C-434/01
ECLI:EU:C:2003:392
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OPINION OF MR TIZZANO — CASE C-434/01
OPINION OF ADVOCATE GENERAL TIZZANO delivered on 3 July 2003 1
Introduction habitats and of wild fauna and flora (Article 2). For that purpose it requires the Member States to set up a coherent European ecological network of special conservation areas in order to enable 1. In this action the Commission of the certain types of natural habitat and the European Communities claims that the habitats of certain species of flora and United Kingdom has failed to fulfil its fauna to be maintained (Article 3 et seq. obligations under Articles 12 and 16 of and Annexes I, II and III). Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora ('Directive 92/43' or 'the Directive'). 2
3. Furthermore, the Directive identifies particular animal and plant species conser- vation of which demands measures of 'strict protection' (Article 12 et seq. and I — Legal background Annex IV).
The relevant provisions of Community law
4. In particular, Article 12(1) provides:
2. The aim of Council Directive 92/43, adopted on the basis of Article 130s of the Treaty (now Article 175 EC), is essentially to contribute towards ensuring biodiversity through the conservation of natural 'Member States shall take the requisite 1 — Original language: Italian. measures to establish a system of strict 2 — OJ 1992 L 206, p. 7. protection for the animal species listed in
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Annex IV(a) in their natural range, pro- protection' imposed by Article 12, provid- hibiting: ing in particular that:
(a) all forms of deliberate capture or kill- 'Provided that there is no satisfactory ing of specimens of these species in the alternative and the derogation is not detri- wild; 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): (b) deliberate disturbance of these species, particularly during the period of breed¬ ing, rearing, hibernation and migration; (a) in the interest of protecting wild fauna and flora and conserving n a t u r a l habitats;
(c) deliberate destruction or taking of eggs from the wild;
(b) to prevent serious damage, in particu- lar to crops, livestock, forests, fisheries and water and other types of property;
(d) deterioration or destruction of breed- ing sites or resting places.'
(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic 5. Among the species protected under that nature and beneficial consequences of provision Annex IV mentions, for our primary importance for the environ- purposes here, the great crested newt ment; (Triturus cristatus).
(d) for the purpose of research and edu- 6. Article 16(1) of the Directive introduces cation, of repopulating and re-intro- a limited exception to that duty of 'strict ducing these species and for the breed¬
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ings operations necessary for these for species protected at European level purposes, including the artificial propa- ('derogation licences'), where the deroga- gation of plants; tion is necessary in order to achieve certain purposes, including in particular:
(e) to allow, under strictly supervised con- ditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers spec- ified by the competent national auth- orities'.
(c) conserving wild animals or wild plants or introducing them to particular areas;
The relevant provisions of national law
7. Articles 12 and 16 of the Directive were transposed into the national law of the United Kingdom by the Conservation (Natural Habitats) Regulations of 1994 ('the Regulations').
(e) preserving public health or public safety or other imperative reasons of 8. In particular, Regulation 39(1) prohibits overriding public interest including the capture, killing or disturbance in their those of a social or economic nature natural habitat of animals of species pro- and beneficial consequences of primary tected at European level, the taking or importance for the environment; destruction of their eggs and the damaging or destroying of their breeding sites or resting places.
...'. 3 9. Under Regulation 44, however, the competent authorities may license activity in derogation from the system of protection 3 — Footnote not applicable in English.
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10. Under Regulation 44(3), derogation 14. In such a case indeed — still according licences may be granted only when the to what the file gives us to understand — competent authorities are sure that there is the person concerned must first of all apply no satisfactory alternative and that the to the local planning authority for planning derogation will not be detrimental to the permission. The authority may refuse to maintenance of the populations of species grant permission, on account of the danger concerned at a favourable conservation of 'disturbance' of a protected species, or status in their 'natural range'. grant it on the condition that a derogation licence under Regulation 44 is obtained.
11. The authorities competent to grant derogation licences under Regulation 44(4) and Regulation 4 are defined as the appro- priate nature conservation body for the territory (namely, the Nature Conservancy Council (for England), the Countryside Council for Wales and Scottish Natural Heritage) for the cases referred to in Regulation 44(2)(a) to (d) and the Minister for Agriculture, Fisheries and Food or the Secretary of State for the cases referred to in subparagraphs (e) to (g). 15. In exercising that discretion, the plan- ning authorities abide by planning guide- lines (in the case of Wales, 'Planning Guid- ance Wales' of 1999). Under those guide- lines, in particular, when there are pro- 12. In addition, in accordance with Regu- tected species on the site in respect of which lation 3(4) all public authorities in Great permission is sought, the local planning Britain must have regard to the provisions authorities must, before granting per- of Directive 92/43 when exercising their mission, consult the authorities competent functions. to grant derogation licences (Planning Guidance Wales, paragraph 5.3.20). In any case, however, the planning permission applied for ought not to be refused 'if development can be subject to conditions that will prevent damaging impacts on wildlife habitats... or if other material 13. It may be deduced from the documents factors are sufficient to override nature in the file that Regulation 3(4) is particu- conservation considerations' (Planning larly applicable where the activity which Guidance Wales, paragraph 5.3.21). 4 might give rise to 'disturbance' is also relevant from the point of view of town and country planning rules. 4 — Footnote not applicable in English.
