C-57/89

COMMISSION v GERMANY

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 5 December 1990 *

Mr President, with the obligations arising out of the Members of the Court, abovementioned 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 1. Introduction provisions of the directive aimed at the protection of the habitat of certain bird species. 2

2 — Case C-334/89 Commission v Haly, now pending before the 2. The Court has already had to decide a Court, also concerns protection of the habitat of certain number of cases concerning compliance bird species. In that case, however, the questions of inter­ pretation are not so sharply defined as in this. 3 — See the first report of the Commission on the state of * Original language: Dutch. environmental protection in the Community, 1977, p 199. 1 — OJ 1979 L 103, p. 1. 4 — See the third recital in the preamble to Directive 79/409.

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Treaty for failure to comply with Article 4 the European territory of the Member of the directive (as at 15 March 1990). That States — at a level which corresponds in illustrates the great importance of this case, particular to ecological, scientific and particularly for the future, since the cultural requirements, while taking account Commission, at the hearing, stated that it of economic and recreational requirements. 5 would not require the demolition of the works already carried out in the Leybucht if the Court upheld its application.

5 — That provision corresponds almost word for word to 2.1. The provisions of Directive 79/409/EEC Article 2 of the Convention on the conservation of European wildlife and natural habitats signed at Berne on 19 September 1979, that is to say some five months after the adoption of Directive 79/409, and was subsequently approved on behalf of the EEC by a decision of the Council of 3 December 1981 (OJ 1982 L 38, p. 1). 6 — See, for the first occasion, the judgment in Case 247/85 Commission v Belgium [1987] ECR 3029, at paragraph 8). 3. Article 2 of the directive provides that the 7 — The directive does not define the term 'habitat'. In the Member States must take the requisite Convention on the conservation of migratory species of wild animals, signed in Bonn on 23 June 1979, that is to measures to maintain the population of the say some three months after the adoption of Directive 79/409, and subsequently approved on behalf of the EEC bird species concerned by the by a Council Decision of 24 June 1982 (OJ 1982 L 210, directive — that is to say, all species of p. 10), the term 'habitat' is defined in Article I(l)(g) as: 'any area in the range of a migratory species which naturally occurring birds in the wild state in contains suitable living conditions for that species'.

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referred to. It is expressly provided that the Article 4(2) imposes an obligation on Member States must take into account the Member States to take similar measures for requirements referred to in Article 2. migratory species which are not listed in Annex I but which regularly occur in their territory. In that respect the Member States must take into account a number of criteria. According to the last sentence, they must Article 3(2) lists the measures which the pay particular attention to the protection of Member States must take as a matter of wetlands and particularly to wetlands of priority for the preservation, maintenance international importance. and re-establishment of biotopes and habitats. As a first measure the provision refers to the creation of protected areas.

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7. The Commission's complaint in this case 1950 . 1Article 11 of the convention concerns failure to implement Article 4(4). provides as follows: The first sentence requires the Member States to

'In order to alleviate the consequences of 'take appropriate steps to avoid pollution or the rapid disappearance of suitable breeding deterioration of habitats or any disturbances grounds for birds as a result of human inter­ affecting the birds'. vention, the High Contracting Parties undertake to encourage and promote immediately, by every possible means, the creation of water or land reserves of suitable size and location where birds can nest and That obligation is subject to the following raise their broods safely and where restriction : migratory birds can also rest and find their food undisturbed.'

'in so far as these would be significant having regard to the objectives of this article'. (b) The Ramsar Convention

The second sentence is worded as follows: 9. The provisions of the directive on habitat are very similar to the rules laid down by the Convention on Wetlands of Interna­ tional Importance Especially as Waterfowl 'Outside these protection areas, Member Habitat, signed on 2 February 1971 in 12 13 States shall also strive to avoid pollution or Ramsar (Iran). deterioration of habitats.'

