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ticular species indicated in Annex I and measures concerning their habitat in order also to migratory birds. to ensure their survival and reproduction in their area of distribution.

5. The ninth recital in the preamble to the birds directive states: In this connection, account shall be taken of:

'Whereas the preservation, maintenance or restoration of a sufficient diversity and area (a) species in danger of extinction; of habitats is essential to the conservation of all species of birds; whereas certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of (b) species vulnerable to specific changes distribution; whereas such measures must in their habitat; also take account of migratory species and be coordinated with a view to setting up a coherent whole'.

(c) species considered rare because of small populations or restricted local distribution; This premiss relating to a few particular species of birds is formalised by Article 4 of the Directive. That reads:

(4) In respect of the protection areas refer- 7. In relation to natural habitats, the hab- red to in paragraphs 1 and 2 above, itats directive distinguishes between 'sites Member States shall take appropriate steps of Community importance' and 'special to avoid pollution or deterioration of areas of conservation', although in certain habitats or any disturbances affecting the cases these may be identical. According to birds, in so far as these would be significant the third subparagraph of Article 4(2), the having regard to the objectives of this list of areas falling into the first category is Article. Outside these protection areas, drawn up by the Commission following the Member States shall also strive to avoid procedure laid down in Article 21. By pollution or deterioration of habitats'. contrast, 'special areas of conservation'

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are determined by the Member States The second subparagraph of Article 3(1) themselves. Article 1 states in that respect: states: 'The Natura 2000 network shall include the special protection areas classi- fied by the Member States pursuant to Directive 79/409/EEC'.

'For the purpose of this Directive:

9. With regard to the subject-matter and legal obligations in a special area of con- servation, Article 6 of the habitats directive reads:

10. In relation to special protection areas ('SPAs') under the birds directive, Article 7 (3) Any plan or project not directly con- of the habitats directive reads: nected with or necessary to the manage- ment of the site but likely to have a significant effect thereon, either individu- ally or in combination with other plans or projects, shall be subject to the appropriate assessment of its implications for the site in 'Article 7 view of the site's conservation objectives. In the light of the conclusions of the assess- ment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall Obligations arising under Article 6(2), (3) agree to the plan or project only after and (4) of this Directive shall replace any having ascertained that it will not adversely obligations arising under the first sentence affect the integrity of the site concerned of Article 4(4) of Directive 79/409/EEC in and, if appropriate, after having obtained respect of areas classified pursuant to the opinion of the general public. Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Mem- ber State under Directive 79/409/EEC, where the latter date is later'. (4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or 11. These provisions are explained by the economic nature, the Member State shall seventh and tenth recitals in the preamble take all compensatory measures necessary to the directive as follows: to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory meas- ures adopted. Where the site concerned hosts a priority natural habitat type and/or 'Whereas all the areas designated, including a priority species, the only considerations those classified now or in future as special which may be raised are those relating to protection areas pursuant to Council Direct- human health or public safety, to beneficial ive 79/409/EEC ... will have to be incorpor- consequences of primary importance for ated into the coherent European ecological the environment or, further to an opinion network'.

13. The Basses Corbières region is home to 14. The Commission learned that the various species of birds meriting special OMYA company had on 4 November protection, some of which are listed in 1994 obtained a licence to quarry limestone Annex I to the birds directive,4 in particu- in the communes of Vingrau and Tautavel lar a pair of Bonelli's eagles, which belong and also to erect processing facilities on to a species threatened with extinction. 5 site. The OMYA company has been oper- The area also lies in an important European ating a limestone quarry in the commune of corridor for migrating birds. The French Tautavel since 1968. Since the limestone authorities have included the Basses Cor- deposits will be exhausted in the fore- bières as an area covering 47 400 hectares seeable future, the company applied for a licence to quarry limestone in the area referred to above, as there are deposits of a 4 — Subparagraph 1 of Article 4(1) of the birds directive reads: 'The species mentioned in Annex I shall be the subject of similar type and quality there. Geologically special conservation measures concerning their habitat, in speaking, this constitutes an extension of order to ensure their survival and reproduction in their area of distribution'. the deposit into another commune. 5 — According to the Commission's argument, these species include: Hieraaetus fasciatus, Ciconia nigra, Ciconia cico- ria, Pernis apivarus, Milvus migrans, Milvus milvus, Neophron percnopterus, Circaetus gallicus, Circus aerugi- 6 — Arrêté prefectoral No 774/91 of 21 May 1991. nosus, Circus cyaneus, Circus pygargus, Tetrax tetrax, Bubo Bubo, Caprimulgus europaeus, Coradas garrulus, hulluta 7 — Arrêté prefectoral No 773/91 of 21 May 1991. arborea, Sylvia undată, Emberiza bortulana. 8 — Arrêté prefectoral No 95.0226 of 22 February 199J.

