C-44/95

ROYAL SOCIETY FOR THE PROTECTION OF BIRDS

JUDGMENT OF THE COURT 11 July 1996 *

In Case C-44/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the House of Lords (United Kingdom) for a preliminary ruling in the case, pending before that court, of

Regina

v

JUDGMENT OF 11. 7. 1996 — CASE C-44/95

THE COURT ,

composed of: G. C. Rodriguez Iglesias, President, D. A. O . Edward, J.-P. Puissochet and G. Hirsch (Presidents of Chambers), G. F. Mancini, J. C. Moitinho de Almeida, P. J. G. Kapteyn, C. Gulmann (Rapporteur), J. L. Murray, P. Jann and M. Wathelet, Judges,

Advocate General: N . Fennelly, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— the Royal Society for the Protection of Birds, by R. Gordon QC and R. Buxton, Solicitor;

ROYAL SOCIETY FOR THE PROTECTION OF BIRDS

after hearing oral argument from the Royal Society for the Protection of Birds, represented by R. Gordon and R. Buxton, the Port of Sheerness Limited, repre­ sented by S. Isaacs, the United Kingdom Government, represented by J. E. Col­ lins, S. Richards and A. Lindsay, the French Government, represented by R. Nadal, Deputy Secretary for Foreign Affairs, Directorate for Legal Matters, Min­ istry of Foreign Affairs, acting as Agent, and the Commission of the European Communities, represented by C. O'Reilly, at the hearing on 7 February 1996,

after hearing the Opinion of the Advocate General at the sitting on 21 March 1996,

gives the following

Judgment

1 By order of 9 February 1995, received at the Court on 24 February 1995, the House of Lords referred to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Articles 2 and 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103 p. 1, hereinafter 'the Birds Directive').

6 According to Article 4(2), 'Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance'.

7 Finally, according to Article 4(4), '[I] n respect of the areas referred to in para­ graphs 1 and 2 above, Member States shall take appropriate steps to avoid pollu-

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tion 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 dete­ rioration of habitats'.

8 Council Directive 92/43/EEC of 21 May 1992 on the conservation of the natural habitats of wild fauna and flora (OJ 1992 L 206, p. 7, hereinafter 'the Habitats Directive'), to be implemented in the United Kingdom by June 1994, provides in Article 7 that the obligations under Article 6(2), (3) and (4) are to replace any obli­ gations arising under the first sentence of Article 4(4) of the Birds Directive in respect of areas classified pursuant to Article 4(1) or similarly recognized under Article 4(2) of that directive. Article 6(2), (3) and (4) of the Habitats Directive is worded as follows:

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.'

9 The United Kingdom did not transpose the Habitats Directive until October 1994.

10 On 15 December 1993, the Secretary of State decided to designate the Medway Estuary and Marshes as a Special Protection Area (hereinafter 'SPA'). At the same time, he decided to exclude from it an area of about 22 hectares known as Lappel Bank.

1 1 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 species 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.

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15 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 classifying an SPA. The Divisional Court found against the RSPB. On appeal by the RSPB, the Court of Appeal upheld that judgment. The RSPB therefore appealed to the House of Lords.

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JUDGMENT OF 11. 7. 1996 — CASE C-44/95

16 Uncertain as to how the directive should be interpreted, the House of Lords stayed proceedings pending a preliminary ruling from the Court of Justice on the following questions:

'1 . 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?

2. 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:

18 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 conser­ vation of all species of birds [covered by the directive]', that 'certain species of birds should be the subject of special conservation measures concerning their hab­ itats in order to ensure their survival and reproduction in their area of distribu­ tion', and, finally, that 'such measures must also take account of migratory species'.

19 That recital is formally reflected in Articles 3 and 4 of the directive. In para­ graph 23 of its judgment in Case C-355/90 Commission v Spain [1993] ECR I-4221 (hereinafter 'Santoña Marshes') the Court pointed out that the first of those provisions imposes obligations of a general character, namely the obligation to ensure a sufficient 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.

20 According to the United Kingdom Government and the Port of Sheerness Lim­ ited, 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 spe­ cific 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).

25 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 protection established by the directive, it must be held (see paragraphs 17 and 18 of Santoña 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.

26 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 Santoña Marshes that, notwithstanding the diver­ gences between the various language versions of the last subparagraph of Article 4(1), the criteria in question are ornithological criteria.

27 In view of the foregoing, the answer to the first question must be that 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 requirements mentioned in Article 2 thereof when designating an SPA and defining its boundaries.

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The second question

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The second part of the second question

32 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 denning its boundaries, take account of economic requirements 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.

33 The United Kingdom Government considers that that question is relevant only to cases of classification decisions made after the expiry of the period for transposi­ tion of the Habitats Directive. Since that is not the case in the main proceedings, it considers that it is unnecessary to answer the question.

34 It is well settled that it is for the national courts alone , before which the proceed­ ings are pending and which will be responsible for the eventual judgment , to deter­ mine , having regard to the particular features of each case, both the need for a pre­ liminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is clear that the interpretation of Community law requested bears no relation to the true nature of the case or the subject-matter of the main action (see in particular Case C-129/94 Ruiz Barnáldez [1996] ECR I-1829, paragraph 7). That is, however, not the case in the main proceedings.

38 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 sig­ nificantly affect an SPA in any event include grounds relating to a superior general interest of the kind identified in Leybucht Dykes and may where appropriate include grounds of a social or economic nature.

39 Next, although Article 6(3) and (4) of the Habitats Directive, in so far as it amended the first sentence of Article 4(4) of the Birds Directive, established a pro­ cedure 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 classification of an area as an SPA referred to in Arti­ cle 4(1) and (2) of the Birds Directive.

40 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.

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41 Economic requirements, as an imperative reason of overriding public interest allowing a derogation from the obligation to classify a site according to its ecolog­ ical 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.

1. Article 4(1) or (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds is to be interpreted as meaning that a Member

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State is not authorized to take account of the economic requirements men­ tioned 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 constitut­ ing a general interest superior to that represented 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 con­ servation of the natural habitats of wild fauna and flora.

Registrar President

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