the proper implementation of the Habitats Directive.
The Habitats Directive Article relevant to this case:
Î Article 4(1)
Position of the parties
First plea: obligation to transmit the site list
Relevant Articl e of the Habitats Directive:
Î Article 4(1)
Commission position: The Commission points out that each Member State's contribution to the setting up of a
coherent European ecological network depends on the representation on its territory of the natural habitat types and
species' habitats listed in Annexes I and II to the Habitats Directive respectively. It is clear from a combined reading
of Articl e 4(1) of and Annex III to the Habitats Directive that Member States enjoy a certain margin of discretion
when selecting sites for inclusion in the list.
The exercise of that discretion is, however, in the Commission's view, subject to compliance with the following three
conditions:
•
Only criteria of a scienti fic nature may guide the choice of the sites to be proposed.
•
The sites proposed must provide a geographical cover which is homogeneous and representative of the entire
territory of each Member State, with a view to ensuring the coherence and balance of the resulting network. The
list to be submitted by each Member State must therefore reflect the ecological variety (and, in the case of
species, the genetic variety) of the natural habitats and species present within its territory.
•
The list must be complete, that is to say, each Member State must propose a number of sites which will ensure
suffi cient representation o f all the natural habitat types listed in Annex I and all the species' habitats listed in
Annex II to the Habitats Directive which exist on its territory.
The Commission states that it instituted the present proceedings with a view to securing a declaration that the German
national list was manifestly inadequat e, and that such inadequacy far exceeded the margin of discretion conferred on
Member States. Such inadequacy is evident with regard to the situation existing when the period set in the Reasoned
Opinion expired, and even though the German authorities have, since then, forwarded several other lists of sites, the
infringements of which they stand accus ed still persist. The Commission submits in this connection that a comparison
between the proposals of the German authorities and the scientifi c data provided by those authorities, in particular the
manual entitled `Das europäische Schutzgebietssystem Natura 2000' edited by the Bundesamt für Naturschutz
(Federal Offi ce for Nature Protection) amply demonstrates the true nature of those infringements. The German
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national list does not therefore, in the Commission's opinion, satisfy the criteria referred to in Article 4(1) of the
Habitats Directive, read in conjunction with Annex III thereto.
German position: The German Government acknowledges that, when the period set in the Reasoned Opinion
expired, it had not forwarded all of the sites which it intended to include on the list of sites mentioned in the first
subparagraph of Article 4(1) of the Habitats Directive.
However, the German Government submits, first, that compliance with the obligation to forward such a list under the
first subparagraph of Articl e 4(1) of the Habitats Directive was conditional on the Member States' receiving the
format, which is the first document to define the information enabling relevant sites to be selected. Consequently, the
period provided for compliance with that obligation could have begun to run, at the earliest, only from notification of
the form at and had not yet expired at the date on which the action was brought.
Second, the German Government contends that the Habitats Directive confers on the Member States a wide margin of
discretion in regard to selection of the sites for inclusion on the list to be forwarded to the Commission. The Member
States are therefore entitled to notify only those sites which they consider to be appropriate and necessary for the
establishment of a coherent European network of SACs, on the basis of technical criteria and having regard to the
objectives of the Directive. The national level -according to the German Governm ent- is the most appropriate one at
which to carry out an adequate selection among the sites hosting the natural habitats and species' habitats referred to
respectively in Annexes I and II to the Habitats Directive. The Member States, it argues, are better inform ed as to the
sites present within their territory.
Third, the German Government challenges the scienti fic sources to which the Commission referred in order to
demonstrate that the German Governm ent had forwarded an incomplete list. It contends that the manual mentioned in
the present judgement is not the German reference list, and is not even a scientifically certain basis of assessment.
Advocate General position: The Advocate General states that a Member State is obliged to include on the list of
sites provided for under the first subparagraph of Article 4(1) of the Habitats Directive all sites which, in accordance
with the relevant scientific criteria laid down in Annex III (Stage 1), host the types of natural habitats and species set
out in Annexes I and II. That 'complete' list must also be forwarded to the Commission within the period laid down by
the Habitats Directive. The 'complete list' must be understood as meaning the list that includes all sites hosting the
types of natural habitats and native species set out in Annexes I and II which correspond to the criteria established in
Annex III (Stage 1) and to the relevant scienti fic information.
Consequently, the Advocate General states, that if it appears that a Member State has not included on that list a site
having the above characteristics or has not forwarded that list to the Commission within the period set by the Habitats
Directive for completion of the first stage of SAC designation, it will be possible to hold that that Member State has
failed to ful fil its obligations under the first subparagraph of Articl e 4(1) of the Habitats Directive.
The Advocate General points out that as for the German Government's arguments based on the competence of the
Länder in the selection of SACs, in accordance with settled case-law, a Member State may not plead provisions,
practices or circumstances existing in its internal legal system in order to justify a failure to comply with the
obligations and time-limits laid down in a Directive’. It follows that, by failing to transmit to the Commission a
complete list of the sites in its territory within the period laid down by the Habitats Directive, the Federal Republic of
Germany has failed to ful fil its obligations under the first subparagraph of Article 4(1) of that Directive. Therefore the
Advocate General proposes to upheld the first claim.
Court position: The Court first states that the obligation to forward the list of sites mentioned in the first
subparagraph of Article 4(1) of the Habitats Directive was not conditional on adoption of the format. The format is
not the first text to have defined the inform ation allowing Member States to select the relevant sites. Once the
Directive had been notified, the Member States were aware of all the selection criteria to be taken into consideration.
