C-96/98

OPINION OF MR FENNELLY — CASE C-96/98

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 8 July 1999 *

1. In this infringement action, the Commis- France. It contains natural wet prairies sion is seeking a declaration that France has which provide nesting, feeding and resting not complied with its obligations under grounds for large numbers of migratory Article 4 of the Birds Directive, 1in parti- and nesting species of wild birds, as well as cular by failing to classify a sufficiently numerous other habitats which are suitable large proportion of the total area of the for the conservation of wild birds, such as Marais Poitevin (hereinafter 'the Marsh') as lagoons, dunes, polders, woods, peat bogs, areas of special protection ('SPAs'), by hedgerows and copses, waterways and failing to adopt a sufficient protection other aquatic environments. The Marsh is regime and allowing the deterioration of inhabited by large numbers of endangered habitats, and by declassifying a small area wild bird species listed in Annex I to the of an SPA previously notified. Directive; it is also used as a staging post or wintering area by other wild bird species, and contains wetlands of unique impor- tance for the migration of avifauna from Africa to Northern Europe, which come within the scope of the Ramsar Conven- tion. The Marsh is an essential staging post for more than 28 migratory species and is of the first importance for two species, the black-tailed godwit and the lapwing. The I — Facts and procedural background Bay of Aiguillon is, in particular, a winter- ing area for thousands of anatides (ducks).

edged the ornithological importance of the an action plan for the Marsh and a circular Marsh, and stated that an area of 28 693 concerning the extent of the wetlands in the hectares (corrected to 26 250 hectares by Marsh. The Commission initiated the pre- letter of 7 December 1993) had been clas- sent proceedings by an application regis- sified as an SPA. It also informed the tered at the Court on 3 April 1998. Commission that measures had been taken to prevent any further deterioration of the area. By letter of 28 June 1994, France informed the Commission that the area of the 'Marais Poitevin intérieur' SPA pre- viously notified had been reduced by a 300 metre strip to permit the construction of the A 83 motorway. By letter of 8 March 1995, France informed the Commission of I I— The relevant provisions of Commu- its intention to classify some 3 500 hectares nity law west of Route Nationale 137 as an SPA, though without indicating when the classi- fication would take place. 5. The provisions of the Directive are well known to the Court, and need not be reproduced here in extenso. The principal obligations at issue are those imposed on the Member States, firstly, by Article 4(1) and (2), to 'classify in particular the most suitable territories in number and size as special protection areas for the conserva- tion of [endangered and migratory] species, taking into account their protection requirements in the geographical sea and land area where this Directive applies', and, 4. On 28 November 1995, the Commis- secondly, by Article 4(4), to avoid pollution sion issued a reasoned opinion alleging that and deterioration of habitats, and distur- France was in breach of its obligations bances of birds, in respect of the areas so under Article 4 of the Directive, and invit- classified, 'in so far as these would be ing it to take steps to comply with the significant having regard to the objectives opinion within two months. By letter of of this Article'. 1 June 1996, France pointed out that a further 3 540 hectares in the Charente- Maritime département had been classified as an SPA but that, because of the drainage and cultivation of the prairies, it would not be possible to make further classifications, except in marginal respects. Following a 6. Article 7 of the 1994 Habitats Direc- meeting between the French authorities and tive, 4 which modifies the obligations of the the Commission services in May 1997, France communicated to the Commission a Ministerial decision establishing the 4 — Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and 'Grand Site Naturel du Marais Poitevin', flora; OJ 1992 L 206, p. 7.

