C-75/01

OPINION OF MR TIZZANO — CASE C-75/01

O P I N I O N OF ADVOCATE GENERAL TIZZANO delivered on 2 9 January 2002 1

1. By this action, lodged on 14 February natural habitats and the populations of 2001 in accordance with Article 226 EC, species of wild fauna and flora at a the Commission of the European Commu- favourable status as defined in (e) and nities requests the Court of Justice to (i); declare that the Grand Duchy of Lux- embourg has failed to transpose fully and correctly certain provisions of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7, (b) natural habitats means terrestrial or hereinafter 'the Directive'). aquatic areas distinguished by geo- graphic, abiotic and biotic features, whether entirely natural or semi-natu- ral;

I — Law (c) natural habitat types of Community interest means those which, within the territory referred to in Article 2: A — Relevant Community rules

2. Article 1 of the Directive provides: (i) are in danger of disappearance in their natural range;

'For the purpose of this directive: or

and

(e) conservation status of a natural habitat means the sum of the influences acting on a natural habitat and its typical — the conservation status of its typi- species that may affect its long-term cal species is favourable as defined natural distribution, structure and in (i);

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(f) habitat of a species means an environ- (iii) rare, i.e. with small populations ment defined by specific abiotic and that are not at present endangered biotic factors, in which the species lives or vulnerable, but are at risk. The at any stage of its biological cycle; species are l o c a t e d w i t h i n restricted geographical areas or are thinly scattered over a more extensive range;

(g) species of Community interest means species which, within the territory referred to in Article 2, are: or

(i) conservation status of a species means — there is, and will probably continue the sum of the influences acting on the to be, a sufficiently large habitat to species concerned that may affect the maintain its populations on a long- long-term distribution and abundance term basis; of its populations within the territory referred to in Article 2;

(j) site means a geographically defined The conservation status will be taken area whose extent is clearly delineated; as "favourable" when:

— population dynamics data on the (k) site of Community importance means a species concerned indicate that it is site which, in the biogeographical maintaining itself on a long-term region or regions to which it belongs, basis as a viable component of its contributes significantly to the main- natural habitats, tenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II and may also contribute significantly to the coherence of Natura 2000 referred to in Article 3, and/or contributes significantly to the and maintenance of biological diversity within the biogeographic region or regions concerned.

— the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, For animal species ranging over wide areas, sites of Community importance shall correspond to the places within the natural range of such species which present the physical or biological fac- tors essential to their life and repro- and duction;

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4. Article 4 of the Directive establishes a procedure in several stages for selecting the sites which host the species and habitats protected by the Directive. Firstly, each (n) the committee means the committee set Member State must propose a list of sites up pursuant to Article 20.' indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host. The list must be sent to the Commission, together with information on each site, within three years of notification of the Directive (Article 4(1)). On the basis of the 3. According to Article 2(1), the aim of the lists of the Member States and the criteria directive is: set out in Annex III, the Commission must establish, in agreement with each Member State, a draft list of sites of Community importance. It then draws up a definitive list in accordance with the procedure laid down in Article 21 of the Directive 'to contribute towards ensuring biodiver- (Article 4(2)). The procedure must be sity through the conservation of natural completed within six years of the notifi-

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'1. In exceptional cases where the Com- mission finds that a national list as referred to in Article 4(1) fails to mention a site ' 1 . For special areas of conservation, hosting a priority natural habitat type or Member States shall establish the necessary priority species which, on the basis of conservation measures involving, if need relevant and reliable scientific information, be, appropriate management plans specifi- it considers to be essential for the mainten- cally designed for the sites or integrated ance of that priority natural habitat type or into other development plans, and appro- for the survival of that priority species, a priate statutory, administrative or contrac- bilateral consultation procedure shall be tual measures which correspond to the initiated between that Member State and ecological requirements of the natural the Commission for the purpose of com- habitat types in Annex I and the species in paring the scientific data used by each. Annex II present on the sites.

