C-166/97

COMMISSION v FRANCE

OPINION OF ADVOCATE GENERAL FENNELĽY delivered on 10 December 1998 *

1. In this infringement action, the Commis­ according to criteria which corresponded to sion is seeking a declaration that the French those of the Directive. An area of some 21 900 Republic had, by 3 September 1995, failed to hectares in the Seine estuary figures under classify a sufficiently large Special Protection reference H N 03 in the inventory. The Euro­ Area (hereinafter 'SPA') in the Seine estuary pean ornithological inventory 'Important Bird for the purposes of the wild birds directive, · Areas in Europe', published in 1989, men­ that the protection regime adopted for the tioned an area of 7 800 hectares in the estuary. SPA classified in 1990 was legally inadequate, and that the construction of a titanogypsum plant had led to the deterioration of the SPA.

I-1721

OPINION OF MR FENNELLY — CASE C-166/97

titanogypsum. In their replies of 7 and II — The relevant provisions of Community 22 November 1991, the French authorities law argued that the plant was outside the SPA which had been classified, though they pro- vided 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 crex), a species 6. The provisions of the Directive are well protected under Annex I to the Directive. O n known to the Court, and need not be repro- 23 December 1992, the Commission sent duced here in extenso. 4 The principal relevant France a formal letter of complaint pursuant obligations at issue are those imposed on the to Article 169 of the Treaty establishing the Member States, firstly, by Article 4(1) and (2), European Economic Community, to which to 'classify in particular the most suitable ter- the French authorities replied on 18 Novem- ritories in number and size as special protec- ber 1993. The Commission delivered a rea- tion areas for the conservation of [endangered soned opinion on 3 July 1995 alleging the and migratory] species, taking into account insufficiency of the area and of the legal pro- their protection requirements in the geo- tection regime of the Seine estuary SPA, as graphical sea and land area where this Direc- well as the failure to prevent the deterioration tive applies', and, secondly, by Article 4(4), to of the area; the French authorities were invited avoid pollution and deterioration of habitats, to take the necessary measures to comply with and disturbances of birds, in respect of the the opinion within two months. In their reply areas so classified, 'in so far as these would be of 19 October 1995, they informed the Com- significant having regard to the objectives of mission of their intention to classify an addi- this Article'. tional 10 000 hectares as an SPA, while con- testing the remainder of the Commission's allegations. Following a further scientific study, Decree N o 97-1329 of 30 Decem- ber 1997 3 established the Nature Reserve of the Seine Estuary, and classified an additional III — Analysis 14 500 hectares as an SPA.

state of affairs persisted until after the expiry 9. It is settled case-law that 'the question of the period allowed for compliance with the whether a Member State has failed to fulfil its requirements of the reasoned opinion. I there- obligations must be determined by reference fore propose that the Court grant the Com- to the situation prevailing in that State at the mission the declaration it has sought in regard end of the period laid down in the reasoned to the first ground of complaint. The matters opinion'. 5 In its reasoned opinion, so far as raised by France at the oral hearing to explain the issue under consideration is concerned, its delay in meeting its obligations, such as the Commission relied solely on the insuffi- local opposition and the need to take account ciency of the contractual regime of legal pro- of future economic development, are clearly tection provided under the Agreement, while not relevant here. expressly conceding that France had in fact classified as an SPA an area of 2 750 hectares within the land which was covered by the contract. The Commission did not seek to show that France had failed in its substantive obligations under Article 4(4) of the Direc- tive, 6 by failing to prevent the pollution or deterioration of bird habitats, or disturbances (b) The legal protection regime of the SPA affecting the birds, in the areas so classified. under the Agreement This line of argument is faithfully reproduced in its application before the Court.

State failed to protect those interests on its (c) The construction of a titanogypsum plant own land, I cannot see any purpose in entering at Le Hode on the abstract question of whether a con- tractual regime can secure adequate protec- tion. In any event, some 80 % of the affected area (3 300 hectares) was included at all mate- rial times in the SPA (2 750 hectares) classi- fied in 1990. The Commission has not made any specific point regarding the 550 hectares omitted from the SPA, an issue which relates 13. The Commission's third head of com- to the first ground of complaint. plaint is that the French authorities allowed the construction of a titanogypsum plant in an area which should have been classified within the Seine estuary SPA, and that by so doing France has breached its obligations under the first sentence of Article 4(4) of the Directive. It relies on the fact that the plant and its appurtenances, which cover 50 hect- ares, are situated in wetlands which are very important for the staging, feeding and repro- duction of numerous endangered and migra- 11. I therefore recommend that the Court tory species of wild birds. At the hearing, the reject the Commission's complaint concerning Commission indicated that this was the only the insufficiency of the legal protection regime point under the third head of complaint which of the SPA under the Agreement of 11 April concerned it, and I do not therefore propose 1985, on the ground that it was no longer in to deal with the other aspects raised in its force on the expiry of the deadline for com- written pleadings. pliance with the reasoned opinion.