— declare, first, that, by failing to classify the Basses Corbières site as a special protection area for the conservation of certain species of birds listed in Annex I to Council Directive 79/409/EEC and of certain migratory 16. The Commission presupposes that the species not listed in that Annex, and by limestone quarry will have serious conse- also failing to adopt special conserva- quences for the environment. It therefore tion measures concerning their habitat, brought the project to the attention of the contrary to Article 4(1) and (2) of thai- French authorities in its letter of directive, and, second, that, by failing 10 November 1994. The aforesaid author- to take appropriate steps in relation to ities replied with a letter of 19 September the Basses Corbières site to avoid 1995. Since the Commission did not con- disturbance of the species protected sider this response sufficient to eliminate on that site and deterioration of their suspicions of a Treaty infringement, it habitat likely to have a significant instituted proceedings for failure to fulfil effect, as a result of the opening and obligations by a letter of formal notice working of limestone quarries within worked on 2 July 1996. The French Gov- the municipalities of Tautavel and ernment responded with a letter from its Vingrau, contrary to Article 6(2) to permanent representation dated (4) of Directive 92/43/EEC, the French 28 November 1996. Gaining the impres- Republic had failed to fulfil its obliga- sion from that response that the French tions under the Treaty; and Republic had failed in its obligations under the birds directive and habitats directive, the Commission sent a reasoned opinion to the French Government on 19 December 1997, setting a time-limit of two months. In their reply of 12 June 1998, which the Commission received on 22 July 1998, the — order the French Republic to pay the French authorities referred to a conflict costs. between supporters and opponents of the limestone quarry in Vingrau, which had necessitated mediation, upon culmination of which the procedure for classifying special protection areas, within the mean- ing of the birds directive, would be initi- 18. The French Government has asked the ated. Court — without making a specific applic-

ation — to rule the first cause of action classified as special protection areas or partially unfounded and to reject the sec- recognised as such. In the Basses Corbières ond cause of action. area, no special protection area had been classified when the deadline set in the reasoned opinion (20 February 1998) expired. The parties were therefore asked to explain why they nevertheless assumed that Article 6(2) to (4) of the habitats directive applied in the present case. 19. The French Government recognises that the formal classification of special protection areas was not undertaken early enough. Nevertheless, it had taken appro- priate steps to protect the ornithological interests of the Basses Corbières, so that they complied with Article 4(1) and (2) of the birds directive. It maintains that the first cause of action is therefore partially unfounded. 22. Whilst the Commission has submitted a detailed explanation, the French Govern- ment takes the view that Article 6(2) to (4) of the habitats directive does not apply. The second cause of action is therefore, in its view, inadmissible but, in any event, unfounded. 20. With regard to the second cause of action, the French Government argues that the limestone quarry project had been the subject of a comprehensive assessment concerning its compatibility with the Treaty. The requirements contained in Article 6(3) and (4) of the habitats directive had therefore been met. The second cause of action should therefore be dismissed. 23. The Court has also asked the Commis- sion for details concerning the mention made of the Basses Corbières in an orni- thological survey of Europe entitled 'Impor- tant Bird Areas in Europe', as well as information on the size of each of the 21. The Court sent questions to the parties special protection areas in relation to the for their written response. It sought a 'sites of importance for the conservation of response from both parties to a question wild birds', referred to as ZICOs, 9 and with essentially the following content: In finally on the migratory routes of birds accordance with Article 7 of the habitats flying over the Basses Corbières region. directive, the obligations arising from Art- icle 4(4) of the birds directive are replaced by Article 6(2) to (4) of the habitats 9 — Zones Importantes pour la Conservation des Oiseaux directive only in the case of areas already sauvages.

26. In its reply the Commission specifically points out that the critical time for asses- IV — The first plea in law sing whether or not there had been an infringement of the Treaty was the deadline stipulated in the reasoned opinion, namely 20 February 1998. The subsequent classi- fication of special protection areas could not alter this. However, even if the classi- fications made or planned in 1999 were 1. Arguments of the parties taken into account, the extent of the special protection areas still had to be regarded as inadequate, amounting only to 1.35% of the ZICO. In order to demonstrate the region's importance for bird conservation, 25. In its first plea, the Commission claims the Commission based its reply on a study that there have been various infringements conducted in March 1999 to designate sites of Article 4 of the birds directive. First, it of importance for the conservation of wild claims that the French authorities failed, birds in France (ZICO). According to this, contrary to their obligations, to classify the the Commission believes that a total area of Basses Corbières site as a special protection at least 10 950 hectares should be classified area as defined by the provision, thereby as a special protection area. It argues that infringing not only Article 4(1), because these areas are of vital importance to birds several species meriting protection accord- of prey. Furthermore, sites with a total area ing to Annex I to the Directive had their of 16 600 hectares, which are used primar- habitats there, but also Article 4(2), since ily as hunting grounds for birds of prey, the area is also important to the migratory merit special protection and are therefore movements of migratory species. With suitable for classification as special protec- regard to other protection measures, as tion areas. In any event, the deterioration defined by Article 4(1), the French Repub- of such sites, as defined by Article 4(4) of lic had only partially fulfilled this obliga- the birds directive, should be avoided. The tion. The national biotope order Commission regards the entire area of the

