C-117/00

COMMISSION v IRELAND

OPINION OF ADVOCATE GENERAL LÉGER delivered on 7 March 2002 1

1. In the present action, the Commission of I — Law the European Communities seeks a declar- ation that Ireland has failed to fulfil its obligations under Article 3 and the first sentence of Article 4(4) of Directive 79/409/EEC 2 and under Article 6(2) of Directive 92/43/EEC. 3 The Commission complains that Ireland failed to adopt, within the prescribed period, the measures A — The Birds Directive necessary to ensure the protection of a naturally occurring species in the wild state, namely the Red Grouse (Lagopus lagopus) and failed to ensure, in accordance with the Birds Directive and the Habitats Directive, the conservation of a special 2. The first sentence of Article 1(1) of the protection area, 4 the Owenduff-Nephin Birds Directive provides that that directive Beg Complex, 5 which shelters several 'relates to the conservation of all species of species of wild bird and contains certain naturally occurring birds in the wild state types of natural habitat of Community in the European territory of the Member importance. States to which the Treaty applies'.

3. According to Article 2 of the Birds Directive 'Member States shall take the requisite measures to maintain the popu- 1 — Original language: French. lation of the species referred to in Article 1 2 — Council Directive 79/409/EEC of 2 April 1979 on the conservation or wild birds, OJ 1979 L 103, p. 1; hereinafter at a level which corresponds in particular 'the Birds Directive'. to ecological, scientific and cultural 3 — Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and requirements, while taking account of flora, OJ 1992 L 206, p. 7; hereinafter 'the Habitats Directive'. economic and recreational requirements, 4 — Hereinafter 'SPA'. or to adapt the population of these species 5 — Hereinafter referred to, alternatively, as 'the Complex'. to that level'.

In this connection, account shall be taken of: (b) upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones;

(a) species in danger of extinction;

(c) re-establishment of destroyed biotopes;

6 — A specific biological environment that provides a given (b) species vulnerable to specific changes species with a relatively stable habitat. in their habitat;

I - 5338

COMMISSION v IRELAND

I - 5339

OPINION OF MR LÉGER — CASE C-117/00

B — The Habitats Directive their natural range which falls within the territory referred to in Article 2; they are indicated by an asterisk in Annex I.

8. The purpose of the Habitats Directive is to contribute to ensuring biodiversity by means of the conservation of natural habitats and of wild fauna and flora in 12. Under Article 1(1) of the Habitats the European territory of the Member Directive 'special area of conservation' 9 States where the Treaty is applicable. 7 means a site of Community importance designated by the Member States through a statutory, administrative and/or contrac- tual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the 9. Article 1 of the Habitats Directive populations of the species for which the site defines the principal terms used. is designated.

10. According to Article 1(b) natural 13. Article 2(2) of the Habitats Directive habitats are terrestrial or aquatic areas stipulates that measures taken pursuant to distinguished by geographic, abiotic 8and the directive are to be designed to maintain biotic features, whether entirely natural or or restore, at favourable conservation semi-natural. status, natural habitats and species of wild fauna and flora of Community interest.

11. Article 1(d) of the Habitats Directive defines priority natural habitats as natural 14. Article 3 of the Habitats Directive habitat types in danger of disappearance, provides that a coherent European ecologi- which are present on the territory referred cal network of SACs is to be set up to that to in Article 2 and for the conservation of end, called 'Natura 2000'. The Natura which the Community has particular 2000 network must include, inter alia, the responsibility in view of the proportion of SPAs classified by the Member States pur- suant to the Birds Directive. 10

16. Article 7 of the Habitats Directive provides:

18. On 9 October 1997, pointing out that Ireland had failed to fulfil its obligations under Articles 3 and 4(4) of the Birds Directive and under Article 6(2) of the Habitats Directive, the Commission gave Obligations arising under Article 6(2), (3) Ireland formal notice to submit its obser- and (4) of this Directive shall replace any vations in that regard. In its letter the obligations arising under the first sentence Commission emphasised the adverse effects of Article 4(4) of [the Birds Directive] in of overgrazing 11 on Ireland's largest SPA, respect of areas classified pursuant to the Owenduff-Nephin Beg Complex, and Article 4(1) or similarly recognised under on the habitats of the Red Grouse, a Article 4(2) thereof, as from the date of resident wild bird covered by Article 3 of implementation of this Directive or the date the Birds Directive. of classification or recognition by a Member State under [the Birds Directive], where the latter date is later.'