8. The Commission's first complaint is that, as of the expiry of the date for compliance with its reasoned opinion, 7. Article 6(2) of the Habitats Directive 28 January 1996, the total area of the obliges the Member States to take appro- Marsh classified as SPAs was insufficient priate steps to avoid 'the deterioration of having regard to France's obligations under natural habitats and the habitats of species Article 4(1) and (2) of the Directive. In as well as disturbance of the species for support of its complaint, it cites three which the areas have been designated, in so studies carried out in 1987, 1989 and far as such disturbance could be significant 1990 respectively, each of which estimates in relation to the objectives of this Direc- at 57 830 hectares the total area of the tive' in such designated areas. Article 6(3) Marsh which is of significant ornithological and (4) provides for a new system for interest. The 'most relevant reference' for assessment of plans which may be permit- the Commission is, however, the 1994 ted to proceed notwithstanding their nega- inventory of important areas for bird tive effect on habitats if justified by conservation (Zones importantes pour la 'imperative reasons of overriding public Conservation des Oiseaux, hereinafter interest'. 'ZICO') commissioned by the French Gov- ernment, which puts the total at 77 900 hectares. The Commission also notes that the Marsh was identified by the French Ministry of the Environment in 1995 as the third most important ZICO in France. By only classifying some 26 250 hectares (a The Commission has informed the Court in these proceedings that the deadline for implementation of the Directive by France 5 — See paragraphs 18 and 38 below.

figure corrected to 29 842 hectares in Marsh which constitutes a suitable habitat France's statement in defence, and accepted for endangered and migratory wild birds by the Commission) by the date of com- has been greatly reduced. It draws attention pliance with the reasoned opinion, the to the progressive intrusion of agricultural Commission claims France has exceeded activity involving the drainage and cultiva- its margin of discretion in regard to the tion of land for cereal production, encour- choice of sites for classification as SPAs. aged by the Community's common agricul- tural policy, though it does not suggest that this is a defence in law to the complaint that it failed to protect the Marsh. The reduction in effective Marsh area seems to 9. In the conclusions to its statement of be of the order of 30 to 40%. These facts defence, France expressly admits that the are sufficient, in my view, for the Commis- extension of the total area of existing SPAs sion to succeed under this head of com- (33 742 hectares as of the date of drafting plaint. of its defence) to 49 000 hectares 'might be desirable', and invites the Court to declare this head of complaint 'partly unfounded', as it has complied with its obligations in this regard 'to a large extent'. It also argues that the Commission has failed to identify either the location or the area of the sites which it claims should be classified, that it is not obliged under the Directive to classify all the sites identified in either the ZICO inventory or earlier studies, and that the Commission does not contend that the territories which have been classified are not the most suitable for the conservation 11. France's plea that the Commission has of wild birds. failed to identify the location or area of the sites which should be classified is not, in my view, either relevant or well founded. The duty of identifying the actual sites which must be classified falls in the first place on 10. While it has not explicitly admitted the Member States; the Commission does that it had, as of 28 January 1996, failed to not allege, under this head of complaint, classify a sufficiently large total area of the that France has failed to classify, or failed Poitevin Marsh as SPAs, France does not to protect, a particular site or sites. In seek to argue that it had complied fully Commission v Netherlands, the Court held with its obligations under the Directive in that 'where it appears that a Member State this regard. It has not denied the existence has classified as SPAs sites the number and of a considerable discrepancy between the total area of which are manifestly less than total area classified and the total area the number and total area of the sites identified as being of ornithological inter- considered to be the most suitable for est, whether the figures relied upon are conservation of the species in question, it those contained in the ZICO inventory or will be possible to find that that Member in previous studies. France fully accepts State has failed to fulfil its obligation under that, over a long period, the area of the Article 4(1) of the Directive', and the

14. France claims that the common agri- 12. The Commission's second head of cultural policy of the Community conflicts complaint is that France has, in breach of with environmental protection and makes Article 4(4) of the Directive, failed to adopt it difficult for France to match Community- a complete, efficient and stable protection financed aids for production with agri- regime in the areas which were, or should environmental ones, which require a sig- have been, classified as SPAs. In its view, nificant contribution by the French State. 7 the existence of such a regime requires the It also refers to a series of measures adoption of legally binding rules which 7 — See Council Regulation (EEC) No 2078/92 of 30 June 1992 on agricultural production methods compatible with the 6 — Case C-3/96 Commission v Netherlands [1998] requirements of the protection of the environment and the ECR 1-3031, paragraph 63. maintenance of the countryside, OJ 1992 L 215, p. 85.

