C-324/01
ECLI:EU:C:2002:489
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COMMISSION v BELGIUM
O P I N I O N O F ADVOCATE GENERAL LÉGER delivered on 12 September 2002 1
1. By the present action the Commission of — Article 4(5) which indicates the system the European Communities seeks a declar- applicable to priority sites placed on ation that the Kingdom of Belgium has the lists of sites of Community import- failed to fulfil its obligations under Council ance; Directive 92/43/EEC of 21 May 1992 relat- ing to the conservation of natural habitats and of wild fauna and flora 2 .
— Article 5(4) which indicates the system applicable to the sites concerned during the consultation period; 2. The Commission alleges that the Belgian authorities have not adopted within the prescribed time-limit the necessary meas- ures to ensure the full and proper trans- position of a series of provisions of the directive. The provisions concerned (the 'disputed provisions') are the following:
— Articles 6 and 7 on the measures necessary to ensure the protection of special areas of conservation;
— Article 1 which defines the main con- cepts used in the directive;
1 — Original language: French. — Articles 12 and 13 on the measures of 2 — OJ 1992 L 206, p. 7 ('the directive') protection for animal and plant species;
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— Article 14 on the taking of specimens 3. In view of the federal structure of the from fauna and flora habitats; Kingdom of Belgium the parties in their submissions identified matters particular to each region concerned. It is apparent from the case-file 3 that under the special law of institutional reform of 8 August 1980 4 the regions are the entities competent to legis- late in the areas covered by the directive. — Article 15 on the prohibition of indis- The parties make the following sub- criminate means of capturing and kill- missions. ing certain species;
— Article 16(1) on the circumstances in which Member States can derogate 4. In relation to the Walloon Region, the from certain provisions of the directive; Commission submits that the competent authorities have not adopted the necessary measures to ensure the transposition of all the provisions of the directive at issue, with the exception of Article 23(2). The Belgian Government does not dispute this alle- gation. It points out that, after the reasoned — Article 22(b) on the introduction of opinion, the Walloon Region adopted a species not native to the territory; decree ensuring the transposition of those provisions. 5In the light of this, in its reply 6 the Commission withdrew the complaints against the Walloon Region.
— Article 22(c) which requires the pro- motion of education and information on the need to protect species and habitats, and
5. As regards the Flemish Region, the Commission observes that the regional authorities have failed to adopt the necess-
— Article 23(2) which requires that the 3 — Defence (p. 2). transposing measures adopted by 4 — Moniteur belge of 15 August 1980 (see Article 6(1) of that Member States contain a reference to Law). 5 — Decree of 6 December 2001 on the conservation of Nature the directive or be accompanied by 2000 sites of wild fauna and flora (Annex 1 to the defence). such a reference. 6 — Paragraphs 11 to 13.
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ary measures to ensure the transposition of The alleged failure to transpose the second all the provisions of the directive at issue, sentence of the first subparagraph of with the exception of Article 22(c). 7The Article 6(4) of the directive Kingdom of Belgium does not dispute this allegation. It acknowledges that the meas- ures currently in force ensure only a 'partial transposition' 8of the directive.
8. Article 6 of the directive defines the system applicable to special areas of con- servation and sites of Community import- ance. It is worded as follows:
6. Finally, in relation to the Bruxelles- Capitale region, the Commission submits that the competent authorities have not adopted the necessary measures to ensure the transposition of the second sentence of the first subparagraph of Article 6(4) and of ' 1 . For special areas of conservation, Articles 7 and 22(c) of the directive. The Member States shall establish the necessary Kingdom of Belgium disputes these alle- conservation measures... . gations. 9
2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural 7. It follows that the only dispute between habitats and the habitats of species... . the parties is the allegations made by the Commission against the Bruxelles-Capitale region. I shall therefore limit the scope of this Opinion to those points and propose that, in respect of the others, the Court uphold the action as limited by the Com- mission. 3. Any plan or project not directly con- nected with or necessary to the manage- 7 — In its reply (paragraph 15), the Commission expressly withdrew the complaint of the failure on the part of the ment of the site but likely to have a Flemish authorities to transpose Article 22(c) of the direc- significant effect thereon... shall be subject tive. 8 — Defence (p. 5). to a p p r o p r i a t e a s s e s s m e n t of its 9 — Ibidem (pp. 2 and 3). implications... .
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4. If, in spite of a negative assessment of the sentence of the first subparagraph of implications for the site and in the absence Article 6(4) does not have 'legislative force' of alternative solutions, a plan or project since it 'does not create either rights or must nevertheless be carried out for obligations on the part of citizens in imperative reasons of overriding public general'. 11 interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory meas- ures adopted.' 11. In our view that argument cannot be accepted.
