C-3/96

JUDGMENT OF 19. 5. 1998 — CASE C-3/96

JUDGMENT OF THE COURT 19 May 1998 *

In Case C-3/96,

Commission of the European Communities, represented by W. Wils, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

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APPLICATION for a declaration that, by failing sufficiently to designate 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 (OJ 1979 L 103, p. 1), the Kingdom of the Netherlands has failed to comply with its obligations under that directive and Articles 5 and 189 of the EC Treaty,

THE COURT,

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

Advocate General: N . Fennelly, Registrar: H. von Holstein, Deputy Registrar,

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1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, hereinafter 'the Direc­ tive'), the Kingdom of the Netherlands had failed to fulfil its obligations under that directive and Articles 5 and 189 of the EC Treaty.

2 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.

3 Article 2 of the Directive provides that Member States are to 'take the requisite measures to maintain the population of [all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies] at a level which corresponds in particular to ecological, scientific and cul­ tural requirements, while taking account of economic and recreational require­ ments, or to adapt the population of these species to that level'.

4 Article 3 of the Directive provides:

(c) re-establishment of destroyed biotopes;

(d) creation of biotopes.'

5 Article 4(1) of the Directive reads as follows:

'1 . The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduc­ tion in their area of distribution.

In this connection, account shall be taken of:

(a) species in danger of extinction;

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.'

6 Annex I to the Directive was replaced by the Annex to Commission Directive 85/411/EEC of 25 July 1985 amending Directive 79/409 (OJ 1985 L 233, p. 33).

7 Since it considered in particular that the Kingdom of the Netherlands had not clas­ sified a sufficient number of special protection areas (hereinafter 'SPAs') for the species of birds referred to in Annex I to the Directive, the Commission on 25 September 1989, gave the Netherlands Government formal notice to submit its observations within two months.

8 By letter of 29 December 1989 the Netherlands Government denied the alleged infringement. It submitted essentially that it was not in breach of its obligations under Article 4(1) of the Directive, in that it had classified as SPAs a sufficient 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 pro­ tected species and economic and recreational interests, and that it had also intro­ duced other instruments for the protection of birds.

9 Since those explanations did not cause it to alter its position on the alleged failure to fulfil obligations, 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 com­ plaint of not having classified as SPAs sufficient territories to ensure effective pro­ tection of the species mentioned in Annex I to the Directive.

12 The Netherlands Government 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.

13 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 Govern­ ment'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 ter­ ritories had been classified as SPAs in the meantime. The Commission says that it did in fact take that into account in its application.

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14 The Court points out that the procedure laid down in Article 169 of the Treaty comprises two consecutive stages, the pre-litigation or administrative stage and the contentious stage before the Court (see the order in Case C-266/94 Commission v Spain [1995] ECR I-1975, paragraph 15).

15 Under the first paragraph of Article 169, 'p]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'.

20 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 opin­ ion, 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 fulfil obligations.

21 The first plea of inadmissibility must therefore be rejected.

Nature of the obligation laid down in Article 4(1) of the Directive

22 The Netherlands Government submits, second, that the alleged infringement con­ sists 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) of the Directive territory by territory. The Government submits essentially that the Commission is complaining that it failed generally to fulfil 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.

23 According to the Commission, the submission that infringements of Article 4(1) of the Directive can only be established territory by territory is incorrect. An infringement may equally well be established if it is apparent that a Member State has clearly classified as SPAs many fewer habitats than required by ornithological criteria.

27 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 suf­ ficient SPAs from the point of view of Article 4(1) of the Directive . In the Com­ mission's contention , Article 4(1), by providing that Member States are to classify as SPAs the most suitable territories in number and size for the conservation of the

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species mentioned in Annex I to the Directive, implies an obligation which is not only quantitative but also qualitative, in that the obligation of result under that provision means that each Member State must designate SPAs of sufficient number, area and variety to ensure the survival and reproduction of all the species of birds' mentioned in Annex I which are on its territory.

28 The Commission also contends that it substantiated its allegations on the basis of an ornithological study published in 1989 {Inventory of Important Bird Areas in the European Community, July 1989, hereinafter 'IBA 89'), its reliance on IBA 94 being altogether redundant.

29 In so far as an application refers to complaints which were not the subject-matter of the pre-litigation procedure, it is inadmissible (see, to that effect, Case 298/86 Commission v Belgium [1988] ECR 4343, paragraph 10, and Case C-274/93 Com- mission v Luxembourg [1996] ECR I-2019, paragraph 11).

33 The action must therefore be declared inadmissible in this respect.

34 As to the references to the Friesian IJsselmeer coast and the Hooge Platen on the Western Scheldt, these do not constitute a separate new complaint inasmuch as they serve merely as examples to illustrate the alleged infringement and are taken from the list, annexed to the letter of formal notice and the reasoned opinion, of areas which the Commission considers suitable for classification as SPAs. Those references are therefore permissible, in that they do not require the Court to rule specifically on the question whether those two areas must be classified as SPAs.