27. Finally, the Commission argues that the recent disappearance of Bonelli's eagle from the area suggests that it has been afforded 29. In the Government's submission, con- insufficient protection. The Commission flict must be viewed against a background states that it is unaware of any criminal of economic and social tension. The lime- proceedings taken following the disappear- stone deposits quarried in Tautavel are ance of the birds. All in all, insufficient processed at the factory in Salses, an protection measures had been taken within operation directly or indirectly guarantee- the meaning of the birds directive. ing some 200 jobs in a region of above- average unemployment running at 17.5% compared with a national average of 12%. The region's gross domestic product is below average, standing at FRF 92 800 compared with the national average of FRF 122 000. From an economic point of view, 28. The French Government acknowledges only Corsica ranks lower than the Langue- that the classification of special protection doc-Roussillon region. areas under the birds directive was delayed in the Basses Corbières region. 10 This delay was due to a conflict between supporters and opponents of the planned extension to the limestone quarry. Opponents of the project had used the birds directive to prevent its implementation, although even local bird protection societies were of the view that the project was consistent with 30. The conflict between supporters and bird protection. Furthermore, they had opponents of the limestone quarry reached such a level that the former Minister for the Environment, Madame Bouchardeau, was 10 — In January 1999 special protection areas had been appointed as mediator. A final settlement of classified in the territory covered by biotope orders Nos the situation has still not been reached. 773/91 and 774/91. The procedure involved in classifying a further protection area covering 280 hectares, which was in turn based on a biotope order from 1995 (Prefect order No 95.0226 in the commune of Feuilla of 22 February 1995) was underway. The Commission had still not 11—Judgment of the Conseil d'État of 29 December 1997 received notification at the time of the hearing. No 186354.

32. In relation to the Member State's obligation to classify special protection areas, the French Government points out that the Member State has a certain amount of discretion when it comes to selecting the sites concerned. Neither was it 33. The French Government also refers in obligatory for the entire area covered by this connection to the opinion of Advocate each ZICO to be necessarily classified as a General Fennelly in Case C-166/97, which special protection area. The Commission states that 'Member Stales should be had not indicated in its statement of claim encouraged to arrange for comprehensive exactly where the special protection areas surveys of their national territories with a requiring classification were to be view to carrying out their duty of classifi- located — ZICO LR07 Basses Corbières cation under the Directive. It would be is, after all, a site covering some 47 000 counter-productive ... to treat every area hectares. Making reference to the register identified as suitable for the protection of of ZICOs in France, the French Govern- wild birds as automatically requiring clas- ment declares that on the large ZICO sites, sification.' 13 where the occasional presence of humans also has to be expected, only the most important segments are suitable for classi- fication as special protection areas, the so- called hard core of the area of ornitholo- gical interest. The ZICO in the Basses Corbières area took in two départements 12 and was therefore only a reference frame- 34. In designating special protection areas work within which the most suitable sites in the Basses Corbières region, the French for bird protection must be established.

36. With regard to migratory species — whether mentioned in Annex I to the birds directive or not — it must be remembered that the region is more an area through which the birds pass than a site in which they rest or feed. Although a few species, such as the white stork (Ciconia ciconia), the black stork (Ciconia negra), the black 35. With regard to other species meriting kite (Milvus migrans) and Montagu's har- protection in the region, as indicated by the rier (Circus pygargus), could be observed Commission, the French Government resting or eating, there was no major points out first that large birds of prey congregating area in the Basses Corbières, usually nest on similar terrain to Bonelli's as can be observed in coastal areas, for eagle and, second, that their presence is instance. Moreover, the number of birds demonstrated in a variety of ways. As a flying over the Basses Corbières is influ- result, they may be nesting, resident or enced by wind conditions. If there is a migrating. The criteria for classification of breeze blowing from the sea in a south- east — north-west direction, it forces birds to fly over the first mountain ridges. By 14 — Cf. Directive 79/409, Annex I; the Bern Treaty on the contrast, a north-west — south-east wind Conservation of European Wild Plants and Animals and their Natural Habitats, Annex II (cf. Council Decision will cause the flying corridor to shift to the 82/72/EEC of 3 December 1981, OJ 1982 L 38 of foothills beyond the ZICO and may even 10.2.1982, p. 1); according to the argument put forward by the French Government, the Bonelli's eagle, like other interrupt the birds' flight. Furthermore, to birds of prey, is protected by conservation measures under the Nature Conservation Law of 10 July 1976. the French Government's knowledge, no

