C-143/02
ECLI:EU:C:2003:10
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OPINION OF MR LÉGER — CASE C-143/02
O P I N I O N OF ADVOCATE GENERAL LÉGER delivered on 9 January 2003 1
1. By the present action, the Commission of — do not require the competent national the European Communities asks the Court authorities to take appropriate steps in to declare that the Italian Republic has respect of special protection areas to failed to fulfil its obligations under avoid the deterioration of natural Articles 5, 6 and 7 of Council Directive habitats and of the habitats of species 92/43/EEC of 21 May 1992 on the conser- for which those areas were designated vation of natural habitats and of wild fauna or disturbance of those species, and flora 2('the directive'). contrary to Article 7 of the directive, and
2. The Commission alleges that the Italian — lastly, do not require the competent Republic has adopted rules 3which: national authorities to adopt the con- servation measures referred to above in respect of areas which do not appear in a national list but are considered by the Commission to be of Community importance during the consultation period between the national authorities and the Commission and pending a Council d e c i s i o n , c o n t r a r y to — confine the application of the environ- Article 5(4) of the directive. mental impact assessment procedure to a number of listed projects instead of extending it to all projects referred to in Article 6(3) of the directive, that is to '[a]ny... project not directly connected with or necessary to the management of the site but likely to have a signifi- cant effect thereon'; 3. In its defence, the Italian Republic does not deny the merits of the complaints alleged against it. It states in that regard 1 — Original language: French. that the situation in question is linked to 2 —OJ 1992 L 206, p. 7. 3 — Presidential Decree No 357 of S September 1997 (GURI other difficulties associated with the text of No 248 of 23 October 1997). the transposing decree which gave rise to a I - 2878
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series of problems in its application, such as tents of the file that, at that time, the Italian the lack of penalties, the failure to set out Republic had not adopted all the laws, the procedures for carrying out the assess- regulations and administrative measures ment, the impact of projects on sites and necessary to comply with the directive. the identification of the authorities com- petent to issue the requisite authorisations. Consequently, the Italian Republic refers to a draft presidential decree intended to amend and supplement the decree in issue and which would put an end to the failure. The adoption procedure for that draft presidential decree is at an advanced stage but has now encountered a delicate con- 6. Furthermore, the Court has repeatedly stitutional problem concerning the identifi- held that a Member State may not plead cation of the authorities competent to act in provisions, practices or situations in its the matter. In those circumstances, the internal legal order in order to justify a Italian Republic asks the Commission to failure to comply with the obligations and stay its action for failure to fulfil obli- time-limits laid down in a directive. 5 gations.
4. I consider that the Court should declare 7. Finally, according to settled case-law, that there has been a failure to fulfil the the Court considers that, under the system obligations in question. instituted by Article 226 EC, the Commis- sion has a discretion to bring an action for failure to fulfil obligations and it is not for the Court to assess whether it was appro- priate to exercise that discretion. 6 That also applies to a stay of proceedings for a declaration of failure to fulfil obligations 5. According to settled case-law, the Court which have already been instituted. Con- considers that in proceedings instituted on sequently, since the Commission did not the basis of Article 226 EC, the question consent to a stay of the present proceed- whether there has been a failure to fulfil ings, as suggested by the Italian Republic, obligations must be determined by refer- the Court should declare that there has ence to the situation prevailing in the been a failure to fulfil the obligations in Member State at the end of the period laid question. down in the reasoned opinion. 4 In the present case, it is apparent from the con- 5 — See, inter alia, Case C-238/95 Commission v Italy [1996] ECR I-1451, paragraph 7; Case C-236/99 Commission v Belgium [2000] ECR I-5657, paragraph 2 3 ; and Commis- 4 — See, inter alia, Case C-200/88 Commission v Greece [1990] sion v Germany, cited above at footnote 4 , paragraph 18. ECR I-4299, paragraph 13; Case C-133/94 Commission v 6 — See, inter alia, Commission v Greece, cited above at Belgium [1996] ECR I-2323, paragraph 17; and Case footnote 4, paragraph 9; Case C-152/98 Commission v C-383/00 Commission v Germany [2002] ECR I-4219, Netherlands [2001] ECR I-3463, paragraph 2 0 ; and Case paragraph 16. C-471/98 Commission v Belgium [2002] ECR I-9681.
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Conclusion
8. Consequently, I propose that the Court should uphold the action brought by the Commission and:
(1) declare that the Italian Republic has failed to fulfil its obligations under Articles 5, 6 and 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora in that it adopted rules which:
— confine the application of the environmental impact assessment procedure to a number of listed projects instead of extending it to all projects not directly connected with or necessary to the management of the site but likely to have a significant effect thereon;
— do not require the competent national authorities to take appropriate steps in respect of special protection areas to avoid the deterioration of natural habitats and of the habitats of species for which those areas were designated, and
— do not require the competent national authorities to adopt the temporary conservation measures referred to above in respect of areas which do not appear in a national list but are considered by the Commission to be of Community importance;
(2) order the Italian Republic to pay the costs.
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