2. If, on expiry of a consultation period not 2. Member States shall take appropriate exceeding six months, the dispute remains steps to avoid, in the special areas of unresolved, the Commission shall forward conservation, the deterioration of natural

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habitats and the habitats of species as well Where the site concerned hosts a priority as disturbance of the species for which the natural habitat type and/or a priority areas have been designated, in so far as species, the only considerations which such disturbance could be significant in may be raised are those relating to human relation to the objectives of this directive. health or public safety, to beneficial con- sequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative rea- sons of overriding public interest.'

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Article 2 with particular regard to priority 2. For these species, Member States shall natural habitat types and priority species.' 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.

9. Under Article 12(l)(b) and (c), (2) and (4) of the Directive:

'1. Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, pro- 4. Member States shall establish a system hibiting: 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 research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.'

(b) deliberate disturbance of these species, 10. Article 13(1)(b) and (2) of the Directive particularly during the period of breed- provides that: ing, r e a r i n g , h i b e r n a t i o n and migration;

' 1 . Member States shall take the requisite measures to establish a system of strict (c) deliberate destruction or taking of eggs protection for the plant species listed in from the wild; Annex IV (b), prohibiting:

— regulation of the purchase, sale, offer- ing for sale, keeping for sale or trans- port for sale of specimens, 2. Where such measures are deemed necess- ary, they shall include continuation of the surveillance provided for in Article 11. Such measures may also include in par- ticular:

— breeding in captivity of animal species as well as artificial propagation of plant species, under strictly controlled — regulations regarding access to certain conditions, with a view to reducing the property, taking of specimens [in] the wild,

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— assessment of the effect of the measures 13. Pursuant to Article 16(1) of the Direc- adopted.' tive:

'Provided that there is no satisfactory 12. Article 15 of the Directive provides alternative and the derogation is not detri- that: mental to the maintenance of the popu- lations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15(a) and (b):

(d) for the purpose of research and within their natural range or the wild education, of repopulating and native fauna and flora and, if they re-introducing these species and for the consider it necessary, prohibit such breeding operations necessary for these introduction. The results of the assess- purposes, including the artificial ment undertaken shall be forwarded to propagation of plants; the committee for information;

(e) to allow, under strictly supervised con- ditions, on a selective basis and to a (c) promote education and general infor- limited extent, the taking or keeping of mation on the need to protect species certain specimens of the species listed of wild fauna and flora and to conserve in Annex IV in limited numbers spec- their habitats and natural habitats.' ified by the competent national auth- orities.'

15. Finally, Article 23 of the Directive provides that: 14. Pursuant to Article 22(b) and (c) of the Directive:

' 1 . Member States shall bring into force 'In implementing the provisions of this the laws, regulations and adminis- directive, Member States shall: trative provisions necessary to comply with this directive within two years of its notification. They shall forthwith inform the Commission thereof.

2. When Member States adopt such meas- ures, they shall contain a reference to this directive or be accompanied by (b) ensure that the deliberate introduction such reference on the occasion of their into the wild of any species which is official publication. The methods of not native to their territory is regulated making such a reference shall be laid so as not to prejudice natural habitats down by the Member States.

18. The Commission submits that the set of national measures communicated to it by Luxembourg is not sufficient for correct and full implementation of the Directive. For that reason, on 29 April 1999, it sent a letter of formal notice to the Luxembourg B — Relevant national laws authorities pursuant to Article 169 of the EC Treaty (now Article 226 EC). In their reply to that letter, the Luxembourg auth- orities objected that a number of national laws and regulations, including ones sub- sequent to those initially sent to the Com- 17. The Grand Duchy of Luxembourg has mission, substantially fulfilled the objec- sent to the Commission an extensive series tives of the Directive. However, in their of measures intended to transpose the reply to a reasoned opinion, which the Directive. According to the Luxembourg Commission sent on 22 February 2000 in Government, the main measures are: la loi spite of that reply, the Luxembourg auth- concernant l'aménagement du territoire of orities acknowledged that, in order to 21 May 1999 ('Regional Planning Law'), 2 ensure implementation of the Directive, it a projet de règlement grand-ducal insti- would be necessary to amend the national tuant un ensemble de régimes d'aides pour legal framework further, and they assured la sauvegarde de la diversité biologique the Commission that the necessary parlia- ('draft Grand-Ducal regulation on biodi- mentary work for this purpose had already versity') and the loi concernant la protec- been started. However, in its defence in tion de la nature et des ressources naturelles these proceedings, Luxembourg merely of 11 August 1982, as amended ('Nature stated that a draft law implementing the Protection Law'). 3I shall discuss these and directive was approved by its government other measures relevant to this case at on 23 February 2001. On this basis alone, greater length below. without submitting any further defence, and without even referring to the argu- ments expounded during the pre-litigation 2 — Mémorial (Official Journal) A No 61 of 3 June 1999, stage, the defendant government formally p. 1402. 3 — Mémorial A No 69 of 20 August 1982, p. 1486. requested the Court to dismiss the action

