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Opinion of Mr Advocate General Léger delivered on 12 December 2002. # Commission of the European Communities v Italian Republic. # Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Special protection areas - Conservation of wild birds. # Case C-378/01.

ECLI:EU:C:2002:764

62001CC0378

December 12, 2002
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OPINION OF ADVOCATE GENERAL

delivered on 12 December 2002 (1)

((Failure of a Member State to fulfil obligations – Directive 79/409/EEC – Conservation of wild birds))

5. First, the Commission claims that the Italian Republic has infringed Article 4(1) and (2) of the Directive. It accuses it of not having classified as SPAs a sufficient number of suitable territories and of certain wetlands of international importance. The Italian Republic disputes that complaint.

6. Secondly, the Commission accuses the Italian Republic of having infringed Article 4(3) of the Directive in that it has not forwarded all the data and all the necessary information about the designated SPAs. The Italian Republic does not dispute that complaint.

I ─ The complaint based on failure to classify as SPAs a sufficient number of appropriate territories and of certain wetlands

10. The Italian Republic asserts that the Commission is making purely abstract criticisms insufficient to found a declaration of infringement. It argues that the Commission has not put forward any scientific proof in support of its allegations.

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 both of the species listed in Annex I to that Directive and of those regularly occurring species which are not listed in that Annex, in order to ensure, in particular, their survival and reproduction in their area of distribution. That obligation affects all the most suitable territories. (5)

13. In that regard the Court considers that the Member States' margin of discretion in choosing the most suitable territories for classification as SPAs does not concern the 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 choice of the ornithological and scientific criteria which will apply to the designation of SPAs. (8)

14. In this case, the Italian Republic has not indicated either in the course of the pre-litigation procedure or of the proceedings themselves the ornithological criteria which it intends to use for the designation of the SPAs. In the absence of such indications, the Commission refers to the scientific criteria contained in the IBA Inventory 89. It appears from the contents of the file that that inventory is the document which enables the Commission to check whether the Member States are effectively classifying the most suitable territories as SPAs.

15. It is true that the IBA Inventory 89 is not legally binding. However, the Court has accepted that it draws up an inventory of areas which are of great importance for the conservation of wild birds in the Community. (9)

16. The Commission asserts that the IBA Inventory 89 also constitutes for the Italian Republic the work of reference which is best documented and most detailed concerning the designation of SPAs in its territory. (10) Thus, that inventory is reproduced, among others, in the study entitled Inventory of areas of importance for bird life carried out by the Italian league for the protection of birds in 1991.

17. It is important to mention that the Italian Republic has never disputed the scientific value and the use of the IBA Inventory 89 by the Commission. That is why I think that the latter has validly based its arguments on scientific criteria, those of that inventory, for the declaration of infringement, contrary to the submission of the Italian Republic.

18. On the merits, the Commission alleges that, on the basis of the IBA Inventory 89, there are 164 important areas for bird life in Italy and that their total area is 3 609 070 hectares. The Italian authorities 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 cited in the said inventory. Thus, numerous bird species listed in Annex I to the Directive and numerous migratory species are not yet adequately protected.

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 out, the Italian Republic forwarded no evidence to that effect within the period laid down by the reasoned opinion. Therefore, it does not seem to me possible to accept the Italian Republic's assertion on that point.

21. The Italian Republic asserts that, contrary to the Commission's arguments, the SPAs which it has designated include all the wetlands of international interest, according to the Ramsar Convention.

22. In its action for infringement, the Commission, in demarcating the wetlands of international importance took as its yardstick the important bird areas including certain sites under the Ramsar Convention, 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.

23. In light of the foregoing, I suggest that the Court upholds the action for infringement in its entirety.

II ─ Conclusion

24. I suggest therefore that the Court should:

(1) declare that the Italian Republic has failed to fulfil its obligations under Article 4(1), (2) and (3) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds in that it:

has failed to classify as special protection areas a sufficient number and area of the most suitable territories for the conservation of the species listed in Annex I to that directive and of the other regularly occurring migratory species not listed in that annex, and

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.

(1) Original language: French.

(2) OJ 1979 L 103, p. 1.

(3) Hereinafter SPAs.

(4) Hereinafter the IBA Inventory 89.

(5) See, in particular, Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraph 55.

(6) See, in particular, Case C-57/89 Commission v Germany [1991] ECR I-883, paragraph 20.

(7) See Commission v Netherlands, cited above, paragraph 61. See also Case C-355/90 Commission v Spain [1993] ECR I-4221, paragraph 26.

(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 by Story-Scienta, p. 200, particularly pp. 227 to 236, and W.P.J. Wils, Protection of natural habitats in Community law, Cahiers de droit europèen, 1994, p. 398, particularly pp. 405 to 407.

(9) See Commission v Netherlands, cited above, paragraph 68.

(10) At the hearing, the Commission's Agent emphasised that the Italian Republic participated in the drawing up of the IBA Inventory.

11Convention concluded on 2 February 1971, UNTS, vol. 996, p. 245.

12Reply (p. 4).

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