C-67/99

COMMISSION v IRELAND

OPINION OF ADVOCATE GENERAL LÉGER delivered on 3 May 2001 1

Table of contents

I — The legal framework common to Cases C-67/99, C-71/99 and C-220/99 I-5761 II — The procedural framework of Cases C-67/99, C-71/99 and C-220/99 I - 5765 A — The pre-litigation phase I.5765 1. In Case C-67/99 I-5765 2. In Case C-71/99 I. S766 3. In Case C-220/99 I.5768 B — The forms of order sought by the parties I - 5769 1. In Case C-67/99 I-5769 2. In Case C-71/99 I-5770 3. In Case C-220/99 I-5771 III — The pleas in law put forward by the Commission and the arguments of the parties I - 5772 A — The identical arguments presented by the Commission in Cases C-67/99, C-71/99 and C-220/99 I-5772 1. The first plea in law I. 5772 2. The second plea in law I.5774 B — The specific arguments presented by the Commission in Cases C-67/99, C-71/99 and C-220/99, and the parties' arguments 1-5774 1. In Case C-67/99 I-5774 The first plea in law I. 5774 The second plea in law I.5775 2. In Case C-71/99 I.5775 The first plea in law I.5775 The second plea in law I. 5777 3. In Case C-220/99 I.577g The first plea in law I.5778 The second plea in law I.578 j

1 — Original language: French.

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2. The habitats directive seeks to establish a coherent European ecological network of 3 — The project's scale has for these reasons been described by the Commission's representative as being 'the most ambi- 2 — OJ 1992 L 206, p. 7, hereinafter 'the habitats directive'. tious within the area of conservation since Noah's Ark'.

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3. The Commission criticises Ireland, the 7. According to Article 3(1) of the habitats Federal Republic of Germany and the directive, this network, composed of sites French Republic for having forwarded to hosting the natural habitat types listed in it incomplete lists and for having failed to Annex I and habitats of the species listed in attach the relevant information required. Annex II, together with the special protec- tion areas 7 established pursuant to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, 8is required to ensure the maintenance or, where appro- priate, the restoration of the types of 4. The present actions thus concern defini- natural habitats and species' habitats con- tion of the margin of discretion which cerned to a favourable conservation status Member States have during this first stage in their natural range. in the designation of SACs.

10. The first stage is described in Arti- (c) Degree of conservation of the structure cle 4(1). and functions of the natural habitat type concerned and restoration possi- bilities.

11. The first subparagraph of Article 4(1) provides that implementation of this first (d) Global assessment of the value of the stage is a matter coming within the compe- site for conservation of the natural tence of the Member States. Implementa- habitat type concerned. tion consists in establishing, on the basis of criteria set out in Annex III (Stage 1) and relevant scientific information, a list of the sites containing the natural habitat types mentioned in Annex I and hosting the B. Site assessment criteria for a given native species mentioned in Annex II. species in Annex II

(a) Size and density of the population of 12. Annex III (Stage 1) to the habitats the species present on the site in directive lays down the following criteria: relation to the populations present within national territory.

'A. Site assessment criteria for a given (b) Degree of conservation of the features natural habitat type in Annex I of the habitat which are important for the species concerned and restoration possibilities.

(a) Degree of representativity of the nat- ural habitat type on the site. (c) Degree of isolation of the population present on the site in relation to the natural range of the species.

(b) Area of the site covered by the natural habitat type in relation to the total area (d) Global assessment of the value of the covered by that natural habitat type site for conservation of the species within national territory. concerned.'