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concerning the protection of biotopes, the listed in Annex I which are, nevertheless, creation of a nature reserve in the Bay of regular visitors.' 8It seems to me therefore Aiguillon and the Law of 3 January 1992 that two distinct but inseparable obliga- concerning water. It further argues in its tions arise for the Member States under rejoinder that the Directive does not, in any these provisions: an obligation formally to case, oblige the Member State to adopt determine the location and extent of the specific protection measures for SPAs. most suitable territories and to classify them as SPAs, and an obligation to estab- lish in such areas the legal protection regime which is necessary to ensure the objectives of the Directive are achieved.

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objective which is equally pursued by the nature of the deterioration of habitats Article 4(4), both before and after the entry in the present case, it is worth considering into force of the Habitats Directive. More- the reason for this conclusion. over, France has not sought to rely on Article 7 of the Habitats Directive in order to demonstrate that it had, by the latter date, complied with its obligations under Article 4 of the Birds Directive.

20. The Court cited, as in other cases, the language of the ninth recital in the preamble to the Directive, which reads:

9 — Case C-355/90 Commission v Spain (hereinafter 'Santoña Marshes') [1993] ECR I-4221. 10 — Loc. cit., paragraph 22.

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fore, to areas classified under Article 4(1) appropriate steps to avoid pollution or and (2). This is clear, not only from the fact deterioration of habitats or any distur- that that expression does not correspond to bances affecting birds' cannot be consid- the wording, 'special protection areas', ered in isolation from 'special conservation used in Article 4(1), but from the fact that measures concerning [birds'] habitat in the broader protective purposes of Arti- order to ensure their survival and repro- cle 4(1) and (2) are clearly not limited to duction in their area of distribution'; this those areas. latter phrase identifies the result to be achieved within the meaning of the third paragraph of Article 189 of the EC Treaty (now Article 249 EC). The Commission acknowledges this overlap between the two provisions and says that Article 4(4) is broader. Consequently, in addressing the 21. Of particular relevance for the present issue of the avoidance of 'pollution or case is the second sentence of Article 4(2): deterioration of habitats', I think it is permissible to consider the adequacy of the 'conservation measures' which should have been taken to 'ensure [birds'] survival and reproduction in their area of distribu- tion'.

'To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.'

24. I also agree with the Commission that to wetlands and has no relevance to those the 1992 Law on Water, where it applies in parts of the Marsh which, as I have said at the Marsh, falls well short of providing the paragraph 2 above, contain other types of legal protection regime described by the habitat. Court in Seine Estuary. 12 Inthe first place, according to France, the Law, as inter- preted by the Cour de Cassation (Court of Cassation) in its judgment of 25 March 1998, subjects to an authorisation proce- dure any work in wetlands or marshes which will result in the drying out of an area of 10 000 m 2 or more. I do not see how such a limited provision could be said 25. France contends that, since 1991, it has implemented local agri-environmental mea- to ensure the necessary level of protection sures on the entirety of the most important of endangered or migratory species. There territories for the conservation of bird are, as the Commission points out, two habitats. In particular, between 1990 and major shortcomings in this provision in so 1995 the entirety of the Marsh had been far as it relates to France's compliance with covered by coordinated operations of land- Article 4(4) of the Directive. Firstly, it does use management ('Opérations Groupées not prohibit developments such as those d'Aménagement Foncier', hereinafter which have occurred in the Marsh since the OGAF') of an environmental character, Directive came into force. Although France followed by local operations, and more claimed at the hearing that these might be than 85% of the prairies are covered by prohibited particularly in accordance with contracts. By encouraging the maintenance the Law on Water, it is clear that, at best, of extensive cultivation, it claims to have ornithological interests constitute merely conserved wetlands, and avoided drainage one of a number of considerations, which and hydraulic modifications. It also claims include social and economic ones, to be to have slowed down or even stopped new placed in the balance. This approach is cultivation in the areas covered by these incompatible with the ruling of the Court measures. in RSPB 13 that such considerations could not be taken into account in applying Article 4. Secondly, the Law applies only