10. The authors of the directive undoubtedly took account of the work in Under Article 3, the contracting parties are the Council of Europe which led to the to formulate and implement their planning signature of the Berne Convention on so as to promote the conservation of the 19 September 1979. 14 Like the directive, wetlands included in the list, and as far as this convention seeks to ensure the conser­ possible the wise use of wetlands in their vation of a number of species of wild territory. They are to arrange to be animals by means of provisions for the informed at the earliest possible time if the protection of habitats on the one hand and ecological character of any wetland is the protection of species on the other. changing or is likely to change as a result of technological development, pollution or other human interference. Information on such changes must be passed without delay to the bureau.

2. The Contracting Parties in their planning and development policies shall have regard to the conservation requirements of the areas protected 2.3. Related Community provisions under the preceding paragraph, so as to avoid or minimize as far as possible any deterioration of such areas.

12. Directive 79/409 served as the model 3. The Contracting Parties undertake to for a proposal for a directive on the give special attention to the protection protection of natural habitats in general (of of areas that are of importance for the both fauna and flora) which the migratory species specified in Commission submitted to the Council in 15 Appendices II and III and which are 1988. According to that proposal, the appropriately situated in relation to Member States are to designate areas which migration routes, as wintering, staging, correspond to certain criteria as special feeding, breeding or moulting areas. protection areas. They are to do so in accordance with a timetable to be laid down in the directive. Article 7(1) of the proposal governs the measures which the Member States are to take to avoid pollution or dete­ 4. ... ' rioration of habitats and other disturbances affecting fauna and flora, in terms identical to those of Article 4(4) of Directive 79/409. In contrast to that directive, the proposal specifies the measures which the Member Articles 5 to 9 of the convention lay down States are expected in particular to take: measures which must be taken for the protection of the birds themselves, in a 15 — Proposal for a Council directive on the protection of manner very similar to the rules set out in natural and semi-natural habitats and of wild fauna and flora, submitted by the Commission to the Council on Articles 5 to 9 of the directive. 16 August 1988 (OJ 1988 C 247, p. 3).

13. Finally, mention should also be made of 4.1. National Council Directive 85/337/EEC of 17 June 1985 on the assessment of the effects of certain public and private projects on the 6 environment. 1 That directive is based on the view that the best environmental policy 15. The Leybucht is part of the consists in preventing the creation of Niedersächsisches Wattenmeer National pollution or nuisances at source rather than Park, which is designated in a regulation of subsequently trying to counteract their 13 December 1985 of the Land of Lower effects (first recital in the preamble). In that Saxony (hereinafter referred to as 'the perspective, the directive provides that protection regulation') as a protected 17 certain large projects must be made subject area. 18The Leybucht represents about to an environmental impact assessment and 1% of the protected area, which covers a that the results of that assessment must be total of about 240 000 hectares. Article 3 of made available so that the public can 17 — Niedersachsisches Gesetz- tinti Verordnungiblatt No 48 of express their views. The abovementioned 21 December 1985, p. 533 proposal for a directive on habitats seeks an 18 — Previously the Leybucht had come under a protection scheme established by a regulation of 9 June 1981 of the Bezirksregierung Weser-Ems (Amtsbl. Reg.-Bez. Weser-Ems 16 — OJ 1985 L 175, p. 40. No 25 of 26 June 1981, p 543)

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the protection regulation defines its activities) and for certain persons. Access to boundaries by reference to attached topo­ the intermediate zone is permitted, but graphic maps. As a general criterion it is certain activities are expressly prohibited. assumed that the area is bounded on the The recreation zone may be used as a landward side by the seaward side of the bathing area and as a health cure area. dyke. On one of the attached maps which indicates the precise boundaries of the area there is an asterisk next to the Leybucht drawing attention to the following note: 4.2. International