14. The first subparagraph of Article 4(1) of the habitats directive stipulates that, in the case of animal species ranging over wide areas, 'these sites shall correspond to the places within the natural range of such 17. This stage follows a procedure consist- species which present the physical or bio- ing of two phases. The first phase must logical factors essential to their life and allow the Commission, 'on the basis of the reproduction'. Similarly, 'for aquatic spe- criteria set out in Annex III (Stage 2)... [to] cies which range over wide areas, such sites establish, in agreement with each Member will be proposed only where there is a clearly identifiable area presenting the physical and biological factors essential to 13 — Hereinafter 'the formar'. 1 4 — T h i s procedure requires that the Commission adopt the their life and reproduction'. measures provided for under the habitats directive after consultation with an Liii hue committee consisting of representatives of the Member States and chaired by a representative of the Commission (Article 20 of the habitats directive). 10 — Annex III (Stage II, Heading C. 15 — Commission Decision concerning a site information for- 11 — Ibid., Heading D. mat for proposed Natura 2000 sites (OJ 1997 I. 107, p. 1, 12 — Article 1(d) and (lit of the habitats directive. and, particularly, p. 20).

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State, a draft list of sites of Community procedure for designating SACs and is a importance drawn from the Member matter coming within the exclusive compe- States' lists identifying those which host tence of the Member States. Article 4(4) one or more priority natural habitat types provides that once a site has been selected or priority species'. 16 as a SCI and is included on the list drawn up by the Commission at the conclusion of the second stage, 'the Member State con- cerned shall designate that site as a special area of conservation...''. 20

22. Since the habitats directive was notified on 9 June 1992, the period within which Member States were required to forward to 20. The third stage is set out in Arti- the Commission the list of proposed sites cle 4(4). This marks the conclusion of the and the information on those sites expired on 10 June 1995. 23 16 — The first subparagraph of Article 4(2); emphasis added. 17 — Hereinafter 'SCIs'. 20 — Article 4(4); emphasis added. 18 — The third subparagraph of Article 4(2); emphasis added. 21 — It is, for instance, stated that certain plans or projects likely 19 — The selection criteria chosen include the 'geographical to have a significant effect on SCIs must be subject to an situation of the site in relation to migration routes of assessment of their implications for the site (Article 6(3) of species in Annex H and whether it belongs to a continuous the habitats directive). ecosystem situated on both sides of one or more internal Community frontiers' (Annex III (Stage 2), Heading 2(b)) 22 — Article 4(5). and the 'ecological value' of the site (Annex III (Stage 2), 23 — The second subparagraph of Article 4(1) of the habitats Heading 2(e)). directive.

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II — The procedural framework of Cases ber 1996, the Commission sent to the Irish C-67/99, C-71/99 and C-220/99 Government on 11 July 1997 an additional letter of formal notice pursuant to Arti- cle 169 of the Treaty. In that letter it stressed the need to use the format for transmission of the relevant data and criticised the Irish Government for having A — The pre-litigation phase failed to send to it a full list of the sites concerned by Article 4(1) of the habitats directive or to provide relevant site infor- mation under that article, calling on it once again to submit its observations within one month. 1. In Case C-67/99

25. Bearing in mind the fact that the format had been notified to Ireland on 19 Decem- 24 — Ireland has stated that it did nut host any priority species.

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OPINION OF MR LÉGER — CASES C-C7/99, C-71/99 AND C-220/99

national consultation process. They of nine sites for the purposes of Article 4(1) acknowledged that they were required to of the habitats directive. The information comply with the formal mechanism for on these sites was sent to the Commission transmission of the site information. They on 6 October 1998. thereby accepted that the list sent on 28 April 1997 was not to be considered as the definitive list corresponding to the first tranche. 30. As it was unable to conclude, on the basis of those notifications, that Ireland had completely put an end to the infringe- ment in question, the Commission decided to bring the present action.

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that the Länder had informed them that as SACs pursuant to Article 4(1) of the they would designate those areas only once habitats directive. In a separate letter, they the habitats directive had been implemen- also stressed the particular features of ted in national law, the German federal German law, which confers on the Länder authorities stated that they were not in a the power to select SACs, and referred to position to submit the full list of national the policy of the Länder in this regard. sites eligible for designation as SACs. They pointed out in this connection that, since the implementing legislation had not yet been adopted, the Länder did not intend to send to the German federal authorities the full list of the sites con- cerned by Article 4(1) of the habitats 33. By letters of 30 September 1996, directive. 24 January 1997, 28 January 1997 and 11 June 1997, the German federal autho- rities sent to the Commission three lists of SACs in the Land of Bayern and notified the existence of one site in the Land of Sachsen-Anhalt.

