Commission of the European Communities v Republic of Finland

«(Directive 79/409/EEC – Protection of wild birds and their habitats – Special protection areas)»

Opinion of Advocate General Léger delivered on 25 April 2002

I - 0000

Judgment of the Court (Sixth Chamber), 6 March 2003

Summary of the Judgment

Environment – Conservation of wild birds – Directive 79/409 – Classification of special protection areas – Obligation of the Member States – Obligation to make a definitive and full classification

(Council Directive 79/409, Art. 4)

Article 4(1) and (2) of Directive 79/409 on the conservation of wild birds requires Member States to classify as special protection areas the most suitable territories in number and size for the conservation of the species mentioned in Annex I as well as the breeding, moulting and wintering areas and staging posts along the migration routes of migratory species not listed in that annex.A contingent classification of the special protection area sites resulting from a decision of the competent authority in the Member State concerned, which may be amended in accordance with the judgments in the actions brought against it, cannot be held to constitute proper fulfilment of the obligation to classify sites which is incumbent on Member States and moreover, the lack of a full and definitive classification prevents the Commission from taking the appropriate initiatives referred to in Article 4(3) of the directive for the purpose of the coordination necessary to ensure that the special protection areas form a coherent whole.see paras 16-17, 19-20, 32-33

JUDGMENT OF THE COURT (Sixth Chamber) 6 March 2003 (1)

(Directive 79/409/EEC – Protection of wild birds and their habitats – Special protection areas)

In Case C-240/00,

Commission of the European Communities, represented by E. Paasivirta and R.B. Wainwright, acting as Agents, with an address for service in Luxembourg,

applicant,

Republic of Finland, represented by T. Pynnä, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to classify special protection areas fully and definitively, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1),

THE COURT (Sixth Chamber),

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

Advocate General: P. Léger, Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 28 February 2002,

after hearing the Opinion of the Advocate General at the sitting on 25 April 2002,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [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), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

or

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘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.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

that the SPAs proposed, with a view to incorporating them into the Natura 2000 network, had been designated by means of scientific criteria. Moreover, the letter confirmed that given the actions pending against the Council of Ministers' decision, it did not have legal force.

By letter sent to the Commission on 19 March 1999, the Finnish authorities stated that, even as regards the SPAs not subject to specific proceedings, the Council of Ministers' decision could be amended because of the judgments given following actions in which procedural defects were pleaded.

The application

First, the Commission complains that the Republic of Finland has not made a definitive classification of the SPAs and second, that it has not made a full classification.

The complaint alleging the lack of a definitive classification of the SPAs

Arguments of the parties

12The Commission argues that the list of territories designated as SPAs sent to it by the Finnish authorities on 23 December 1998 is not definitive since amendments may be added following judgment in the actions currently pending before the Korkein hallinto-oikeus. The Republic of Finland has therefore infringed the provisions of Article 4(1) and (2) of the Birds Directive. Moreover, as it has not received the definitive list of SPAs on Finnish territory, the Commission has not been able to take the measures necessary in order to put together a coherent network as required by Article 4(3) of the Birds Directive.

13The Finnish Government recognises that it had not sent the definitive list of SPAs by the end of the period laid down in the reasoned opinion. On that date, the Council of Ministers' decision had not yet come into force because of the actions brought against it. However, the Finnish Government denies that the delay was detrimental to the attainment of the objectives of the Birds Directive, the Habitats Directive and to the Commission's work. The Finnish authorities sent to the Commission, by letter of 18 December 1998, before the expiry of the time-limit, the information relating to all the areas proposed by them under the Habitats Directive and all the SPAs classified under the Birds Directive. That information, notified by means of the form prescribed in Commission Decision 97/266/EC of 18 December 1996, concerning a site information format for proposed Natura 2000 sites (OJ 1997 L 107, p. 1), therefore satisfied the requirements of Article 4(3) of the Birds Directive.

Findings of the Court

14Article 4(1) of the Birds Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I (Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraph 55). Under Article 4(2), Member States are also to classify as SPAs the breeding, moulting and wintering areas and staging posts along the migration routes of migratory species (see, in that regard, Case C-166/97 Commission v France [1999] ECR I-1719, paragraphs 14 and 15, and Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 16).

15It is not disputed that certain sites mentioned on the list of SPAs set out in the Council of Ministers' decision were to be classified as SPAs under Article 4(1) and (2) of the Birds Directive.

16It is common ground that since the Council of Ministers' decision had not yet come into force at the end of the period laid down in the reasoned opinion because of the actions brought against it, the sites had not been definitively classified as SPAs.

17A contingent classification of the SPA sites such as that resulting from the Council of Ministers' decision, which may be amended in accordance with the judgments in the actions brought against it, cannot be held to constitute proper fulfilment of the obligation to classify sites which is incumbent on Member States under Article 4(1) and (2) of the Birds Directive.

18Moreover, the lack of definitive classification as SPAs of the sites at issue prevents the Commission from taking the appropriate initiatives in accordance with Article 4(3) of the Birds Directive, for the purpose of the coordination necessary to ensure that the SPAs form a coherent network.

19In light of the above, it must be held that, by failing to classify definitively as SPAs certain sites on the list of SPAs set out in the Council of Ministers' decision, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive. Consequently, the Commission's application must be held to be well founded on that point.

The complaint alleging the incomplete nature of the list of SPAs

Arguments of the parties

22The Commission points out that the BirdLife Report, drawn up in collaboration with the Finnish Environmental Centre, and proposed for the purpose of drawing up the list of IBAs, enumerated 96 areas which merit inclusion on the list of SPAs in the territory of the Republic of Finland. However, the Republic of Finland has only classified 69 of those areas. In particular, the Kemihaara bogs, which are listed in the BirdLife Report as a site of international importance, are not mentioned on the list of SPAs set out in the Council of Ministers' decision. The ornithological value of the bogs arises from the fact that they constitute one of the nesting areas of the species listed in Annex I to the Birds Directive. The failure to mention that site and 17 other sites important for the conservation of wild birds among the SPAs proposed by the Republic of Finland proves that the Finnish authorities have not taken account of scientific criteria during the classification procedure for SPAs.