9. The Commission submits that the Bruxelles-Capitale region has not ensured 12. The Kingdom of Belgium confuses two the transposition of the second sentence of concepts which are distinct in law: the the first subparagraph of Article 6(4) of the binding character of a provision and its directive. In its view, no provision of the direct effect. Whilst it is true that the Order of the Bruxelles-Capitale Region of second sentence of the first subparagraph 26 October 2000 on the conservation of of Article 6(4) cannot have direct effect natural habitats and wild flora and fauna 10 within the meaning of the case-law, it does lays down an obligation on the part of the nevertheless have binding character under competent authorities to inform the Com- the EC Treaty. The provision is couched in mission of compensatory measures adopted mandatory terms and it imposes a clear under Article 6(4). obligation on Member States. It therefore has binding force within the meaning of the third subparagraph of Article 249 EC.
10. The Kingdom of Belgium acknowl- edges that the order does not contain measures relating to the obligation to 13. Moreover, it should be noted that the provide information. It argues nevertheless aim of the directive is to establish a that Member States are not required to coherent European ecological network transpose this obligation into their called 'Natura 2000' composed of sites domestic law. In its view, the second hosting the natural habitat types listed in
10 — Moniteur belge of 28 November 2000. 11 — Defence (p. 2).
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Annex I and habitats of the species listed in laid down by Article 6(4) of the directive Annex II. 12 The network shall ensure the therefore cannot be accepted. maintenance or, where appropriate, the restoration at a favourable conservation status of the natural habitat types and the species' habitats concerned in their natural range. 13
The alleged failure to transpose Article 7 of the directive
14. It should also be noted that the Com- mission fulfils a vital role in respect of these objectives. The Commission is the only 16. The Commission submits that the institution which can co-ordinate the Bruxelles-Capitale Region has not adopted Natura 2000 network and ensure its coher- the necessary measures to ensure the trans- ence. 14 It is the only institution, for position of Article 7 of the directive. example, which can assess the conservation status of a natural habitat or species in the context of the whole of the European territory of the Member States. 15
17. The Kingdom of Belgium does not dispute that but asserts simply that 'the non-transposition of Article 7... is merely the consequence of the fact that the Bruxelles-Capitale Region considers that 15. In view of the above factors, the Article 6 [of the directive] does not need obligation to inform the Commission is an to be transposed'. 16 essential part of the system established by the directive. In the absence of this obli- gation the Commission would not be in a position to fulfil effectively the task assigned to it under the directive. The Kingdom of Belgium's argument that Member States are not required to trans- 18. This argument cannot be accepted since pose the obligation to provide information we have already concluded that the 'Bruxelles-Capitale' region is obliged to ensure the transposition of all provisions 12 — Article 3(1) of the directive. of Article 6 of the directive. 13 — Idem. 14 — See Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraphs 19 to 25. 15 — Ibidem (paragraph 23). 16 — Defence (p. 3).
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The alleged failure to transpose 21. The Kingdom of Belgium disputes that. Article 22(c) of the directive It argues that the Bruxelles-Capitale Region has been fulfilling its obligations under Article 22(c) for a number of years by ensuring, through various agreements, the funding for educational programmes on 19. Article 22 of the directive provides: nature.
'In implementing the provisions of this Directive, Member States shall:
22. In our view, that argument cannot be accepted. It is common ground that the (a) ... Belgian Government has not supplied any information to enable the Commission to conclude that the Bruxelles-Capitale Region had properly implemented Article 22(c) of the directive. Moreover, the Belgian authorities have not supplied to the Court details of either the educational (b) ... programmes for which they ensure funding or the agreements reached with entities concerned.
(c) promote education and general infor- mation on the need to protect species of wild fauna and flora and to conserve their habitats and natural habitats.'
23. In these circumstances, neither the Commission nor the Court is in a position 20. The Commission states that it has not to determine whether the programmes in received any information to enable it to question enable proper implementation of conclude that the Bruxelles-Capitale Article 22(c) of the directive. As the case- Region has adopted measures to implement file stands it is therefore appropriate to the obligations under Article 22(c) of the conclude that the third complaint advanced directive. by the Commission is also well founded.
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Conclusion
24. In the light of all the foregoing, I propose that the Court should declare that:
(1) The Kingdom of Belgium has failed to fulfil its obligations under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, inasmuch as:
— the Flemish Region has failed to adopt within the prescribed time-limit the laws, regulations and administrative provisions necessary to ensure the full and proper transposition of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 14, 15, 16(1), 22(c) and 23(2) of the above directive, and
— the Bruxelles-Capitale Region has failed to adopt within the prescribed time-limit the laws, regulations and administrative provisions necessary to ensure the full and proper transposition of the second sentence of the first subparagraph of Article 6(4) and of Articles 7 and 22(c) of the above directive.
(2) The Kingdom of Belgium must pay the costs.
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