Article 4(1) of the Habitats Directive requires each Member State to propose, on the basis of the criteria set out in
Annex III (Stage 1) and relevant scienti fic information, a list of sites indicating which types of natural habitat under
Annex I and which native species under Annex II to the Directive they host. It follows from Annex III (Stage 1) to the
Habitats Directive that the relevant criteria are the degree of repres entativity of the natural habitat type on the site, the
area of the site covered by the natural habitat type and its degree of conservation, the size and density of the
population of the species present on the site, their degree of isolation, the degree of conservation of their habitats and,
finally, the comparative value of the sites. The Court further states that although Member States have a margin of
discretion when making their site proposals, the fact none the less remains, as the Commission has noted, that they
must do so in compliance with the criteria laid down by the Habitats Directive. The Court point out in this regard that,
in order to produce a draft list of SCIs, capable of leading to the creation of a coherent European ecological network
of SACs, the Commission must have available an exhaustive list of the sites which, at national level, have an
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ecological interest which is relevant from the point of view of the Directive's objective of cons erving natural habitats
and wild fauna and flora. To that end, that list is drawn up on the basis of the criteria laid down in Annex III (Stage 1)
to the Habitats Directive (Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraph 22).
Only in that way, moreover, is it possible to realise the objective, set out in the first subparagraph of Article 3(1) of
the Habitats Directive, of maintaining or restoring the natural habitat types and the species' habitats concerned at a
favourable conservation status in their natural range, which may lie across one or more frontiers inside the
Community. It follows from Article 1(e) and (i) of the Habitats Directive, read in conjunction with Article 2(1)
thereof, that the favourable cons ervation status of a natural habitat or a species must be assessed in relation to the
entire European territory of the Member States to which the Treaty applies.
Finally, it must be borne in mind that the question whether a Member State has failed to ful fil its obligations must be
determined by reference to the situation in that Member State as it stood at the end of the period laid down in the
Reasoned Opinion. The Court cannot therefore take account of any subsequent changes (see, inter alia, Case C266/99 Commission v France [2001] ECR I-1981, paragraph 38).
When the period laid down in the Reasoned Opinion expired on 19 February 1998, the content of the German national
list sent to the Commission was manifestly inadequate, far exceeding the margin of discretion which Member States
enjoy in drawing up the list of sites mentioned in Article 4(1), first subparagraph, of the Habitats Directive. In
accordance with the case-law cited above, the lists of sites communicated to the Commission after the expiry of that
period are irrelevant for purposes of the present action.
The Court therefore concludes that by failing to transmit to the Commission, within the prescribed period, the list of
sites mentioned in the first subparagraph of Articl e 4(1) of the Habitats Directive, the Federal Republic of Germ any
has failed to ful fil its obligations under that Directive.
Decision: The first plea must therefore be upheld.
Second plea: obligation to transmit information on the sites eligible for designation as SACs
Relevant Articl e of the Habitats Directive:
Î Article 4(1)
Commission position: The Commission submits that the obligation to transmit the site information was to be met
before 11 June 1995. Even if certain Member States which already had the list of proposed sites and relevant
inform ation before 11 June 1995 wished to await adoption of the format, they could, after the format was notified on
19 December 1996, rapidly have incorporated that information in the format and forwarded it to the Commission. The
Commission adds that, in order to take account of the late adoption of the format, it extended the pre-litigation
procedure by addressing an additional letter of Formal Notice to the Federal Republic of Germany on 3 July 1997,
well aft er the date on which the format was noti fied. The German authorities were thus fully in a position to meet
their obligation to transmit the information on each site. When the period laid down in the Reasoned Opinion expired
on 19 February 1998, the Federal Republic of Germany had not sent to the Commission the information on the sites
to be proposed.
German position: The German Government does not deny its failure to forward that information by the expiry of the
period laid down in the Reasoned Opinion, but argues that the preparatory work necess ary for collating information
on the sites to be proposed, for the completion of which Member States had a three-year period, could not practically
begin until the end of 1996, when the format had been notifi ed to the Member States.
Advocate General position: The Advocate general states that contrary to what the Federal Republic of Germany
argues, the form at is not the first text to have defined the information on the sites selected by Member States at the
conclusion of the first stage in the designation of SACs. The second subparagraph of Article 4(1) of the Habitats
Directive expressly provides that the information on each site `shall include a map of the site, its name, location,
extent and the data resulting from application of the criteria speci fi ed in Annex III (Stage 1)'. Thus, once the text of
the Habitats Directive had been published in the Official Journal of the European Communities on 22 July 1992, the
Member States knew what kinds of inform ation they would be required to collect for forwarding to the Commission
within three years of noti fication of the Directive.
It thus follows from the first and second subparagraphs of Articl e 4(1) of the Habitats Directive that Member States
are under two kinds of obligation:
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•
The obligation to collect the information provided for under the first subparagraph of Article 4(1) and Annex III
(Stage 1) by 10 June 1995.
•
The obligation to incorporate that inform ation into the format and to send the format to the Commission.
It is common ground, and has not been challenged, that, when the period laid down in the Reasoned Opinion expired
on 19 February 1998, the Federal Republic of Germany had not forwarded to the Commission the formats relating to
the sites within its territory which host the types of natural habitats and native species in Annexes I and II, therefore
that State has failed to ful fil its obligations under the second subparagraph of Article 4(1) of the Habitats Directive.
The Advocate general proposes the Court to rule that, by failing to transmit to the Commission the complete list of
sites mentioned in the first subparagraph of Articl e 4(1) of the Habitats Directive together with the information on
each site required by the second subparagraph of Article 4(1) thereof, the Federal Republic of Germany has failed to
ful fil its obligations under that Directive.
Court position: The Court points out first, that even though the Commission had initially sent to the German
Government a letter of Formal Notice on 4 March 1996, that is to say, before the format was noti fied, it sent to that
Government a new letter of Formal Notice, following notification of the format, giving it a new period within which
to comply with Article 4(1), second subparagraph, of the Habitats Directive. Further the Court notes that following
notification of the Habitats Directive on 10 June 1992, the Member States were aware which types of information
they would be required to collate for purposes of transmission within three years of that notification, that is to say, by
11 June 1995. They also knew that this information had to be provided on the basis of the form at once it had been
drawn up by the Commission.
Article 4(1), second subparagraph, of the Habitats Directive expressly states that the information to be transmitted, in
a format established by the Commission, must include a map of the site, its name, location, extent and the data
resulting from application of the criteria speci fied in Annex III (Stage 1). The period, which the Commission gave to
the German Governm ent for meeting its obligation to include on the format the site information, which it was
required to have at its disposal prior to 11 June 1995, must therefore be regarded as reasonabl e.
