C-371/98

FIRST CORPORATE SHIPPING

OPINION OF ADVOCATE GENERAL LÉGER delivered on 7 March 2000 *

1. The High Court of Justice of England 3. The High Court asks the Court to define and Wales, Queen's Bench Division, 1has the extent of the Member States' powers in referred a question to the Court for a the first stage of the procedure for desig- preliminary ruling on the interpretation of nating SACs under Article 4(1) of the Article 4(1) in conjunction with Arti- Habitats Directive, and, more precisely, to cle 2(3) of Council Directive 92/43/EEC state whether, in drawing up the list of sites of 21 May 1992 on the conservation of eligible for selection as sites of Community natural habitats and of wild fauna and importance (SCIs), a Member State is flora 2 (hereinafter 'the Habitats Direc- obliged or merely entitled to take account tive' 3). of the requirements, in particular economic requirements, set out in Article 2(3) of that directive.

I — The relevant Community law back- ground 2. The Habitats Directive aims to create a coherent European ecological network in order to promote the maintenance or restoration at a favourable conservation 4. The Habitats Directive, adopted on the status of natural habitats and of wild fauna basis of Articles 130r and 130s of the EC and flora on the territory of the Member Treaty (now, after amendment, Arti- States. 4To attain that objective, the direc- cles 174 EC and 175 EC), proceeds from tive provides inter alia for the designation the following assessment: of special areas of conservation 5 (SACs) by means of a procedure which, under Arti- cle 4 of the directive, consists of three stages.

'2. Measures taken pursuant to this Direc- 5. The main aim of the Habitats Directive tive shall be designed to maintain or is to 'promote the maintenance of biodi- restore, at favourable conservation status, versity, taking account of economic, social, natural habitats and species of wild fauna cultural and regional requirements', 7 by and flora of Community interest. creating a coherent European ecological network according to a specified timeta- ble. 8 By using that formulation, the Com- munity legislature indicates that its inten- tion is to comply with the objective of 'sustainable development' in Article 2 of the EC Treaty (now, after amendment, 3. Measures taken pursuant to this Direc- Article 2 EC) and the principle of 'integra- tive shall take account of economic, social tion' in Article 130r(2) in fine of the EC and cultural requirements and regional and Treaty. 9 The principle of integration now local characteristics.' appears in Article 6 EC (formerly Arti- cle 3c of the EC Treaty). 10 That article expressly states that the principle of inte- gration must be capable of 'promoting sustainable development'.

8. Articles 4 and 6 regulate in more detail the measures defined in Article 2.

6. Article 1 of the Habitats Directive defines the principal terms used.

9. First, under Article 4, the SACs are designated; second, under Article 6, the 7. Article 2(2) and (3) sets out the mea- rules governing the SACs are adopted. sures to be taken in order to attain the

6 — Fourth recital in the preamble. 7 — Third recital in the preamble. 8 — Sixth recital in the preamble. 9 — See points 54 to 57 below. 10 — Inserted by Article 2(4) of the Treaty of Amsterdam and 10. The procedure for designating SACs renumbered Article 6 EC (OJ 1997 C 340, p. 25). comprises three stages.

13. The second subparagraph of Arti- cle 4(1) of the Habitats Directive indicates that the lists drawn up by Member States 16. Following that first part, 'the list of must 'show the sites containing the priority sites selected as sites of Community impor- natural habitat types and priority spe- tance, identifying those which host one or cies'. 1 1'Priority' means species and natural habitats in danger of disappearance, for the 12 — Article 1(d) and (h) of the Habitats Directive. They are conservation of which the Community has marked with an asterisk in Annexes I and II. 13 — Commission Decision 97/266/EC concerning a site infor- mation format for proposed Natura 2000 sites (OJ 1997 L 107, p. 1, at p. 20, hereinafter 'the data form'). 11 — Annex III, Stage 1, point D. 14 — Article 4(2), first subparagraph, emphasis added.