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OPINION OF MR LÉGER — CASES C-67/99, C-71/99 AND C-220/99

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COMMISSION v IRELAND

but did not mention the existing habitat implementation of that directive had gen- types or native species, or the surface areas erated among the French public, they had concerned. preferred to 'freeze' its application. The French authorities stressed that they had decided to consult the French public in order the better to meet its expectations. They also pointed out that the French 43. Since it took the view that the measures legislative elections had resulted in a adopted were inadequate, the Commission change in the French Government and that sent to the French Government, on this had caused additional delays. 6 November 1997, a reasoned opinion explaining why it was maintaining its heads of complaint alleging non-compliance with the first and second subparagraphs of Article 4(1) of the habitats directive. It 46. The French authorities also informed criticised the French Republic for having the Commission, in their letter of failed to forward the full list of sites 17 November 1998, that a list of military containing the natural habitat types under sites eligible for inclusion in the Natura Annex I and native species under Annex II 2000 network would be sent under sepa- or the information on those sites. The rate cover. Commission called on the French Republic to adopt the measures necessary to comply with that opinion within two months of its notification. 47. Being unable to conclude, on the basis of the above correspondence, that the French Republic had completely brought to an end the infringement in question, the Commission decided to bring the present 44. By letters of 9 December 1997, 22 and action. 26 January 1998, 12 February 1998, 17 November 1998, 21 and 28 January 1999 and 18 February 1999, the French authorities sent to the Commission the list of 672 sites hosting the types of habitats and species referred to in Annexes I and II, B — The forms of order sought by the representing a surface area of 1 453 000 parties hectares, together with 381 formats corre- sponding to a number of those sites.

— order Ireland to bear the costs. — dismiss the remainder of the applica- tion as inadmissible;

50. Ireland contends that the Court should:

— order that each party bear the costs of the proceedings.

in the first instance,

2. In Case C-71/99 — declare the application inadmissible;

51. The Commission's application was lodged at the Court Registry on 1 March — order the applicant to pay the costs; 1999.

53. The Federal Republic of Germany submits that the Court should: — order the French Republic to pay the costs.

56. The French Republic contends that the — dismiss the application; Court should:

— dismiss as inadmissible or, failing that, — order the applicant to pay the costs. as unfounded the Commission's com-

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OPINION OF MR LÉGER — CASES C-67/99, C-71/99 AND C-220/99

plaint alleging inadequacy of the the habitats directive. In its second plea in French list, and maintain only the law, the Commission argues that the Gov- complaint concerning the lateness in ernments concerned failed to transmit the the final transmissions of sites by the information relating to those lists, as French Republic under the first sub- required by the second subparagraph of paragraph of Article 4(1) of the habi- Article 4(1) of that directive. tats directive;

COMMISSION v IRELAND

sion of the first stage is limited and is 61. According to the Commission, the subject to compliance with the following creation of a coherent European ecological three conditions: network, which remains the principal objective of the habitats directive, presup- poses that Member States will make an exhaustive inventory of the sites within their territory which host natural habitat types and species' habitats mentioned in Annexes I and II. — only criteria of a scientific nature may determine selection of the sites to be proposed;

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scientific criteria set out in Annex III (Stage B — The specific arguments presented by 1), without, however, confining themselves the Commission in Cases C-67/99, C-71/99 to proposing only those sites which, in their and C-220/99, and the parties' arguments view, ought to be designated as SACs. In other words, the list of the proposed sites must be exhaustive in such a way as to make it possible, during the subsequent phases of the procedure for the designation of SACs, to realise the objectives of the habitats directive. Member States are there- 1. In Case C-67/99 fore obliged to take account, during this first stage, of quantitative and qualitative criteria.