scientific count has been made of birds 2. Assessment migrating over the Basses Corbières, which prevents any reliable conclusions from being drawn in relation to the number of birds regularly passing through this area. France's decision to concentrate its wild bird protection policy in the Basses Cor- bières primarily on Bonelli's eagle, while 38. With regard to the first complaint in also taking account of the other species the first plea, namely failure, contrary to with a habitat there, was therefore scientif- obligations, to classify special protection ically based. areas in the Basses Corbières, an examina- tion of obligations in the abstract can be dispensed with, since the French Govern- ment has expressly acknowledged its omis- sion. Since the clear establishment of a Treaty infringement depends on the situa- tion at the deadline set in the reasoned opinion, 1 6even the subsequent classifica- tion of special protection areas cannot rectify the infringement. In view of the fact that this first complaint is based on formal classification, the content of the biotope orders is not an issue here. An infringement of the Treaty on the grounds of failure to observe the obligations arising from Ar- ticle 4(1) of the birds directive can there- fore be immediately established on this 37. Three biotope orders had been issued basis, without having to conduct an eva- for the Basses Corbières region alone. luation of the geographical location and These protected four Bonelli's eagle nesting size of the special protection areas requir- sites, two of which were in the communes ing classification. of Tautavel and Vingrau and two in the communes of Maury, Vlanèzes and Razi- guières. Finally, a region in the commune of Feuilla in the département of Aude cover- ing an area of 280 hectares was also protected. It explicitly follows from the text and from the annexes to the biotope orders that they were issued not only to protect Bonelli's eagle, but also for at least 39. With regard to the second complaint in 13 other species meriting conservation in the first plea, namely of failure to introduce accordance with Annex I to the birds special conservation measures in relation to directive. 15 the habitats of the species listed in Annex I to the birds directive, within the meaning of the first sentence of Article 4(1), the situa- 15 — Ciraetus gallicus, Aquila Chrysaetos, Caprimulgus euro- paeus, Anthus campestris, Sylvia undata, Pyrrhocorax Pyrrhocorax, Emberiza hortulana, Bubo Bubo, Pernis apivorus, Milus migrans. Circus pygargus, Lullula arborea, 16 — Cf. judgment of 25 November 1999 in Case C-96/98 Falco peregrinus. Commission v France [1999] ECR I-8531, paragraph 19).

43. Consequently, the first area to examine is whether 'special protection measures' were taken for these species meriting pro- tection. In assessing this question, it may be important to establish whether any protec- tion measures were taken appropriately and in the required degree. It will then be 41. In so far as the species mentioned in necessary to start a comparative examina- Annex I are concerned, a purely juridical tion of the migratory species not included evaluation would suggest that they were in Annex I to the birds directive in relation eligible for the special protection status laid to the circumstances specified in Art- down by Article 4(1) of the birds directive. icle 4(2). The biotope orders Nos 773/91, The provision does not make any distinc- 774/91 and 95.0226 dated 1991 and 1995

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44. Article 1 of biotope order No 95.0226 contains an analogous description of the 46. Order No 774/91 expressly permits the object of its protection. It also speaks of erection of a visual screen21 by the com- pany OMYA to screen waste. Attached to this permission was the obligation to con- 17 — Cf. Article 1 of each of the biotope orders. ceal the visible screen by planting it up with 18 —Cf. order N o 773/91. native vegetation. 19 —Cf. order N o 774/91. 20 — Cf. Annex 1 to the birds directive in the version contained in Directive 91/244/EEC of 6 March 1991 (OJ 1991 L 115, p. 14). 21 — This probably means a screen in the form of an earthwork.

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47. Biotope order No 95.0226 contains a 49. The Commission's contention that the far more detailed description of the banned biotope orders are unilaterally aimed at activities. Specific activities are prohibited, protecting Bonelli's eagle is therefore such as the trampling or pulling-up of rejected. Both the preferential position held vegetation, leaving the paths through the by Bonelli's eagle and the associated mater- site, motorbikes and cycling, etc. However, ial protection afforded the other protected the detailed list of banned activities does species appear adequate. not necessarily signify more intensive pro- tection than that afforded by biotope orders Nos 773/91 and 774/91. The bans are simply more widely formulated there.

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steep coastal crags. Elsewhere, too, in the French Government that it should under- site covered by biotope order No 773/91, a take criminal investigations into the birds' pair of Bonelli eagles had disappeared. disappearance.

52. Firstly, as the French Government quite 55. One can therefore conclude that the rightly argues, the possibility that the biotope set up by the Decree is a suitable disappearance was due to natural causes means of protecting Bonelli's eagle and the cannot be discounted. Secondly, the French other birds meriting protection that live in Government has argued without challenge the area. Linked to this, however, is the that in June 1999 a Bonelli eagle was question of whether these measures were sighted over the crags of Vingrau. More- introduced to a sufficient extent. over, both parties have expressed the hope that the Bonelli eagles may once again settle at the familiar nesting sites; the Commis- sion in order to stand firm with its argu- ment as to the need for protection, the French Government in order to document the adequate degree of protection provided. 56. Both during the pre-litigation pro- cedure and in its statement of claim, the Commission made the general charge of failure to introduce suitable protection measures in the Basses Corbières area. With regard to the failure to classify special protection areas, a general charge is justi- 53. The delayed disappearance of the Bon- fied in view of the complete absence of such elli's eagle would not necessarily appear to measures. If certain measures are in place, challenge the suitability of the biotope on the other hand, it is difficult to check orders to protect fauna, particularly since whether these are adequate, particularly if a pair of golden eagles recently settled, no further details are given in the applic- something that is indicative of a relatively ant's claim as to which measures should untouched landscape and an undisturbed have been taken in which site, giving a environment. precise geographical location.