15. France has vigorously contested the Com- case the Commission has not provided mission's allegations in this regard, both on any scientific evidence to demonstrate that the ground that it was not obliged under the the area should have been classified; Directive to classify the terrain in question as an SPA, and because the operation of the plant docs not constitute a breach of its obligations under Article 4(4) to maintain the habitats actually protected. It relies in particular on the following arguments: — the site chosen for the titanogypsum plant was not amongst the most important sites as regards biodiversity, as classified by the regional environment department ('Direc- tion Régionale de l'Environnement' or — the construction öf the titanogypsum plant 'DIREN'). Moreover, the site could not is a direct consequence of the application be classified as 'wetlands' in accordance of Council Directive 92/112/EEC of with the Ramsar Convention, and it had 15 December 1992 on procedures for har- in fact dried out several decades ago, monising the programmes for the reduc- though it was still generally described as tion and eventual elimination of pollution marshland; caused by waste from the titanium dioxide industry; 8

— the construction had been preceded by — the storage of titanogypsum carried out at two environmental impact assessment the Le Hode plant did not contravene the studies in 1991 and 1993, the latter study conservation requirements of Article 4(4) concluding that the titanogypsum deposit because artificial gypsum is not cco-toxic, would not cause any significant deteriora- the water discharges contain a very low tion in the habitat of the species con- quantity of pollutants, the storage of cerned; this was confirmed by an inde- gypsum to a maximum height of 25 metres pendent assessor following a public is not such as to disturb the migratory enquiry into the operation of the plant in behaviour of birds, and the operation of December 1994 and January 1995; the site has only increased road traffic by 2.3%;

19. That said, I find it difficult to see how the Commission can rely upon a study drawn up in 1994 to prove that a particular territory 17. In order for the Commission to succeed was amongst the most suitable territories for under this head, it must first show that the classification at the time of the construction site was amongst the 'most suitable territories of the titanogypsum plant in 1992. If, as ... for the conservation of [the] species [con- France maintains, the Z I C O was a prelimi- cerned]', and hence that France was under an nary inventory of the sites of ornithological obligation to classify it as, or within, an SPA. interest from which the most suitable territo- It is settled case-law that 'in proceedings ries would be chosen, then it follows that the under Article 169 ... it is incumbent upon the mere inclusion of the site in question in the Commission to prove the allegation that the Z I C O does not show that it should have been obligation has not been fulfilled ... and in so classified as an SPA. Member States should be doing the Commission may not rely on any encouraged to arrange for comprehensive sur- presumption'. 9 As proof of such suitability, veys of their national territories with a view

9 — Case 96/81 Commission v Netherlands [1982] ECR1791, paragraph 6. 10 — Case C-44/95, cited in footnote 4 above.

I - 1726

COMMISSION v F R A N C E

21. It is not contested that a plant for the (d) Costs treatment and storage of titanogypsum has been constructed on an enclave in the (cur- rent) Seine estuary SPA; it is also clear from a study published by the D I R E N in April 1995 that the enclave falls within the nesting area of the Corncrake. The nesting area, which 23. In the present case, the Commission has hosts some 15 to 50 couples, is, however, won on the principal head of complaint, and much larger than the enclave, and the Com- the initiation of the proceedings may have mission has not shown that the site was itself encouraged France to bring the lengthy clas- amongst the 'most suitable territories' for sification procedure to a close. Its application classification. In particular, it has not was not, however, contested on this head; had responded to France's citation of the study by the Museum of Natural History on 12 — United Nations Treaty Scries Volume 996, p. 2<i5¡ sec also Commission Recommendation 75/6G/EEC of 20 December 1974 to Member States concerning the protection of birds and their habitats (OJ 1975 L 21, p. 24), recommending that 1 1 — Casc C-3/96, cited in footnote 5 above, paragraph GI. Member States accede to the Ramsar Convention,

I-1727

OPINION OF MR FENNELLY — CASE C-166/97

this been the only head of complaint, the mission would have failed on the two con- Commission would, in all probability, have tested heads of complaint. In these circum- withdrawn the case after the adoption of stances, I would consider it appropriate for Decree N o 97-1329 of 30 December 1997, the Court to order each party to bear its own before the lodging of its reply. Should the costs, in accordance with Article 69(3) of the Court follow my recommendations, the Com- Rules of Procedure.