The first plea in law

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in detail the reasons which persuaded the scribed in the reasoned opinion, to forward Commission that Ireland had failed to fulfil complete information on the sites which its Treaty obligations. had been included on the list sent to it. The Commission also notes that Ireland has to date failed to comply with that obligation.

66. Furthermore, that reasoned opinion does not refer to the same grounds and heads of complaint as set out in the action. Ireland submits in this regard that the 69. For the reasons set out above, Ireland reasoned opinion refers only to its delay maintains its submission that the Commis- in complying with Article 4(1) of the sion's action should be declared inadmissi- habitats directive but does not set out the ble. In the alternative, it accepts that not all specific heads of complaint contained in the of the site information has been forwarded. application which allege that Ireland failed It points out, however, that the system to comply with the substantive require- introduced by its national law ensures, ments of that provision. within the national territory, protection for the species and natural habitats con- cerned by the habitats directive. It further points out that it is making every effort to meet its obligations. 67. In the alternative, Ireland acknowl- edges that, when the period laid down in the reasoned opinion expired, it had not forwarded to the Commission either the complete list of sites mentioned in the first subparagraph of Article 4(1) of the habitats directive or the information relating to those sites. It submits that this delay was 2. In Case C-71/99 attributable to internal difficulties. In order to secure the agreement of the population to the ambitious objectives pursued by that directive, Ireland considered it necessary to launch an extensive public consultation process. The first plea in law

71. It first notes that the German federal 73. The Commission further points out authorities have implicitly acknowledged that the sites proposed for certain habitat as much since they indicated, in a letter of types do not correspond to the require- 15 April 1998, 'that they intended later to ments of the habitats directive. This, it designate other sites in addition to those claims, is attributable to the fact that, for designated to date, in order to complete the an important type of habitat, a very small system of Natura 2000 conservation areas'. number of sites was proposed or that, for significant areas of the national territory, in particular for the biogeographical regions referred to in Article 1(c)(iii) of the habitats directive, no site was proposed. The Com- mission lists the natural habitat types in Annex I and types of species in Annex II in respect of which no site was proposed in the Continental or Atlantic biogeographical regions. Thus, according to the Commis- sion, for the Continental region 81 natural habitat types under Annex I occur in Ger- many. A mere 28 natural habitat types were 72. The Commission goes on to point out proposed by the German federal authorities that a comparison of the designations made in the site lists sent to the Commission. by the German federal authorities with the Likewise, for that biogeographical region, scientific data which they provided amply of 85 habitats of wild species in Annex II, demonstrates this. The Commission thus only 56 were proposed on the lists which refers to figures in the handbook edited by the Commission received. The same finding the Bundesamt für Naturschutz 26 (Federal holds true for the Atlantic region. Office for Nature Protection), The Eur- opean System of Natura 2000 conservation areas — BfN handbook on the transposi- tion of the fauna-flora-habitats directive and of the directive on the protection of birds, Bonn-Bad Godesberg, 1998. 27 This central administration and research organ 74. Finally, the Commission states that the of the Bund, under the control of the Federal Republic of Germany proposed an Federal Ministry of the Environment and insufficient number of sites, in the light of having competence in the areas of nature the criteria in Annex III and of the objec- protection and landscape planning, listed tive pursued by the habitats directive, all of the natural habitat types in Annex I namely the conservation of habitats. and all types of wild species in Annex II to the habitats directive which occur in Ger- many. It turns out that the German federal authorities did not include, on the list of sites forwarded to the Commission, a number of habitat types occurring in Ger- many. 75. The Federal Republic of Germany points out that compliance with the obliga- tion to forward the list of relevant national 26 — Hereinafter 'the BfN'. sites imposed by the first subparagraph of 27 — Hereinafter 'the handbook'. Article 4(1) of the habitats directive is