27. The OGAF measures do not, of course, affect the Bay of Aiguillon, which is not threatened by intensive farming and is entirely within public maritime property. France, however, relies upon the establish- ment of a nature reserve covering 2 300 hectares of the Bay. Even if the latter were to be considered a sufficiently specific protection measure, which I doubt, it did not occur until July 1996, some months 29. The third head of complaint concerns after the expiry of the date for compliance the deterioration of bird habitats due to with the Commission's reasoned opinion. motorway construction works. In particu- For the reasons I have given above, this fact lar the Commission charges France with cannot therefore be taken into account. excluding from the 'Marais Poitevin intér- Nor does the fact that the property in ieur' SPA a strip of land 300 metres wide question was owned by the State constitute through which runs a section of the new a proper protection regime for the purposes A 83 Nantes to Niort motorway linking of the Directive; though acknowledging Sainte-Hermine and Ouïmes. This resulted that the Seine Estuary SPA was State-owned in the isolation of one section of the SPA land, the Court concluded that '[for] want from the remainder, disturbance of the of any specific substantive measures' birds by reason of the works, and a France had failed to provide this with an reduction in' the area of the SPA. In its adequate legal protection regime. 14 view, the declassification of this strip con- stitutes an infringement of France's obliga- tions under Article 4(4) of the Directive, as 14 — Case C-166/97, cited at footnote 8 above, paragraphs 25 it applied at the time the works were and 26. carried out, that is prior to the partial

31. It is important, though not easy, to establish the chronology of the classifica- tion of the area involving the contested strip on the one hand and its formal 33. According to the Commission, it was designation as part of a motorway on the informed by France by letter dated 6 July other. This inquiry is not assisted by the 1993 that it had designated 25 625 hec- rather surprising fact which emerged from tares in the Marsh as an SPA. In its reply of answers to questions at the hearing, that 27 September 1993 to the letter of formal the classification of a site as an SPA is notice, the French Government confirmed deemed to be effected in France by the that it had recently designated 25 625 sending of a letter informing the Commis- hectares, including 'the zones of prairies sion of the classification, without any other concerned with the environmental OGAF, formal legal or administrative step being Nord des Iles, Maillezais and the central required.

16 — Case C-48/91 Netherlands v Commission [1993] 15 — Case C-44/95, cited at footnote 13 above. ECR I-5611, paragraph 17.

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sector in Vendée amounting to 21 917 the formal classification of the SPA. In my hectares'. While it is not possible from a view the vague generalities quoted above study of the maps or the descriptions from France's defence are wholly insuffi- furnished in the pleadings to identify with cient to establish that it had designated the any precision these areas or descriptions contested site as being destined for use as a with the contested strip, it seems to me that section of the A 83 prior to the classifica- France does not seriously contest that it tion of the SPA. falls within one of them. If it were other- wise, France should have stated this clearly with supporting evidence.

17 — The formal administrative designation of the land as being destined for public purposes, following public enquiries 18 — Case C-166/97, cited at footnote 8 above, paragraphs 39 and the opinion of the Conseil d'État. to 47.

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20 — Case C-57/89 Commission v Germany (hereinafter 'Ley- 19 — Case C-166/97, cited at footnote 8 above, paragraphs 44 bucht Dykes') [1991] ECR 1-883, paragraph 20. to 46. 21 — Loc. cit., paragraph 22.

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IV — Conclusion

40. In the light of the foregoing, I recommend to the Court that it:

(1) Declare that, by failing to classify as a special protection area a sufficiently large area of the Marais Poitevin, by failing to adopt measures to provide the classified special protection area with an adequate protection regime, by declassifying a strip of land previously classified as a special protection area in order to allow motorway construction works and by allowing significant disturbances affecting wild birds in that area, the French Republic has failed in its obligations under Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;