C-240/00

COMMISSION v FINLAND

OPINION OF ADVOCATE GENERAL LÉGER delivered on 25 April 2002 1

1. In this action the Commission of the 3. Article 2 of the Birds Directive provides European Communities is seeking a declar- that 'Member States shall take the requisite ation from the Court that the Republic of measures to maintain the population of the Finland has failed to fulfil its obligations species referred to in Article 1 at a level under Article 4(1) and (2) of Directive which corresponds in particular to ecologi- 79/409/EEC. 2 The Commission claims that cal, scientific and cultural requirements, that Member State did not, within the while taking account of economic and prescribed period, definitively and fully recreational requirements, or to adapt the classify the special protection areas 3 which, population of these species to that level.' under the above provisions, ought to have been so classified.

4. Article 4 of the Birds Directive concerns the special protection measures applying specifically to the species mentioned in Annex I and to migratory species not listed in that Annex. I — Legal framework

5. That article provides: 2. The Birds Directive, according to the first sentence of Article 1(1) thereof, 're- lates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies'. ' 1 . The species mentioned in Annex I shall 1 — Original language: French. be the subject of special conservation 2 — Council Directive of 2 April 1979 on the conservation of measures concerning their habitat in order wild birds (OJ 1979 L 103, p. 1, hereinafter 'the Birds to ensure their survival and reproduction in Directive'). 3 — Hereinafter 'SPAs'. their area of distribution.

COMMISSION v FINLAND

Directive, the Commission, acting in designated in accordance with Article 4(1) accordance with Article 169 of the EC and (2) of the Birds Directive, having an Treaty (now Article 226 EC), gave it formal aggregate surface area of about 2.81 mil- notice on 10 July 1998 to submit its lion hectares. The Government added that observations in this respect. In its letter of the Commission, which had been informed formal notice, the Commission pointed out of the decision of the Council of Ministers that the list of SPAs supplied by the Finnish on a provisional basis by letter of authorities on 11 October 1996 was pat- 3 September 1998; would be notified of ently incomplete and did not meet the that decision on expiry of the period during requirements laid down in the Birds Direc- which, under Finnish law, appeals may be tive. The Commission gave various lodged against decisions of the Council of examples of sites, such as the Kemihaara Ministers, which was to say in November bogs, that ought, in its view, to have been 1998 at the earliest. It stated further that classified as SPAs in accordance with the the Kemihaara bogs had not been included criteria set out in Article 4 of the Birds in the proposal concerning the Natura Directive. 2000 programme.

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9. By letter of 17 December 1998, the put forward for the purpose of forming the Commission issued a reasoned opinion in Natura 2000 network had been delimited which it stated that it had been sent neither on the basis of scientific criteria. It con- a complete list of SPAs nor the necessary firmed too that the decision of the Council geographical information. It asked the of Ministers was still not final and would Republic of Finland to comply with the enter into force only when all the appli- reasoned opinion within two months of cations lodged with the Korkein hallinto- notification thereof. According to the Com- oikeus had been considered. mission, in view of the available scientific data, the Republic of Finland ought to have classified as SPAs at least 91 areas put forward in the 1997 BirdLife Report 7 concerning areas of importance for the conservation of birds at world or European 12. Taking the view that it was unable to level. 8 Only 12 of the areas identified in the conclude from this reply that the Republic report had however been classified as SPAs of Finland had complied with the obli- by the Republic of Finland. The Commis- gations arising out of the Birds Directive sion again noted that the Kemihaara bogs provisions at issue, the Commission had not been so classified, even though this decided to bring the present action. site figured in the 1997 IBA Proposal.

B — Forms of order sought 10. On 23 December 1998, the Finnish Government again sent the Commission a copy of the decision of the Council of Ministers. It reiterated the arguments it had developed in its reply of 15 December 1998 13. The Commission's application was to the letter of formal notice and main- lodged at the Court Registry on 15 June tained the position taken in that reply. 2000.

III— The pleas in law formulated by the Commission and the arguments of the 15. The Finnish Government acknowledges Republic of Finland that it did not send the Commission a definitive list of SPAs within the time-limit specified in the reasoned opinion. It denies however that its delay in doing so was detrimental to achievement of the objec- tives of the Birds and Habitats Directives or A — First plea: the non-definitive nature the Commission's efforts. It contends that of the list of SPAs adopted by the Finnish the Court should: Government (breach of Article 4(1) and (2) of the Birds Directive)

1. Arguments of the Commission — declare the action inadmissible inas- much as the Commission relied on the publication Important Birds in Europe, issued in 2000, to establish the exist- ence of an infringement; 16. The Commission observes that the list sent to it by the Finnish authorities on 23 December 1998 is not definitive since modifications can be made to it when the applications currently pending with the Korkein hallinto-oikeus have been dealt — declare the Commission's allegations with. The Republic of Finland has thus concerning the delimiting of the Kemi- infringed the provisions of Article 4(1) and haara bogs to be inadmissible; (2) of the Birds Directive. The Commission