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15 — Article 4(2), third subparagraph, emphasis added. 20 — Among the selection criteria applied are the 'geographical situation of the site in relation to migration routes of 16 — Article 21 of the Habitats Directive. species in Annex II and whether it belongs to a continuous 17 — Article 20 of the Habitats Directive. ecosystem situated on both sides of one or more internal 18 — Article 4(4), emphasis added. Community frontiers' (Annex III, Stage 2, point 2(b)) and the 'ecological value' of the site (Annex III, Stage 2, 19 — Among the selection criteria applied are the 'degree of point 2(e)). representativity of the natural nabitat type on tne site' (Annex III, Stage 1, point A(a)), the 'degree of conserva- 21 — For example, certain plans or projects likely to have a tion of the structure and functions of the natural habitat significant effect on an SCI are to be subject to an type concerned and restoration possibilities' (Annex III, assessment of their implications for the site (Article 6(3) of Stage 1, point A(c)), and the 'value of the site' (Annex III, the Habitats Directive). Stage 1, point A(d)). 22 — Article 4(5).

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notes that the number of workers employed 24. The Secretary of State contended that, in the port, including FCS's own employees, in the light of the Court's reasoning in R v is estimated at 3 000 to 5 000. Secretary of State for the Environment ex parte Royal Society for the Protection of Birds, 25a Member State may not take such requirements into account in the context of Article 4(1) of the Habitats Directive.

23 — See paragraph 8 of the order for reference. 25 — Case C-44/95 [1996] ECR I-3805, hereinafter 'the Lappel 24 — OJ 1979 L 103, p. 1, hereinafter 'the Birds Directive'. bank judgment'.

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III— The answer to the question referred 28. Conversely, the Commission, World Wide Fund for Nature UK (WWF), Avon Wildlife Trust, the United Kingdom Gov- ernment and the Finnish Government con- test that argument. Most of those who argue against FCS 26 rely on the Lappel Bank judgment to support their position.

30. In my opinion, the solution arrived at by the Court in the Lappel Bank judgment cannot be applied in the context of the Habitats Directive. I consider that it is not excluded 28 that economic, social or cul- 27. FCS submits that the Court should rule, tural considerations or regional and local in answer to that question, that Article 4(1) characteristics may already be taken into in conjunction with Article 2(3) of the account at the stage of designation of SACs Habitats Directive must be interpreted as and that they may allow a site hosting one requiring Member States to take account of of the natural habitat types in Annex I or economic, social and regional interests native species in Annex II to be excluded when deciding on sites to be proposed to from designation as an SAC. I shall explain the Commission as eligible for designation this below. 29 as SACs. It thus claims that in the first stage of the procedure for designating SACs a Member State must delete from the list of 26 — With the exception of the Finnish Government. sites eligible for designation as SACs a site 27 — Paragraphs 31 and 41. which hosts installations such as those of 28 — Except where a site hosts priority species or priority natural habitat types (see point 47 below). the port of Bristol. 29 — See points 52 to 58 below.

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31. I consider, however, that in the first 34. The first subparagraph of Article 4(1) stage of the procedure for designating SACs expressly states that 'each Member State such considerations do not allow a site shall propose a list of sites indicating which which hosts natural habitat types in natural habitat types in Annex I and which Annex I or native species in Annex II to species in Annex II that are native to its be removed from the list of sites selected by territory the sites host', that list showing the Member States. I shall therefore pro- the sites containing priority habit types and pose that the Court answer the High priority species. 30 Court's question in the negative.

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37. Thus the Member States are recom- 39. In my opinion, since it is not stated that mended to communicate 'information on the assessment relates only to the ecological impacts and activities in and around the value of the site, it may reasonably be site', 3 4 which are understood as including supposed that in the first stage of designa- 'all human activities and natural process tion of SACs the fullest information relat- that may have an influence, either positive ing inter alia to human activities, which or negative, on the conservation and man- indisputably includes economic data, must agement of the site (listed in Appendix be communicated to the Commission. E)'. 3 5 To that end, Member States are requested to supply information on activ- ities connected with agriculture and for- estry; fishing, hunting and collecting; mining and extraction of minerals; urbani- sation, industrialisation and similar activ- ities; and transportation and communica- tion (relating inter alia to port areas 36 and 40. It also follows from the wording of shipping 37). Article 4(1) of the Habitats Directive that in this first stage the discretion of the Member States as to the choice of sites to propose to the Commission is very limited.