It follows from that note that the boundaries of the protected area are moved 17. At the time of the Commission's letter to the new line of the dyke as is established of formal notice (7 August 1987) the by the Bezirksregierung Weser-Ems in a Federal Republic of Germany had not yet planning approval decision of 25 September informed the Commission that the Leybucht 1985, with effect from the entry into force formed part of a protected area. In a letter 19 of that decision. of 26 September 1983 the German Government had informed the Commission that 48 areas in the Land of Lower Saxony were under consideration as special protection areas. One of them was the Article 4 of the protection regulation divides Ostfriesisches Wattenmeer mit Dollart' the area into three zones: a rest zone (most area, to which both the Leybucht and the of the Leybucht has this status), an inter­ Rysumer Nacken belong geographically. mediate zone (the two channels which cross With regard to the Leybucht the the Leybucht have this status) and a Commission considered, however, that the recreation zone (the area around the port of German Government had not, by that letter, Greetsiel in the Leybucht has this status). designated that area as a special protection 21 Article 5 defines the activities which are area in accordance with the directive. The permitted in those three zones. Access to the first complaint stated in the reasoned rest area is as a general rule prohibited, but there are exceptions for some activities (in 20 — The Ramsar Convention came into force for the Federal Republic of Germany on 25 June 1976 (see the notice of particular certain agricultural and fishery 16 July 1976, BGBL. II, p. 1265). When it deposited its instrument of ratification the Federal Republic of Germany made a declaration to the effect that it assumes 19 — Whether an administrative decision such as this planning that the provisions of the convention do not affect decision can amend the protection regulation and whether measures for the protection of the population from the planning decision was already in force when the dyke flooding. works were commenced are questions of national law into 21 — Oddly enough the Commission did not take the same view which the Court need not inquire. as regards the Rysumer Nacken (see below, point 44).

18. The dyke project, as approved by the Bezirksregierung Weser-Ems in its planning 20. However, the project is not entirely decision of 25 September 1985, is described detrimental from the ecological point of in some detail in the Report for the view. The German Government has Hearing. I think it is useful here to draw emphasized that the completion of the attention in particular to two aspects of the project will permit the closure of the two project, that is to say the loss of protected channels crossing the Leybucht, which until area that the works entail and the now were regularly dredged. Disruptive compensatory measures provided for. 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. 19. The completion of the project entails a In the planning decision of 25 September loss of protected area essentially in three 1985 it is further expressly provided that the places. The greatest loss (about 450 areas situated in the 'nose' of the dyke will hectares) is in the Greetsieler Nacken, be protected. The dyke which previously where the 'nose' of the dyke is to be built. protected the area of the Hauener Hooge

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21. The Commission's complaints are based on the interpretation it gives to Anicie 4(4) 7. The defence of the German Government of the directive. It takes the view that that provision expressly requires the Member States to take positive protective measures but also implicitly prohibits them from making the existing situation worse. That interpretation, it says, is supported by the second sentence of Article 4(4), which 22. The defence of the German relates to pollution and deterioration of Government, which is supported by the habitats outside protection areas. Outside United Kingdom, can be summarized as protection areas only some effort on the follows: part of Member States is required, whereas strict measures are necessary within those areas. The Commission does accept the possibility of operations in protective areas where these are for the benefit of habitats. Otherwise, the Commission recognizes only — the line of the dyke as defined in the one exception: intervention where human planning decision lies outside the life is in danger, and on condition that the boundary of the area designated as a measures taken are such as to entail the special protection area; least possible deterioration of the protected area.

— the Commission's interpretation of Article 4(4) of the directive is incorrect; The Commission takes the view that the that provision leaves the Member States works in the Leybucht damage that area a broad discretion in the choice of

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25. The Commission takes the view that the construction of the dyke project is contrary 23. I should like to state right away that in to Article 4(4) of the directive since it will my view the defence submission concerning result in a significant reduction in the extent the situation of the dyke — whether just of an area designated as a protection area. inside or just outside the area designated as It proceeds on the basis that the term a protection area — is not relevant to the 'deterioration' covers the hypothesis of a 22 assessment of the Commission's complaints. reduction in area. That point of view 23 Even if the new line of the dyke is just seems to me to be wrong. In my view outside the protected area, it is nevertheless Article 4(4) of the directive is intended to clear that the works carried out on the edge ensure the quality of the living conditions of of the area had, and may still have, a the birds in protection areas. It is the fourth disruptive effect within the area. Furthermore, that submission does not 22 — The two other terms used in Anicil 4(4) of the directive, 'pollution' and 'disturbance', cannot in any event cover that refute the Commission's complaint that as a hypothesis result of the new line taken by the dyke a 23 — In the proposal for a habitat directive the term 'degra­ considerable partof an area designated as a dation' is defined as follows (Article 3(c)). 'the reduction of [the] most characteristic elements [of the habitat] protection area no longer forms part of it. without any change of category'

