C-209/02

I - 1214

COMMISSION v AUSTRIA

4. Article 4(4) of the Birds Directive pro- 3. Any plan or project not directly con- vides: nected with or necessary to the manage- ment of the site but likely to have a significant effect thereon, either individ- ually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In 'In respect of the protection areas referred the light of the conclusions of the assess- to in [paragraph] 1..., Member States shall ment of the implications for the site and take appropriate steps to avoid pollution or subject to the provisions of paragraph 4, deterioration of habitats or any disturb- the competent national authorities shall ances affecting the birds, in so far as these agree to the plan or project only after would be significant having regard to the having ascertained that it will not adversely objectives of this Article. Outside these affect the integrity of the site concerned protection areas, Member States shall also and, if appropriate, after having obtained strive to avoid pollution or deterioration of the opinion of the general public. habitats.'

4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project 5. Article 6 of the Habitats Directive pro- must nevertheless be carried out for vides: imperative reasons of overriding public 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.

6. As set out in Article 7 of the Habitats that the extension in question would have Directive, 'obligations arising under adverse effects upon the existing corncrake Article 6(2), (3) and (4) of this Directive population, for the purposes of Article 6(3) shall replace any obligations arising under of the Habitats Directive. The extension the first sentence of Article 4(4) of [the could therefore have been authorised only Birds] Directive... in respect of areas clas- under the conditions laid down in sified pursuant to Article 4(1)... thereof...' Article 6(4), namely if the project had been justified by imperative reasons of overrid- ing public interest and if it had been accompanied by compensatory measures of which the Commission was informed. Since these requirements were not met, the Republic of Austria had failed to fulfil its obligations. I I — The background to the dispute, the proceedings and the claims of the parties

7. By a decision dated 14 May 1999, 7the Government of the Province of Styria, ruling on an appeal brought by the Golf- und Landclubs Ennstal (the Enns Valley Golf Club) against a decision of the Bezirk- shauptmannschaft (administrative auth- ority) of Liezen (Austria) of 4 December 9. In its reply dated 12 January 2000, the 1996, authorised an extension of the golf Austrian Government contended that the course in the district of Wörschach by way decision of 14 May 1999 laid down a of the addition of two new holes on a site number of conditions capable of preventing classified as a SPA. The extension auth- the extension from having a harmful effect orised has been completed. on the corncrake population. 8

I - 1216

COMMISSION v AUSTRIA

10. By letter of 27 July 2000, the Commis- sidered that the extension was not likely to sion issued a reasoned opinion. In that have a significant effect on the site within opinion, the Commission stated that, the meaning of Article 6(3) of the Habitats according to the report written by Mr Directive. Gepp in 1998, which could be regarded as an assessment of the implications of the disputed extension for the site, within the meaning of Article 6(3) of the Habitats Directive, the extension gave rise to a significant risk of disturbance to the corn- 14. By an application lodged at the Court crake population. The Commission also Registry on 4 June 2002, the Commission raised doubts concerning the effectiveness commenced these proceedings. of the conditions laid down by the decision of 14 May 1999, stating that the expert had advised against the imposition of compli- cated conditions which would alleviate only some of the harmful effects of the 15. By judgment of 27 June 2002, the extension and had considered that the Verwaltungsgerichtshof (Administrative extension was incompatible with the con- Court) (Austria) set aside the decision of servation of the corncrake population. 14 May 1999. In its defence, the Republic of Austria claimed that the action had to be dismissed as it had become devoid of purpose and, in the alternative, that it was not well founded. 11. In its reasoned opinion, the Commis- sion also referred to a new study carried out by Mr Schäffer, according to which, on the basis of present knowledge regarding the behaviour of the corncrake, the view was to be taken that the areas covered by 16. In its reply, the Commission main- the extension were situated entirely within tained the claims put forward in its appli- the section of grasslands which this species cation instituting proceedings. In its could use. Some elements of its habitat rejoinder, the Republic of Austria repeated would thus be destroyed. the form of order sought in its defence.