19. Having received no response from the Irish authorities, on 8 April 1998 the 17. Under Article 23(1) of the Habitats Directive, Member States were to bring 11 — Overuse of pasture lands by livestock resulting in deterio- into force the laws, regulations and admin- ration or vegetation and soil.

I - 5341

OPINION OF MR LÉGER — CASE C-117/00

Commission issued a reasoned opinion in 23. The Commission claims that the Court which it reiterated the observations set out should: in its letter of formal notice and called upon the Irish authorities to comply therewith within a period of two months.

COMMISSION v IRELAND

— dismiss the application and order the areas of hill land, bog and moorland are Commission to pay the costs. essential to the survival of that species.

III — Pleas in law put forward by the 27. It observes that the species' habitat has Commission and Ireland's arguments been degraded and that there has been a clear and severe reduction in the extent of its mating grounds. It attributes that situ- ation to intensive grazing since the entry into force of the Birds and Habitats Direc- tives. A — First plea: the lack of measures to preserve, maintain and re-establish habitats of sufficient diversity and area for the Red Grouse (infringement of Article 3 of the Birds Directive)

30. According to the Commission, geo- graphical maps shown in the only two atlases of breeding birds prepared to date 15 indicate that the Red Grouse's present breeding grounds have diminished by 66% when compared with the breeding grounds recorded in the first atlas and by 32. The statistical information on which 82% when compared with those identified the Commission relies supports the view in the second atlas. that the contraction in the species' breeding range is a cause for concern in that it has been particularly marked and rapid. Con- sequently, the Commission submits that Ireland must adopt measures to limit over- grazing as soon as possible. Only a draco- nian plan for managing breeding grounds is Similarly, a comparison of the map of capable of preserving, maintaining or re- designated degraded areas 16 with maps of establishing a sufficient diversity and area the present breeding range of the species of habitats for the Red Grouse. reveals that the breeding range still lies to a significant extent within the designated degraded areas 1 7and that much of the breeding range contraction has occurred within those degraded areas.

37. The Commission observes that the Owenduff-Nephin Beg Complex is a large area of blanket bog and mountains incor- 35. The Irish Government acknowledges porating the rain catchment area of the that the Red Grouse's habitat, which is Owenduff River and the Nephin Beg made up of hill land, bog and heather, is Mountain Range in County Mayo in the under serious threat from overgrazing. west of Ireland. Nevertheless, it maintains that the Com- mission has not shown that the area of the species' habitat has been reduced to such a degree that it is no longer sufficient for its conservation and submits that no infringe- ment of Article 3 of the Birds Directive can be established unless that is proved. That provision cannot, therefore, provide a sound basis for successfully suing a 38. The Owenduff-Nephin Beg Complex is Member State which is attempting to over- described by the Irish authorities 20 as one come the obstacles to the conservation of of the best and largest examples of intact species and their habitats. blanket bog in Ireland. 21 Blanket bogs are one of the priority natural habitat types listed in Annex I to the Habitats Directive.

36. Ireland also points out that the imple- mentation, with effect from 2001, of Com- 39. On 8 October 1996 Ireland classified monage Framework Plans for the most the Complex as an SPA, with effect from degraded areas in the six western 15 October 1996. The area covered by the counties 19 ought to ensure effective pro- tection of the breeding grounds of the Red Grouse. 20 — Letter of February 1995 from the Irish National Parks and Wildlife Service ('NPWS') to the Commission. 21 — And thus i nthe European Community, since this type of habitat is found predominantly in Ireland and the United 19 — See point 60 or the present Opinion. Kingdom.

22 — At the hearing it was stated that 10 000 hectares belong to the Irish State and that the remaining 15 000 hectares are commonages or private land. The Commission emphasises that the infringements of the Birds Directive occur principally on land not owned by the State. 23 — Convention on Wetlands of International Importance 43. The Commission complains that the especially as Waterfowl Habitat, signed in Ramsar, Iran, Irish authorities failed to adopt appropriate on 2 February 1971 (http://www.ramsar.org/ key_conv_f.htm). preventive measures to counteract the 24 — Article 1(1) of the Ramsar Convention defines 'wetlands' damage caused to the Owenduff-Nephin as 'areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is Beg Complex by overgrazing. static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres'. 25 — This species was inserted into Annex I to the Birds Directive by Commission Directive 91/244/EC of 6 March 26 — Which appears in Annex II/1 to the Birds Directive. 1991 amending the Birds Directive (OJ 1991 L 115, p. 1). 27 — Which appears in Annex II/2 to the Birds Directive.