From 19 December 1996, the date on which the format was notifi ed, to 19 February 1998, when the period laid down
in the Reasoned Opinion expired, the German Government benefited from a period of more than one year to carry out
that specifi c operation.
Since the German Government acknowledges that, when the period laid down in the Reasoned Opinion expired, it
had not transmitted to the Commission, in the format, the information on the sites to be proposed, the Court declares
that, by failing to transmit to the Commission, within the prescribed period, the information relating to the sites on the
list mentioned in the first subparagraph of Article 4(1) of the Directive, pursuant to the second subparagraph of
Article 4(1) thereof, the Federal Republic of Germ any has failed to ful fil its obligations under that Directive.
Judgment
The Court declares that, by failing to transmit to the Commission, within the prescribed period, the list of sites
mentioned in the first subparagraph of Article 4(1) of the Habitats Directive, together with the information on those
sites required by the second subparagraph of Articl e 4(1) thereof, the Federal Republic of Germany has failed to ful fil
its obligations under that Directive.
Comment: This pre-litigation case seeks to provide an interpretation of the Member States’ discretion concerning the
designation of a list of sites under the Habitats Directive and informing the Commission thereof.
The Habitats Directive seeks to establish a coherent European ecological network of SACs under the title 'Natura
2000', pursuant to a three-stage procedure. During the first stage, which is the only one in issue in the present case,
Member States are required, in accordance with the provisions of Article 4(1) of the Habitats Directive, to forward to
the Commission a list of sites within their territory hosting the types of natural habitats and wild species set out in
Annexes I and II to that Directive. That list must also include information on the national sites thus listed. The
Commission criticises the Federal Republic of Germany for having forwarded to it incomplete lists and for having
failed to attach the relevant information required. The Commission puts forward two pleas in law against the German
Governments. In the first of these, it criticises them for their failure to submit a complete list of sites featuring the
natural habitat types referred to in Annex I and a complete list of sites hosting the native species mentioned in Annex
II, as required by the first subparagraph of Article 4(1) of the Habitats Directive. In its second plea in law, the
Commission argues that the Governments concerned failed to transmit the information relating to those lists, as
required by the second subparagraph of Article 4(1) of that Directive. The Court upheld the pleas submitted by the
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Commission and ruled that the Federal Republic of Germany has failed to ful fil its obligations under the Habitats
Directive.
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Case C-159/99
Parties: Commission of the European Communities v. Italian Republic.
Background: Law No 157/92 is the national measure by which the Italian Republic transposed the provisions of the
Birds Directive. Next to it, Circular 3/93 introduces rules derogating from the prohibitions imposed in the Birds
Directive. It provides that birds may be captured for sale as decoys and be kept, under derogations authorised in
accordance with Article 9 of the Birds Directive. To comply with the requirements of Annex II to the Birds Directive,
the Decree of 21 March 1997 amended Law No 157/92, by excluding the species Passer italiae, Passer montanus,
Passer domesticus, Colinus virginianus, Sturnus vulgaris, Corvus frugilegus, Corvus monedula, Bonasa bonasia and
Limosa limosa from the list of species that might be hunted. The Decree of 27 September 1997 was adopted by the
Prime Minister. Under Article 1(1), it defines the detailed rules for granting a derogation as provided in Article
9(1)(c) of the Birds Directive. After examining the Italian legislation, the Commission took the view that Law No
157/92 permitted the hunting, the capture for sale as decoys and the keeping of species of birds which, under the
Birds Directive, should have been protected, and that the Italian legislation - specifically Circular 3/93 - did not meet
the requirements set out in the Directive for the system of derogations from the prohibitions on hunting, keeping and
capture. On 30 November 1993 the Commission sent the Italian Government a letter of Formal Notice setting out its
objections. The Italian Government transmitted the text of the Decree of 21 March 1997, amending Law No 157/92
by removing nine species of birds from the list of species that might be hunted in Italy. Considering that the measures
adopted by the Italian authorities were inadequate, the Commission sent the Italian Government a Reasoned Opinion
stating its reasons for maintaining its objections concerning the non-ful filment of Law No 157/92 of the obligations
laid down in the Birds Directive. In reply to the Reasoned Opinion, the Italian Government sent the Commission, by
letters of 1 October, 5 and 17 November 1997, the text of the Decree of 27 September 1997. Considering that the
measures so adopted only partially ful filled the obligations set out in the Birds Directive, the Commission sent the
Italian Government a further Reasoned Opinion on 18 June 1998. In the absence of any reaction from the Italian
Government, the Commission decided to bring the issue before the court.
The Birds Directive Arti cles relevant to this case:
Î
Î
Î
Î
Î
Article 5
Article 7
Article 9
Article 9(1)(a)
Article 9(1)(b)
Position of the parties
First complaint first part: capture and keeping of protected birds
Relevant Articl es of the Birds Directive:
Î Article 5
Î Article 7
Commission position: Articles 5 and 7 of the Birds Directive clearly prohibit hunting, capturing and keeping
specimens of species not shown in Annex II to the Directive. The three species, Passer italiae, Passer montanus and
Sturnus vulgaris, are not shown in Annex II as species that may be hunted, captured or kept in Italy. It is therefore
clear that the provisions of the Italian legislation are incompatible with Articles 5 and 7 of the Birds Directive.
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Italian position: By excluding from the list of species which may be hunted the three concerned species, the Decree
of 21 March 1997 also excluded the capture and keeping of those species. According to the Decree, only species for
which hunting is authorised may be captured or kept. Furthermore that the Italian legislation organises the activity of
capture in a precise manner, under the direct supervision of the authorities and public bodies.
Advocate General position: Articles 5 and 7 of the Birds Directive expressly state that the hunting, capture and
keeping of specimens of species not shown in Annex II to the Directive are prohibited. The species Passer italiae,
Passer montanus and Sturnus vulgaris are not shown among those that may be killed, captured or kept in Italy. The
very wording of Articl e 4(4) of Law No 157/92 shows that the capture for sale as decoys of specimens of those three
species is authorised in Italy. Provisions of Law No 157/92 do not comply with Articles 5 and 7 of the Birds
Directive, in conjunction with Annex II thereto.