the present action devoid of purpose. 14 May 1999 were not sufficient to prevent Firstly, the Commission states that a failure such disturbance. The ineffective nature of to fulfil obligations must be determined by these conditions was confirmed by another reference to the situation prevailing at the expert's report, dated 26 June 1999, carried end of the period laid down in the reasoned out by Mr Lentner. In addition, this reason opinion and that the decision of 14 May was also given in the judgment of the 1999 was not set aside until after this date. Verwaltungsgerichtshof setting aside the Secondly, it maintains that the Government decision of 14 May 1999. of the Province of Styria must take a fresh decision on the appeal lodged by the operator of the golf course against the decision of the Bezirkshauptmannschaft and that it cannot be presumed with any certainty that this new decision will bring about a situation which complies with the 20. The Austrian Government submits, as Habitats Directive. its main claim, that that judgment has retroactive effect, so that the decision of 14 May 1999 never existed. These proceed- ings for failure to fulfil obligations are therefore devoid of purpose, since they specifically concern that decision. Fur- 18. As to the substance of the action, the thermore, under the judgment of the Ver- Commission submits that a project is likely waltungsgerichtshof, playing on the two to have a significant effect on a SPA within new holes is forbidden. The new decision the meaning of Article 6(3) of the Habitats required on the appeal lodged by the Directive when this area, following com- operator of the golf course will be taken pletion of the project, can no longer fulfil in accordance with Community law and its purpose, other than in a markedly the current proceedings cannot relate pre- restricted manner, in respect of one or ventively to a decision which has not yet several of its conservation or protection been taken. objectives. Moreover, the mere likelihood of a significant effect on the relevant SPA is sufficient to require authorisation of the project to be refused.

preted that report far too pessimistically. matter of an action for failure to fulfil The Austrian Government also states that obligations is determined by the reasoned the measures laid down by the decision of opinion and that, even when the default has 14 May 1999 have in fact been imple- been remedied after the time-limit pre- mented, as shown by the checks which it scribed by that opinion, pursuit of the carried out during 2002. action still has an object. In accordance with a frequently repeated form of words, that object may consist in particular in establishing the basis of the liability that a Member State may incur towards those who acquire rights as a result of its default, such as other Member States, the Commu- nity or individuals. 10 Finally, it is settled case-law that, in exercising its powers IV — Appraisal under Article 226 EC, the Commission does not have to show that there is a specific interest in bringing an action. 11 According to this case-law, the bringing and continuation of such an action before the Court is a matter for the Commission in its entire discretion, and it is not part of the A — The admissibility of the proceedings Court's role to take a view on the Com- mission's exercise of its discretion. 12

22. The admissibility of these proceedings appears to be indisputable in the light of the Court's case-law.

the end of the period of two months laid B — Substance down by the Commission in the reasoned opinion dated 27 July 2000, the decision in question was still in force. Furthermore, the extension has been completed. Thus the argument that, under Austrian law, the setting aside of the decision has retroactive effect such that it is deemed never to have existed must be considered immaterial given the case-law cited above, since the 27. The Austrian Government does not date to be used by the Court in determining dispute that the land on which the golf whether the Republic of Austria failed to course was extended forms part of a site fulfil its obligations is that on which the classified as a SPA within the meaning of time-limit imposed on it in the reasoned Article 4 of the Birds Directive and that, as opinion came to an end. In other words, the a result, the extension was subject to the retroactivity of the setting aside of the requirements laid down in Articles 6 and 7 decision of 14 May 1999 cannot render this of the Habitats Directive. action devoid of purpose because this setting aside arises from an event which occurred after the expiry of the time-limit set in the reasoned opinion and, according to the case-law cited above, such an event cannot be taken into account.

29. In this case, it is common ground that decision of 14 May 1999, must be regarded the Austrian authorities did not consider as the assessment of the implications of the the extension to the golf course to be a disputed extension on the site concerned, project which could be justified by impera- for the purposes of Article 6(3) of the tive reasons of overriding public interest, Habitats Directive. It is therefore on the within the meaning of Article 6(4) of the basis of the comments in this expert's Habitats Directive. The authorities did not report that the assessment must be made put forward any argument as to the exist- as to whether the Republic of Austria, as ence of such an interest and the conditions the Commission claims, failed to fulfil its laid down in Article 6(4) of the Habitats obligations under Articles 6 and 7 of the Directive, concerning the adoption of com- Habitats Directive by authorising the dis- pensatory measures and their communi- puted extension. cation to the Commission, were not fulfil- led.