60. The circumstances were similar in Case C-96/98. 77 900 hectares of land in the Poitou marsh had been declared a site of importance to the conservation of wild birds (ZICO). In the European ornitho- logical inventory entitled 'Important Bird Areas of Europe', the Poitou marsh was 58. To be able to assess whether the special recorded as covering an area of 57 830 protection measures taken in the form of hectares. At the critical time for the pur- biotope orders — beyond the omitted clas- poses of the Treaty infringement proceed- sification of special protection areas — ings, an area of 26 250 hectares had been were sufficient to satisfy the legal require- declared an SPA. Following further classi- ment, the first thing must be to establish the fications, the area covered by the SPA had criterion for this. This can be achieved grown to 33 742 hectares by April 1996. through the analogous application of the The additional classification of 15 000 authorities on the relationship between the hectares was announced during the pro- area covered by a ZICO and the required ceedings. Without further specifying the classification of special protection areas. sites requiring classification, the Court Both in Case C-166/97 2 5 and also in Case upheld the infringement acknowledged on C-96/98 26 the Commission accused the its merits by the French Government. French Republic of having failed to classify sufficient areas as special protection areas within the framework of sites of impor- tance to the conservation of wild birds (ZICO). In both cases, judgment was 61. One could possibly conclude from the passed against the French Republic on this two judgments that in the case under particular point. It must be noted, however, consideration here the numerical incongru- that the French Republic acknowledged its ity between the area covered by ZICO omission in both cases. LR07 and the SPA protected under the biotope orders implies an infringement. It is generally accepted that the Basses Cor- 24— Cf. judgment in Case C-166/97 (cited at footnote 13, paragtaph 42). bières ZICO was acknowledged as covering 25 — Cf. judgment of 18 March 1999 (cited at footnote 13). 47 400 hectares. In the European ornitho- 26 —Judgment of 25 November 1999 (cited at footnote 16). logical inventory entitled 'Important Bird

27 — ZICO LR06 is estimated as covering 74 750 hectares and — Class E with 65 ZICOs of very con- ZICO LR07 47 400 hectares. siderable importance

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— Class F all other ZICOs of considerable — 0.83% in a class D ZICO (Plateau de importance. l'Arbois, Garrigues de Lançon et chaîne des côtes)

63. Classification as an SPA can therefore also depend on the class into which the sites — 0.21% in a class D ZICO (Lac Léman) fall. At the Court's request, the Commis- sion produced a summary of the extent to which SPAs were classified in ZICOs of class C and under. The table suggests that in a few ZICOs 80%, 90% or even 100% of the area had been classified as SPAs. In — 0.45% in a class E ZICO (Basse- one region, the 'Estuaires du Trieux et du Ardèche). Jaudy', the classified SPA even extends beyond the limits of the ZICO. A high percentage of classified land does not necessarily depend on the extent of the ZICO either. 100% of the class D ZICO of In class C, apart from the area indicated for the 'Pare national des Cévennes', covering the Basses Corbières of 0.76%, there are 84 000 hectares, was declared an SPA. On percentages of the other hand, there are also instances where the classified sites represent very small percentages, such as

— 43.77 (Baie de Saint-Brieuc)

— 78.11 (Parc national de la Vanoise). 65. So even if a comparison of areas between the ZICO and the sites protected under the biotope orders were to be an indication of the inadequacy of the con- servation measures taken in relation to This numerical comparison may principally their geographical size, this would probably be an indication that the amount of land not be sufficient in itself to allow one to classified as special protection areas in the conclude the existence a Treaty infringe- Basses Corbières is inadequate. However, ment. in order to avoid hasty conclusions, it must be remembered that of the 199 ZICOs in classes C, D and F, only 64 appear in the list supplied by the Commission. That repre- sents only one third of these ZICOs. There is therefore a good deal to suggest that no SPAs were classified in the majority of designated ZICOs — around two thirds of 66. There must be additional elements them. The figures alone are therefore enabling one to identify where the protec- probably insufficient evidence of a Treaty tion is inadequate and for which species. infringement. Against this background, the Commission's assertion that the French authorities had not given sufficient consideration to the migratory birds frequenting the Basses Corbières site is relevant. 64. The essential element, therefore, is the extent to which the Commission was able 28 — Based on a study conducted by the GOR in March 1999.

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67. It can probably be assumed in that birds, as there are in coastal areas, for respect that at the critical time for the instance. purposes of the Treaty infringement pro- ceedings, no special measures had been adopted in relation to migratory birds, either in the form of the classification of special protection areas or special pro- tection measures of another type. The biotope orders do not demonstrate that they provide specific protection for migra- 69. It should be mentioned in passing that tory birds. the French Government has conceded that storks, black kites and Montagu's harriers can occasionally be seen resting or feeding there. Significantly, these are species in- cluded in Annex I to the birds directive, whose arrival in a region gives cause for the introduction of special protection meas- ures.