Court position: The wording of Article 4(4) of Law No 157/92 shows that the capture of specimens of those three
species for the purposes of sale as decoys is authorised in Italy. Similarly, Article 5(2) of Law No 157/92 allows the
regions to lay down detailed rules for keeping specimens of those three species intended for use as decoys.
Decision: It must therefore be held that the national regulations are incompatible with the combined provisions of
Articles 5 and 7 of the Birds Directive and Annex II.
First complaint second part: general and permanent derogation
Relevant Articl e of the Birds Directive:
Î Article 9
Commission position: The Italian Republic had established a permanent derogation system of rules, in breach of
Article 9 of the Birds Directive, thereby creating a situation of legal uncertainty.
Italian position: The Italian legislation organises the activity of capture in a precise manner, under the direct control
of public bodies and authorities. Thus a hunter with an interest in using birds as decoys could never capture them
himself, but would have to acquire them from bodies specifi cally set up and with exclusive authority to capture.
Advocate General position: The Italian legislation does not comply with the requirements of clarity, precision and
accuracy imposed by the case law of the Court. The Italian legislation does not lay down the principle of prohibiting
capture of the three species at issue for sale as decoys. Italian legislation does not comply with Article 9 of the Birds
Directive, because it fails to lay down in a precise manner the criteria on which it is possible to derogate from the
prohibitions imposed by the Directive on the capture of protected species for sale to be used as decoys, and the
detailed rules for applying that derogation and, in particular, because it fails to set them out in clearly defined national
provisions.
Court position: Any discussion on this part of the first claim has become theoretical given that the affected Italian
provisions has been annulled by the Constitutional Court.
Decision: Not released.
Second complaint: rules for applying the derogations
Relevant Articl es of the Birds Directive:
Î Article 9(1)(a)
Î Article 9(1)(b)
Commission position: The Italian Republic has established a system of rules that does not fully comply with the
requirem ents laid down in Article 9(1)(a) and (b) of the Birds Directive.
Italian position: This complaint must be declared inadmissible since it does not fall within the context of the dispute
as defined by the letter of Formal Notice
Advocate General position: The objection of inadmissibility raised by the Italian Republic is unfounded and must be
reject ed, in fact It should be noted that the objection based on improper transposition of Article 9 of the Directive,
made by the Commission in its application, was not only contained in the additional Reasoned Opinion but had
already been expressed briefly and generally in the formal letter of notice. In that letter, the Commission expressly
referred to some of the conditions required for applying the derogations laid down in Article 9 of the Directive, for
the purpose of receiving the Italian authorities' observations in particular as regards the general inadequacy of their
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regulations on the subject. If we analyse the complaint in the substance It should be observed that the essential
features of Article 9 of the Birds Directive have not been transposed by the Italian legislature as regards the
derogations laid down in Article 9(a) and (b). It is not in dispute that Italian national provisions do not define either
the conditions or the detailed rules for exercise of the derogations, as envisaged by Article 9(2) of the Birds Directive.
Court position: The letter of Formal Notice shows that the Commission was there accusing the Italian Republic of
having authorised, in breach of the Directive, the hunting, capture and keeping of a certain number of wild bird
species, including the three species at issue in this action. In its first Reasoned Opinion, the Commission formulated a
single complaint against the Italian Republic, namely, in substance, the same complaint as it had set out in its letter of
Formal Notice. In its supplementary Reasoned Opinion of 18 June 1998, the Commission formulated two different
complaints. It first reiterated the complaint formulated in its initial Reasoned Opinion and, in addition, accused the
Italian Republic of establishing, in relation to the conditions governing, and detailed rules for applying, the
derogations from the prohibitions imposed by the Birds Directive, a system of rules which did not comply with the
requirem ents set out in Article 9(1)(a) and (b) of the Directive. It must therefore be held that, in its supplementary
Reasoned Opinion, the Commission formulated a new complaint against the Italian Republic which was not
formulated in its letter of Formal Notice.
Decision: The complaint must be rejected
Judgment
By laying down rules permitting the capture and keeping of the species Passer italiae, Passer montanus and Sturnus
vulgaris, contrary to the combined provisions of Articles 5 and 7 of the Birds Directive and Annex II thereto, the
Italian Republic has failed to ful fil its obligations under that Directive
Comment: In this case the Court makes important considerations concerning the obligations upon Member States
when they transpose Community Directives. According to the Court the provisions of Directives must be
implemented with unquestionable binding force, and the specificity, precision and clarity necess ary to satisfy the
requirem ents of legal certainty. A mere administrative practices, as it was the circular sent by the Italian authorities,
which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be
regarded as constituting the proper ful filment of a Member State's obligations under the Treaty.
Next to it, another issue is touched in this case. The derogation possibilities to the Directive’s provisions. As the
Advocate General said in relation to the second part of the first complaint, the Court has constantly repeated that
“with regard to the conservation of wild birds, the criteria which the Member States must meet in order to derogate
from the prohibitions laid down in the Directive must be reproduced in specific national provisions”, moreover
“national legislation which authorises the hunting of certain species of birds not included in the list in Annex II to the
Directive without, however, listing the criteria for derogation or clearly and specifically obliging the regions to take
account of those criteria and to apply them, does not satisfy the conditions to which the derogations provided for by
Article 9 of the Directive are subject”.
The possibility provided for in Article 9 of derogating from the restrictions on hunting, as well as from the other
restrictions and prohibitions contained in Articles 5, 6 and 8 of the Directive, is subject to three conditions. First, the
Member State must restrict the derogation to cases in which there is no other satisfactory solution. Secondly, the
derogation must be based on at least one of the reasons listed exhaustively in Article 9(1)(a), (b) and (c). Thirdly, the
derogation must comply with the precise formal conditions set out in Article 9(2), which are intended to limit
derogations to what is strictly necessary and to enable the Commission to supervise them. Although Article 9
therefore authorises wide derogations from the general system of protection, it must be applied appropriately in order
to deal with precise requirements and speci fic situations.
