«(Failure of a Member State to fulfil obligations – Conservation of wild birds – Special protection areas)»

Opinion of Advocate General Léger delivered on 7 November 2002

Judgment of the Court (Sixth Chamber), 27 February 2003

Summary of the Judgment

Article 4(1) and (2) of Directive 79/409 on the conservation of wild birds requires the Member States to provide special protection areas with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species not listed in that annex which are regular visitors. Under paragraph 4 of that article, as amended in part in relation to special protection areas by Article 7 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, the legal protection regime of those areas must also guarantee the avoidance therein of the deterioration of natural habitats and the habitats of species as well as significant disturbance of the species for which those areas have been designated. The absence of any national provision linking the classification of a site as a special protection area to the application of a protection regime such as that described in the said Article 4 undermines the objective of special protection for wild bird life. see paras 15-17

The provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty which requires appropriate publicity for the national measures adopted pursuant to Community rules in such a way as to enable the persons concerned by such measures to ascertain the scope of their rights and obligations in the particular area governed by Community law. see para. 21

JUDGMENT OF THE COURT (Sixth Chamber) 27 February 2003 (1)

((Failure by a Member State to fulfil its obligations – Conservation of wild birds – Special protection areas))

In Case C-415/01,

Commission of the European Communities, represented by G. Valero Jordana and J. Adda, acting as Agents, with an address for service in Luxembourg,

applicant,

Kingdom of Belgium, represented by C. Pochet, acting as Agent,

defendant,

APPLICATION for a declaration that, in so far as the Région flamande (Flemish Region) has failed to transpose Article 4(1) and (2) of and Annex I to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), to demarcate special protection areas within its territory capable of being relied upon as against third parties, and to adopt the measures necessary to ensure that the classification of a site as a special protection area automatically and simultaneously entails the application of a system of protection and conservation complying with Community law, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) and (2) in conjunction with Article 4(4), as partially amended, of Directive 79/409 in accordance with 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), by Article 6(2) to (4) of the latter directive,

THE COURT (Sixth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, C. Gulmann (Rapporteur), F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: P. Léger, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 7 November 2002,

gives the following

By application lodged at the Court Registry on 19 October 2001, as amended by the reply, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, in so far as the Région flamande (Flemish Region) has failed to transpose Article 4(1) and (2) of and Annex I to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, hereinafter the directive on birds), to demarcate special protection areas (hereinafter SPAs) within its territory capable of being relied upon as against third parties, and to adopt the measures necessary to ensure that the classification of a site as an SPA automatically and simultaneously entails the application of a system of protection and conservation complying with Community law, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) and (2) of the directive on birds and Article 4(4) of that directive, as partially amended, in accordance with 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, hereinafter the directive on habitats), by Article 6(2) to (4) of the latter directive.

Legal framework

Article 4(1), (2) and (4) of the directive on birds provides:

The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution. In this connection, account shall be taken of:

(a) species in danger of extinction;

(b) species vulnerable to specific changes in their habitat;

(c) species considered rare because of small populations or restricted local distribution;

(d) other species requiring particular attention for reasons of the specific nature of their habitat.

Trends and variations in population levels shall be taken into account as a background for evaluations.Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this directive applies.

Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.

Article 6(2) to (4) of the directive on habitats provides:

Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this directive.

Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually 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 the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for 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 measures adopted.

Member States were required under Article 23(1) of the directive on habitats to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification. Since the directive was notified in June 1992, that period expired in June 1994.

Pre-litigation procedure

6

By a letter of formal notice sent to the Belgian Government on 4 April 2000, the Commission stated among other things that, according to its information, it appeared that the Région flamande had failed to transpose Article 4(1) and (2) of and Annex I to the directive on birds, to demarcate SPAs within its territory capable of being relied upon as against third parties, and to adopt the measures necessary to ensure that the classification of a site as an SPA automatically and simultaneously entails the application of a system of protection and conservation complying with Community law, and that, therefore, the Kingdom of Belgium had failed to fulfil its obligations under Article 4(1) and (2) of the directive on birds and Article 4(4), as partially amended, of that directive in accordance with Article 7 of the directive on habitats, by Article 6(2) to (4) of the latter directive.

Since it received no reply to that letter, the Commission, by letter of 19 July 2000, sent the Kingdom of Belgium a reasoned opinion repeating the complaints set out in the formal notice and requesting it to take the measures necessary to comply with that reasoned opinion within a period of two months from the date of its notification.

10.The Commission claims that no legally binding provision applying to the territory of the Région flamande requires the classification as SPAs of the most appropriate areas in terms of number and surface area for the conservation of the bird species listed in Annex I to the directive on birds and of the regularly occurring migratory species not listed in Annex I. Therefore, Article 4(1) and (2) of that directive have not been fully transposed.

11.The Belgian Government, whilst maintaining that Article 4(1) and (2) of the directive on birds has been partially transposed, does not dispute that complaint.

12.The action must therefore be upheld on that point.

13.The Commission points out the lack of any provision applying to the Région flamande which automatically links the classification of a site as an SPA to the application of the system of protection and conservation provided for by Community law in that respect.

14.While, on the one hand, the Belgian Government observes that there already exist, in the Région flamande, certain general and sectorial protection measures which affect SPAs, it recognises, on the other hand, that no provision applying to that region provides that the classification of a site as an SPA is automatically accompanied by the application to that site of the system of protection established by the directive on birds.

15.In that regard, it must be borne in mind that, according to the Court's case-law, Article 4(1) and (2) of the directive on birds requires the Member States to provide SPAs with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species not listed in that annex which are regular visitors (see Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 21).