I - 5346

COMMISSION v IRELAND

28 — NHAs represent those areas identified as important for 46. First of all, in their correspondence nature conservation by the Irish authorities. 29 — Douglas, C , Overgrazing i n irelami — Some Impacts, with the Commission, the Irish authorities National Parks and Wildlife Service, Dublin, 1995. The provided a list of commonages designated author points out that ecological studies carried out by the NPWS in 1987 1989 and 1990 show that some of the as 'degraded'. That land is made up in large most acutely affected overgrazed areas in Ireland occur in North Mayo, particularly in the Owenduff and Lough part of hill land and bog and the Complex Feagh/Glenamong catchments. The Ramsar Convention accounts for a significant proportion of the Bureau states, with regard to the Ramsar site in the Complex, that the conservation problems associated with main block of areas classified as degraded. this site and caused by intensive grazing are causing significant harm to species living there, particularly the The Irish authorities say that approxi- Greenland White-fronted Goose. The Ramsar Report mately 75 to 80% of degraded areas highlighted the need for solutions involving improvement of the management control over extensive additional areas coincide with proposed Irish Natural Heri- of land.

I - 5347

OPINION OF MR LÉGER — CASE C-117/00

48. Lastly, the Commission cites more Irish State envisages purchasing substantial general information that corroborates the tracts of land within the Complex. Sec- foregoing account of the devastating effects ondly, the Rural Environmental Protection of overgrazing on blanket bog and other Scheme 31 is expected in the short-term to fragile habitats in terms of vegetation loss help protect the blanket bog. Under that and erosion. 30 scheme, grants to farmers are made con- ditional upon environmentally-friendly management of bog and heathlands. 32

I - 5348

COMMISSION v IRELAND

1994 33 to 1998, 34 the second from 1998 56. From 1998 onwards concrete measures to the present. The Commission assesses designed to limit the density of grazing on the effectiveness of the scheme from 1994 heathland and bog, such as Framework onwards, 3 5 taking account of the legal Plans, were adopted. However, lacking any status of the land to which the scheme information on the impact of those meas- applies; that is to say, it distinguishes ures in terms of environmental protection between commonages 36 and non-common- or repair of the damage caused to the age or private land. 37 As regards land other Owenduff-Nephin Beg Complex and to than commonages, the scheme is voluntary, Red Grouse habitats, the Commission in the sense that it is applied only if the doubts their effectiveness. farmers concerned agree.

I - 5349

OPINION OF MR LÉGER — CASE C-117/00

plex 38 and approximately 250 000 hec- the areas to be protected and in the content tares of heath, bog and upland which of their prescriptions and conditions of Ireland proposes to designate as SACs implementation. specifically to take account of the particu- lar habitat needs of the Red Grouse. As regards application of REPS in these areas, the Commission stresses that the scheme is voluntary and has little impact. In those areas where farmers choose not to par- ticipate in REPS, there are no provisions limiting the intensity of sheep-rearing. In 60. The Irish Government acknowledges other words, the density of grazing in those that implementation of the Conservation areas is left to the discretion of farmers. Management Plan for the Owenduff-Nep- However, even where farmers agree to hin Beg Complex has been delayed by the participate in REPS, the question of animal need to engage in detailed consultations stocking levels is left to farm planners who with the persons affected. However, it prepare individual farm plans which REPS believes that that situation will shortly be participants must then submit to the auth- rectified by the concurrent implementation orities. Guidelines for planners are, how- of REPS, Conservation Management Plans ever, too general and do not provide for SACs and SPAs, Commonage Frame- detailed ecological guidance on the plant work Plans, various other schemes for areas and animal species that require protection not falling under REPS 39 and the joint in the habitats concerned. implementation of the AHGI 40 and REPS schemes.

