C-415/01
ECLI:EU:C:2002:649
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COMMISSION v BELGIUM
OPINION OF ADVOCATE GENERAL LÉGER delivered on 7 November 2002 1
1. In the present action the Commission of occurring migratory species not listed in the European Communities seeks a declar- Annex I. Finally, Article 4(4) 3 requires ation that the Kingdom of Belgium has inter alia that Member States take appro- failed to fulfil its obligations under priate steps to avoid deterioration of natu- Article 4(1), (2) and (4) of Council Direc- ral habitats and the habitats of species as tive 79/409/EEC of 2 April 1979 on the well as disturbance of the species for which conservation of wild birds. 2 the areas have been designated.
2. The aim of the Directive is the conser- vation of all species of birds naturally 4. In the present action, the Commission occurring in the wild in the territory of makes three complaints against the King- the Member States. It introduces rules for dom of Belgium. The complaints all con- the protection, management and control of cern the Région flamande (Flemish those species. Region). 4
3. Article 4 of the directive concerns meas- ures of special protection and similar 5. First, the Commission points out that the measures. Article 4(1) requires Member Région flamande has not adopted the States to determine the most suitable terri- measures necessary to ensure the complete tories for the conservation of the species transposition of Article 4(1) and (2) of the listed in Annex I and to classify them as directive. The Kingdom of Belgium does special protection areas (hereinafter 'SPAs'). Article 4(2) requires Member States to take similar measures for regularly 3 — As amended by Article 7 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). 4 — At the outset the Commission also brought a number of complaints against the Région wallonne. However, it 1 — Original language: French. expressly withdrew those complaints in its reply (para- 2 — OJ 1979 L 103, p. 1 (hereinafter 'the directive'). graphs 9 to 12).
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not dispute this complaint. It admits that 8. It is clear from the foregoing that the the provisions currently in force only only issue between the parties concerns the ensure the 'partial transposition' of the third complaint, namely that the maps provisions in question. 5 demarcating the SPAs lack binding force. I will therefore confine my observations to the assessment of that complaint and pro- pose that the Court upholds the action in respect of the other complaints.
6. Second, the Commission notes that, in accordance with the case-law of the Court, 6Article 4 of the directive requires Member States to provide SPAs with a legal status that is capable of ensuring both the survival and reproduction of the species listed in Annex I and the breeding, moult- ing and wintering of migratory species not Complaint that the maps demarcating the listed in Annex I which are regular visitors. SPAs lack binding force The Commission states that the Région flamande has failed to adopt any measure automatically linking the classification of a site as an SPA to the application of an adequate legal protection regime. The Kingdom of Belgium does not dispute this complaint. 7It indicates that the Flemish 9. The Commission submits that the Flem- Parliament is currently examining draft ish authorities have failed to implement legislation to that effect. Article 4(1) and (2) of the directive cor- rectly on the basis that the maps demarcat- ing the SPAs in the Région flamande do not have binding force.
7. Third, the Commission submits that the Flemish authorities have not adopted the measures necessary to ensure that the geographical maps demarcating the SPAs 10. The Commission explains that, in Bel- have binding force and are enforceable gian law, 8 measures adopted by the against third parties. The Kingdom of regional authorities must be published in Belgium disputes this complaint. the Moniteur belge (official journal of the
5 — Defence (p. 3). 8 — See the Law of 31 May 1961 on the use of languages in 6 — The Commission refers to Case C-355/90 Commission v legislation, the presentation, publication and the coming Spain [1993] ECR I-4221, paragraphs 28 to 32, and Case into force of statutory texts and regulations (Moniteur belge C-166/97 Commission v France [1999] ECR I-1719, of 21 June 1961) and the Special Law of Institutional paragraph 21. Reforms of 8 August 1980 (Moniteur belge of 15 August 7 — Rejoinder (pp. 2 and 3). 1980).
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Kingdom of Belgium) in order to have resulting from publication in the Moniteur binding force. Only such publication cre- belge. ates an irrebuttable presumption that citizens are aware of the measures and, thereby, ensures that they are enforceable against third parties.
