C-103/00

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6. Article 1(g) of the Directive states that (iii) rare, i.e. with small populations that 'species of Community interest means are not at present endangered or vul- species which, within the territory referred nerable, but are at risk. The species are to in Article 2, are: located within restricted geographical areas or are thinly scattered over a more extensive range;

or (i) endangered, except those species whose natural range is marginal in that terri- tory and which are not endangered or vulnerable in the western palaearctic region; 4 (iv) endemic and requiring particular atten- tion by reason of the specific nature of their habitat and/or the potential impact of their exploitation on their habitat and/or the potential impact of their exploitation on their conservation status. or

Such species are listed or may be listed in Annex II and/or Annex IV or V.'

(ii) vulnerable, i.e. believed likely to move into the endangered category in the near future if the causal factors con- 7. Article 1(a) provides that 'conservation tinue operating; means a series of measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status as defined in (e) and (i)'.

(b) deliberate disturbance of these species, particularly during the period of breed- — the natural range of the species is ing, rearing, hibernation and mi- neither being reduced nor is likely to gration; be reduced for the foreseeable future,

and (c) deliberate destruction or taking of eggs from the wild;

— there is, and will probably continue to be, a sufficiently large habitat to main- tain its populations on a long-term (d) deterioration or destruction of breed- basis'. ing sites or resting places.

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2. For these species, Member States shall I I — Procedural background prohibit the keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild, except for those taken legally before this Directive is implemented.

4. Member States shall establish a system to monitor the incidental capture and kill- ing of the animal species listed in Annex IV(a). In the light of the information gathered, Member States shall take further 13. By letter of 17 March 1999 the Greek research or conservation measures as authorities replied that a draft Presidential required to ensure that incidental capture Decree for the establishment of the Zakin- and killing does not have a significant thos marine park had been sent to the State negative impact on the species concerned.' Council to be finalised. They also informed the Commission that they had set up a committee responsible for drawing up a specific draft presidential decree, of a general nature, containing financial provi- sions for all protected natural areas in Greece. They also announced their inten- tion to draw up a third specific presidential 11. Article 23(1) of the Directive provides decree regarding compensatory measures that the Member States are to bring into for the national marine park of Zakinthos. force the laws, regulations and adminis- trative provisions necessary to comply with the Directive within two years of its notification and immediately to inform the Commission thereof. As the Directive was notified in June 1992, the time-limit In this same letter, the Greek authorities expired in June 1994. also announced a series of measures includ-

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OPINION OF MR LÉGER — CASE C-103/00

ing in particular demolishing all illegal of their previous trip. 5However, as in the buildings on the beaches, establishing a case of the previous trip, they noted con- national land register, banning vehicle tinued disturbance factors such as might access to the beaches, replacing the existing damage or destroy the breeding areas of the lighting which disturbs the sea turtles and species. removing sunbeds and sun umbrellas. They also announced that a contract had been signed to build a high-speed patrol boat for port police on Zakinthos to ensure com- pliance with the protection measures.

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B — Forms of order sought I I I— Commission's grounds for com- plaint and submissions by the Hellenic Republic 18. The application by the Commission was lodged at the Court Registry on 17 March 2000.

A — Uncontested facts

19. The Commission claims that the Court should:

21. The Commission observes that the sea turtle Caretta caretta appeared on the earth 80 million years ago. Like other sea turtles, — declare that, by failing to adopt or, in it lays eggs only every two to three years. the alternative, to notify to the Com- The turtle returns to its place of birth to lay mission, within the prescribed time- eggs. limit, the requisite measures to estab- lish and implement an effective system of strict protection for the sea turtle Caretta caretta on Zakinthos so as to avoid any disturbance of the species during its breeding period (end of May 22. The region of Zakinthos and the Bay of to end of August) and any activity Laganas, where the infringement occurred, which might bring about deterioration includes 75 kilometres of beach. Of these or destruction of its breeding sites, the 75 kilometres, only five are nesting sites for Hellenic Republic has failed to fulfil its the species. The Bay of Laganas on Zakin- obligations under the EC Treaty and thos is nevertheless an essential area, per- under Article 12(l)(b) and (d) of the haps the most important breeding area in Directive; the Mediterranean, for the sea turtle Caretta caretta. 7

