C-83/97
ECLI:EU:C:1997:514
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OPINION OF MR FENNELLY — CASE C-83/97
O P I N I O N O F ADVOCATE GENERAL FENNELLY delivered on 23 October 1997 *
1. Council Directive 92/43/EEC of 21 May the Directive, and setting a two-month dead- 1992 on the conservation of natural habitats line for compliance. The present proceedings and of wild fauna and flora 1 (hereinafter 'the were initiated pursuant to Article 169 of the Directive') was notified to the Federal Treaty by an application registered at the Republic of Germany on 5 June 1992. Court on 24 February 1997. Article 23(1) required Member States to 'bring into force the laws, regulations and administrative provisions necessary to com- ply with this Directive within two years of its notification [and] forthwith [to] inform the Commission thereof'. For Germany, this deadline therefore expired on 5 June 1994. 3. In its application, the Commission observes that, as far as it is aware, not all the provisions necessary to comply with the Directive have been adopted or notified, and that the defendant neither answered nor complied with the reasoned opinion. On this ground, it requests the Court to hold that Germany is in breach of its obligations under the Treaty, and in particular the third paragraph of Article 189 and the first para- graph of Article 5 thereof.
2. In the absence of any indication that the Directive had been transposed into German law, the Commission opened the pre- litigation stage of the procedure provided by Article 169 of the Treaty establishing the European Community ('the Treaty') by 4. In its defence, Germany admits that it has sending a letter of formal notice on 9 August not adopted all the necessary measures to 1994. Germany did not contest the com- comply with its obligations under the Direc- plaint in its reply of 6 October 1994. The tive. It adds by way of complementary infor- Commission issued a reasoned opinion on mation that the Directive is directly applied 28 November 1995, to the effect that in fail- by the competent public authorities, and that ing to adopt the necessary provisions, Ger- the existing national provisions are inter- many was in breach of its obligations under preted in conformity therewith. Further- more, a bill to amend the Bundesnaturs- chutzgesetz (Federal law on nature * Original language: English. protection) has been submitted to the Bund- 1 — OJ 1992 L 206, p. 7. estag (Federal Assembly, lower house of
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parliament); the legislative procedure was words in a specific express legal provision of scheduled to be completed by Autumn 1997. national law; a general legal context may be sufficient if it actually ensures the full appli- cation of the directive in a sufficiently clear and precise manner'. 4 It added a proviso to this general statement which is especially rel- evant in the present proceedings, to the effect that 'a faithful transposition becomes par- ticularly important in a case such as this in which the management of the common heri- tage is entrusted to the Member States in their respective territories'. 5
5. The Directive is predicated on the state- ment in the first recital in the preamble that 'the preservation, protection and improve- ment of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, are an essential objective of general interest pursued by the Community'. The fourth recital notes that, as 'the threatened habitats and species form part of the Community's natural heritage 6. Germany has expressly admitted its fail- and the threats to them are often of a trans- ure to adopt all of the necessary provisions boundary nature, it is necessary to take mea- to comply with the Directive; it has not con- sures at Community level in order to con- tended that the action of the public authori- serve them'. This Directive is closely linked ties, or the interpretation of the relevant to Council Directive 79/409/EEC of 2 April national provisions, ensures such compli- on the conservation of wild birds 2 (hereinaf- ance, and, indeed, the Court has consistently ter 'the Birds Directive'). 3 The definition of held that '[mere] administrative practices, the obligation to transpose the Birds Direc- which by their nature are alterable at will by tive laid down by the Court from its earliest the authorities and are not given the appro- judgments in this area seems to me to be priate publicity, cannot be regarded as con- applicable, mutatis mutandis, to the obliga- stituting the proper fulfilment of obligations tion to transpose the present Directive. In under the Treaty'. 6 In these circumstances, I Commission v Belgium, for example, the am of the opinion that the Commission Court held that transposition 'does not nec- should be granted the declarations which it essarily require the provisions of the direc- has requested both on the merits and as tive to be enacted in precisely the same regards costs.
2 — OJ 1979 L 103, p. 1. 4 — Case 247/85 [1987] ECR 3029, paragraph 9 of the judgment. 3 — Sec paragraph 70 of my Opinion in Case C-44/95 Royal 5 — Loc. cit. Society for the Protection of Birds [1996] ECR I-3805, at 6 — Case C-334/94 Commission v France [1996] ECR I-1307, pp. I-3832 and I-3833. paragraph 30 of the judgment.
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Conclusion
7. In the light of the foregoing, I recommend to the Court that it:
(1) Declare that, by failing to adopt the laws, regulations and administrative pro- visions necessary to comply with Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora within the deadline set, the Federal Republic of Germany has failed to comply with its obligations under the E C Treaty;
(2) Order the Federal Republic of Germany to pay the costs.
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