13. In the light of the foregoing arguments, certain aspects of the obligations upon Member States when they transpose direc- tives must be borne in mind. 11. The Commission points out however that the maps demarcating the SPAs on Flemish territory have not been published in the Moniteur belge. To enable the population to become aware of them they were simply lodged in municipal offices. In the Commission's view, that is not suffi- cient to implement the legal protection regime required by Article 4 of the direc- tive. 14. It is settled case-law that the provisions of directives must be implemented with unquestionable binding force and the spe- cificity, precision and clarity necessary to satisfy the requirements of legal certainty. 9 The principle of legal certainty requires appropriate publicity of the national meas- ures adopted to transpose directives 1 0in such a way as to enable individuals to be fully aware of their rights and, where appropriate, to rely on them before the 12. The Kingdom of Belgium contends that national courts. 11 Nevertheless, the Court the question of the binding force of the has made clear that the principle of legal maps demarcating the SPAs is a matter for certainty does not prescribe any specific the domestic law of the Member States. form of publicity, such as the publication of They enjoy considerable discretion in deter- mining the manner in which they ensure the binding force of measures transposing 9 — See, for example, Case C-159/99 Commission v Italy [2001] directives. In any event, the Belgian Gov- ECR I-4007, paragraph 32. ernment submits that, according to the 10 — See, to that effect, Case C-313/99 Mulligan and Others case-law of the Belgian Court of Cassation, [2002] ECR I-5719, paragraph 51. 11 —See, for example, Case C-365/93 Commission v Greece the lodging of the maps at municipal offices [1995] ECR I-499, paragraph 9, and Case C-144/99 Commission v Netherlands [2001] ECR I-3541, gives them a force equivalent to that paragraph 17.
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the national measures in the Official Jour- 17. We share the Commission's view that nal of the Member States. 12 this argument cannot be accepted.
15. As regards the directive it is common ground that the maps demarcating the SPAs 18. It is clear from the case-file 14 that the must of necessity have binding force. If that judgment which the Belgian Government were not the case, the geographical extent relies on was given in particular circum- of the SPAs could be put in doubt at any stances. Thus the organic Law on Town time and the aims of the directive seriously and Country Planning of 29 March 1962 15 jeopardised. provides that a draft area plan must be the subject of a public enquiry, announced by way of notices in all municipal offices, by notices placed on three occasions in the Moniteur belge, by notices published on three occasions in three newspapers of the capital and, if possible, in three newspapers of the region concerned and also by bull- etins broadcast on three occasions by the National Institute of Radio Broadcasting. 16. In the present action, the Kingdom of Belgium does not dispute that, as a matter of federal law (the Special Law of Institu- tional Reforms, cited above), the measures adopted by the regional authorities must be published in the Moniteur belge if they are to have binding force. It nevertheless relies on an exception to the rule. It states that, in a judgment of 7 October 1983, 13 the Court of Cassation ruled that a draft area plan does not necessarily become binding solely 19. Moreover, it is clear from the grounds by virtue of publication in the Moniteur of the judgment cited above that, in belge but rather by being lodged at the acknowledging the binding force of the municipal offices of each municipality to draft area plans, the Court of Cassation which the plan extends. The Belgian Gov- relied on a number of specific factors such ernment submits that this judgment, on as the wording of the provision in question, town and country planning, is perfectly the general scheme of the law and all the applicable to the maps demarcating SPAs. pronouncements made by the minister
12 — See Mulligan and Others, cited above, paragraph 51. 14 — See application, paragraphs 34 and 35. 13 — Pas., 1983,1, 142. 15 — Moniteur belge, 12 April 1962.
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responsible during the passage of the law law, a measure adopted by a federal body through parliament. (the decree of the Flemish executive) can validly derogate from the principle of publication laid down by the federal law (the Special Law of Institutional Reforms).
20. It should be borne in mind that, in the present case, the Kingdom of Belgium has not shown the existence of such factors. It is true that the Belgian Government sub- mits that the decree of the Flemish execu- tive of 17 October 1988 requires that the maps demarcating the SPAs be lodged at 22. In the light of those factors and on the municipal offices. 16 basis of the documents before the Court, I take the view that the Kingdom of Belgium has not adequately proved that the maps demarcating the SPAs in the Région flam- ande have 'unquestionable' binding force in accordance with the case-law of the Court. 17
21. Nevertheless, it cannot be established from the case-file that the maps in question are the subject of a public enquiry identical to that required by the law cited above. Equally, it is not certain that the lodging of the maps is preceded by publicity measures comparable to those prescribed by that law. It is also unclear whether, as in the case cited, the legislature in fact intends to give 23. As a consequence I propose that the the maps binding force by their being Court uphold the third complaint brought lodged at municipal offices. Lastly, and in by the Commission. particular, it is unclear whether, in Belgian
17 — See, for example, Commission v Italy, cited above, 16 — See application, paragraph 32. paragraph 32.
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Conclusion
24. In the light of the foregoing, I propose that the Court should:
(1) declare that the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1), (2) and (4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, in that the Région flamande has failed to adopt:
— within the period prescribed, all the laws, regulations and administrative provisions necessary fully to transpose Article 4(1) and (2) of that directive;
— all the laws, regulations and administrative provisions necessary auto- matically to link the classification of a site as a special protection area with the application of a legal protection system in accordance with Article 4(1), (2) and (4) of that directive; and
— the laws, regulations and administrative provisions necessary to give unquestionable binding force to the maps demarcating the special protection areas located on its territory.
(2) order the Kingdom of Belgium to pay the costs.
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