subject to the receipt of the standard national level is, in the view of the Federal format drawn up by the Commission. Since Republic of Germany, the most appropriate that format was not notified until level at which to carry out a proper 19 December 1996, it was impossible for selection of the sites hosting the natural the Federal Republic of Germany to meet habitats in Annex I and the habitats of its obligations under the directive within species in Annex II. Member States are the periods prescribed by the Commission. more familiar with the sites within their territory. The Federal Republic of Germany therefore takes the view that it is not necessary to notify all the sites which meet the requirements of the directive. According to the German Government, compliance with the above obligation involves the performance of extensive and delicate preparatory work. It notes in this regard that the scientific criteria to be taken 77. Finally, the Federal Republic of Ger- into consideration for the selection of many challenges the scientific sources on relevant sites are numerous and complex. which the Commission relied in order to It points out further that the format is the demonstrate that the list submitted was first document to define the information incomplete. In its opinion, the handbook in allowing for selection of the relevant sites. no wise constitutes the German reference Because of this, it was imperative that it list. should have that format before beginning the preparatory operations. Consequently, the German Government submits that the period laid down for compliance with that obligation could, at the earliest, have begun to run only from notification of that format. The German Government finds as The second plea in law a fact that the Commission decided to bring the action even though the period had not yet expired at that time. 78. According to the Commission, the Federal Republic of Germany failed to forward, by the expiry of the period set in the reasoned opinion, the information 76. The Federal Republic of Germany relating to the listed sites. further argues that Member States are given a wide margin of discretion in regard to selecting the sites for inclusion on the list to be submitted to the Commission. They are thus entitled to notify only those sites 79. The Commission sets out in this con- which they consider to be appropriate and nection the lists of sites which it received necessary for the establishment of a coher- from the various Länder and which did not ent European network, on the basis of contain the information required or which technical criteria and having regard to the were not compiled in the appropriate objectives of the habitats directive. The format.

84. Next, the Commission remarks that a 3. In Case C-220/99 comparison of the available scientific data concerning the natural habitat types in Annex I and the types of wild species in Annex II to the habitats directive occurring in France with the lists sent by the French authorities to the Commission makes it The first plea in law clear that several types of natural habitats in Annex I and types of species in Annex II were not proposed. The first subparagraph of Article 4(1) of the habitats directive 81. The Commission finds that, at the expressly requires Member States to pro- expiry of the period set in the reasoned pose sites for all types of natural habitats opinion, the French Republic had submit- and wild species listed in Annexes I and II. ted to it only a list comprising 535 sites. Failure to comply with that obligation must Furthermore, on 15 March 1999, the date lead automatically to the finding that the on which the Commission concluded its French Republic has failed to fulfil its analysis, that list comprised 672 sites. This obligations, as alleged. figure results from the addition of the sites which the French Republic notified by means of the abovementioned letters. Those sites represent a total area of some 14 530 km2 for the land portion, equiva- lent to approximately 2.5% of the national 85. The Commission points out that, in any territory. event, the number of sites notified is inadequate when one considers the sites on French territory which deserve to be included on the national list. It notes in this regard that the national scientific inventory completed in 1996 28 by the Museum 82. The Commission also puts forward, in national d'histoire naturelle 29 under the essence, three series of arguments in sup- aegis of the French Government made it port of this first plea in law. possible, in particular, to classify in order of priority the 1 695 'natural areas of ecolo- gical interest with regard to fauna and flora' identified in the course of earlier work carried out under the supervision of 83. It first points out that, as the French the French authorities. This classification in Government has itself acknowledged, this list is incomplete. Indeed, the French authorities indicated that the list of sites 28 — Hereinafter 'the inventory'. notified did not include any military sites 29 — Hereinafter 'the Museum'.