The Court has also held that the essential features of Article 9 of the Directive must be transposed clearly, completely
and unequivocally. Those essential features include confirm ation that there is no satisfactory alternative to the
derogation envisaged and compliance with the provisions of Article 9(2) of the Birds Directive.
The third issued touched in this case is more related to the Court of Justice procedural rules than directly linked to the
Directive. The Court has consistently held that the purpose of the pre-litigation stage of the procedure is to afford the
Member State concerned an opportunity, first, to ful fil its obligations under Community law and, second, to make a
proper statement of its defence to the complaints stated by the Commission. The Court has also consistently held that
the purpose of the formal letter of notice is to lay down the limits of the subject-matter of the dispute and to indicate
to the Member State invited to submit its observations which details are needed in preparing its defence.
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Case 117-00
Parties: Commission of the European Communities v. Ireland.
Background: On 9 October 1997, the Commission sent the Irish Government a letter of form al notice for failure to
comply with Article 3 and the first sentence of Article 4(4) of the Birds Directive and Article 6(2) of the Habitats
Directive. In its letter the Commission emphasised the adverse effects of overgrazing on Ireland's largest SPA
(25,622.2), the Owenduff-Nephin Beg Complex, and on the habitats of the Red Grouse, a resident wild bird covered
by Article 3 of the Birds Directive. The Irish authorities failed to answer that letter.
On 8 April 1998, the Commission addressed to Ireland a Reasoned Opinion. In the Reasoned Opinion stated the
Commission that, by neglecting to take all the measures necess ary to comply with Article 3 of the Birds Directive, in
respect of the Red Grouse, and with the first sentence of Article 4(4) of that Directive and Article 6(2) of the Habitats
Directive, in respect of the Owenduff-Nephin Beg Complex SPA, Ireland had failed to comply with those Directives
and had failed to ful fil its obligations under the Treaty. It called upon Ireland to comply with the Reasoned Opinion
within a period of two months from its notification.
The Irish authorities replied to the Reasoned Opinion by letter of 1 September 1998, providing information on new
measures taken to curb overgrazing both in general and with specific reference to the Owenduff-Nephin Beg
Complex area.
Taking the view that that information did not enable it to reach the conclusion that Ireland had made good its failure
to ful fil the obligations in question, the Commission resolved to bring before the Court the present action.
The Birds Directive Arti cles relevant to this case:
Î Article 3
Î Article 4(4)
The Habitat Directive Article relevant to this case:
Î Article 6(2)
Position of the parties
First plea: the lack of measures to preserve, maintain and re-establish habitats of sufficient diversity
and area for the Red Grouse (infringement of Article 3 of the Birds Directive)
Relevant Articl e of the Birds Directive:
Î Article 3
Irish Government position: The Irish Government maintains that the Commission has failed to establish that the
facts of which it complains had the effect, whether jointly or separately, of reducing the habitat of the Red Grouse to
such a degree that it is no longer sufficient for its conservation.
The Irish Government states that the Red Grouse, as a subspecies of the Willow Grouse, belongs to a species that is
widespread and not under threat. As regards the two atlases to which the Commission refers and which relat e to the
periods 1968 to 1972 and 1988 to 1991 respectively, the difference in methods used to prepare those atlases renders
any comparison of the figures and any conclusions drawn there from unreliable for the purpose of establishing a
decline in the numbers of Red Grouse or a contraction of its range.
The Irish Government also disputes that areas of heathland necess ary to the Red Grouse are under serious threat from
overgrazing, although it acknowledges that overgrazing has had a negative effect on the numbers of Red Grouse and
on the extent of the species' habitat.
Commission position: The Commission states that the habitat of the Red Grouse is hill land and bog and that its diet
consists principally in common heather, on which it also relies for building its nests and for protection from predators.
The range of the Red Grouse is, therefore, limited in Ireland to areas of bog and moorland where heather is plentiful.
However, heather is a species of plant that is particularly vulnerable to overgrazing and in Ireland it is under serious
threat from overgrazing. The Commission cites in this connection various studies which show that there has recently
been a very marked decline in that Member State in Red Grouse populations and a significant reduction in the areas
where the speci es is found, including its mating grounds. As far as declining populations are concerned, the
Commission refers to a 1993 report of the Irish Wildbird Conservancy. As regards the contraction of its range, the
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Commission refers to two atlases of breeding birds in Great Britain and Ireland. Furthermore, the species' breeding
range still lies to a significant extent within areas designated by the Irish authorities as degraded. According to the
Commission, Ireland has thus failed to ful fil its duty to safeguard a sufficient diversity and area of habitats for the
Red Grouse.
The Complex provides shelter to three species of wild bird mentioned in Annex I to the Birds Directive, namely the
Merlin (Falco columbaris), the Golden Plover (Pluvialis apricaria) and the Greenland White-fronted Goose (Anser
albifrons fl avirostris). Under Article 4(1) of the Directive, those species must be the subject of special conservation
measures concerning their habitat.
The Complex also attracts several species of migratory birds not mentioned in Annex I, but which depend on the
Complex with its hill lands and bogs at various stages in their yearly cycle, such as the Dunlin (Calidris alpina), the
Snipe (Galinago galinago) and the Curlew (Numenius arquata).
The Commission submits that, in view of the characteristics and importance of the Owenduff-Nephin Beg Complex,
both for the species just mentioned which appear in Annex I and for migratory speci es not listed in Annex I but which
are regul arly found there, the Irish authorities are required, under the Birds and Habitats Directives, to adopt specifi c
measures which, in this case, either have not been taken or are inappropri ate or inadequat e.
Advocate General position: The interpretation suggested by Ireland cannot be accepted. The Court has in fact held
that the obligations arising under Article 3 of the Birds Directive require the Member States to adopt specific
measures “before any reduction is observed in the number of birds or any risk of a protected species becoming
extinct has materialised”. The lack of information on the numbers of Red Grouse still remaining in those of its
habitats that are regarded as degraded does not therefore enable Ireland to escape those obligations. Since what is
required of Member States in order to comply with their obligations under Article 3 of the Birds Directive is
preventive action, the undisputed finding that there has been a considerable reduction in the range of the species and a
clear and severe det erioration of its habitat is ample proof that Ireland has failed to ful fil its obligations under Article
3.
