C-256/98

' 1. For special areas of conservation. Mem- * Original language: English. ber States shall establish the necessary 1 — OJ 1992 L 206, p. 7, hereinafter the '[Habitats] Directive'. conservation measures involving, if need

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be, appropriate management plans specifi- 4. If, in spite of a negative assessment of the cally designed for the sites or integrated implications for the site and in the absence into other development plans, and appro- of alternative solutions, a plan or project priate statutory, administrative or contrac- must nevertheless be carried out for tual measures which correspond to the imperative reasons of overriding public ecological requirements of the natural interest, including those of a social or habitat types in Annex I and the species in economic nature, the Member States shall Annex II present on the sites. take all compensatory measures to ensure that the overall coherence of Natura 2000 is protected. 2It shall inform the Commis- sion of the compensatory measures adopted.

2. Member States shall take appropriate steps to avoid, in the special areas of Where the site concerned hosts a priority conservation, the deterioration of natural natural habitat type and/or a priority habitats and the habitats of species as well species, the only requirements which may as disturbance of the species for which the be raised are those relating to human health areas have been designated, in so far as or public safety, to beneficial consequences such disturbance could be significant in of primary importance for the environment relation to the objectives of the Directive. or, further to an opinion from the Commis- sion, to other imperative reasons of over- riding public interest.'

obligations arising under the first sentence tion of projects was still under legal con- of Article 4(4) of Directive 79/409/EEC in sideration. On 18 April 1995 France respect of areas classified pursuant to informed the Commission of the adoption Article 4(1) or similarly recognised under of Law No 95-101 of 2 February 1995, Article 4(2) thereof, as from the date of and enclosed a table showing which provi- implementation of this Directive or the sions of the Habitats Directive and the date of classification or recognition by a Birds Directive were transposed by this Member State under Directive 79/409/ Law; the table does not indicate that the EEC, where the latter date is later.' Law transposed Article 6. The Commission issued a first reasoned opinion on 21 Sep- tember 1995; as this omitted to take account of the letter of 18 April 1995, the Commission issued a complementary rea- soned opinion on 31 October 1997 repeat- ing its complaint regarding the failure 6. Article 23(1) required Member States to properly to transpose Article 6 of the 'bring into force the laws, regulations and administrative provisions necessary to com- Directive. Meanwhile, on 30 October ply with this Directive within two years of 1995, France had informed the Commis- its notification [and] forthwith [to] inform sion of the adoption of Decree No 95/631 the Commission thereof'. on the drawing up of the list of French SCIs. In the absence of any response to its second reasoned opinion, the Commission commenced the present proceedings by an application registered at the Court on 15 July 1998.

9. For its part, France relies on the margin 11. The scope of the Commission's com- of discretion Member States enjoy in the plaint regarding the transposition of Arti- implementation of directives. It provides a cle 6(3) and (4) is also narrowed. Contrary long list of measures under French law to Article 6(3) of the Directive, French law, which, in its view, constitute an adequate in the Commission's view, does not include legislative, regulatory and contractual plans, covers only certain categories of 'arsenal' for ensuring the achievement of project, and fails to ensure that the assess- the objectives of Article 6(1) and (2) of the ment is based on the impact of develop- Directive. It admits however that, though ment activities on the site, rather than on environmental impact assessment as the nature of the project. The substantive required under Article 6(3) has been a conditions for overriding a negative assess- requirement of French law since well before ment which are set out in Article 6(4) are the Habitats Directive, the current provi- also missing from the French provisions. sions do not allow the authorities to refuse a request for authorisation for a plan or project, and it is this aspect of the Directive, along with the possibility to grant an authorisation in spite of a negative assess- ment of the implications for the site, which is the subject of the legal reflection.

13. The Commission accepts that France has adopted legislative, regulatory and administrative measures which are inten- ded to allow it to implement its obligations under Article 6(1) and (2). For its part, France expressly admits that it has not adopted a general provision which would require the application to SACs of conser- vation and protection measures (hereinafter the 'general provision'), but contends that no such general provision is required either 16. In answer to this argument of the by the Directive or by the Court's case-law. Commission, France suggested at the hear- This head of complaint is therefore reduced ing that individuals could, by relying on the to that of whether, in the circumstances of direct effect of Article 6(1) and (2), chal- the present case, France was obliged to lenge the conformity of the measures adopt such a general provision. adopted for a particular SAC before the courts. I do not accept this line of argument either, for two reasons. In accordance with a well-established line of case-law, the fact that a provision of a directive may be capable of having direct effect is at most a 'minimum guarantee arising from the bind- ing nature of the obligation imposed on the 14. In the first place, it is clear that the text Member States', which does not dispense of Article 6(1) and (2) does not expressly the Member State from its duty to trans- require such a general provision. Arti- pose that provision. 4Moreover, the terms cle 23(1) is similarly of little assistance; of Article 6(1) and (2) are not, in my view, while it requires the adoption of the 'unconditional and sufficiently precise', and 'provisions necessary to comply with this do not therefore meet the normal test for Directive' within a given deadline, the question here is whether a general provi- sion is 'necessary'. 4 — Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12.