order of priority appears to have been as the list notified by the French Republic carried out on the basis of the criteria features only 672 sites, it is for that reason defined in Annex HI to the habitats direc- manifestly inadequate, unless the French tive, as attested by the technical document Republic can establish that the sites exclu- originating from the Museum which served ded do not allow for conservation of the as a guide for that work. The Commission species and habitats concerned by the adds that it has formally requested notifi- directive. Moreover, it turns out to be the cation of this inventory but that the French case that the list forwarded by the French Republic has never acceded to this request. Republic represents only 2.5% of its terri- tory, whereas the 1 316 sites described by the Museum as Outstanding' or 'very interesting' correspond to 13.6% of the national territory. 86. The Commission points out that the French Government decided to exclude 319 sites and to retain only 1316 Outstanding' or very 'interesting' sites covering approxi- mately 13% of the national territory. It 88. Finally, the Commission contends that recognises that the French Republic does the French authorities took account of have a certain scope for making a selection criteria not mentioned in the habitats at the stage under consideration, and directive for the purpose of selecting the acknowledges in particular that it is enti- sites for inclusion in the list to be forwar- tled to remove from the list those sites ded to the Commission pursuant to the first which are not relevant in the light of the subparagraph of Article 4( 1 ) thereof. Thus, scientific criteria available to it. However, in two circulars, the French authorities the Commission considers that the national indicate that the notification of the sites list of sites notified by the French Govern- to the Commission is subject to agreement ment ought to have been as extensive as by interested parties involved at local level possible and to have included all sites and to the opinions received. hosting the natural habitat types and spe- cies types in Annexes I and II which occur within the territory of the French Republic and which are representative and relevant. The Commission is not certain that the 319 89. The French Republic disputes the fail- sites excluded from the national list sent to ure of which it stands accused. Its defence it are neither representative nor relevant. It pleas may be summarised as follows. stresses in this regard that the French Government has not forwarded the scien- tific criteria which formed the basis of those exclusions. 90. The French Government argues that the complaint alleging that the number of sites notified at the conclusion of the first stage of designation of SACs is inadequate 87. The Commission finds that, even must be declared inadmissible in so far as assuming those exclusions to be justified, the Commission did not invoke that com- the Museum listed 1 316 sites described as plaint in its reasoned opinion of 6 Novem- Outstanding' or 'very interesting'. In so far- ber 1997.

92. The French Republic challenges the Commission's interpretation of Article 4(1) of the habitats directive. In its opinion, the objective to be pursued during this first stage in the process of designating SACs is 94. The French Republic acknowledges not to draw up an exhaustive inventory of that, on the basis of the criteria in the the sites within the territory of each Mem- habitats directive, the Museum carried out ber State which feature the natural habitat a national harmonisation of the regional types and wild species types in Annexes I proposals made by each regional scientific and II. The determinant criterion for estab- council for natural heritage. At the conclu- lishing the list of relevant sites is qualita- sion of a national procedure, 32 the tive, not quantitative. In other words, the Museum selected 1 695 sites, 1 316 of appropriateness of the national list must be which were adjudged Outstanding' or 'very assessed, not on the basis of the number of interesting'. At the hearing, however, the sites notified, but rather on the basis of the French Republic indicated that the representative character of the natural Museum's inventory is partially obsolete, habitats and species' habitats featuring in regard being had to other scientific data the national proposal, examined in parti- available to it. cular with regard to their degree of rarity

31—The judgment in this case has in the meantime been 30 — Introduced by the Commission for the purpose of evaluat- deliveredon 7 November 2000, ECR I-9235. ing and harmonising the Member States' proposals in 32 — With the involvement of the French National Council for order to enable a coherent network to be established. Nature Protection.

A — The objections of inadmissibility raised by Ireland and the French Republic 97. While it acknowledges that it did not send any format within the period pre- scribed by the reasoned opinion, the French Government none the less argues that it was impossible for it to meet that obliga- tion within the period provided. It takes the 1. In Case C-67/99 view that the Commission's delay in draw- ing up the format had an effect on the entire national procedure. It contends that, because of the Commission's delay in drafting the format, it drew up its own 98. The purpose of the pre-litigation pro- format on a computerised base and called cedure under Article 169 of the Treaty is to on the regional prefects to use that format give the Member State concerned an oppor- for collecting information on the selected tunity, on the one hand, to comply with its sites. When the Commission notified the obligations under Community law and, on format, the French authorities were obliged the other, to avail itself of its right to defend to transfer and modify all of the data itself against the complaints made by the contained on the national list for each site Commission.