It follows from the foregoing that, by failing to ensure sufficient diversity and area of habitats for the Red Grouse,
Ireland has failed to ful fil its obligations under Article 3 of the Birds Directive.
Court position: Article 3 of the Birds Directive requires Member States to take the requisite measures to preserve,
maintain or re-establish a suffi cient diversity and area of habitats for all the species of birds covered by the Directive.
The case-law of the Court of Justice shows that the obligations on Member States arising under Article 3 therefore
exist before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has
materialised (see Case C-355/90 Commission v Spain [1993] ECR I-4221, paragraph 15).
The report prepared in 1993 by the Irish Wildbird Conservancy, a non-governmental organisation dedicat ed to the
protection of birds in Ireland, identified the Red Grouse as one of the country's 12 most endangered breeding birds
and indicated that the numbers of Red Grouse had diminished by more than 50% over the last 20 years.
Moreover, comparison of the two scientific works, The Atlas of Breeding Birds in Britain and Ireland: 1968-1972 and
The New Atlas of Breeding Birds in Britain and Ireland: 1988-1991, produced by D.W. Gibbons, J.B. Reid and R.A.
Chapman, reveals a significant contraction in the range in which the species is present and in which the species
breeds. It is important to emphasise in this connection that, whilst, in the second atlas, the authors discuss and
acknowledge the need for caution in comparing data, they note that “despite these difficulties, the change maps do
reflect the real underlying distributional changes [of the species]”.
It is not in dispute that the breeding range of the Red Grouse, which is given a full entry in Annex II/1 to the Birds
Directive, coincides, to a large extent, with the areas designated by the Irish Heritage Council as having been
degraded by overgrazing.
Its letter of 1 September 1998, Ireland acknowledged that, in general terms, it was reasonable to conclude that Red
Grouse populations had been affected by the consequences of overgrazing on their habitats. In the same letter, Ireland
stated that the Red Grouse is dependent on common heather, which is the predominant plant species on many Irish
heaths, raised bogs and uplands, and that it would be designating a very large area of those types of habitat, probably
in excess of 250,000 hectares, as special areas of conservation within the meaning of the Habitats Directive, and that
this would provide mechanisms to control the overgrazing.
Moreover, according to the Action Plan for Ireland's 12 most threatened breeding bird species prepared in 1995 by
the Irish Wildbird Conservancy, it is essential that pasturelands be properly managed as part of the priority actions
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which consist, initially, in halting the decline in Red Grouse populations and in their areas of distribution and,
subsequently, in repopulating the areas of distribution abandoned since the time of the first atlas: The Atlas of
Breeding Birds in Britain and Ireland: 1968-1972.
Decision: In light of the foregoing, it must be held that Ireland has not taken all the measures necessary to safeguard a
suffi cient diversity and area of habitats for the Red Grouse for the purposes of Articl e 3 of the Birds Directive.
Consequently, the Commission's action must, on this point, be upheld.
Second plea: the lack of appropriate measures for the protection of the Owenduff-Nephin Beg Complex SPA
(infringement of Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive)
Relevant Articl e of the Birds Directive:
Relevant Articl e of the Habitats Directive:
Î Article 4(4)
Î Article 6(2)
Irish Government position: Whilst it acknowledges that there has been an increasing problem of overgrazing in the
Owenduff-Nephin Beg Complex, the Irish Government contends that the Commission has produced insuffi cient
evidence to establish that Ireland has failed to ful fil its obligations under Article 6(2) of the Habitats Directive and the
first sentence of Article 4(4) of the Birds Directive. It points out first of all that, since 1996, farmers participating in
the Rural Environmental Protection Scheme ('REPS') have had to comply with grazing strategies for commonages.
Next, it refers to the conditions for the conservation of blanket bogs, heaths and upland grasslands designated as
National Heritage Areas under the REPS as in force from 1 January 1999. Furthermore, Ireland purchas ed 10 000 of
the 25 255 hectares of land in the Owenduff-Nephin Beg Complex SPA and has granted licences for only six cattle
and 150 sheep on this land. In 2000 Ireland adopted a framework plan for the other commonages in the SPA. The
remaining 5 000 hectares in the Complex are not in commonage and are unaffected by the problem of overgrazing. In
addition, the Irish Government states that the Commission approved, by decision of 6 August 1998 taken pursuant to
Council Regulation (EEC) No 2078/92 of 30 June 1992 on agricultural production methods compatible with the
requirem ents of the protection of the environment and the maintenance of the countryside (OJ 1992 L 215, p. 85),
amendments to the REPS notified to the Commission in or after June 1997. Lastly, the Irish Government points out
that implementation of the Conservation Management Plan for the Owenduff-Nephin Beg Complex has been delayed
by the need to engage in detailed public consultations with the persons affected.
The Irish Government acknowledges that implementation of the Conservation Management Plan for the OwenduffNephin Beg Complex has been delayed by the need to engage in detailed consultations with the persons affected.
However, it believes that that situation will shortly be rectifi ed by the concurrent implementation of REPS,
Conservation Management Plans for SACs and SPAs, Commonage Framework Plans, various other schemes for
areas not falling under REPS and the joint implementation of the AHGI and REPS schemes.
As regards destocking, the Irish Government argues that any plan to impose immediately and brutally an even greater
reduction in the numbers of sheep in those degraded areas would be rejected by farming communities and cause them
to withdraw their cooperation from schemes to protect natural habitats.
In conclusion, Ireland maintains that it is taking concerted and ever more positive action in order to prevent further
deterioration of the Complex and to ensure better protection of the animal and plant species living there. It submits
that it has taken appropriate measures even i f those measures have not had the desired effect, that is to say the
protection of animal and plant species found in the Complex. Consequently, it draws the conclusion that a Member
State who has shown goodwill but has not achieved the desired result cannot be criticised for having infringed Article
4(4) of the Birds Directive and Article 6(2) of the Habitats Directive.