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observes further that, having failed to B — Second plea: the incomplete nature of receive the list of Finnish SPAs in accord- the list of SPAs adopted by the Finnish ance with Article 4(1) and (2) of the Birds Government (infringement of Article 4(1) Directive, it had not been able to take the and (2) of the Birds Directive) measures prescribed in Article 4(3) of that Directive with a view to forming a coherent whole. 9

9 — Paragraph 24 of the Commission's application. 11 — The Commission also identifies other areas whose orni- 10 — Commission Decision of 18 December 1996 concerning a thological importance is, in its view, underlined in the site information format for proposed Natura 2000 sites 1997 BirdLife Repon (see paragraph 33 of the appli- (OJ 1997 L 107, p. 1). cation).

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SPAs put forward by the Republic of scientific criteria set out in the Birds Direc- Finland proves, according to the Commis- tive. It states in this connection that it sent sion, that scientific criteria were not the Commission, using the format pre- applied when classifying the SPAs. scribed in Decision 97/266, full infor- mation concerning the criteria it had applied in selecting the SPAs. It observes further that in summer 2000 the Korkein hallinto-oikeus ruled on all the applications lodged against the decision of the Council 20. The Commission maintains that the of Ministers. The Korkein hallinto-oikeus 1997 BirdLife Report is endorsed, as took the view that the criteria applied in regards the list of Finnish SPAs, by the selecting and delimiting the SPAs were of recent publication concerning IBAs in an ecological nature as required by the Europe. 12 Given the European dimension Birds and Habitats Directives. It arrived at of the IBA survey and its scientific value, this conclusion following close examin- the Republic of Finland ought, if it had ation of each application and having con- wished to challenge it, to have provided firmed that the decision of the Council of scientific evidence to support its position. Ministers had been based, for each of the Despite the Commission's requests to this areas and the delimitation thereof, on true effect, however, the Finnish authorities facts and on studies concerning the eco- have never supplied the slightest evidence logical value of the sites concerned, those that they relied on scientific data in select- studies being based on reliable scientific ing the sites for inclusion in the list. knowledge. On completion of its examin- ation, the Korkein hallinto-oikeus:

23. Secondly, the Republic of Finland con- siders the 1997 BirdLife Report to have no evidential value. In its view, neither the provisions of Article 4 of the Birds Direc- tive nor the case-law of the Court confer evidential value on reports of that type. The report could not moreover be regarded as 24. The Finnish Government asserts, definitive prior to obtaining international thirdly, that it follows from the judgment endorsement. It was not however until after in Case C-3/96 Commission v Nether- the expiry of the time-limit specified in the lands 14 that a Member State can be found reasoned opinion that the report became to have contravened the provisions of definitive. It follows that the Commission Article 4 of the Birds Directive only if it was not entitled, in the framework of the can be demonstrated that it has classified as present infringement proceedings, to rely SPAs sites the number and total area of on a document that did not have formal which are manifestly less than the number status. and total area of the sites considered to be the most suitable for conservation of the species in question. The Finnish Govern- ment states however that it has classified as SPAs sites the number and total of which are greater than was provided for in either the IBA 89 cartographical survey or the 1997 IBA Proposal. In its view, it follows In any event, the 1997 IBA Proposal does from the foregoing that, as the Commission not, in the Republic of Finland's view, lend has failed to furnish the proof it is required itself to the evaluation of Finnish birdlife. It to submit to the Court under the terms of maintains therefore that a comparison of the judgment in Commission v Netherlands the Finnish SPAs and the areas identified in cited above, the second complaint must be the 1997 BirdLife Report does not suffice dismissed. to demonstrate that the list of Finnish SPAs does not meet the requirements of Article 4(1) and (2) of the Birds Directive. 13 — This survey identifies fewer sites than the survey appearing in the 1997 IBA proposal. It concludes from this that it was not 14 — [1998] ECR I-3031.

25. The Court has consistently held that '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 28. The Republic of Finland does however the period laid down in the reasoned rebut the complaint that Article 4(3) of the opinion'. 15 Birds Directive has been infringed. In its view, the Commission has not furnished proof that it was unable, on account of the Republic of Finland's non-compliance with its obligations under Article 4(1) and (2) of the Birds Directive, to take the measures prescribed in Article 4(3) of that Directive with a view to forming a coherent whole. 26. Article 4(1) of the Birds Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species referred to in Annex I to that Directive. Article 4(2) of the Birds Directive lays 29. I consider that there is no need to down identical obligations in respect of examine the substance of this complaint as regularly occurring migratory species not it has not, in my view, been properly listed in that Annex. To this end, brought before the Court. Article 4(2) of the Birds Directive requires