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The Commission highlights in particular the construction to be placed on those provi- sions. Thus, in its view, compliance with 100. The rule that the regularity of the those provisions presupposes that Member procedure under Article 169 of the Treaty States will draw up an exhaustive inventory requires the Commission to develop in its of the list of sites within their territory application instituting proceedings the which host the natural habitats and the same complaints as those which it invoked species' habitats that are very precisely and in the reasoned opinion does not preclude it exhaustively defined in Annexes I and II. from restating in greater detail the subject- Each Member State must also verify that matter of its action by invoking more the sites catalogued meet the scientific precise matters than those featuring in the criteria set out in Annex III (Stage 1) to reasoned opinion. In so doing, however, the the habitats directive. Likewise, the Com- Commission may not alter the subject- mission criticises Ireland for not having matter of the proceedings. 35 used the format provided for under the second subparagraph of Article 4(1) of the habitats directive, which must contain the information relating to the sites thus listed. This format defines very precisely the information on those sites which the Mem- ber State is required to collect.

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tive. It also accepted that the site informa- 2. In Case C-220/99 tion provided required to be supplemented. Ireland cannot therefore validly argue that the Commission's complaints, as set out in the reasoned opinion, were unclear or that they related only to delays found to have 105. The French Republic considers that, occurred in giving effect to Article 4(1) of in the application instituting proceedings, the habitats directive. the plea alleging an insufficient number of sites meriting selection on the national list is a new plea in law which was raised out of time and must for that reason be declared inadmissible. It states that this plea was not invoked against it in the reasoned opinion of 6 November 1997.

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108. A reading of point 8 of the French the Commission all of the sites featured in Republic's rejoinder is particularly infor- the inventory of the Museum which were mative with regard to this confusion on its classified as 'outstanding' or 'very interest- part. Thus, it is there stated that the ing'. Commission's first complaint concerning non-transmission of a complete list is divided into 'five pleas in law' which have as their purpose to 'establish this com- plaint'. Similarly, point 8 also states that these five pleas in law 'tend... towards the 110. It follows that the Commission, in its same conclusion'. The French Republic application instituting proceedings, did not thus acknowledges that these 'five pleas in invoke any new plea in law which was not law' in support of the 'first complaint' do contained in the reasoned opinion. The not alter its subject-matter. In so doing, it objection of inadmissibility raised by the classifies as a 'plea in law' that which French Republic must for that reason be constitutes in law an 'argument'. rejected.

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38 — Paragraph 22, emphasis added. 39 — Ibid., paragraph 23. 40 — Ibid.

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116. With regard to the relevant scientific 119. Ireland acknowledges that it did not information which Member States must forward the complete list of sites within its take into account in making that selection, territory which host the types of natural it should be stressed that the habitats habitats and species in Annexes I and II to directive does not recognise any particular the habitats directive. It informed the scientific source as having legal value. It Commission of its intention to meet its follows that Member States are free to obligations according to a timetable which produce all probative scientific data did not respect the periods set by that enabling them to select the sites within directive. their territory which meet the requirements of the first subparagraph of Article 4(1) of the habitats directive. It is up to the Commission, where appropriate, to adduce evidence that those data have no serious scientific value. 41 120. It is clear that, at the expiry of the period laid down in the reasoned opinion, Ireland had not forwarded to the Commis- sion the list of all sites within its territory which host the types of natural habitats and species in Annexes I and II to the habitats 117. It is pursuant to the principles men- directive. tioned above that I propose that the Court should examine whether the Member States concerned have or have not failed to fulfil the obligations laid down in the first subparagraph of Article 4(1) of the habitats 121. It follows that, by failing to transmit directive. to the Commission a complete list of the sites in its territory within the period laid down by the habitats directive, Ireland has failed to fulfil its obligations under the first subparagraph of Article 4(1) of that direc- tive.