26. The fourth subparagraph of Article 4(1) of the directive requires the Member States to designate certain habitat areas of bird Article 4(2) of the directive states that species mentioned in Annex I as protection Member States must pay particular attention areas. My understanding of the provision is to the protection of wetlands of interna­ that the Member States need not so tional importance. The latter term refers designate all areas where there are suitable without doubt to the wetlands which under living conditions for the species concerned. the Ramsar Convention must be notified to They must so designate the most suitable the bureau established for that purpose. areas of their territory, in other words the areas of their territory in which the most suitable living conditions for those bird 24 species are present. In addition, the areas designated must be sufficient in number and in size to ensure the conservation of the species concerned. 28. The Commission acknowledges that the directive leaves the Member States some discretion in the choice of the areas to be designated. It observes in particular that in designating those areas the Member States may take into account inter alia the economic interests referred to in Article 2 of 27. Article 4(2) of the directive makes the directive. That discretion is also separate provision for migratory birds which reflected in the Resolution of 2 April 1979, are not listed in Annex I but regularly occur in which the Council takes note of the on the territory of the Member State in Commission's intention to submit proposals question. That provision is poorly drafted regarding inter alia the determination and and thus difficult to understand. The 25 selection of the special protection areas. question arises inter alia whether the 'similar The fact that the Commission intends to measures' referred to in that provision include the obligation to designate special 25 — That discretion exists not only in relation to the habitat of protection areas in accordance with the birds referred to Article 4(1) but also in relation to the wetlands of international importance for migratory birds referred to in Article 4(2). Article 6 of the proposal for a 24 — Compare the proposal for a habitat directive, which seeks habitat directive refleccs the same approach. In that to ensure that within a period of two years the Member provision the Commission assumes that areas designated States classify the ten most important habitat areas in the by the Member States in the context of the Ramsar Community for the conservation of threatened species (the Convention need not necessarily be designated as special 100 most important within a period of eight years). protection areas under Directive 79/409.

29. 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 specifically, 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? That seems to me to be one of the fundamental questions in this case that 30. The answer to the question raised above the parties have not fully examined. 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 environ­ mental interest at which the directive is aimed or the economic and recreational interests referred to in Article 2 of the In my view Article 4(1) of the directive lays directive. Support for that point of view is down no absolute prohibition on the to be found in the Ramsar Convention, on reduction in extent of an area designated as which the provisions of the directive on a protection area. That does not, however, mean that the discretion of the Member 26 — See the repon of lhe Commission mentioned in footnote 3, States as regards the reduction in extent of a above, at p. 199. designated area is the same as its discretion 27 — In the Resolution of 17 May 1977, already referred to in footnote 14, the Council takes note (paragraph 6) of the as regards the designation of that area. determination of the Member States to ensure that the Designation is concerned with the selection present quality of environmental areas will not deteriorate, particularly in view of the often irreversible or practically of the most suitable from among the various irreversible nature of some pollution.