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of failure to introduce protective measures 74. In view of the fact that since the date of for migratory birds based on Article 4(2) of implementation of the habitats directive, the birds directive must be rejected. i.e. 10 July 1994, the obligations under Article 6(2), (3) and (4) of the habitats directive have replaced those arising from the first sentence of Article 4(4) of the birds directive, the Commission believes that the provisions of Article 6(2) to (4) of the habitats directive should also be applied to the present case. The limestone quarry 72. In the context of the first cause of had been opened in defiance of these action, therefore, it is only the charge of provisions, it is claimed. failure to classify special protection areas, as defined by Article 4(1) of the birds directive, that constitutes an infringement of the Treaty.

75. The quarry had resulted in significant deterioration. It had reduced the size of Bonelli's eagle's hunting ground, something V — On the second cause of action that can cause problems, particularly when rearing young. In addition, the limestone quarry had led to visual and acoustic deterioration. The noise, in particular, and also power lines could represent a danger to the Bonelli eagles.

1. Arguments of the parties

73. The Commission claims with its second 76. It is true that the French authorities cause of action that the French Republic indicated that permission for the quarry has failed to take appropriate measures to had been granted under conditions meeting prevent disturbance of the birds inhabiting the requirements of Article 6(3) of the the Basses Corbières and deterioration of habitats directive, in that a comprehensive their habitat. The obligations arising from assessment of its implications had been Article 4(4) of the birds directive would carried out. Compensatory measures had also apply to sites that had not been been introduced based on the results of this declared special protection areas, contrary study, in order to reduce the quarry's to Article 4(1) and (2) of the directive. impact on the natural environment. How¬

80. Even when the biotope order was issued, the French Government had advo- (a) no scientific study had concluded that cated expanding the conservation sites, to the enterprise could have a significant prevent the Bonelli eagles' nesting sites

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from being disturbed by mountaineers. prevent one from concluding that the Furthermore, local nature conservation quarry could lead to a 'significant' de- groups had been involved in planning the terioration in the eagles habitat. The lime- expansion of the limestone quarry, in order stone quarry and associated installations to prevent any deterioration of the nesting were spread over an area of 30 hectares, sites. whereas the Basses Corbières ZICO covers some 47 000 hectares.

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deposits and the natural environment). All 88. To protect the adjacent natural envir- studies had been prepared before the cri- onment, a natural screen had been erected. tical date of implementation of the habitats This was capable of moderating both directive, namely, 10 June 1994. The Con- optical and acoustic impairments. All mea- seil d'État had specifically commented on sures came together to produce an overall the scope and content of the studies and plan aimed at maintaining the natural had come to the conclusion that the environment. Thus, the changes in the assessment of the project's implications landscape associated with limestone quar- had been of sufficient magnitude according rying were not irreversible either. The to the requirements of national law. project manager was entrusted with the restoration of the area's natural appear- ance.

86. All possible sources of interference with 89. With regard to clarifying the terminol- the birds' habitat mentioned by the Com- ogy used, the French Government points mission, namely, noise, power lines and a out that the term 'compensatory measures' reduction in the size of the hunting ground (mesures compensatoires) had been used of birds of prey, had been examined. within the meaning of national law 30 and included measures aimed at lessening any impact a project might have. By contrast, the term used in Article 6 of the habitats directive refers to measures aimed at com- pensating for the negative effects on a habitat. To eliminate any misunderstand- ings, the French Government had used the With regard to (c) term 'precautionary measures' (mesures de précaution).

2. Appraisal sion against the Federal Republic of Ger- many on the grounds of failure to observe the directive on the assessment of environ- mental effects 32 in a specific project, the Federal government defended itself by On the applicability of the habitats direct- arguing that the licensing procedure con- ive cerned had already been initiated before the critical date for implementation of the directive. The argument did not succeed, since the Court focused on the formal initiation of the licensing procedure, which was indisputably after the critical date and, (a) The applicability of the habitats direct- to that extent, all preliminary proceedings ive to the present case is questionable in so could be regarded as irrelevant. The possi- far as the licensing procedure involved in bility cannot be excluded that the Federal extending the limestone quarry undoubt- government's argument might have been edly began before the date cited for com- upheld, had the sequence of events been plete applicability of the directive, namely different. 10 July 1994. It is true that the licence was only granted on 9 November 1994. Never- theless, there are a number of factors suggesting that the licence application had been made far earlier. Firstly, the French Government mentions that all individual studies for the assessment of the project's 92. In the present proceedings, the precise implications had been carried out long date marking the formal beginning of the before July 1994. Secondly, it states that a licensing procedure is not contained in the licence to extend the limestone quarry had documents. Therefore, the examination is already been granted in 1991 and this, to continue below, despite the reservations following objections by opponents to the that exist. project, was now also valid. In the end, the company OMYA had two licences for the same project, with the later one laying down more stringent conditions than the earlier one. As a result, it is only the later one that is the subject-matter of the present proceedings. (b) A second objection to the applicability of the habitats directive in terms of its content emerges from the inclusion of the birds directive in the habitats directive pursuant to Article 7 of the latter. Accord- ing to Article 7 of the habitats directive, the obligations arising from Article 6(2) to (4) 91. In Treaty infringement proceedings in of this directive replace those arising from Case C-431/92, 31brought by the Commis-