41. Thus the first subparagraph of Arti- cle 4(1) of the H a b i t a t s Directive authorises a Member State to leave off the list of sites to be communicated to the 38. The reading I favour is also, I think, Commission only sites which do not host a supported by Annex III (Stage 1). The natural habitat type in Annex I or a native criteria which Member States must take species in Annex II, or sites within which into account undeniably include scientific, no clearly identifiable areas can be defined ecological and geographical elements. 3 8 which present the physical and biological However, they are also asked to make a factors essential to the life and reproduc- global assessment of the 'value of the tion of protected animal or plant species. site', 3 9 and not only, as specified in Annex III (Stage 2), 4 0 a global assessment of the 'ecological value' of the site.

45. Similarly, the data form expressly states that it 'will initially be used to supply the 48. It follows that the purpose of Arti- necessary information for sites eligible for cle 4(1) of the Habitats Directive is to identification as sites of Community impor- enable the Commission and the Member tance'. 4 2 States, in the second stage of the procedure for designating SACs, to carry out the selection of the SCIs 4 5 and then, following the third stage, 46 to adopt the list of the SACs to be designated by the Member

53. Similarly, the third recital in the pre- amble to the Habitats Directive expressly states that the directive, the aim of which is to 'promote the maintenance of biodiver- sity, taking account of economic, social, 50. The conclusion I draw is that Arti- cultural and regional requirements', makes cle 4(1) of the Habitats Directive must be 'a contribution to the general objective of interpreted as precluding a Member State, sustainable development'. 49 during the first stage, from deciding not to list as sites eligible for designation as SCIs in the second stage those which, while satisfying the criteria mentioned above, are the scene of important economic and social interests, such as the site formed by the Severn Estuary. 54. The concept 'sustainable development' does not mean that the interests of the environment must necessarily and system- atically prevail over the interests defended

in the context of the other policies pursued Brundtland Report. 53 According to that by the Community in accordance with report, sustainable development is develop- Article 3 of the EC Treaty (now, after ment which meets the needs of the present amendment, Article 3 EC). On the con- without compromising the capacity of trary, it emphasises the necessary balance future generations to meet their needs. 54 between various interests which sometimes It states that the concept means that the clash, but which must be reconciled. conduct of the various policies must, at the very least, not endanger the natural systems which give us life, the atmosphere, water, earth and living creatures. 5 5 The report stresses that it is necessary not to set development against the environment but on the contrary to let them evolve in coordinated fashion. 55. The concept originates in a communi- cation of the Commission to the Council of 24 March 1972 on an environmental pro- gramme of the European Communities, 50 in which it stated that the proposals made on 22 July 1971 on the policy of the Community in this respect 51 should hence- forth be implemented in accordance with the principle of 'integration': 'Implementa- tion of these proposals must not constitute 57. To reconcile these diverse interests in a new common policy separate from the the context of 'sustainable development', others. Rather, all Community activities the Treaty on European Union introduced aimed at promoting throughout the Com- the principle of 'integration' in Arti- munity harmonious development of eco- cle 130r(2) in fine. That principle requires nomic activities, accelerated raising of the the Community legislature to conform with standard of living and closer relations environmental protection requirements in between Member States under Article 2 of the definition and implementation of other the EEC Treaty must now take into con- policies and actions. Integration of the sideration the protection of the environ- environmental dimension is thus the basis ment.' 52 of the strategy of sustainable development enshrined in both the Treaty on European Union and the Fifth Environment Pro- gramme, entitled 'Towards Sustainabil- ity'. 56 The Fifth Programme expressly states, moreover, that the success of that undertaking depends on the five key sectors of the economy — industry, energy, trans- 56. 'Sustainable development', a funda- mental concept of environment law, was taken up and defined in 1987 in the 53 — So called after the chairperson of the World Commission on Environment and Development set up by the 38th session of the General Assembly of the United Nations, with the task inter alia of reconsidering the fundamental 50 — OJ 1972 C 52, p. 1. questions of the environment and development. 51 — Doc. SEC (71) 2616 final. 54 — P. 51. 52 — Communication cited above, Introduction, eighth para- 55 — P. 53. graph. 56 — OJ 1993 C 138, p. 5.

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