23The Commission adds that the BirdLife Report has been confirmed, as regards the list of IBAs in Finland, by the report on IBAs in Europe, published in 2000, entitled Important Bird Areas in Europe, Volume 1: Northern Europe, Birdlife Conservation Series No 8, BirdLife International 2000. Given the European dimension of that inventory of IBAs and its scientific value, the Republic of Finland should, if it intended to contest the report, have produced scientific evidence. However, in spite of the Commission's requests in that regard, the Finnish authorities did not produce evidence to show that they based themselves on scientific criteria. In any case, it is clear that some areas of high ornithological importance have not been classified as SPAs.

24The Finnish Government contends, first, that it based itself on the scientific criteria set out in the Birds Directive in drawing up the list of Finnish SPAs. In that regard, it states that it sent all the information on the criteria which it used in its choice of those SPAs to the Commission, using the form prescribed in Decision 97/266. Moreover, it states that the Korkein hallinto-oikeus, during the summer of 2000, gave judgment in all the actions brought against the Council of Ministers' decision. That court held that the criteria for the choice and delimitation of the SPAs were ecological, as required by the Birds Directive and the Habitats Directive. It reached that conclusion after making a thorough examination of each action and after verifying that the decision is founded on, in respect of each one of the areas and its delimitation, on correct facts and on studies, based on reliable scientific knowledge, of the ecological value of the sites. Following that examination the Korkein hallinto-oikeus:

─ upheld the actions relating to 50 areas, including the 18 SPAs mentioned in the Council of Ministers' decision;

─ ordered amendments to the delimitation of four SPAs and referred 14 others to the Council of Ministers to be enlarged or reduced as the case may be, and

─ referred 4 sites which do not feature in the Natura 2000 project to the Council of Ministers. Those sites were the Kemihaara bogs and the sites at Karunginjärvi, Peuralamminneva and Korpoo Långviken.

25Second, the Finnish Government argues that the BirdLife Report does not constitute scientific evidence which makes it possible to determine whether the Republic of Finland has classified as SPAs the most suitable territories within the meaning of Article 4 of the Birds Directive. First, the report had not been completed at the end of the period laid down in the reasoned opinion, so that it was not certain that all the areas which were proposed in it as IBAs would be confirmed at international level or that other sites would not be proposed by BirdLife Finland, a body consisting of Finnish ornithological associations. Next, the criteria adopted for proposing those areas as IBAs do not lend themselves well to the evaluation of Finnish wild bird life and mistakes have been made regarding the counting of specimens of protected species of birds. Certain areas are missing from the BirdLife Report although they are important for wild birds, including at international level.

26The Finnish Government concludes, on that point, that it could not base its choice of SPAs only on the BirdLife Report, unless there was a definitive list of IBAs, ratified at international level.

27Third, the Finnish Government argues that the list of Finnish SPAs would be insufficient only if the number and size of the sites designated for that purpose were clearly less than the number and size of the sites considered as the most suitable for the conservation of the species of birds covered by Article 4 of the Birds Directive. The Finnish authorities have classified as SPAs a higher number of sites and a more extensive total area than those specified in the IBA inventory published in 1989 or in the list of IBAs proposed in the BirdLife Report. In any event, it does not follow either from Article 4 of the Directive or from the Court's case-law that the list of Finnish SPAs must be in accordance with the list of IBAs set out in the BirdLife Report. Nor is it clear from the case-law that the Finnish authorities must provide scientific justification of the non-inclusion in the list of SPAs of sites featuring in the IBA list.

Findings of the Court

28It is important to bear in mind that at the end of the period laid down in the reasoned opinion, the Council of Ministers' decision included a list of SPAs which was not only not in force, but was also not definitive, that list being subject to amendment by the addition or removal of sites, as the Finnish Government has indicated.

29In those circumstances, there is no need to examine the Commission's complaint, in so far as it is founded on the fact that the list of SPAs in the Council of Ministers' decision is incomplete because it does not provide for the classification as SPAs of 69 of the 96 sites specified by the BirdLife Report as meriting such classification.

30Given that, on the expiry of the abovementioned period, the list in question was not in force, was not definitive and was subject to alteration, the complaint thus raised by the Commission does not concern a non-hypothetical situation at the relevant time for the purpose of determining whether there has been a failure to fulfil obligations.

31Nevertheless, it is common ground that at that date only 15 sites had been definitively classified as SPAs in Finland. It is also not disputed that that classification was in any event insufficient in the light of the Republic of Finland's obligations under the Birds Directive and in particular under Article 4(1) and (2) thereof.

32It must therefore be held that, by failing to classify in full, as SPAs, the most suitable sites within the meaning of Article 4(1) and (2) of the Birds Directive, the Republic of Finland has failed to fulfil its obligations under those provisions. The Commission's application must also be allowed on that point.

33Consequently, it must be held that, by failing to classify fully and definitively the SPAs in its territory, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive.

Costs

34Under 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 applied for costs, the Republic of Finland, which has been unsuccessful, must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber),

hereby:

Declares that, by failing to classify fully and definitively the SPAs in its territory, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds.

Orders the Republic of Finland to pay the costs.

Puissochet

Schintgen

Gulmann

ECLI:EU:C:2025:140

15

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 6 March 2003.

Registrar

President of the Sixth Chamber

1Language of the case: Finnish.