15 — See, in particular, Case C-67/99 Commission v Ireland [2001] ECR I-5757, paragraph 36, Case C-71/99 Com- mission v Germany [2001] ECR I-5811, paragraph 29, Case C-220/99 Commission v France [2001] ECR I-5831, paragraph 33, Case C-394/00 Commission v Ireland 20021 ECR I-586, paragraph 12 and Case C-29/01 Commission v Spain [2002] ECR I-2503, paragraph 11. 30. Under Articles 19 of the EC Protocol on the Statute of the Court of Justice and

B — Second plea: the list of SPAs adopted 32. In the present case, the Commission by the Finnish Government is incomplete expressly complained, in the formal letter (infringement of Article 4(1) and (2) of the of notice 19 and the reasoned opinion, 20 Birds Directive) that the Republic of Finland had infringed the provisions of Article 4(3) of the Birds

16 — See in particular Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 28. 17 — See, in particular, Case 232/78 Commission v France [19791 ECR 2729, paragraph 3, and Case C-256/98 34. It is settled case-law that, in proceed- Commission v france [2000] ECR I-2487, paragraph 31. 18 — See Case C-347/88 Commission v Greece cited above, ings under Article 169 of the Treaty for paragraph 29. failure to fulfil an obligation, it is incum- 19 — Operative part of the letter of formal notice of 10 July bent on the Commission to prove that the 1998, SG (98) D/5656 (p. 3). 20— Operative part of the reasoned opinion of 17 December obligation has not been fulfilled and to 1998, SG (98)D/11906(p. 5). place before the Court the information I-2198

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necessary to determine whether that is Member States are free to produce what- so. 21 ever scientific evidence has allowed them to select the sites on their territory that meet the requirements of Article 4(1) and (2) of the Birds Directive. 25

21 — See, in particular, Case 96/81 Commission v Netherlands 39. The Commission complains that the [1982] ECR 1791, paragraph 6, Case C-166/97 Commis- sion v France [1999] ECR I-1719, paragraph 40, and Case Republic of Finland has not selected all the C-96/98 Commission v France [19991 ECR I-8531, para- sites which, applying ornithological criteria graph 36. 22 — See, in particular, Case C-355/90 Commission v Spain and on the basis of reliable scientific [19931 ECR I-4221, paragraph 26, and Case C-3/96 Commission v Netherlands, cited above, paragraph 60. 23 — Case C-355/90 Commission v Spain, cited above, para- graph 26. 25 — Ibid., paragraph 69. 24 — Case C-3/96 Commission v Netherlands, cited above, 26 — See, in particular, Case C-365/97 Commission v Italy paragraph 62. [1999] ECR I-7773, paragraph 85.

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studies, appear to be the most suitable for of Ministers in respect of four sites, includ- conservation of the species in question. Its ing the Kemihaara peat site, that did not complaint therefore concerns the quali- figure in the Natura 2000 project. 29 tative merits of the sites selected by that State. The Commission cites, by way of example, the Kemihaara bogs, which appear in both the 1997 BirdLife Report and the IBA publication for 2000 as a site that should be classified as an SPA.

43. Finally, the Republic of Finland, while contesting the second complaint made against it, acknowledges that the proposed list of SPAs is liable to be amended follow- 41. The Finnish Government does more- ing the applications lodged with the Kor- over itself indicate that the Kemihaara bog kein hallinto-oikeus against the decision of site, which did not appear on the list of the Council of Ministers. In other words, Finnish SPAs approved by the Council of sites appearing on that list could be with- Ministers on 20 August 1998, was the subject of a specific decision by the Korkein hallinto-oikeus. 28 That court ordered that 29 — See paragraph 31 of the Finnish Government's defence. the matter be referred back to the Council 30 — Although the Court expressly asked the Finnish Govern- ment to produce the documents setting out the scientific criteria that had been applied in selecting and delimiting the sites concerned for the purpose of classification as 27 — See point 36 of the present Opinion. SPAs, the documents submitted by the Finnish Govern- ment make no reference to the scientific sources on which 28 — See point 22 of the present Opinion. it had supposedly based its conclusions.

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drawn from, or added to, the list of Finnish V — Costs SPAs to be definitively adopted. It follows that the list of SPAs proposed by the Finnish authorities cannot be considered to have been exhaustive on expiry of the time-limit specified in the reasoned opinion.

45. Under Article 69(2) of the Rules of 44. It can be concluded from the foregoing Procedure, the unsuccessful party is to be that, by failing to classify fully, by the end ordered to pay the costs if they have been of the period laid down in the reasoned applied for in the successful party's plead- opinion, the SPAs provided for by the Birds ings. Since the Commission applied for the Directive, the Republic of Finland has costs and the Republic of Finland failed in failed to fulfil its obligations under its defence, the latter should be ordered to Article 4(1) and (2) of the Birds Directive. pay the costs.