I - 1221

OPINION OF MR LÉGER — CASE C-209/02

33. So far as the possible effects of the their long term effectiveness was doubt- extension on the corncrake population ful. 18 He recommended alternative sol- present on the site are concerned, the utions, such as creating the two new holes expert stated that the extension would elsewhere. 19 entail the loss of part of the feeding and resting areas of the species concerned, the destruction of functional relationships by the division of the various areas used by the corncrake and the loss of and disturbance to elements of its habitat. 16 Also men- tioned as a source of disturbance is noise caused by maintenance of the fairways and by persons looking for golfballs in the rough particularly if they are accompanied 35. The expert stated in conclusion that the by dogs off the lead. The expert pointed out combined effects of the construction of the that disturbance caused by passage along two holes on the corncrake population minor byways can suffice to make a corn- were liable to jeopardise its continuation crake population leave an area perma- at this site. In his view, this population, the nently. 17 only one capable of reproduction in the central Alps, would be faced with the following three dangers as a result of the extension: firstly, the reduction in size of its habitat; secondly, the destruction of and disturbance to elements of its habitat; and, thirdly, the noise caused by grass cutting and by players, the effects of which carry over a distance of up to 200 m from the fairways. 20

38. In the light of these matters, it is not possible to accept the Austrian Govern- ment's line of argument that the Commis- sion has interpreted Mr Gepp's report in an excessively pessimistic manner since, firstly, the disturbances mentioned are mere 40. With regard to the second argument, possibilities and, secondly, he did not mean we have seen that, when a project, on the that measures such as those laid down by basis of an assessment of its implications, the decision of 14 May 1999 would auto- appears likely to have a significant effect on matically be ineffective. the relevant SPA, the competent authorities cannot legitimately agree to its implemen- tation without first having ascertained that it will not adversely affect the integrity of the site concerned. In this case, it is the Austrian authorities who must show that, at the time of the adoption of the decision of 14 May 1999, they could be satisfied 39. So far as the first of the Austrian that the measures laid down by that Government's arguments is concerned, decision were capable of eliminating the one has only to refer to the expert's report risk apparent from Mr Gepp's report, of contained in the decision of 14 May 1999 serious disturbance to the corncrake popu- to see that the expert did not suggest that lation. However, the Austrian authorities the risk of serious disturbance to the corn- have clearly not demonstrated this. As I crake population was very improbable, but have stated above, while Mr Gepp did not in fact that it was not insignificant. Fur- categorically exclude the possibility that thermore, this assessment is corroborated measures such as those laid down by the by the very fact that the Styrian authorities decision of 14 May 1999 might eliminate considered it necessary to lay down a certain of the harmful effects of the exten- number of conditions in the decision of sion, he did nevertheless express very clear 14 May 1999, precisely in order to prevent reservations as to the actual effectiveness of the risk from materialising. I therefore these measures and stressed that they would be only partially effective. It should also be noted that he recommended that the 22 — Idem. extension be sited elsewhere. Accordingly,

41. Nor does it appear from the decision of 14 May 1999 that the Austrian authorities had available to them other information which would satisfy them of this. 44. Finally, the inspections carried out by the Austrian authorities in 2002 on the site concerned are not relevant to the resolution of the dispute since, as I have indicated above, it is in the light of the information available to the authorities prior to the adoption of the decision of 14 May 1999 that it must be determined whether they could legitimately have been satisfied that 42. This analysis is corroborated, firstly, by the extension would not adversely affect Mr Lentner's report, dated 26 June 1999, the integrity of the site concerned. regarding the value of Mr Gepp's report. It follows from Mr Lentner's report that the proposition that the measures prescribed by the decision of 14 May 1999 would enable adverse effects on the corncrake population to be avoided and would ensure its preser- vation 'is in no way supported by the Gepp report or by other ornithological reports or opinions available to the authorities'. 23

45. In the light of all these factors, I consider that the action brought by the Commission against the Republic of Aus- tria is well founded. I therefore propose that the Court should allow the Commis- sion's application and, in accordance with 43. The analysis is supported, secondly, by Article 69(2) of the Rules of Procedure, the decision of the Verwaltungsgerichtshof order the Republic of Austria to bear the of 27 June 2002. According to this costs of the action.

(2) order the Republic of Austria to pay the costs.'

I - 1225