4. In Case C-220/99 123. It should be noted that the scientific sources on which the Commission bases itself for the purpose of establishing that the German national list is incomplete 126. The Commission has based itself on derive from a body which is recognised in the inventory drawn up by the Museum in Germany as being authoritative. Moreover, order to establish that the French Republic the Federal Republic of Germany merely has failed to meet its obligations under the asserts that the handbook is not the Ger- first subparagraph of Article 4(1) of the man reference list, but does not adduce any habitats directive. A comparison between scientific evidence to corroborate that the inventory and the lists of sites which the assertion. Finally, during the pre-litigation French authorities sent to the Commission procedure, the German federal authorities indicates that the lists transmitted by the acknowledged that their lists were incom- French Government are incomplete. plete.

132. Contrary to what the Federal Repub- lic of Germany argues, the format is not the first text to have defined the information on the sites selected by Member States at 1. The substance of the obligations under the conclusion of the first stage in the the second subparagraph of Article 4(1) of designation of SACs. The second subpara- the habitats directive and the period set for graph of Article 4(1) of the habitats direc- meeting those obligations tive expressly provides that the information on each site 'shall include a map of the site, its name, location, extent and the data resulting from application of the criteria 129. The question whether a Member State specified in Annex III (Stage 1)'. has failed to fulfil its obligations must be determined by reference to the situation prevailing in that State at the end of the period laid down in the reasoned opi- nion. 45 133. Thus, once the text of the habitats directive had been published in the Official journal of the European Communities on 22 July 1992, the Member States knew what kinds of information they would be 130. Further, the fact that the Commission required to collect for forwarding to the has not adopted all the provisions necessary Commission within three years of notifica- for the application of a directive cannot, 'in tion of the directive. 4 7 the absence of [an] express provision to that effect, relieve Member States of their obligation to adopt within the period prescribed the measures necessary to com- ply with the Directive. That obligation remains, whether or not all the conditions 134. The second subparagraph of Arti- for the implementation of the provisions of cle 4(1) of the habitats directive also pro- Community law have already been ful- vides that the above information must be filled'. 46 included on the format. Since the format was notified to the Member States on 19 December 1996, the period within 45 — See, inter alia, Case C-3/96 Commission v Netherlands, cited above, paragraph 36. 46 — See, by way of analogy, Case C-137/96 Commission v Germany [1997] ECR I-6749, paragraph 10. 47 — That is to say, by 10 June 1995.

139. It must also be pointed out that Ireland did not request the Commission — the obligation to incorporate that for an extension of that period. information into the format and to send the format to the Commission.

48 — See, by way of analogy, the judgment of 15 February 2001 in Case C - 9 9 / 9 8 Austria v Commission [2001] ECR I-1101, paragraph 32. 140. It thus follows that, by failing to 49 — See p o i n t102 of this Opinion. transmit to the Commission the complete

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OPINION OF MR LÉGER — CASES C-67/99, C-71/99 AND C-220/99

D — Costs

4. In Case C-220/99 146. Under Article 69(2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been 143. It is clear that, when the period laid down in the reasoned opinion expired on 50 — See, inter alia, Case C-71/97 Commission v Spain [1998] 6 January 1998, the French Republic had ECR I-5991. only partially met its obligations under the 51 — See point 96 of this Opinion.

I - 5790

COMMISSION v IRELAND

applied for in the successful party's plead- propose that the Court order them to pay ings. Since the Irish, German and French the costs, in accordance with the forms of Governments have been unsuccessful, I order sought by the Commission.

Conclusion

In Case C-71/99:

(1) rule that, by failing to transmit to the Commission the complete list of sites mentioned in the first subparagraph of Article 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, together with the information on each site required by the second subparagraph of Article 4(1) thereof, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

(2) order the Federal Republic of Germany to bear the costs of the proceedings.

In Case C-220/99:

(1) rule that, by failing to transmit to the Commission the complete list of sites mentioned in the first subparagraph of Article 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, together with the information on each site required by the second subparagraph of Article 4(1) thereof, the French Republic has failed to fulfil its obligations under that directive;

(2) order the French Republic to bear the costs of the proceedings.