93. This wording, therefore, quite clearly focuses on the fact that the site must first have SPA status, as defined by the birds directive, before the obligations laid down in Article 6 of the habitats directive can apply. The deferred validity for protected areas already classified 'from the date of implementation of this directive' and for those still to be classified 'from the date of classification or recognition ...' leaves no scope for any other interpretation. 96. The arguments supporting the applic- ability of Article 4(4) of the birds directive, even in the absence of any SPA classifica- tion, would also apply to the applicability of Article 6(2) to (4) of the habitats direc- tive. If this were not the case, a duality of provisions would exist under Article 4(4) of the birds directive, on the one hand, and 94. The first formal classification of special Article 6(2) to (4) of the habitats directive, protection areas in the Basses Corbières on the other. The provision of Article 4(4) took place in 1999. 33 Based on a literal of the birds directive was in some senses interpretation, therefore, the habitats direc- tive cannot be applied to the events forming the subject-matter of the present Treaty 34 — Commission v Spain [1993] ECR I-4221. infringement proceedings. 35 — Cf. Case C-355/90 (cited at footnote 34, paragraph 22). 36 — Cited at footnote 13. 37 — Cited at footnote 16. 38 — Cf. judgment in Case C-166/97 (cited at footnote 13, 33 — The classified areas correspond to the biotope orders; cf. paragraph 38) and judgment in Case C-96/98 (cited at point 13 above and footnotes 6, 7 and 8. footnote 16, paragraph 46).

more rigorous, as it did not provide for the 98. The procedural law position in which possibility of exceptions to the same extent the Court postulated this obligation for the as Article 6(2) to (4) of the habitats direct- first time should be noted here. The King- ive. It would be paradoxical if the stricter dom of Spain was charged in the context of provision were to apply to sites that had Treaty infringement proceedings with not actually been classified than to formally having failed to meet its obligations under classified special protection areas or those Article 4(1) and (2) of the birds directive. recognised as such. In response to the further accusation that it had also failed, contrary to its obligations, to take appropriate measures within the meaning of Article 4(4), the Spanish Gov- ernment defended itself, saying that it could not be prosecuted for a failure to classify special protection areas and at the same time for failing to introduce the measures required in those areas. This defence was rejected by the Court at the time and hence came the declaration described above on the applicability of Article 4(4) of the birds directive and the compulsory measures envisaged therein. 97. It is true that the Court acknowledged the applicability of Article 4(4) of the birds directive to sites that should have been classified special protection areas in accord- ance with Article 4(1) and (2), but had not actually been classified. However, the legal consequence attached to this by the Com- mission in favour of the applicability of Article 6(2) to (4) of the habitats directive is not the only one possible. To avoid an interpretation of Article 7 of the habitats directive contra legem, another formulation 99. The legal thinking permeating Com- may be preferred. In this case, it can be munity law, whereby a Member State assumed on the basis of existing authori- should be unable to draw any benefit from ties 39 that the Member States take appro- its failure to comply with obligations under priate measures in accordance with Arti- Community law, is evident from these cle 4(4) to avoid the pollution or deteriora- authorities. 40 If the Court had followed tion of habitats and disturbance of the the logic of the Spanish Government's birds, in so far as these would have a defence in Case C-355/90, it would have significant impact on the aims of this signified for Member States that if they had Article, specifically in areas that should failed to classify special protection areas, have been classified as SPAs within the they could in any event have been prose- meaning of paragraphs 1 and 2 of the cuted for such inactivity. Beyond that, article. however, they would have found them-

100. A dilatory approach on the part of Member States in their classification of special protection areas would undoubtedly have been promoted, had the Court not ruled in favour of the applicability of 102. The duality of the regime for classified Article 4(4), even if there were no SPA special protection areas, on the one hand, classification, yet the Court established a and those that should have been classified, very strict criterion in another context with on the other, as alluded to by the Commis- regard to the deterioration of special pro- sion, may be unproblematic, but it will tection areas.41 On that occasion, the create a certain incentive for Member Court did not allow either economic or States to classify SPAs if they thereby open recreational requirements to justify up the possibility of deviating from the encroachments changing the environ- rigid requirements laid down by Art- ment, 42 even though the United Kingdom icle 4(4) of the birds directive (as inter- Government, as intervener, had expressly preted by the Court 45 ). referred to Article 2 of the directive, 43 but allowed only imperative considerations of the public interest which took priority over the environmental concerns of the Direct- ive, such as the aversion of flood risks and coastal protection. 44