at night and head towards the driest place Another reason for the increased nuisance on the beach. They dig a hole of 40 to 60 which disturbs egg-laying, incubation and centimetres and lay on average 120 eggs the journey of the new-born turtles to the and then return immediately to the sea. sea is the provision of recreational or Two months later the eggs hatch and, leisure activities on the beaches and the under a full moon, the baby turtles come island for tourists. Thus, the installation of out of the sand and immediately run umbrellas and sunbeds reduces space for towards the sea. The journey to the sea is egg-laying and destroys nests or puts them considered to be the most important in in shade, preventing satisfactory incu- their lives and must be accomplished bation. Boats and people cause injuries to unaided. At this stage in their lives they the turtles attempting to come and lay eggs are very vulnerable. Many of them die on the beaches and to new-born turtles before reaching adulthood (30 years of trying to reach the open sea. Vehicles age). Out of one 1 000 new-born turtles, driving on the beaches crush the sand and only one or two will reach adulthood. also disturb egg-laying, incubation and the hatching process. Similarly, waste in the sea and on the beaches causes the death of turtles because they mistake the waste for food. 8

26. The Commission claims, firstly, that 29. The Hellenic Republic contests the the Hellenic Republic has not adopted the alleged infringement of Article 12(1 )(b) appropriate institutional framework estab- and (d) of the Directive. lishing, in accordance with Article 12(l)(b) and (d) of the Directive, a strict system of protection for the sea turtle Caretta caretta.

30. It claims that in passing the presidential decree which classifies the land and sea regions of the Bay of Laganas and the 27. According to the Commission, Strofada islands as a national maritime Article 12 of the Directive must be inter- park and the coastal areas of the communes preted in the light of Article 1(a) and (i) and of Zakinthos and Laganas as a regional Article 2. It is apparent from those provi- park 1 0on 22 December 1999, it estab- sions that a system of strict protection of an lished a strict system of protection for the animal species of Community interest sea turtle Caretta caretta. The national means a set of coherent and coordinated maritime park of Zakinthos whose purpose measures, of a preventative nature, which is to protect this important natural heritage ensure that the population of the species in and safeguard the ecological balance of the question is maintained in the long term or sea and the coast was established under restored in the type of natural habitat to that decree. which it belongs. This assumes that there is a sufficiently large natural habitat for the species in question.

35. The Commission complains that the Hellenic Republic has not taken sufficient specific measures on-site to provide effec­ 32. The Hellenic Republic observes that, tive protection for the Caretta caretta during the last 20 years, measures have during the egg-laying period. progressively been passed to ensure the protection of this animal species on the island of Zakinthos. It cites in this respect various laws, regulations and adminis­ trative measures adopted for this purpose from 1980 onwards. 11 The 1999 decree is 36. The Commission states that it made merely one stage of the progressive imple­ two visits to the breeding areas on the mentation of a strict system of protection island of Zakinthos, the first in July 1998 for this species. and the second at the end of August 1999. 12 The Commission recognises that progress was made between July 1998 and August 1999. Thus, during its second visit it noted wardens present on the breeding beaches and information boards referring 33. The Greek Government claims that the to the presence of the turtles on those delay in adopting the presidential decrees beaches. It also observed that information concerning compensatory measures cannot on the Caretta caretta sea turtles during the be regarded as constituting a failure on the egg-laying period was distributed to people part of the Hellenic Republic to fulfil its staying on the island (in particular that obligation to take the necessary measures leaflets were distributed on the beaches). for effective protection of the sea turtle Caretta caretta.

37. The Hellenic Republic admits the exist- ence of the illegal buildings on the Daphni beaches, but claims that they are not in use IV — Assessment and that the local authority has decided to have them demolished. It states that new laws on lighting have been passed. Thus, by virtue of those laws, lighting from blocks of flats and other buildings and public lighting will no longer be visible directly from the beach and will indeed be at least one A — Need to adopt a legal framework to nautical mile from the sea. It adds that meet certain obligations the local authority of Laganas has complied with those new laws. It also acknowledges that mopeds do cross part of the beach. 38. In the words of the Court's settled case-law, 'the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion. The Court cannot therefore take account of any subsequent changes.' 13

It observes, however, that effective warden- ing of the beach of Laganas which is 2 000 metres long, is difficult because of its length. As regards the number of sun umbrellas and sunbeds, it admits that some 39. Under Article 12(1 )(b) and (d) of the communes were not observing the require- Directive, Member States shall take the ments of the 1999 decree. It states, how- ever, that on Gerakas beach, the number of umbrellas and sunbeds has now been much 13 —See in particular Case C-67/99 Commission v Ireland [2001] ECR I-5757, paragraph 36, Case C-71/99 Com- reduced and that on Daphni beach umbrel- mission v Germany [2001] ECR I-5811, paragraph 29, and C-220/99 Commission v France [2001] UCR I-5831, las have been removed. The Hellenic paragraph 33.