B — Arguments 19. In short, the Commission alone has submitted argument in these proceedings, Luxembourg deciding essentially not to do so, albeit that, in order to ascertain the 20. On that basis, I shall now analyse the content of its defence, reference may be arguments. made to the Commission's case and to the case-file which, in this instance, includes a copy of the observations and documents sent by Luxembourg during the pre-liti- gation procedure. I must point out, more- over, that in spite of that, Luxembourg has 1. Article 1 of the Directive not simply requested a stay of the proceed- ings, but has also requested, as principal relief, that the Commission's action be dismissed. So, for this reason, but especially because of the nature of the proceedings brought under Article 226 EC, the absence 21. The Commission submits that none of of a defence of the defendant government, the national measures has as its object or and indeed even its acquiescence, may not effect the correct, complete and precise lead automatically to judgment being transposition of the definitions of import- entered against it. 4In fact, as the Court ant terms set out in Article 1 of the of Justice has emphasised, since the juris- Directive. In July 1999 the Luxembourg dictional stage of infringement proceedings authorities indicated that the definitions in 'is based on the objective finding that a Article 1 would be included in a 'sectoral Member State has failed to fulfil its obli- plan' provided for by the Regional Planning

4 — See, to this effect, the recent Opinion of Advocate General 5 — Case C-71/97 Commission v Spain [1998] ECR I-5991, Ruiz-Jarabo Colomer delivered on 3 July 2001 in Joined paragraph 14, where there are further references; see also Cases C-367/98, C-483/99 and C-503/99 Commission v Case C-73/92 Commission v Spain [19931 ECR I-5997, Portugal, France and Belgium, point 76. paragraph 19, with additional references.

22. According to the Commission, the provisions communicated to it by the Lux- embourg authorities have neither as their object nor effect the transposition of Article 4(5) of the Directive. As stated 24. For my part, I shall simply say, as the above, the article provides that, '[a]s soon Commission has done, that a solution as a site is placed on the list [of sites of based on administrative practice does not Community importance] it shall be subject ensure correct implementation of a direc- to Article 6(2), (3) and (4)', which, as we tive, given that such practices, as the Court shall see more clearly below (see points 34 has stated on a number of occasions, being to 48), sets out a series of measures by their nature alterable at will by the intended to avoid deterioration of natural authorities and lacking the appropriate habitats and habitats of particular species publicity, do not guarantee the legal cer- and the disturbance of protected species. tainty required for transposition of a direc- The Commission submits that, for this tive. 6 In any case, it is clear that, since the reason, upon the expiry of the time-limit for implementation of the Directive the national measures intended to put into 6 — See, to this effect, the leading case, Case C-83/97 Commis- sion v Germany [1997] ECR I-7191, paragraph 9, where effect Article 6(2) to (4) (not yet adopted, there are further references.

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Luxembourg Government admits that the that, in the case mentioned in that article, sectoral plan has not been adopted (see the national measures implementing point 21), it cannot be held that the Article 6(2) will not automatically be provision in question has been fully and applicable to any sites which may be correctly transposed. relevant and will therefore not be binding on third parties during the transitional period.

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mission to identify sites of Community 31. On the basis of that premiss, which I importance in the continental biogeo- take to be correct, the Commission goes on graphic region, of which Luxembourg is to develop arguments relating to individual part, cannot be taken for granted. paragraphs of Article 6.