16.Since Article 7 of the directive on habitats provides that the obligations which arise, among others, under Article 6(2) of that directive are to replace those arising under the first sentence of Article 4(4) of the directive on birds in respect of SPAs, the legal status of protection of those areas must also guarantee the avoidance therein of the deterioration of natural habitats and the habitats of species as well as significant disturbance of the species for which those areas have been designated.

17.The absence of any provision applying to the Région flamande linking the classification of a site as an SPA to the application of a status of protection such as that described in paragraphs 15 and 16 of this judgment undermines the objective of special protection for wild bird life set out in Article 4 of the directive on birds (see, in particular, Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 55).

18.Accordingly, the action must be upheld on that point.

19.The Commission claims that the directive on birds has not been properly transposed on the ground that the maps demarcating the SPAs in the Région flamande do not have binding force with regard to third parties and cannot, therefore, be relied upon as against them. In Belgian law, measures adopted by the regional authorities must be published in the Moniteur belge in order to have binding force. Only such publication creates, as regards citizens, an irrebuttable presumption of their awareness of the measures adopted and ensures, thereby, that they are enforceable against third parties. The maps demarcating the SPAs in the Région flamande have not been published in the Moniteur belge. They have simply been lodged in municipal offices to enable the population to become acquainted with them.

20.The Kingdom of Belgium submits that the question of the binding force of the maps demarcating the SPAs is a matter for the domestic law of the Member States. They enjoy a broad discretion in determining the manner in which they ensure the binding force of measures transposing directives. The fact that, under Belgian law, publication in the Moniteur belge is the general rule does not prevent, in particular cases, the possibility of choosing another method of publication, on condition that all citizens may effectively become acquainted with the legislation in question. The Cour de cassation (Court of Cassation, Belgium) has accepted that principle concerning publication of regional and area plans in the context of town and country planning. The Belgian Government maintains that the deposit at the relevant municipal offices of the maps on which the SPAs are demarcated, as prescribed by Article 3 of the Arrêté de l'exécutif flamand (Order of the Flemish Executive) of 17 October 1988 on the designation of special protection zones for the purposes of Article 4 of the directive on birds (Moniteur belge of 29 October 1988, p. 15068), constitutes, in this case, a sufficient method of publication, given that those concerned have a real possibility of becoming acquainted with those maps. Nevertheless, an amendment of the Décret de la Communauté flamande (Decree of the Flemish Community) of 21 October 1997 concerning nature conservation and the natural environment (Moniteur belge of 10 January 1998, p. 599), is being prepared in order for the maps demarcating the SPAs to be published in the Moniteur belge.

21.In that regard, it is important to recall that, according to consistent case-law, the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, in particular, Case C-159/99 Commission v Italy [2001] ECR I-4007, paragraph 32). The principle of legal certainty requires appropriate publicity for the national measures adopted pursuant to Community rules in such a way as to enable the persons concerned by such measures to ascertain the scope of their rights and obligations in the particular area governed by Community law (see Case C-313/99 Mulligan and Others [2002] ECR I-5719, paragraphs 51 and 52).

22.With regard to maps demarcating SPAs, they must be invested with unquestionable binding force. If not, the boundaries of SPAs could be challenged at any time. Also, there would be a risk that the objective of protection under Article 4 of the directive on birds mentioned at paragraph 17 of this judgment would not be fully attained.

23.In the reply to the reasoned opinion, it is admitted that, in principle, only publication of a measure in the Moniteur belge ensures an irrebuttable presumption of awareness of that measure by third parties. The fact that the Cour de cassation has accepted, in the context of town and country planning, the binding nature of regional and area plans, although they have been published otherwise than in the Moniteur belge, does not, in this case, show that the same applies to maps demarcating SPAs in the Région flamande, which, according to the amendment referred to in paragraph 20 of this judgment, will in any case have to be published in the Moniteur belge.

24.Even assuming that a rebuttable presumption of awareness of a measure could, as maintained in the reply to the reasoned opinion, arise from a method of publication other than entire publication in the Moniteur belge, it must be pointed out that maps demarcating SPAs with the benefit of such a presumption do not appear to have unquestionable binding force.

25.It follows that the action is also well founded on that point.

Having regard to the foregoing, it must be held that, in so far as the Région flamande has failed to transpose Article 4(1) and (2) of and Annex I to the directive on birds, to demarcate SPAs within its territory capable of being relied upon as against third parties, and to adopt the measures necessary to ensure that the classification of a site as an SPA automatically and simultaneously entails the application of a system of protection and conservation complying with Community law, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) and (2) of the directive on birds and the first sentence of Article 4(4) thereof, as amended, in accordance with Article 7 of the directive on habitats, by Article 6(2) to (4) of the latter directive.

Costs

27.Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been essentially unsuccessful, the latter must be ordered to pay the costs.

THE COURT (Sixth Chamber) hereby:

1.Declares that, in so far as the Région flamande has failed to transpose Article 4(1) and (2) of and Annex I to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, to demarcate special protection areas within its territory capable of being relied upon as against third parties, and to adopt the measures necessary to ensure that the classification of a site as a special protection area automatically and simultaneously entails the application of a system of protection and conservation complying with Community law, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409 and the first sentence of Article 4(4) thereof, as amended, in accordance with Article 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, by Article 6(2) to (4) of the latter directive;

2.Orders the Kingdom of Belgium to pay the costs.

Puissochet

Schintgen

Gulmann

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 27 February 2003.

Registrar

President of the Sixth Chamber

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Language of the case: French.