Commission position: The Commission maintains that Ireland has failed to take the necess ary measures to prevent
the blanket bog of the Owenduff-Nephin Beg Complex SPA from being damaged by overgrazing. In particular, the
REPS adopted by the Irish authorities has been, and still is, inadequate to combat the problem of overgrazing both
generally and within the Owenduff-Nephin Beg Complex. The Commission nevertheless recognises the potential of
the REPS, following its revision in 1998, effectively to deal with overgrazing of commonages, provided that
commonage fram ework plans are established, implemented and monitored.
As regards application of REPS in these areas, the Commission stresses that the scheme is voluntary and has little
impact. In those areas where farmers choose not to participate in REPS, there are no provisions limiting the intensity
of sheep-rearing. In other words, the density of grazing in those areas is left to the discretion of farmers. However,
even where farm ers agree to participate in REPS, the question of animal stocking levels is left to farm planners who
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prepare individual farm plans which REPS participants must then submit to the authorities. Guidelines for planners
are, however, too general and do not provide detailed ecological guidance on the plant and animal species that require
protection in the habitats concerned.
In conclusion, the Commission submits that, whilst REPS and certain related measures have made a valuable
contribution to stabilising and redressing the problem of sheep overgrazing both in the Owenduff-Nephin Beg
Complex and – with reference to Red Grouse habitats – in other proposed SACs, they suffer from shortcomings both
in terms of coverage of the areas to be protected and in the content of their prescriptions and conditions of
implementation.
The Commission argues that the general reduction of 30% in the mountain sheep quota decided upon during the
winter of 1998/1999 is inadequate, if consideration is given to all of the areas affected by overgrazing.
Advocate General position: It has been shown and has not been disputed that:
•
Blanket bogs are one of the priority natural habitat types listed in Annex I to the Habitats Directive and that the
Owenduff-Nephin Beg Complex has been classifi ed by Ireland as an SPA since 1996.
•
Moreover, under the Ramsar Convention, the Owenduff-Nephin Beg Complex is declared a 'wetland of
international importance'.
•
The natural habitats in question provide shelter to certain species of wild bird mentioned in Annex I to the Birds
Directive and several species of migratory birds which, although not mentioned in Annex I, depend on those
habitats at various stages in their yearly cycle.
•
The habitats in question have been seriously damaged by overgrazing.
•
The numbers of Greenland White-front ed Goose, Merlin and Golden Plover have diminished.
•
Ireland had not, by 8 June 1998, the date on which the period laid down by the Commission in its Reasoned
Opinion expired, adopted adequate measures to prevent deterioration of the natural habitats and habitats of
species and disturbance of the species for which the Owenduff-Nephin Beg Complex SPA was designated, nor
had it implemented measures likely to remedy the damage thus caused.
It follows from the foregoing that Ireland has failed to ful fil its obligations under the first sentence of Article 4(4) of
the Birds Directive and Article 6(2) of the Habitats Directive.
Court position: First of all, it should be recalled that, according to settled case-law, the question whether a Member
State has failed to ful fil its obligations must be determined by reference to the situation prevailing in that State at the
end of the period laid down in the Reasoned Opinion (see, inter alia, Case C-166/97 Commission v France [1999]
ECR I-1719, paragraph 18, and Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 14). Thus, in
the present case, measures adopted by Ireland after 8 June 1998 cannot be taken into account.
Secondly, it is important to note that it is undisputed that the Owenduff-Nephin Beg Complex has been classified as
an SPA since October 1996. In so far as concerns land classifi ed as an SPA, Article 7 of the Habitats Directive
provides that the obligations arising under the first sentence of Article 4(4) of the Birds Directive are replaced, inter
alia, by the obligations arising under Article 6(2) of the Habitats Directive as from the date of implementation of the
Habitats Directive or the date of classi fication under the Birds Directive, where the latter date is later. It follows that,
in the present case, Article 6(2) of the Habitats Directive, rather than the first sentence of Article 4(4) of the Birds
Directive, has applied to the Owenduff-Nephin Beg Complex SPA since October 1996. That being so, the
Commission's plea must be dismissed in so far as it is based on infringement of the first sentence of Articl e 4(4) of the
Birds Directive and the Court must confine itself to considering whether there has been an infringement of Article
6(2) of the Habitats Directive.
Article 6(2) of the Habitats Directive, like the first sentence of Article 4(4) of the Birds Directive, requires Member
States to take appropriate steps to avoid, inter alia, deterioration of habitats in the SPAs classified pursuant to Article
4(1) (see Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 35).
Whilst the Commission pursues no claim of infringement against Ireland in relation to the 10 000 hectares in State
ownership and upon which grazing will now be very light, it is clear from the documents before the Court that other
parts of the Owenduff-Nephin Beg Complex SPA have been seriously damaged.
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The Conservation Plan for this SPA, completed on 22 August 2000 by Dúchas, the heritage service of the Department
of Arts, Heritage, Gaeltacht and the Islands, states that `[s]ome blanket bog and heath areas within the site are heavily
eroded caused by the excessive numbers of sheep. In places there is mobile peat with associated haggs and gullies that
have eroded to the underlying bedrock. On the higher ground, the heath is severely degraded due to the grazing
pressure on ericaceous (heath) species. In the recent past large tracts of the peatland system adjacent to the site have
been planted with conifers, resulting in the destruction of vast tracts of both lowland and upland blanket bog.'
In their correspondence with the Commission preceding the issue of the Commission's Reasoned Opinion the Irish
authorities had already recognised that the Owenduff-Nephin Beg Complex was heavily stocked with sheep which
were penetrating into the uninhabited valleys and mountain slopes. They had also acknowledged that damage caused
by overgrazing was particularly severe on the slopes west of Lough Feeagh and that this had contributed to the recent
decline in the numbers of Greenland White-fronted Geese which feed there.
According to the Conservation Plan of the Complex mentioned, it will be necessary to keep grazing at a sustainable
level in order to achieve objectives such as the maintenance and, where possible, the enhancement of the ecological
value of both the priority habitat of the Owenduff-Nephin Beg Complex, that is to say blanket bog, and other habitats
characteristic of the site and the maintenance and, where possible, increase of populations of birds mentioned in
Annex I to the Birds Directive which frequent the site, including in particular the Greenland White-fronted Goose and
the Golden Plover, species which provided justification for the classi fication of the site as an SPA. Overgrazing by
sheep is in fact causing severe damage in places and is the greatest single threat to the site.