29. It is my view, therefore, that the plea (a) Article 6(1) of the Directive relating to Article 5(4) of the Directive is well founded.

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Articles 1, 14 and 36) meets the objectives out, as does the Commission, that the of the Directive and covers all the cases Nature Protection Law contains no refer- mentioned. It adds that Articles 21 and 22 ence to SACs, to the terms 'natural habit- of the Nature Protection Law prohibit any ats' and 'habitats of species', to specific kind of unjustified exploitation, use, muti- types of habitat or to protected species lation or destruction of unprotected wild listed in the annexes to the Directive. plants and animals, while Article 23, of a Considering the types of habitat with which general nature, prohibits the disturbance of the Directive is concerned, that fact alone fauna. Furthermore, the Luxembourg auth- means that the law in question does not orities say that that law has now been constitute a correct and precise transposi- reinforced by a Ministerial Circular of tion of Article 6(2). Furthermore, as Advo- 9 July 1999 8 whose very purpose is to cate General Fennelly observed in his transpose the Directive, in which it is stated Opinion, cited above, in Case C-256/98 that any degradation of habitats and dis- Commission v France, which concerned turbance of protected species must be Directive 92/43, '[t]he Court's observation avoided by means of rigorous application regarding the Birds Directive [79/409] in of the Nature Protection Law. On the other Commission v Belgium [Case 247/85, cited hand, the Luxembourg Government adds, above] that "a faithful transposition to claim, as the Commission does, that, in becomes particularly important in a case order to transpose Article 6(2), general such as this in which the management of regulatory measures binding upon third the common heritage is entrusted to the parties are necessary implies an excessively Member States in their respective terri- strict interpretation of the Directive. tories" is also, in my view, relevant in the Article 6(2) lends itself to transposition by present case' (point 20). means of various types of measure, all of them appropriate, including administrative and contractual instruments as well as regulatory ones.

Directive all the more necessary, so as to Commission. Secondly, I must reiterate that enable the competent authorities, where an administrative practice cannot ensure those provisions are invoked at national the legal certainty required for transposi- level in the context of application of the tion of a directive (see point 24). Directive, to interpret them in accordance with the Directive. Article 23 in turn contains a general prohibition on disturb- ance without referring either to the objec- tives (for example, conservation) of the Directive (mentioned in Article 6(2)), or to 41. Consequently, given that the general SACs or even to the species listed in the legal context fails to guarantee effectively annexes to the Directive. Finally, Article 36, full application of Article 6(2) of the which lists the cases where the competent Directive with sufficient clarity and preci- authority must refuse applications for auth- sion and with the necessary degree of legal orisation under the Nature Protection Law certainty, I take the view that the Commis- (for example, work which may modify the sion's submissions on this point are well water system (Article 5) or a change of founded. 9 intended use for forestry land (Article 10)), does not constitute a clear and precise transposition of the Directive given, once more, the absence of any reference to the relevant provisions of the Directive such as would ensure that the law is applied in (c) Article 6(3) and (4) of the Directive accordance with the Directive.

42. Under Article 6(3) of the Directive, an assessment must be carried out of the effect which any plan or project not directly connected with or necessary to the manage- ment of a site may have on that site. Article 6(4) provides for cases where, in spite of a negative assessment, a plan or project must nevertheless be carried out for imperative reasons.

vided that they waive in advance their right Law, such as the third paragraph of to avail themselves of the option mentioned Article 7 and the second, third and fourth therein and, at the same time, prohibit, in paragraphs of Article 8, which make cer- general and unconditional terms, the imple- tain projects subject to ministerial auth- mentation of any plan or project of the orisation, inadequate because such auth- kind mentioned in the Directive. If, how- orisation is required only for certain pro- ever, Member States do not communicate jects and there is in any event no require- to the Commission any such measures of ment that the assessment of their effect on general and unconditional prohibition, they the environment be carried out in an are obliged to implement the provision appropriate fashion as the Directive fully. Given that Article 6(4) introduces a requires. The Commission also observes derogation in respect of Article 6(3), that Article 9 of the Nature Protection Member States would, in this case, be Law, which provides for impact studies to relieved of their obligation to transpose be carried out at the initiative of the that provision too, waiving in advance their minister in the cases listed therein, concerns right to rely on it. The Commission stresses the 'green belt', as defined in Article 2 of that, naturally, given the importance of the the law, but not the protected areas desig- provision, such waiver cannot be presumed nated under Article 27 to which the Lux- unless the Member State concerned adopts embourg authorities may also have a specific provision to the contrary, the recourse in identifying SACs. Moreover, Commission must therefore proceed on the in the cases mentioned, Article 9 does not assumption that the obligation to transpose place an obligation upon the minister, as Article 6(4) remains. the Directive intends, but simply gives him the option of carrying out an assessment.