17. In order to resolve this question, it is necessary to identify the objective the 'the transposition of a directive into domes- transposition requirement of directives tic law does not necessarily require that its seeks to attain. Interpreting the third para- provisions be incorporated formally and graph of Article 189 of the EEC Treaty verbatim in express, specific legislation; a (now Article 249 EC) in Enka, the Court general legal context may, depending on the held that 'the choice left to the Member content of the directive, be adequate for the States as regards the form of the measures purpose provided that it does indeed guar- and the methods used in their adoption by antee the full application of the directive in the national authorities depends upon the a sufficiently clear and precise manner so result which the Council or the Commis- that, where the directive is intended to sion wishes to see achieved'. 6 In the case of create rights for individuals, the persons Article 6(1) and (2) of the Directive, the concerned can ascertain the full extent of result the Council wished to achieve is set their rights and, where appropriate, rely on out in the sixth recital in the preamble: 'to them before the national courts.' 8 ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status' and 'to create a coherent European ecolo- gical network according to a specified timetable'. The measures upon which France relies as constituting a proper trans- 19. In the present case, it is difficult to position of these provisions must therefore argue that Article 6(1) or (2) of the Habi- be judged on whether they ensure the tats Directive were 'intended to create achievement of these objectives. rights for individuals'; as Advocate General Van Gerven noted in his Opinion in Com- mission v Germany, 'in the case of direc- 5 — Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] tives concerning the protection of the ECR 53, paragraph 25; Joined Cases C-6/90 and C-9/90 Francovici? and Others [1991] ECR I-5357, paragraphs 11 and 12. 6 — Case 38/77 Enka v Inspecteur der Invoerrechten and Accijnzen (hereinafter 'Enka') [1977] ECR 2203, para- 7 — OJ 1980 L 20, p. 43. graph 11. 8 — Case C-131/88 [1991] ECR I-825.

environment it may well be a question of antee that the directive will be applied obligations'. 9That does not mean, in my fully'. 12 It falls particularly on the Com- view, that the transposition requirements mission in such cases to ensure the effective are necessarily less stringent than in the application of the directive in question. The case of directives which create individual Court's observation regarding the Birds rights; on the contrary, the effectiveness of Directive in Commission v Belgium that directives which create obligations for the 'a faithful transposition becomes particu- Member States not matched by rights under larly important in a case such as this in Community law for individuals demands which the management of the common even more urgently a complete regulatory heritage is entrusted to the Member States framework. I agree with the remarks of in their respective territories' 13 is also, in Advocate General Van Gerven in the same my view, relevant in the present case; the Opinion on the relevance, in determining fourth recital in the preamble to the the scope of a Member State's transposition Habitats Directive declares that 'the threa- obligations under a directive, of 'the tened habitats and species form part of the absence of economic stimuli for enforcing Community's natural heritage'. compliance'. 10 In such cases, '[the] vigi- lance of individuals', which the Court has long recognised as 'an effective supervision in addition to the supervision entrusted by Articles 169 and 170 [now Articles 226 EC and 227 EC] to the diligence of the Com- mission and of the Member States', does not come into play. 11 21. While the Commission docs not contest that France has adopted certain legal mea- sures which could be employed in ensuring compliance with the substantive provisions of Article 6( 1 ), it does not appear to me that this is sufficient to conclude that 'the general legal context ... does indeed guar- antee the full application of the directive in a sufficiently clear and precise manner'. In particular, France has not shown that the measures 'correspond to the ecological 20. In Commission v Italy the Court requirements of the natural habitat types adopted a slightly different, and stricter, in Annex I and the species in Annex II on formulation of the same idea as that the sites', or, indeed, that any of its expressed in Commission v Germany, measures refer to these particular habitat where it held that 'the adoption of specific types or species. Nor has it shown that legislation or regulations ... cannot be these legal measures, in the absence of a regarded as superfluous unless the existing general provision requiring the national provisions of national law effectively guar- authorities to apply them to SACs and specifying the conditions under which they 9 — Op. cit., p. 850, paragraph 7 (emphasis in original). 10 — Op. cit., p. 851, paragraph 9. 1 1 — C a s e 26/62 Van Cend en Loos [1963] ECR 1, para- 12 — Case 22/87 [1989] ECK 14.1, paragraph ft. graph 13. 1.1 — Case 247/85 [1987] ECR 1029, paragraph 9.