35 As to the reference to IBA 94, it should be noted, first, that that report, which dates from December 1994, draws up a list of areas which must, according to the scientific criteria accepted by the Commission, be classified as SPAs in the Neth­ erlands.

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36 Second, the question whether a Member State has failed to fulfil 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, and the Court cannot take account of any subsequent changes (see, in particular, Case C-60/96 Commission v France [1997] ECR I-3827, paragraph 15).

JUDGMENT OF 19. 5. 1998 — CASE C-3/96

41 The Commission points out that the Netherlands Ministry of Agriculture and Fisheries has drawn up its own list of potentially classifiable territories, which con­ tains 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 scientific criteria on which its list of territories poten­ tially classifiable as SPAs is based.

42 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 manifestly exceeded the limits of the discretion conferred on Member States by Article 4 of the Directive.

43 On this point , the Commission maintains , first, that the sites classified by the Netherlands coincide, wholly or partly, with 33 sites mentioned in IBA 89, in other words less than half the total number of sites considered by that scientific report to be suitable for classification as SPAs, and that their number represents only slightly over half the 57 sites listed in IBA 89 which the Netherlands authori­ ties themselves regarded as important areas for birds . Second, the total area of the 23 SPAs in the Netherlands is also quite insufficient: 327 602 hectares as against the 797 920 hectares covered by the 70 sites mentioned in IBA 89. Moreover , as one SPA, the Waddenzee , alone extends to 250 000 hectares, the remaining SPAs cover only 77 602 hectares, which is not sufficient to guarantee adequate protection for a large number of the species of birds listed in Annex I to the Directive .

48 On this point, the Netherlands Government observes that the previous cases before the Court all related to whether a Member State should have classified 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.

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49 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 specific factors mentioned in that provision but also of economic and recreational requirements, in accordance with Article 2 of the Direc­ tive.

so 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 lor conservation of the species concerned and capable, 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 classified, but rather requires Member States to ensure that the SPAs which are created are suitable for the conservation of endangered species of birds.

51 The Netherlands Government adds that it used three criteria, which also form the basis of IBA 89, to draw up its list of sites to be protected. However, because of the general character of those criteria, their application does not produce unequivocal results. That is why differences may appear between the territories which, according to IBA 89, satisfy the criteria of Article 4(1) of the Directive and those which are designated as SPAs by the Member State concerned.

55 It must first be observed that, contrary to the contention of the Kingdom of the Netherlands, Article 4(1) of the 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.

56 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 (see Case C-334/89 Commission v Italy [1991] ECR I-93, paragraph 10)

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57 Such an interpretation of the obligation to classify SPAs is moreover consistent with the system of specifically targeted and reinforced protection laid down by Article 4 of the Directive in respect in particular of the species listed in Annex 1 (see Case C-44/95 R v Secretary of State for the Environment, ex parte Royal Soci- ety for the Protection of Birds [1996] ECR I-3805, paragraph 23), a fortiori since even Article 3 provides, for all the species of birds covered by the Directive, that the preservation, maintenance and re-establishment of biotopes and habitats is to include primarily measures such as the creation of protected areas.

58 Besides, as the Advocate General points out in point 33 of his Opinion 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.

63 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 fulfil its obligation under Article 4(1) of the Directive.

64 Consequently, the Netherlands Government's argument that the Commission must establish, territory by territory, specific infringements of that provision can­ not be accepted.

65 Third, it should be observed, that the Netherlands Government, while not ques­ tioning the scientific reliability of IBA 89, contends that the application of the cri­ teria on which that report is based cannot, in view of their general character, lead to unequivocal results as regards the classification 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 89.

66 In that regard it is significant that the Kingdom of the Netherlands has to this very day failed to produce a single document from the national procedure for clas­ sifying SPAs which indicates the criteria which governed the designation of SPAs in that Member State.

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71 It should be added that, even supposing that the application of the ornithological criteria in IBA 89 could lead different entities to produce markedly different clas­ sifications of SPAs, the mere possibility of this, which has not been shown to have occurred in the present case, cannot as such be taken into consideration in order to undermine the probative value of IBA 89 in this instance.

72 Since it thus appears that the Netherlands has classified as SPAs territories whose number and total area are clearly smaller than the number and total area of the ter­ ritories suitable, according to IBA 89, for classification as SPAs, the requirements of Article 4(1) of the Directive cannot be regarded as satisfied.

73 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 territo­ ries whose number and total area are clearly smaller than the number and total area of the territories suitable for classification as SPAs within the meaning of Article 4(1) of the Directive, the Kingdom of the Netherlands has failed to fulfil its obliga­ tions under that directive.

Costs

1. Declares that, by classifying as special protection areas territories 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 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.

Rodríguez Iglesias Gulmann Ragnemalm

Wathelet Schintgen Moitinho de Almeida

Kapteyn Murray Edward