to special protection areas (SPAs) and to and 40), the Ministerial Circular cannot SACs, since not all the projects mentioned satisfy the obligations incumbent upon in Directive 92/43 are covered by these two Luxembourg. Moreover, as I said earlier, directives, nor do they deal with planning. there is no indication that the sectoral plan Furthermore, the Commission emphasises, has yet been adopted. Finally, as regards incomplete transposition of Article 6(3) Article 37 of the Nature Protection Law, frustrates implementation of Article 6(4) the Commission has quite rightly pointed because the obligations laid down by the out that it is not sufficient since it does not latter presuppose the completion of an require the ministerial authorisation to be assessment of the effect of plans and made subject to the conditions described projects on protected sites. above when the circumstances mentioned in the Directive require it. I therefore consider this claim of the Commission's is also well founded.

47. Luxembourg immediately acknowl- edged in its reply to the letter of formal notice that the provisions in force were 49. In conclusion, it is my view that the insufficient, but claimed that the lacuna fourth plea relating to Article 6 of the would be remedied when the sectoral plan Directive should be upheld. was adopted. It also stated that, in the mean time, the matter was regulated by the Ministerial Circular of 9 July 1999. On the matter of the compensatory measures men- tioned in Article 6(4) of the Directive, Luxembourg claimed that provision was already made for them by Article 37 of the Nature Protection Law, under which the 5. Article 7 of the Directive minister may grant authorisation subject to conditions preventing the work to be carried out from damaging the environ- ment.

reply to the letter of formal notice, the 53. In its reply to the letter of formal Luxembourg Government simply observed notice, the Luxembourg Government first that the adoption of the sectoral plan stated, as a general observation, that would provide a precise legal framework Article 12 of the Directive closely follows for the 'Natura 2000' network, including the wording of Article 6 of the Bern both the SACs and the SPAs. Convention of 19 September 1979 on the Conservation of European Wildlife and Natural Habitats (hereinafter 'the Bern Convention'), approved by Luxembourg by the Law of 26 November 1981 13 and implemented in Luxembourg from 11 July 51. I have already dwelt upon Lux- 1982 in accordance with Article 19(3) of embourg's failure to transpose correctly the convention. 14 As regards in particular Article 6(2) to (4). I have also pointed out Article 12(1)(b), the Luxembourg Govern- that there is no evidence that the sectoral ment also claimed that the protection plan has been adopted. It is my view, sought by the Directive is guaranteed by therefore, that the plea relating to Article 7 Article 23 of the Nature Protection Law, of the Directive is well founded. which prohibits the disturbance of all fauna throughout the year. Article 23 provides, as does Article 6(c) of the Bern Convention, that 15 '[t]he disturbance of fauna, particu- larly during the period of breeding, rearing and hibernation is prohibited....' 16 6. Article 12 of the Directive

(a) Article 12(1)(b)