62. In conclusion, Ireland maintains that it cannot therefore take account or any sub­ is taking concerted and ever more positive sequent changes'. 41 action in order to prevent further deterio­ ration of the Complex and to ensure better protection of the animal and plant species living there. It submits that it has taken appropriate measures even if those meas­ ures have not had the desired effect, that is 64. Article 3 of the Birds Directive pro­ to say the protection of animal and plant vides that the Member States must take the species found in the Complex. Con­ requisite measures to preserve, maintain or sequently, it draws the conclusion that a re-establish a sufficient diversity and area Member State who has shown goodwill but of habitats for all species of wild birds. has not achieved the desired result cannot be criticised for having infringed Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive.

65. The Red Grouse is a species of nat­ urally occurring resident bird living in the wild state in European territory, particu­ larly in Ireland. It is included in Annex II/l to the Birds Directive under the name 'Lagopus lagopus hibernicus'. IV — Findings of the Court

66. The Irish Government is, as a result, required to take the preventive or remedial measures needed to ensure sufficient diver­ A — First plea: the lack of measures to sity and area of habitats for its conser­ preserve, maintain and re-establish habitats vation. of sufficient diversity and area for the Red Grouse (infringement of Article 3 of the Birds Directive)

also acknowledges that the hill land and those of its habitats that are regarded as bog where plant species such as common degraded does not therefore enable Ireland heather (Calluna vulgaris) may be found to escape those obligations. are necessary for the preservation of the bird. Similarly, it concedes that intensive grazing has been a major cause of the degradation of the habitat of this protected species in that it has a very harmful effect on the survival of heather. 70. Since what is required of Member States in order to comply with their obli- gations under Article 3 of the Birds Direc- tive is preventive action, the undisputed finding that there has been a considerable reduction in the range of the species and a clear and severe deterioration of its habitat is ample proof that Ireland has failed to fulfil its obligations under Article 3 . 4 3 68. Nevertheless, the Irish Government maintains that there is no infringement of Article 3 of the Birds Directive unless the habitat of the species concerned is damaged to such a degree as to be insufficient for the 71. It follows from the foregoing that, by conservation of that species. It argues that failing to ensure sufficient diversity and no convincing statistical information has area of habitats for the Red Grouse, Ireland been provided on the admittedly significant has failed to fulfil its obligations under decrease in the number of Red Grouse. Article 3 of the Birds Directive.

B — Second plea: the lack of appropriate 69. The interpretation suggested by Ireland measures for the protection of the Owen- cannot be accepted. The Court has in fact duff-Nephin Beg Complex SPA (infringe- held that the obligations arising under ment of Article 4(4) of the Birds Directive Article 3 of the Birds Directive require the and Article 6(2) of the Habitats Directive) Member States to adopt specific measures 'before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materi- 72. As already noted, the Court has con- alised'. 42 The lack of information on the sistently held that 'the question whether a numbers of Red Grouse still remaining in

73. Article 4(1) of the Birds Directive requires the Member States to classify the 76. Article 7 of the Habitats Directive most suitable territories in number and size provides that obligations arising under as special protection areas for the conser- Article 6(2) are to replace any obligations vation of the species mentioned in Annex I arising under the first sentence of to that directive. Article 4(2) lays down Article 4(4) of the Birds Directive in respect similar obligations with regard to regularly of areas classified pursuant to Article 4(1) occurring migratory species not listed in or similarly recognised under Article 4(2) Annex I. To that end, Article 4(2) provides thereof, as from the date of implementation that the Member States must pay particular of the Habitats Directive or the date of attention to the protection of wetlands and classification or recognition by a Member particularly to wetlands of international State under the Birds Directive, where the importance. latter date is later.

77. It has been shown and has not been disputed that: 74. The first sentence of Article 4(4) of the Birds Directive provides that, in respect of the SPAs referred to in Article 4(1) and (2), Member States must take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of Article 4. — blanket bogs are one of the priority natural habitat types listed in Annex I to the Habitats Directive and that the 44 — See the judgments cited in footnote 41. Owenduff-Nephin Beg Complex has

I - 5354

COMMISSION v IRELAND

Conclusion

80. In view of the foregoing I propose that the Court should:

— declare that, by failing to take, within the prescribed period, all the measures necessary to comply with Article 3 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, in respect of the Red Grouse, and with the first sentence of Article 4(4) of that directive and Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna, in respect of the Owenduff-Nephin Beg Complex special protection area, Ireland has failed to fulfil its obligations under those directives;

— order Ireland to pay the costs.