habitat are in part based. 8That convention result could also have been achieved with gives the parties the right to restrict or even less loss of protected area. delete the boundaries of designated areas, but only in furtherance of urgent national interests. The convention adds that the parties must consider their international responsibilities. They must also as far as The Commission thus takes the approach possible compensate for any loss of part of that any intervention in a protection area the designated areas. must not only be prompted by compelling reasons but must also be necessary in the sense that the desired result cannot be achieved with less damage to the environment. I shall address the question whether that point of view is correct, and if so whether those additional criteria were fulfilled in this case, after examining the criteria in accordance with which pollution, deterioration and disturbance in the 31. In my view a general and abstract protection area must be assessed. description of the interests which may, in accordance with the proposed interpre­ tation, justify a boundary correction is neither desirable not necessary. There can be no doubt that the reasons put forward by 8.3. The criteria of assessment as regards the German Government in order to justify deterioration and disturbances in a protection the dyke works in the Leybucht — in area particular the reinforcement of the dyke in order to protect the people living behind it — must be regarded as a compelling reason arising from a general interest which is more important than the interest in the conservation of birds. 29 Nor, indeed, does 32. The Commission takes the view that the the Commission deny that work which is works carried out in accordance with the necessary exclusively on grounds of dyke planning decision are contrary to Article safety may be carried out in a protection 4(4) of the directive on the ground that they area. Its claim is that the details of the dyke cause deterioration in living conditions in project in question, in particular the line the Leybucht and disturb the birds present taken by the new dyke, are not necessary on there. The Commission correctly bases that grounds of dyke safety. In its view that claim on Article 4(4), which indicates the protection measures which the Member States must take as regards the areas 28 — See the Commission's Recommendation that the Member States accede to the Ramsar Convention, referred to in designated as protection areas in accordance footnote 13, which dates from before Directive 79/409, with Article 4(1) or (2). and the Resolution of the Council of 17 May 1977, referred to in footnote 14, which speaks of possible future proposals, building on the convention, for the protection of wetlands in the Community, taking into account the work carried out in international organizations (para­ graphs 154 to 159). 29 — See the abovementioned Resolution of 17 May 1977, in which the Council describes the aim of Community environmental policy as follows: 'to improve the setting 33. Here again I should like to begin by and quality of life and the surroundings and living rejecting an argument to which the United conditions of the peoples of the Community' (paragraph 11). Kingdom in particular attached considerable

34. Nor does the very broad interpretation given by the Commission to Article 4(4) of the directive seem to me to be correct. I think its submission that that provision prohibits as a matter of principle every act resulting in pollution, deterioration, or disturbance goes too far. Article 4(4) goes on from Article 4(1) and (2), which require Member States to designate special protection areas. In speaking of 'appropriate Construed in that way Article 4(4) of the steps to avoid pollution or deterioration [or directive would permit a considerable disturbances] ... in respect of the protection degree of pollution, deterioration and areas', Article 4(4) is, I think, referring in disturbance. That does not appear to me to particular to an obligation on the part of the be consistent with the objective of Article 4. Member States to establish general rules for In my view the Council intended, in the the protection in those areas of the quality provision in question, to indicate that no of the living conditions of birds, so that they pollution, deterioration or disturbance can live and reproduce in the most suitable which significantly affects the quality of the circumstances. The proposal for a habitat living conditions of the birds may take place directive reflects the same approach. In in the protection area concerned. It thus Article 7(2) of that proposal consideration also covers negative aspects which, although of the appropriate protection status to be they do not endanger the survival and given to habitat areas is indicated as an reproduction of the birds, do significantly initial measure in preventing the pollution or affect their survival and reproduction in the deterioration of habitat. The establishment most suitable circumstances. I should also of such general rules for the protection of like to point out that only the German, the most suitable conditions of living and Danish and Dutch versions of the phrase reproduction need not necessarily prohibit under discussion link pollution, dete­ all pollution, deterioration or disturbance in rioration and disturbance to the condition of any circumstances.

35. It is thus for the Member States to lay down a system of protection for the areas designated by them. Unlike the provisions of the directive concerning the introduction of a system of protection for birds themselves (Anicie 5 et seq.), Anicie 4(4) contains no Unlike the question of the reduction in indication of concrete measures to be taken extent of a protected area, the problem now by the Member States. It appears from the under discussion is not expressly dealt with Council Resolution of 2 April 1979 that the in the Ramsar Convention or any other Commission intended to submit appropriate international convention. I think the answer proposals, but it has not yet done so (see must nevertheless be the same, since above, point 6). In those circumstances it is pollution and deterioration and even some for the Member States, taking full account forms of disturbance also often have irre­ of the environmental interest with which the versible consequences for the areas in directive is concerned, to determine what question. Here again I therefore take the specific measures must be taken to ensure view that a Member State may diminish the the most suitable living conditions in the quality of living conditions in a protection designated areas and to prevent pollution, area in relation to a previously established deterioration and disturbances which would level only if that is necessary for compelling significantly affect those circumstances. It reasons arising from a general interest cannot, I think, be inferred from the which is more important than the environ­ directive that they must necessarily prohibit mental interest with which the directive is all deleterious action in the whole area. concerned. I therefore conclude that the