population. In accordance with para- quarry in the communes of Vingrau and graph 4 of Article 4(1), it must be one of Tautavel. Since it is in no way contested the 'most suitable territories in number and that the site was not classified as an SPA in size' for the conservation of the species. November 1994, it must initially have been When a site qualifies as an area that should a site that should have been classified as an have been classified as an SPA, there is SPA. associated with this a certain judgment of unworthiness with regard to omissions in the fulfilment of the Member State's obli- gations under Article 4(1) and (2) of the birds directive. In all other regions, the duty of endeavour embodied in the second sentence of Article 4(4), which reads, 'Out- side these protection areas, Member States 106. The territory of the communes of shall also strive to avoid pollution or Vingrau and Tautavel lies within the area deterioration of habitats', continues to protected by biotope order No 774/91. In apply. the meantime, this very area was classified as an SPA in January 1999. Against this background, there can be no reservations about regarding the site to which the licence applies as one located in an area that should be classified as an SPA. The duty incumbent on the Member State was and is, therefore, to take appropriate meas- 104. As a result of this consideration of the ures 'to avoid pollution or deterioration of rivalry between Article 4(4) of the birds habitats or any disturbance affecting the directive and Article 6(2) to (4) of the birds, in so far as these would be significant habitats directive, it must be stated that having regard to the objectives of this Article 6(2) to (4) is not applied by opera- Article.' 46 tion of Article 7 of the habitats directive to sites that were not the subject of a formal classification as SPAs or recognised as such. In the present case, therefore, Article 4(4) of the birds directive will continue to apply.

112. The extended limestone quarry can be expected to cover an area of 30 hectares, once it is in full operation. In relation to the total area of the biotope protected under order No 774/91 or the present SPA cover- 109. To be able to assess whether inter- ing 231 hectares, this represents 7.7%. If ference is 'significant' within the meaning one relates the 30 hectares of space used to of the provision, the objectives of Article 4 ZICO LR07, which covers an area of of the birds directive must be applied. The 47 400 hectares, the extent of the land in provision requires special efforts to be use is once again modified considerably. made in relation to the habitats of species classified worthy of protection under Annex I to the birds directive. The exist- ence of a few such species in the region, Bonelli's eagle in particular, is undisputed. 113. Nevertheless, the possibility that the quarrying operation will result in noise disturbance and a deterioration in the hunting ground used by the birds of prey cannot be ruled out. 110. With regard to the much cited Bon- elli's eagle, it should be noted at the outset that the limestone quarry in Tautavel has been operating since 1968. Throughout this time, the Bonelli eagles have repeatedly nested in the crags at Vingrau. The fact that 114. In this connection, the French Gov- the pair of eagles failed to appear in ernment has referred to the natural screen 1997/98 cannot be connected to the exten- specifically approved as a compensatory sion of the limestone quarry, since those measure and to measures aimed at increas- activities had not yet begun at that time. ing the stock of small game for the birds of prey.

117. Article 4(4) of the birds directive does not in itself make any provision for excep- tions. Apart from the priority given in the case-law, as has already been mentioned, to the public interest in the form of measures aimed at protecting human life, 47 no 119. In the event that the Court should deviations are possible in principle. Ir- choose not to follow the solution outlined respective of this, however, the Court took above and prefer to proceed on the basis of into account in its severe judgment the fact the applicability of Article 6(2) to (4) of the that the project in question had 'specific habitats directive, notwithstanding the positive consequences for the habitat of reservations pursuant to Article 7 in rela- birds'. 48 tion to timing and content, a few consid- erations to assist in this are set out below.

118. It may therefore be permissible for certain compensatory measures to be taken 120. The quarry extension project would into account when examining the signifi- then have to satisfy the requirements of this cance of the effects. This is because, firstly, directive. To begin with, it should be pointed out with regard to the conditions formulated in Article 6(2) on the applic- 47 — Cf. Case C-57/89, cited at footnote 41. ation of the directive, that despite the far- 48 — Cf. Case C-57/89, cited at footnote 41, paragraph 25. reaching agreement in the formulations of

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123. Assuming the French authorities had obtained a negative result from their exam- ination under Article 6(3) of the habitats directive, s0 they would have had the opportunity of implementing the plan or project under Article 6(4) for 'imperative reasons of overriding reasons of public 121. It is entirely possible, or even prob- interest, including those of a social or able, in this respect that the planned economic nature', in so far as there was extension of the limestone quarry is a no alternative solution at hand. With 'project' as defined by Article 6(3) of the regard to the alternative solution, the habitats directive. This necessarily requires 50 — Even in the pre-litigation proceedings, the French Govern- ment insisted that the licences had been granted under 49 — Cf. Article 2 of the habitats directive. conditions that satisfied the requirements of Article 6(3).

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COMMISSION V FRANCE

French Government declared that this pos- ats directive came into force, is convincing. sibility had been examined, but with a Having regard to the time when the events negative outcome. The alternative referred took place, one cannot insist on observance to of quarrying the limestone deposit at of the formal requirements arising from this Salses-Opoul had been viable from the Directive. What must then be decisive and point of view of the quality of the minerals, sufficient is that, as to the substance, the but not the quantity available. requirements of the habitats directive were taken into account. 51

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V I I— Conclusion

128. I therefore propose that the Court should rule as follows:

(1) The French Republic has failed in its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of species of wild birds, in that it has omitted to classify special protection areas as defined by the directive in the area of Basses Corbières.

(2) The remainder of the application is dismissed.