EN

Official Journal of the European Union

C 103/16

(Case C-46/11)

2011/C 103/29

Language of the case: Polish

Parties

Applicant: European Commission (represented by: S. Petrova and K. Herrmann, Agents)

Defendant: Republic of Poland

Form of order sought

—declare that, by carrying out an improper transposition of the conditions for establishing derogations within the terms of Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Republic of Poland has failed to fulfil its obligations under that provision;

—order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission alleges that the Republic of Poland has failed correctly to transpose into Polish law the conditions governing derogations from the prohibitions connected with the protection of bird and animal species as set out in Article 16(1) of Council Directive 92/43/EEC.

First, in two regulations of the Minister for the Environment in relation to protected species of plants and animals occurring in the wild, paragraphs 7(1) and 8 respectively allow for a general derogation from the prohibitions serving the protection of species (as, for example, the prohibition of intentional killing, capture, and so forth) in connection with activities linked to the operation of rational agricultural or forestry holdings or of fisheries. Article 16(1) of Directive 92/43/EEC, however, does not provide for any possibility of such a derogation.

Second, in Article 52(2)(5) of the Law on the protection of nature, the possibility of providing for a derogation, for purposes of the ‘prevention of serious damage, in particular in agricultural or forestry holdings or in fisheries’, from the obligations connected to the protection of animal species is more extensive in scope than the derogation provided for in Article 16(1)(b) of Directive 92/43/EEC.

Third, the possibility, provided for under Article 56(4)(2) of the Law on the protection of nature, of a derogation from the prohibitions concerning species protection in the case where this ‘results from the need to restrict serious damage on a holding, in particular an agricultural farm, forestry holding or a fish farm’ is more extensive than that provided for in Article 16(1)(b) of the habitats directive.

Fourth, the regulation of 28 September 2004 concerning protected species of animals living in the wild permits the killing, capture and so forth of otters (Lutra Lutra) living in the environs of fish ponds designated as breeding areas, notwithstanding the fact that the otter is a species in need of strict protection under the terms of Annex IV to Directive 92/43/EEC.

(1) OJ 1992 L 206, p. 7.