The Commission has not submitted any study or other data to support the statements and this rather belatedly 8.4 Can the works be justified? proposed alternative. It cannot, therefore, be taken into account. Nevertheless I am ready to accept that the dyke safety which was considered necessary could have been achieved with less loss of land (but not without any loss of land at all), if the interests of fishing and agriculture had not 37. The German Government has submitted been taken into consideration. The German that the reinforcement of the dyke was Government, moreover, does not dispute necessary for the protection of the people that. living behind the dyke — that is to say, as indicated above (point 31), quite clearly a compelling reason arising from a higher general interest than that with which the directive is concerned — and that that was the only reason for the initiation of the 39. The Commission's submission is based project. The Commission does not dispute on the view that Article 4 of the directive that. It complains, however, that in deter­ does not permit Member States to take mining the new line of the dyke the Federal economic interests into account in drawing Government took into account not solely up projects which may affect an area considerations of safety but also the designated as a protection area. interests of fishing and agriculture. More specifically, the planning decision is, it says, contrary to the directive because, owing to the fact that those other interests were taken into account, the loss in area is greater than It will appear from the foregoing that I am is strictly necessary on grounds of safety. in agreement with the Commission that the reduction in extent of a designated special protection area 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 38. Before dealing with that submission I arising from a general interest which is should like briefly to discuss the evidence more important than the environmental put forward by the Commission in support interest protected by the directive. I am also of it. Neither in its application nor in its in agreement with the Commission that the reply did the Commission put forward an protection of human life is (of course) such alternative plan. Only at the hearing did it a higher interest, that (in the absence of

The German Government has further pointed out that the plans were amended I should point out that the proposal for a twice in order to minimize the loss of land. habitat directive reflects the same approach. It was not possible to go further in avoiding That proposal seeks to amend Directive loss of land without causing significant 85/337 (mentioned in point 13, above) so as harm to fisheries and agriculture. Access to to provide that all projects to be carried out the sea for the fishing fleet from the in a special protection area must be made harbour of Greetsiel — that is to say, the subject to an environmental impact most important German harbour for the assessment. That means that projects in a crab fishery — would be endangered. In protection area are not ipso facto prohibited addition, the drainage of about 35 000 but that the expected benefits must be hectares of agricultural land, much of which

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is under sea level, would become difficult. 42. Although it is not for the Commission, The Commission has admitted that an alter­ or indeed the Court, in deciding whether an native could give rise to not insignificant application under Article 169 of the EEC problems for fisheries and agriculture but Treaty is well founded, to put themselves in argues that that is the price that must be the place of the German authorities, they paid for nature conservation. are required to examine whether those auth­ orities, in balancing environmental and other interests, took adequate account of the environmental interest with which the directive is concerned and whether those authorities thus remained within the discretion which they retain under the directive.

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Germany as regards this part of its landfill operations were no longer being application. The German Government, carried out there. conversely, has asked that the Commission be ordered to pay the costs.

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maps that the Rysumer Nacken is not pan In those circumstances the Commission of the area protected under the regulation cannot maintain that the discontinuance of of 13 December 1985, the Commission did that pan of its application was justified by not drop its complaint, put forward in the the conduct of the German Government. It reasoned opinion, that the works in that could not, on the basis of the information in area were carried out contrary to the its possession when it submitted its provisions of the directive on the protection application, assume that the Rysumer of areas designated as special protection Nacken formed pan of an area designated areas. as a special protection area.

Conclusion

45. To sum up , I propose that the Court dismiss the application and order the Commission to pay the costs, including those of the intervener.

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