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II — Facts and procedure by the United Kingdom, has in effect withdrawn its allegation of incorrect appli- cation of Article 16(1)(a) of the Directive. 5
16. Prompted by complaints laid by indi- viduals, describing 'disturbance' of popu- lations of great crested newts at sites at 19. The subject-matter of these proceedings Broughton Park, Pontblyddyn and Con¬ is therefore now limited to the Commis- nah's Quay in Wales, the Commission, sion's charging the United Kingdom with after requesting explanations of the British failure to i m p l e m e n t correctly authorities, sent the United Kingdom Gov- Article 16(1)(c) of the Directive in situ- ernment a letter of formal notice on ations where the danger of 'disturbing' a 28 April 1999. That letter was followed species which is protected for the purposes by a reasoned opinion of 2 February 2 0 0 1 , of Article 12 and Annex IV of the Directive alleging failure to comply with Articles 12 arises from activity in respect of which and 16 of the Directive and, in particular, planning permission is sought. failure to satisfy the conditions laid down in Article 16(1)(a) and (c) for the grant of licences for certain activity in derogation from the system of 'strict protection' pro- vided for by Article 12.
Arguments of the parties
17. Finding the responses and explanations 2 0 . The Commission's complaints are supplied by the United Kingdom Govern- focused, essentially, on the allocation of ment unsatisfactory, the Commission powers between local planning authorities, brought this action before the Court. which are competent to grant permission for development, and the authorities com- petent to grant derogation licences under Regulation 44.
III — Legal analysis 2 1 . The Commission states that British practice is for the grant of planning per- mission in respect of a site populated by a protected species to predate the application for derogation. 18. In the written procedure the Commis- sion, taking formal notice of certain legis- lative amendments made, though belatedly, 5 — Commission's reply, paragraphs 1 to 3.
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22. In its opinion, in such circumstances such cases it will be recognised that the the authority competent to grant deroga- planning authority has already decided that tion licences, receiving the application after the material considerations on balance planning permission has already been weigh in favour of the development'. 6 granted, is no longer in a position to determine whether or not there is any satisfactory alternative to the development p r o j e c t c o n c e r n e d , as r e q u i r e d by Article 16(1) of the Directive.
25. Nor, submits the Commission, is the general provision laid down in Regulation 3, that all public authorities, including planning authorities, must 'have regard' to the Directive when exercising their func- tions sufficient to ensure proper implemen- tation of Article 16 of the Directive. More- 23. Moreover, in assessing the application over, Planning Guidance, paragraph 5.3.21 for a derogation licence in accordance with (see paragraph 15 above), by providing that Article 16(1)(c), that authority cannot even the planning permission applied for may question whether or not there exist 'im- not be refused if development can be perative reasons of overriding public inter- subject to conditions that will prevent est', especially as its decision will generally damaging impact on wildlife habitats or be based on the same factual grounds as 'if other material factors are sufficient to those previously taken into consideration override nature conservation consider- by the planning authority that has already ations', confirms that the British practice granted development permission. is not based on an approach as rigorous as that required by Article 16(1) of the Direc- tive.
24. According to the Commission, that is in 26. For its part, the United Kingdom main- substance borne out by the statements tains, first, that local planning authorities contained in a letter of 25 October 2000 are required to have regard to the Directive sent by the Department of Environment, when exercising their functions. They may Transport and the Regions to one of the not, therefore, grant planning permission individuals whose complaints launched the where making use of that permission would infringement proceedings. That letter stated raise the risk of endangering a protected that in the consideration of an application species if they are not persuaded that the for a derogation licence 'it is taken into conditions laid down by Article 16 of the account that a public authority, in line with Directive have been satisfied. proper procedures and the framework of planning policy, has decided to grant per- mission for the development to proceed. In 6 — Footnote not applicable in English.
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27. The defendant Government claims that must remark that there is in this case no what is more important is that compliance dispute as to the interpretation of the with Article 16 of the Directive is ensured relevant provisions of Community law. directly by the authorities competent to grant a derogation licence in accordance with Regulation 44. The fact that those authorities may by and large base their decisions on facts communicated to them by the local planning authority does not in any way restrict the power of discretion, still less make binding on them the assess- ments expressly made on the basis of those 30. As a matter of fact it is not in dispute facts by the local planning authority which that, for the purpose of authorising dero- granted planning permission. gation from the system of 'strict protection' of protected species, the Member State concerned is required to consider whether the conditions laid down by Article 16 of the Directive have been satisfied. Nor is it in dispute that Regulation 44 constitutes 28. According to the United Kingdom, it full implementation, at formal level, of cannot even be asserted, as the Commission Article 16 of the Directive. a p p e a r s to assert, t h a t the letter of 25 October 2000 (see paragraph 24 above) proves that the British authorities' practice was incorrect in application. In its sub- mission, the Commission's quotation from that letter is incomplete and misleading, for it leaves out the last sentence, which makes it clear that the competent authority is fully responsible for the d e t e r m i n a t i o n of 31. What is in issue here is whether, as whether or not the conditions under Regu- applied in practice, the British system is lation 44 have been satisfied, despite the liable to interfere with observance of the fact that planning permission has already obligations imposed by the Directive. been granted by the local planning auth- ority.