apply, are such as to guarantee the achieve- sures are 'appropriate' in the sense that ment of the objectives of this provision they will be effective in achieving the referred to in the sixth recital in the objectives of the Directive, or to ensure preamble. As the Court noted in Commis- the coherence of Network 2000, as it is sion v Netherlands apropos of the Birds required under Article 3(1) of the Direc- Directive, proper transposition requires tive. Indeed, the very variety of measures 'the full implementation of directives in upon which France can call argues in law and not only in fact'. 14 favour of a general legal obligation which would clarify the present uncertainty sur- rounding the protection of SACs on French territory. While these measures are impress- ive on their own terms, at no point do they make any reference to the SACs or to the Directive; this essential link in the regula- tory chain is missing. 22. In the present case, it is clear from the Directive, and particularly Article 2(3), that in implementing it the Member States 'should take account of economic, social and cultural requirements and regional and local characteristics'. Given, on the one hand, the delicate balance which must be struck in respect of each SAC between these considerations and, on the other, the envir- onmental protection obligations of the Directive, I do not see how the French measures could be said to guarantee the necessary degree of legal certainty. In particular, France has not demonstrated 24. Furthermore, France has not shown how those who carry out the activities that the measures it relies on as transposing which Article 2(3) permits can 'ascertain Article 6(1) seek not merely to preserve, precisely the obligations to which they are but also to restore, natural habitats and subject' in accordance with Case C-361/88 species of wild fauna and flora of Commu- Commission v Germany.15 nity interest, as required under Article 2(2) of the Directive, or that the objective of such measures is a 'favourable conservation status' as defined in Article 1(e) of the Directive. There is also a certain contra- diction in France's defence; despite its announced intention to favour a contrac- tual approach, all the measures on which it relies appear to be either statutory or 23. Equally, the Commission is not in a administrative in character, leaving the position to ensure that the national mea- Commission in the dark as to its real intentions in this regard. In any case, none of these legal measures reflects the specific 14 — Case C-339/87 [1990] ECR I-851, paragraph 25. obligations which arise for the Member 15 — [1991] ECR I-2567, paragraph 16. States under Article 6(1) of the Directive.

25. France's transposition of Article 6(2) is prohibitions should apply and for how long equally clearly insufficient. As noted above, (Code Rural, Article R 211-3). In circum- this provision, in effect, contains a prohibi- stances such as these, where the prohibi- tion on activities which could lead to the tions are subject to material and procedural deterioration of protected habitats or the conditions, and may be limited ratiotie disturbance of protected species. In the first tempore, these provisions of the Code place, France does not even claim that there Rural do not appear to comprise a proper exists in its law a provision which applies transposition of Article 6(2) of the Direc- such a prohibition to SACs. While it does tive; nor has France shown that any other have rules prohibiting the destruction of the of the legal provisions on which it relies natural environment, these refer neither transpose Article 6(2) more completely. specifically to SACs nor generally to the objectives of the Directive. To take, by way of example, the national provision cited before the Court which appears to be most in point, Article L 211-1(3) of the Code Rural imposes a prohibition on the destruc- tion, alteration or deterioration of the habitats of wild animal and plant species 'whenever this is justified by a particular scientific interest or the requirements of the conservation of the biological heritage'. It does not refer to the specific habitat types or species listed in the Annexes to the Directive; in the absence of any specific reference to the Directive, the national authorities may be unaware of their duty to interpret the notions of 'a particular 26. Where a provision of a directive scientific interest' and 'biological heritage' requires the Member States to prohibit a as far as possible in conformity with the certain course of conduct, the Member wording and purpose of Article 6(2) of the States' margin of discretion in transposing Directive. 16 Furthermore, interministerial that provision is in principle narrower than decrees are required in order to determine, in the case of a positive obligation. The for each species, which of the possible general legal context will only suffice where it renders such conduct illegal 'in a suffi- ciently clear and precise manner'. The fact that the public authorities enjoy the power to prohibit the conduct in question is not in itself sufficient; as the Court noted in Commission v Netherlands, again in rela- tion to the Birds Directive, '[in] view of the principle of legal certainty, the relevant- prohibitions must be reproduced in man- datory legal provisions'. 17 It is therefore in my view not a good defence to claim, as

