C-378/01

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL LÉGER delivered on 12 December 2002 1

1. By this action the Commission of the measures for regularly occurring migratory European Communities seeks a declaration species not listed in Annex I. In that that the Italian Republic has failed to fulfil respect, they are to pay particular attention its obligations under Article 4(1), (2) and to the protection of wetlands, above all (3) of Council Directive 79/409/EEC of those of international importance. Finally, 2 April 1979 on the conservation of wild paragraph 3 thereof provides that Member birds 2(hereinafter 'the Directive'). States shall send the Commission all rel- evant information so that it can coordinate the areas referred to in paragraphs 1 and 2 of the said provision into a coherent network.

2. The purpose of the Directive is the conservation of all species of naturally occurring birds in the wild state in the Member States. It establishes a system of 4. In the present case, the Commission protection, management and control of makes two complaints against the Italian those species. Republic.

5. First, the Commission claims that the 3. Article 4 of the Directive deals with Italian Republic has infringed Article 4(1) special conservation measures and similar and (2) of the Directive. It accuses it of not measures. Paragraph 1 thereof requires the having classified as SPAs a sufficient Member States to designate the most suit- number of suitable territories and of certain able territories for the conservation of the wetlands of international importance. The species mentioned in Annex I to the Direc- Italian Republic disputes that complaint. tive and to classify them as special pro- tection areas. 3 Paragraph 2 thereof requires the Member States to adopt similar

I — The complaint based on failure to classify as SPAs a sufficient number of appropriate territories and of certain wet- lands 11. It is appropriate to point out that, under the Court's case-law, Article 4(1) and (2) of the Directive requires the Member States to classify as SPAs certain territories with a view to the effective conservation 8. The Commission accuses the Italian both of the species listed in Annex I to that Republic of having infringed Article 4(1) Directive and of those regularly occurring and (2) of the Directive, in that it has failed species which are not listed in that Annex, to classify as SPAs a sufficient number of in order to ensure, in particular, their suitable territories for the conservation of survival and reproduction in their area of the species mentioned in Annex I to the distribution. That obligation affects all the Directive and of the regularly occurring most suitable territories. 5 migratory species not listed in that Annex. The Commission also accuses it of having failed to classify certain wetlands of inter- 4 — Hereinafter 'the IBA Inventory 89'. 5 — See, in particular, Case C-3/96 Commission v Netherbnds national importance as SPAs. [1998] ECR I-3031, paragraph 55.

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COMMISSION v ITALY

15. It is true that the IBA Inventory 89 is not legally binding. However, the Court 13. In that regard the Court considers that has accepted that it 'draws up an inventory the Member States' margin of discretion in of areas which are of great importance for choosing the most suitable territories for the conservation of wild birds in the classification as SPAs does not concern the Community'. 9 appropriateness of classifying as SPAs the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species listed in Annex I to the Directive. 7 It follows therefrom that Member States have a discretion as to the 16. The Commission asserts that the IBA choice of the ornithological and scientific Inventory 89 also constitutes for the Italian criteria which will apply to the designation Republic the work of reference which is of SPAs. 8 best documented and most detailed con- cerning the designation of SPAs in its territory. 10 Thus, that inventory is repro- duced, among others, in the study entitled 6 — See, in particular, Case C-57/89 Commission v Germany [1991] ECR 1-883, paragraph 20. 'Inventory of areas of importance for bird 7 — See Commission v Netherlands, cited above, paragraph 61. life' carried out by the Italian league for the See also Case C-355/90 Commission v Spain [1993] ECR I-4221, paragraph 26. protection of birds in 1991. 8 — See, also, on this point, N. Sadeleer, 'Balance-sheet of 10 years of legislative effort in Community law for the protection of nature', Recent developments in Community environment law, Actes du colloque of 11 mai 1994, edited 9 — See Commission v Netherlands, cited above, paragraph 68. by Story-Scienta, p. 200, particularly pp. 227 to 236, and W.P.J. Wils, 'Protection of natural habitats in Community 10 — At the hearing, the Commission's Agent emphasised that law', Cahiers de droit europèen, 1994, p. 398, particularly the Italian Republic participated in the drawing up of the pp. 405 to 407. IBA Inventory.

18. On the merits, the Commission alleges 21. The Italian Republic asserts that, that, on the basis of the IBA Inventory contrary to the Commission's arguments, 89, there are 164 important areas for bird the SPAs which it has designated include all life in Italy and that their total area is the wetlands of international interest, 3 609 070 hectares. The Italian authorities according to the Ramsar Convention. have hitherto classified 336 sites as SPAs, that is a total area of 1 370 700 hectares. The Commission adds that 194 of those SPAs do not coincide, even in part, with any of the 164 important areas for bird life 22. In its action for infringement, the cited in the said inventory. Thus, numerous Commission, in demarcating the wetlands bird species listed in Annex I to the of international importance took as its Directive and numerous migratory species yardstick the important bird areas includ- are not yet adequately protected. ing certain sites under the Ramsar Con- vention, rather than only the sites defined by that convention, for the demarcation of wetlands. Against that yardstick, in Italy, certain important sites have not been designated or have been designated only in part. 12 The Italian Republic does not dispute those arguments. 19. The Italian Government asserts that new SPAs have been classified in Italy and that the total of those classifications covers entirely those listed in the IBA Inventory 89. However, as the Commission points 23. In light of the foregoing, I suggest that out, the Italian Republic forwarded no the Court upholds the action for infringe- evidence to that effect within the period ment in its entirety. laid down by the reasoned opinion. There- fore, it does not seem to me possible to accept the Italian Republic's assertion on 11 — Convention concluded on 2 February 1971, UNTS, vol. 996, p. 245. that point. 12 — Reply (p. 4).

— has not sent the Commission all the necessary information for the coordination of the areas covered by Article 4(1) and (2) of that directive into a coherent network meeting the need for the protection of the species.

(2) order the Italian Republic to pay the costs.

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