43. It is clear from the wording of these provisions that the obligations stemming from Article 12 of the Directive arise for 40. Under Article 2(2) of the Directive, the the Member States before a reduction in the measures adopted pursuant to Article 12 of numbers of the species in issue, the Caretta the Directive are to be designed to maintain caretta turtle, is found, or there is a real risk or restore, at favourable conservation of the protected species disappearing. 14 In status, species of wild fauna of Community other words, the measures to be taken are interest. essentially of a preventative nature. Fur- thermore, the combined effect of those provisions is apparently that a system of strict protection of an animal species of Community interest means a set of coher- ent and coordinated measures, of a pre- ventative nature, which ensure in the long term that the population of the species in 41. For the purposes of the first indent of question is maintained or restored in the Article l(i) of the Directive, conservation type of natural habitat to which it belongs. status of a species means the sum of the This assumes that there is a sufficiently influences acting on the species concerned large natural habitat for the species in that may affect the long-term distribution question. and abundance of its populations within the territory referred to in Article 2 of the Directive.

44. The fact that during the last 15 years no reduction in the number of nests on the island of Zakinthos has been proven is therefore insufficient to exempt the Hel- 42. Under the second indent of Article l(i) lenic Republic from the obligations incum- of the Directive, conservation status is bent on it under Article 12 of the Directive. regarded as 'favourable' when population In order to comply with the obligations of dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its 14 — See by analogy C-355/90 Commission v Spain [1993] natural habitats, that the natural range of ECR1-4221, paragraph 15.

45. It is apparent from these proceedings that on 14 August 1999, after expiry of the time-limit set in the reasoned opinion, the Hellenic Republic had not fully complied with its obligations under Article 12 of the Directive. 47. Moreover, in its communications reply- ing to the letter of formal notice from the Commission and the reasoned opinion, and in its defence and its submissions during the hearing, the Hellenic Republic admitted that full, coordinated measures to ensure strict protection of the species in question were being adopted, but that on 14 August 1999 they had still not been adopted. 46. The observations by the State Council as they appear on the record attached to the draft 1999 decree are quite sufficient in this respect to establish that fact. It is clear from the report drawn up by the State Council that the provisions in force, in particular the 1990 decree, were not sufficient to ensure effective protection for the marine 48. In their communication of 17 March systems and land of the Bay of Laganas. 1999, the Greek authorities in fact The record states that the breeding beaches announced a set of measures including, in at Daphni, Gerakas and Kalamaki are particular, the demolition of all illegal under considerable pressure due to road buildings on the beaches, setting up a construction near those beaches. In winter national land register, a ban on vehicle these roads become torrents. That phenom- access to beaches, replacing existing light- enon causes erosion of the soil and, con- ing which disturbs sea turtles and the sequently, destruction of the breeding removal of sunbeds and umbrellas. The beaches. The State Council also stresses that human activity linked to the exploi- tation of tourist resources generates further 15 — Other concrete measures to protect these sites are also nuisance such as excessive noise. The State recommended, in particular the establishment of infra- structures which make recreational and leisure activities Council emphasises that this nuisance is for tourists compatible with the areas needed for the protected species to breed (including the siting of car such as to disturb the protected species parks).

54. The Commission sets out findings it 51. When the Court invited the Greek made during a visit in late August 1999 to Government 16 to state, reproducing their the breeding beaches of the Caretta caretta wording, the specific provisions within its turtles on the island of Zakinthos. It legal order that were in force on 14 August pointed out that, despite signs explaining 1999 and which it considered sufficient to the presence of turtle nests on the beaches meet the requirements of Article 12(l)(b) on the south of the island, it had been established that acts attributable to man had been committed which might disturb 16 — See written question put by the Court before the hearing. the species. In particular the Commission

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57. The use of sunbeds and umbrellas as 1 7 — In particular the recruitment of more wardens, establish­ well as mopeds on the beach, despite ment of the management and administrative body of the national marine park of Zakmthos which will have warnings regarding the presence of turtle authorisation to coordinate the various measures actually nests, constitute deliberate acts such as adopted by the competent authorities such as communes (in particular regarding the issue of building licences) and, might disturb the species during a period in certain cases, to enact certain rules (in particular concerning umbrellas and sunbeds on the beach, and rules when, in accordance with Community law, on public lighting).

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Conclusion

For the reasons given, I propose that the Court should:

(1) declare that, by failing to adopt, within the prescribed time-limit, the requisite measures to establish and implement an effective system of strict protection for the sea turtle Caretta caretta on Zakinthos so as to avoid any disturbance of the species during its breeding period (end of May to end of August) and any activity which might bring about deterioration or destruction of its breeding sites, the Hellenic Republic has failed to fulfil its obligations under Article 12(1)(b) and (d) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;