57. The Commission complains first and foremost that Article 17 of the Nature Protection Law does not even implicitly allude to the taking of eggs from the wild, given that 'taking' has a different meaning (b) Article 12(1)(c) from the simple 'possession' (or 'keeping') of eggs, because the eggs may later be abandoned without therefore necessarily implying that they are 'kept' within the meaning of Article 17. Next, given that the prohibition laid down in Article 17 is punishable as a criminal offence (see Article 44 et seq. of the Nature Protection Law) and therefore may not be interpreted broadly, it is unlikely, the Commission 55. The Commission claims that Lux- says, that a court could interpret the embourg has failed to transpose fully and prohibition on keeping eggs as also cover- correctly Article 12(1)(c) of the Directive, ing the act of simply taking them. which lays down a prohibition on the 'deliberate destruction or taking of eggs from the wild'. In its reply to the letter of formal notice, the Luxembourg Govern- ment submits that the prohibition appears both in Article 17 of the Nature Protection 58. Next, as regards Article 6(d) of the Law, which provides that 'animals which Bern Convention, the Commission argues, are the subject of complete protection may first, that, under Article 20 of the Nature not be disturbed, killed, hunted, captured, Protection Law, 19 animals protected by held or tamed at any stage of their deve- international conventions approved and lopment. ..', 18 and in Article 6(d) of the

19 — Article 20 provides that 'plants and animals protected by approved and published international conventions may be 17 — See case-law cited in footnote 7. purchased, imported, sold, exported or kept only in 18 — Emphasis in the original. accordance with the provisions of those conventions'.

60. The Commission goes on to complain that Article 12(2) of the Directive is incor- rectly transposed, in so far as there is no prohibition in Luxembourg law on the 62. The defence of the Luxembourg Gov- exchange and offering for exchange of ernment may not be accepted for the specimens taken from the wild. The Com- following reasons, which the Commission mission also objects that the expression outlined in its application. In particular,

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63. On the matter of how the terms 'specimen' and 'animal' differ in meaning, it must first be pointed out that, in their reference to Article 20 of the Nature Protection Law, the Luxembourg auth- 65. Finally, regarding the Luxembourg orities do not specify which international authorities' reference to Article 15 of the convention is relevant to the case in point. Nature Protection Law and the related If the law refers to the Bern Convention Grand-Ducal regulation of 8 April 1986, I (and there is every indication that it does), I would simply point out that those laws do would note that Article 6(e), the provision not appear to include 'any part or deriva- which seems closest to Article 12(2) of the tive' as mentioned in Article 1(m) of the Directive, prohibits the possession of and Directive, and the list of animals covered by trade in the animals listed in Annex II the Grand-Ducal regulation omits a 'where this would contribute to the effec- number of the species listed in Annex IV tiveness of the provisions of this article'. (a) to the Directive. That suggests the need for further inter- vention by the national authorities in implementing the provision. However, the Commission has received no indication that Luxembourg has adopted a measure imple- menting that provision (apart from (d) Article 12(4) Article 20 which, however, makes no provision in respect of the circumstances of the present case). Aside from that point, I must observe that the Commission states that Annex II to the convention contains a list of protected species which does not 66. Regarding the Commission's sub- include some of those which appear in missions relating to Article 12(4), the Lux-

71. Firstly, whilst Article 16 of the Nature 68. The Commission submits that Protection Law prohibits sales, it does not Article 13(1)(b) has not been correctly cover cases of keeping, exchange and transposed because Luxembourg law does offering for exchange or sale. Furthermore, not prohibit the keeping, exchange and with regard to 'keeping', Article 5 of the offering for sale or exchange of specimens of the plant species listed in Annex IV (b) and Annex II (b) to the Directive; nor does 20 — Règlement grand-ducal du 19 août 1989 concernant la protection intégrale et partielle de certaines espèces it ensure the application of the prohibitions végétales de la flore sauvage (Grand-Ducal Regulation of laid down by that provision to the non- 19 August 1989 on the Complete and Partial Protection of Certain Species of Wild Flower, Mémorial A No 61 of indigenous species listed in those annexes. 20 September 1989, p. 1103).

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72. Turning now to the matter of the protection of the non-indigenous plants listed in Annexes IV (b) and II (b) to the Directive, the Commission reiterates its observation concerning Article 12 of the 74. The Commission complains that Directive, that the reference made to Article 13(2) has not been fully transposed Article 20 of the Nature Protection Law in that 'plant' in national law appears to was not accompanied by any indication as have a more restricted meaning than 'speci- to which international convention was men' as defined in Article 1(m) of the relevant in this instance. However, the Directive. In their reply to the letter of provision which appears to correspond formal notice, the Luxembourg authorities most closely to Article 13(1)(b) is, once nevertheless maintained that Article 13(2) again, Article 5 of the Bern Convention. was transposed by Article 16 of the Nature Nevertheless, the Commission emphasises, Protection Law, which also expressly men- the considerations set out in the previous tions 'parts of plants'. p a r a g r a p h a p p l y h e r e t o o and Article 13(1 )(b) is incapable of correctly transposing the prohibition of keeping protected plant species.