Furthermore, the Irish Government itself recognises in its rejoinder that it is necessary for the Irish authorities not
only to take measures to stabilise the problem of overgrazing, but also to ensure that damaged habitats are allowed to
recover. The Irish Government indicates that implementation of the Conservation Management Plan for the
Owenduff-Nephin Beg Complex SPA, of the framework plans for the commonages situated in the SPA and of
individual farm management plans will achieve this end.
It follows from the foregoing that Ireland has not adopted the measures needed to prevent deterioration, in the
Owenduff-Nephin Beg Complex SPA, of the habitats of the species for which the SPA was designated.
Decision: It must, therefore, be held that, by failing to take the measures necessary to safeguard a suffici ent diversity
and area of habitats for the Red Grouse and by failing to take appropriate steps to avoid, in the Owenduff-Nephin Beg
Complex SPA, the deterioration of the habitats of the speci es for which the SPA was designated, Ireland has failed to
ful fil its obligations under Article 3 of the Birds Directive and Article 6(2) of the Habitats Directive.
Judgment
Declares that, by failing to take the measures necessary to safeguard a sufficient diversity and area of habitats for the
Red Grouse and by failing to take appropriate steps to avoid, in the Owenduff-Nephin Beg Complex special
protection area, the deterioration of the habitats of the species for which the special protection area was designated,
Ireland has failed to ful fil its obligations under Article 3 of the Birds Directive and Article 6(2) of the Habitats
Directive.
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Comment: The Court explained that the importance of the requisite measures to preserve, maintain or re-establish a
suffi cient diversity and area of habitats for all the species of birds covered by the Directive, in according the Article 3
of the Birds Directive. It is means that the Member States should ensure the adequate measures before any reduction
is observed in the number of birds – not only for species mentioned Annex I of the Birds Directive – or any risk of a
protected speci es becoming extinct has materialised.
From the procedure and the judgement could draw the conclusion: the systematic survey (monitoring) of the protected
area SPA or SAC and its regular documentation and publication are absolutely indispensable to analysed the effects
and threats and take the requisite measures for protected areas.
The Member States have not the discretion to select from the protection measures the voluntary based measures only,
the Member States should take the requisite measures to preserve, maintain or re-establish a sufficient diversity and
area of habitats for all the species of birds covered by the Directive.
The Member States in order to comply with their obligations under Article 3 of the Birds Directive should take
preventive action in time to prevent the reduction in the range of the species.
The protection and management measures should be sufficient both in terms of coverage of the areas to be protected
and in the content of their prescriptions and conditions of implementation.
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Case study: Italy
Case: CORTE DI CASSAZIONE
Sez. III, 18 April 2000, n. 4752 (ud. 15 March 2000).
Pres. Zumbo - Est. Grillo - Ric. P.G. in proc. Bertucci.
Parties: Mr Bertucci Salvatore Ausilio Vs Italian State.
Background: During a control, the police found several mummified species of protect ed birds in the car of Mr
Bertucci Salvatore Ausilio. 66 Species belong to species protected by Law 157/1992 On general provisions for the
protection of wild fauna and the regulation of hunting activity, that is the transposition instrument of the Birds
Directive into Italian legislation, while other 55 species were species protect ed by Law 150/1992 that transpose the
Washington Convention into Italian corpus juris.
Court position: The protection regime accorded by Law 157/1992 is only related to alive game birds, and not to
mummified ones, while regarding the species protected by Law 150/1992, not only the commercialisation, but also
the detention tout cour of protected birds is forbidden by the Law. This prohibition regime is operative also if there is
no evidence of the intention to put the species on the market.
Judgment
Mr Bertucci was found not guilty for the detention of the 66 species protected by Law 157/1992, while he was proved
guilty of detention of species protected by Law 150/1992.
Case: CORTE COSTITUZIONALE
20 December 2002, sentence n. 536.
Parties: Regione Sardegna Vs. Government.
Background: With a regulation one Italian region prolonged the hunting activity for certain bird species, in contrast
to what was established by national law. The Government decided to go before the Constitutional Court asking the
abrogation of the above mentioned regional regulation.
Court position: According to the interpretation of the Court there are two major principles relating to bird protection
within national legislation: to expressly indicate the species that can be hunted, and to establish the hunting season in
order to guarantee that the bird species survive and reproduce. The National Institute for the Wild Fauna, an advisory
public body for the protection of the wild fauna, considered this prolongation as unjustified and in contrast with both
national and EC provisions.
Judgment
The regional regulation is annulled because in conflict with national legislation.
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Case: CORTE COSTITUZIONALE
17 May 2001, sentence n. 135.
Parties: Regione Liguria Vs Government.
Background: The Regional Assembly approved a regulation that extended the number of bird species to be hunted
compared to the species enlisted in the annex enclosed to Law 157 On general provisions for the protection of wild
fauna and the regulation of hunting activity .
Court position: Although, as claimed by the Regional Council the intention of the regulation was to protect
cultivations from the damages of cert ain bird species as foreseen by Law 157, a derogation has to be in line with the
requirem ents of Article 19 of the Law, namely a consultative procedure between the National Institute for the Wild
Fauna and the Region.
The protection regime established by Article 19, is strictly correlated to the European dispositions as established by
the Birds Directive. This is not the case of the regional regulation that only in general terms refers to the procedure
established in Article 19.
Judgment
The regional regulation is annulled because in conflict with national legislation.
173
Zoltan Waliczky
European Advocacy Officer
The Royal Society for the Protection of Birds
The Lodge
Sandy
Bedfordshire
SG19 2DL
Tel:
Fax:
+44 1767 680551
+44 1767 692365
www.rspb.org.uk
Clairie Papazoglou
Advocacy Officer
BirdLife International
European Community Office
Rue de la Loi 81A
Box 4
BE-1040 Brussels
Belgium
Tel:
Fax:
+32 2 280 08 30
+32 2 230 38 02