32. Having said that, I must first of all Assessment mention that, according to settled case-law, in proceedings under Article 226 EC for failure to fulfil obligations it is incumbent upon the Commission to prove the alle- 29. Before I start evaluating the conflicting gation that the obligation has not been arguments of applicant and defendant, I fulfilled. It must place before the Court the
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information needed to enable the Court to 35. That fact would appear to be crucial to establish that the obligation has not been this case, given that, again in the appli- fulfilled, and in so doing the Commission cant's submission, the decision as to the may not rely on any presumption. 7 grant of planning permission substantially prejudices the later decision on the grant of a derogation licence made by the auth- orities referred to by Regulation 44 in conjunction with Regulation 4.
33. In the circumstances of this case, there- fore, the issue is to establish whether the 36. As a matter of fact, according to the information supplied by the Commission is Commission, the assessment by those auth- sufficient to prove that in practice the orities of the application for a derogation operation of the British system determines licence depends upon the information sup- authorisation of 'disturbing' activity in plied by the local planning authorities that derogation from the 'strict protection' considered the planning application and regime without its previously having been cannot therefore be dissociated from the established that there is no satisfactory assessment made by those authorities. alternative and that there exists one of the j u s t i f i c a t i o n s specifically set o u t in Article 16(1)(c).
37. The only evidence adduced in support of the argument described would seem to be a letter of 25 October 2000 sent by the Department of Environment, Transport and the Regions to one of the complain- ants. In that letter it is claimed that the 34. The Commission then criticises the fact assessment made by the authority compet- (which the United Kingdom does not accept ent to grant derogation licences takes into is a fact) that the local planning authorities, account the fact that a public authority has although bound in a general way to comply already decided to grant development per- with the Directive, are not bound, in their mission, it being recognised that 'material deciding whether or not to grant planning considerations' weigh in favour of the permission, by standards as stringent as development concerned. those laid down by Article 16 of the Directive for the purposes of granting derogation licences.
7 — Case 141/87 Commission v Italy [1989] ECR 943, para- 38. Nevertheless, that same letter also graph 15; Case C-249/88 Commission v Belgium [1991] ECR I-1275, paragraph 6; Case C-210/91 Commission v states — though the Commission did not Greece [1992] ECR I-6735, paragraph 22; Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraph 33; Case quote this passage — that the final admin- C-408/97 Commission v Netherlands [2000] ECR I-6417, paragraph 15, and Case C-139/00 Commission v Spain istrative decision is the responsibility of the [2002] ECR I-6407, paragraph 45. authority competent to grant derogation
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licences, and that the grant of that licence lative models: on the one hand, the general will be conditional upon the requirements duty to have regard to the Directive laid of Regulation 44 and Article 16 of the down in Regulation 3(4), and on the other Directive having been satisfied. the strict requirements under Regulation 44.
39. Leaving out of consideration the arguable question of whether or not the 42. Therefore, in the absence of any evi- standards of assessment applied by local dence that might establish the alleged authorities in the grant of planning per- inability of the authorities mentioned in mission are compatible with the Directive, Regulation 44 and Regulation 4 to ensure the fact remains that the Commission has correct implementation of Article 16(1)(c) not proved the central point of its argu- of the Directive, I believe that the com- ment. plaint made by the Commission has not been adequately proved.
40. Indeed, it seems to me that it is not 43. In conclusion, I propose that the action possible to infer, either from the letter brought by the Commission should be quoted or from any other evidence adduced dismissed, inasmuch as evidence of the by the Commission, that the powers of alleged failure to fulfil obligations has not scrutiny of the central authorities are been put forward. rendered meaningless simply because those authorities make use of information sup- plied by local authorities and make their decision after planning permission has been granted.
IV — Costs
4 1 . It also seems plain to me, as to the United Kingdom Government, that the fact that two different authorities are called on 44. Under Article 69(2) of the Rules of in turn to assess the same facts is certainly Procedure, the unsuccessful party is to be not enough to make the decision of the first ordered to pay the costs if they have been a prejudgment capable of binding the applied for. Since the United Kingdom has second, especially as, in the circumstances applied for costs, and the Commission has of this case, the authorities making their been unsuccessful, the latter must be successive decisions apply different legis- ordered to pay the costs.
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V — Conclusion
45. In light of the foregoing considerations, I suggest that the Court should:
(1) dismiss the action brought by the Commission;
(2) order the Commission to pay the costs.
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