21 — As in the case of Article6(e) of the Bern Convention. See 75. The doubts expressed by the Commis- my observations in point 63. sion as to whether the expression 'parts of I - 1612

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plants' also includes 'any part or derivative unconditional obligation of surveillance of thereof, as well as any other goods which protected species together with an obli- appear, from an accompanying document, gation to adopt all the measures needed to the packaging or a mark or label, or from ensure that such species are maintained at a any other circumstances, to be parts or favourable conservation status where the derivatives of [...] plants of those species' competent authorities deem it necessary. In (Article 1(m)) appear to be well founded. Luxembourg law, however, as the Lux- embourg authorities themselves have recog- nised, there is no sign of measures intended to ensure observance of that requirement.

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methods of capture and killing and means not expressly prohibit the use of aircraft. of transport listed in Annex VI to the Admittedly, aircraft might be included in Directive (for example, the Bern Conven- the expression 'mechanical motor vehicles', tion does not prohibit the use of crossbows but the legal certainty which must char- and aircraft other than aeroplanes, such as acterise the rules arising from transposition helicopters). of a directive such as the one in question (see point 35), in the Commission's view, requires aircraft to be mentioned expressly and unequivocally.

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10. Article 16(1) of the Directive Article 9 thereof sets out the conditions under which the contracting parties may derogate from Articles 4 to 7 of the convention and from the prohibition of the use of the means of capture and killing mentioned in Article 8 thereof. The Com- 88. The Commission argues that Arti- mission, however, objects, amongst other cle 16(1) of the Directive has not been things, that the provisions of the Bern correctly transposed into Luxembourg law. Convention do not guarantee protection equivalent to that under the Directive, and that the fifth indent of Article 9(1) of the convention (roughly equivalent to Article 16(1)(e) of the Directive) does not require specimens subject to the derogation to be taken or kept in limited numbers 89. In their reply to the letter of formal 'specified by the competent national auth- notice, the Luxembourg authorities argued orities'. that Article 16(1) was transposed, at least partially, by Article 26 of the Nature Protection Law, which provides that 'the Minister may grant derogations from Articles 13 to 18 for scientific purposes or in the public interest', and by the Act approving the Bern Convention, Article 9 of the act corresponding to Article 16(1) of 92. Those observations appear to be well the Directive. founded. In particular, I consider decisive the fact that Article 9 of the Bern Con- vention does not ensure a level of pro- tection equivalent to that of the Direc- tive, 25 with the risk that the competent national authorities may avoid recourse to 90. Nevertheless, I feel I must share the Article 9 if a particular operation is pro- Commission's view on this point and hibited by the Directive but not by the reiterate that the transposition is incom- convention. plete and incorrect. In particular, it seems that the derogations which may be granted by the authorities under Article 26 of the Nature Protection Law are not made sub- ject to the condition that there be no valid alternative solution, as the Directive requires. 93. In my opinion, therefore, since Lux- embourg has failed to communicate further