France has done, that its legal provisions the specificity, precision a n d clarity are merely 'capable' of ensuring compli- required by the case-law of the Court in ance, if it fails to show that they will order to satisfy the requirement of legal necessarily be applied to this end. certainty'. 2 0 Similarly, in Case C-131/88, also Commission v Germany, the Court held that '[in] order to guarantee complete and efficient protection of groundwater, it is vital that the prohibitions set out in the directive be expressly embodied in national law', and found against the defendant Member State for failing to introduce a general prohibition. 2 1 In neither of these cases did the directive expressly require the adoption of a general mandatory rule. 27. For the sake of completeness, I should add that the Court has already held on a number of occasions that the obligation to adopt a general provision such as that at issue in the present case may be inherent in the duty to transpose environmental direc- tives. Article 2(1) of Council Directive 80/779/EEC of 15 July 1980 on air quality limit values and guide values for sulphur dioxide and suspended particulates, 18 for example, provides for limit values of con- centrations of these substances which 'must not be exceeded throughout the territory of 28. France has argued that a general provi- the Member States during specified periods sion would add nothing to the existing and under the conditions laid down in the provisions, and that it would therefore following Articles'. In Case C-361/88 serve no purpose. I do not agree. The Commission v Germany, where the defen- achievement of the objectives of Arti- dant Member State relied on its existing cle 6(1) and (2) of the Directive as set out provisions and an administrative circular as in the sixth recital in the preamble ('the constituting p r o p e r t r a n s p o s i t i o n , the restoration or maintenance of natural habi- Court held that 'the fixing of limit values tats and species of Community interest at a in a provision whose binding nature is favourable conservation status') depends to undeniable is ... necessary in order that all a very large extent on the actions of those whose activities are liable to give rise national authorities at different levels of to nuisances may ascertain precisely the government. It seems to me to be impera- obligations to which they are subject'. 19 In tive that these authorities take account of the absence of any general mandatory rule, Article 6(1) and (2) in any decisions which the German provisions were found not to they may take defining the protection have transposed Directive 80/779/EEC 'with unquestionable legal force or with 20 — Op. cit., paragraph 21; though the text refers to the implementation of the Directive, it is clear that the Commission's application concerned a failure of transpo- 18 — OJ 1980 L 229, p. 30. sition. 19 — Cited in footnote 15 above, paragraph 16. 21 — Cited in footnote 8 above, paragraphs 18 and 19.

32. The parties agree that neither the Directive nor any other provision of Com- munity law provides a definition of the term 'plan' which is applicable in all circumstances. France has referred to the proposal for a Directive on the assessment 30. I am therefore of the opinion that the of the effects of certain plans and pro- Commission should be granted the declara- grammes on the environment, which pro-

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vides a definition of 'project' for the with the principle of Community law that purposes of the proposed measure, though exceptions to the general rule (here, devel- not of either ' p l a n ' or ' p r o g r a m m e ' . opment activities which do not require a Though its entry into force postdates the site assessment) are to be interpreted adoption of the Directive, Article 130s(2) restrictively. of the EC Treaty, 2 2 as amended by the EU Treaty with effect from 1 November 1993, uses the expression 'town and country planning' in the context of environmental policy, which could be taken as one indica- tion of the scope of this term in the Directive.

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COMMISSION V FRANCE

assessment requirement. France has argued content of the impact assessment must have that the words 'likely to have a significant regard to the foreseeable impact of the effect' reflect a discretion for the Member activities on the environment. Neither of States to set thresholds. these provisions requires that the assess- ment indicate the implication of the activ- ities on the conservation objectives of the individual site, and they do not therefore constitute a proper transposition of Arti- cle 6(3). 36. The Commission is clearly correct on this point. I have already emphasised the broad scope of the assessment obligation established by Article 6(3); it is only where a project is not likely to have a significant effect on the achievement of the conserva- tion objectives of the site that it need not be subject to an assessment. Furthermore, whether or not the Directive would allow 38. As well as these disputed points, France the Member States to fix thresholds, it has admitted that its transposition of clearly does not allow projects to be Article 6(3) is incomplete in so far as its excluded from this requirement on the existing provisions do not permit the com- basis of the cost of the work or the type petent authorities to refuse a request for of plant on which the work is to be carried authorisation to proceed with a plan or out. project where the site assessment indicates that it will adversely affect the integrity of the site.

(2) Order the French Republic to pay the costs.

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