94. The Luxembourg authorities replied to the Commission's complaint in the letter of formal notice concerning incorrect trans- position of Article 22(b) of the Directive that the provision is transposed by 96. Given that Article 20 of the Nature Article 25 of the Nature Protection Law, Protection Law does not deal with edu- which prohibits the introduction of non- cation and information and that the Law of indigenous species into the wild except by 10 August 1992 contains no provision for authorisation of the competent minister, raising public awareness, the Commission which may be accompanied by appropriate recognises that Article 3(3) of the Bern conditions. In this respect, however, I must Convention and Article 13 of the Rio de observe, along with the Commission, that Janeiro Convention on Biological Diversity Article 25 of the Nature Protection Law do, in principle, satisfactorily transpose the does not make the issue of ministerial Directive. 27 The Commission argues, how- authorisation subject to the conditions ever, that Luxembourg should have listed in the Directive (such as, for example, the condition that the introduction of species into the wild must be regulated so 26 — The convention was ratified by Luxembourg by the Law of as to avoid damage to natural habitats) 4 March 1994 (Mémorial A, 1994, p. 429) and entered into force in Luxembourg on 7 August 1994, in accordance and, therefore, does not constitute a precise with Article 36(3) of the convention (Mémorial A, 1994, p. 1475). transposition of the Directive. 2 7 — Article 3(3) of the Bern Convention provides: 'Each Contracting Party shall promote education and dissemi- nate general information on the need to conserve species of wild flora and fauna and their habitats.' Article 13 of the Rio de Janeiro Convention provides: 'The Contracting Parties snail: (a) Promote and encourage understanding of the importance of, and the measures required for, the conservation of biological diversity, as well as its propa- gation through media, and the inclusion of these topics in educational programmes; and (b) Cooperate, as appropri- ate, with other States and international organisations in developing educational and public awareness programmes, 95. The Luxembourg authorities went on with respect to conservation and sustainable use of to submit that Article 22(c) of the Direc- biological diversity.'

98. Finally, the Commission argues that Article 23(2) of the Directive has been infringed in that none of the implementing measures adopted by the Grand Duchy of Luxembourg following the Directive's entry into force and communicated to it contains a reference to the Directive or was 97. I must admit I find it difficult to published together with such a reference. In understand what the Commission is refer- their reply to the letter of formal notice, the ring to with this latter argument. Without Luxembourg authorities stated that the discussing at length the different principles draft sectoral plan provided for by the and practices in this area in the various Regional Planning Law (see, respectively, Member States, there is no doubt that, in points 21 and 17) mainly concerned Direc- Luxembourg, once an international con- tives 92/43 and 79/409 and that a list of all vention has been ratified and published it the national measures which together trans- has full legal effect in that State. Questions pose the Directive would be published in may arise as to whether the content of a the Memorial, the Official Journal of the particular convention provision is detailed Grand Duchy of Luxembourg. enough to allow it immediately to have effect or whether further implementing measures are necessary. However, in this instance no such problem appears to arise, given that in particular the wording of Article 3(3) of the Bern Convention is almost identical to Article 22(c) of the Directive. The matter would thus arise in the same way for both provisions. For present purposes, therefore, it appears to me that the fact that the measure imple- menting the Bern Convention has force in Luxembourg is sufficient to satisfy the 99. The Commission, agreed in the rea- requirement laid down by the Directive soned opinion that publication in the and that, consequently, the plea raised by Memorial of such a list together with a the Commission in this respect must be reference to the Directive would make good dismissed. the failure to transpose Article 23(2). How-

101. As I stated earlier (see point 18), the Luxembourg Government, in addition to requesting that the Commission's action be dismissed, called upon the Court to sus- 103. Under Article 69(2) of the Rules of pend the proceedings in anticipation of a Procedure, the unsuccessful party is to be possible withdrawal of the action by the ordered to pay the costs if there has been an Commission. The reason for the appli- application to that effect. As the Commis- cation was that once the Luxembourg sion has made such an application and Parliament adopted the draft law transpos- given what I have said about the overall ing the Directive mentioned at point 18, the outcome of the action, it is my view that the proceedings would become devoid of pur- Commission should be granted costs. pose. The Commission having decided not to lodge a reply (and there having been no hearing), there are no observations from 28 — See, to this effect, the leading case, Joined Cases C-396/99 and C-397/99 Commission v Greece [2001] ECR I-7577, the applicant concerning this request. paragraph 33.

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OPINION OF MR TIZZANO — CASE C-75/01

IV — Conclusion

104. In the light of the foregoing, I therefore propose that the Court should declare that:

(1) By failing to implement fully and correctly Articles 1, 4(5), 5(4), 6, 7, 12(l)(b) and (c), 12(2), 12(4), 13(l)(b) and 13(2), 15, 16(1), 22(b), and 23(2) in conjunction with Annexes I, II, IV, V and VI of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive and under the third paragraph of Article 249 EC;