Important legal notice

61998C0096

European Court reports 1999 Page I-08531

Opinion of the Advocate-General

1 In this infringement action, the Commission is seeking a declaration that France has not complied with its obligations under Article 4 of the Birds Directive, (1) in particular by failing to classify a sufficiently large proportion of the total area of the Marais Poitevin (hereinafter `the Marsh') as areas of special protection (`SPAs'), by failing to adopt a sufficient protection regime and allowing the deterioration of habitats, and by declassifying a small area of an SPA previously notified.

I - Facts and procedural background

2 It is common case that the Marsh is an area of exceptional ornithological interest comprising in total some 80 000 hectares (2) situated in the Vendée, Deux-Sèvres and Charente-Maritime départements of France. It contains natural wet prairies which provide nesting, feeding and resting grounds for large numbers of migratory and nesting species of wild birds, as well as numerous other habitats which are suitable for the conservation of wild birds, such as lagoons, dunes, polders, woods, peat bogs, hedgerows and copses, waterways and other aquatic environments. The Marsh is inhabited by large numbers of endangered wild bird species listed in Annex I to the Directive; it is also used as a staging post or wintering area by other wild bird species, and contains wetlands of unique importance for the migration of avifauna from Africa to Northern Europe, which come within the scope of the Ramsar Convention. The Marsh is an essential staging post for more than 28 migratory species and is of the first importance for two species, the black-tailed godwit and the lapwing. The Bay of Aiguillon is, in particular, a wintering area for thousands of anatides (ducks).

3 Following a complaint lodged in 1989 and an exchange of correspondence, the Commission sent France a letter of formal notice on 23 December 1992. In its reply of 27 September 1993, (3) France acknowledged the ornithological importance of the Marsh, and stated that an area of 28 693 hectares (corrected to 26 250 hectares by letter of 7 December 1993) had been classified as an SPA. It also informed the Commission that measures had been taken to prevent any further deterioration of the area. By letter of 28 June 1994, France informed the Commission that the area of the `Marais Poitevin intérieur' SPA previously notified had been reduced by a 300 metre strip to permit the construction of the A 83 motorway. By letter of 8 March 1995, France informed the Commission of its intention to classify some 3 500 hectares west of Route Nationale 137 as an SPA, though without indicating when the classification would take place.

4 On 28 November 1995, the Commission issued a reasoned opinion alleging that France was in breach of its obligations under Article 4 of the Directive, and inviting it to take steps to comply with the opinion within two months. By letter of 1 June 1996, France pointed out that a further 3 540 hectares in the Charente-Maritime département had been classified as an SPA but that, because of the drainage and cultivation of the prairies, it would not be possible to make further classifications, except in marginal respects. Following a meeting between the French authorities and the Commission services in May 1997, France communicated to the Commission a Ministerial decision establishing the `Grand Site Naturel du Marais Poitevin', an action plan for the Marsh and a circular concerning the extent of the wetlands in the Marsh. The Commission initiated the present proceedings by an application registered at the Court on 3 April 1998.

II - The relevant provisions of Community law

5 The provisions of the Directive are well known to the Court, and need not be reproduced here in extenso. The principal obligations at issue are those imposed on the Member States, firstly, by Article 4(1) and (2), to `classify in particular the most suitable territories in number and size as special protection areas for the conservation of [endangered and migratory] species, taking into account their protection requirements in the geographical sea and land area where this Directive applies', and, secondly, by Article 4(4), to avoid pollution and deterioration of habitats, and disturbances of birds, in respect of the areas so classified, `in so far as these would be significant having regard to the objectives of this Article'.

6 Article 7 of the 1994 Habitats Directive, (4) which modifies the obligations of the Member States under the Directive in certain respects, reads as follows:

`Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of Directive 79/409/EEC in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC, where the latter date is later.'

7 Article 6(2) of the Habitats Directive obliges the Member States to take appropriate steps to avoid `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' in such designated areas. Article 6(3) and (4) provides for a new system for assessment of plans which may be permitted to proceed notwithstanding their negative effect on habitats if justified by `imperative reasons of overriding public interest'.

The Commission has informed the Court in these proceedings that the deadline for implementation of the Directive by France expired on 10 June 1994. For reasons given later, I do not think that Article 6(2), (3) and (4) of the Habitats Directive need be considered in the circumstances of this case. (5)

III - Analysis

(a) Insufficiency of the areas classified as SPAs

8 The Commission's first complaint is that, as of the expiry of the date for compliance with its reasoned opinion, 28 January 1996, the total area of the Marsh classified as SPAs was insufficient having regard to France's obligations under Article 4(1) and (2) of the Directive. In support of its complaint, it cites three studies carried out in 1987, 1989 and 1990 respectively, each of which estimates at 57 830 hectares the total area of the Marsh which is of significant ornithological interest. The `most relevant reference' for the Commission is, however, the 1994 inventory of important areas for bird conservation (Zones importantes pour la Conservation des Oiseaux, hereinafter `ZICO') commissioned by the French Government, which puts the total at 77 900 hectares. The Commission also notes that the Marsh was identified by the French Ministry of the Environment in 1995 as the third most important ZICO in France. By only classifying some 26 250 hectares (a figure corrected to 29 842 hectares in France's statement in defence, and accepted by the Commission) by the date of compliance with the reasoned opinion, the Commission claims France has exceeded its margin of discretion in regard to the choice of sites for classification as SPAs.

9 In the conclusions to its statement of defence, France expressly admits that the extension of the total area of existing SPAs (33 742 hectares as of the date of drafting of its defence) to 49 000 hectares `might be desirable', and invites the Court to declare this head of complaint `partly unfounded', as it has complied with its obligations in this regard `to a large extent'. It also argues that the Commission has failed to identify either the location or the area of the sites which it claims should be classified, that it is not obliged under the Directive to classify all the sites identified in either the ZICO inventory or earlier studies, and that the Commission does not contend that the territories which have been classified are not the most suitable for the conservation of wild birds.

10 While it has not explicitly admitted that it had, as of 28 January 1996, failed to classify a sufficiently large total area of the Poitevin Marsh as SPAs, France does not seek to argue that it had complied fully with its obligations under the Directive in this regard. It has not denied the existence of a considerable discrepancy between the total area classified and the total area identified as being of ornithological interest, whether the figures relied upon are those contained in the ZICO inventory or in previous studies. France fully accepts that, over a long period, the area of the Marsh which constitutes a suitable habitat for endangered and migratory wild birds has been greatly reduced. It draws attention to the progressive intrusion of agricultural activity involving the drainage and cultivation of land for cereal production, encouraged by the Community's common agricultural policy, though it does not suggest that this is a defence in law to the complaint that it failed to protect the Marsh. The reduction in effective Marsh area seems to be of the order of 30 to 40%. These facts are sufficient, in my view, for the Commission to succeed under this head of complaint.

11 France's plea that the Commission has failed to identify the location or area of the sites which should be classified is not, in my view, either relevant or well founded. The duty of identifying the actual sites which must be classified falls in the first place on the Member States; the Commission does not allege, under this head of complaint, that France has failed to classify, or failed to protect, a particular site or sites. In Commission v Netherlands, the Court held that `where it appears that a Member State has classified as SPAs sites the number and total area of which are manifestly less than the number and total area of the sites considered to be the most suitable for conservation of the species in question, it will be possible to find that that Member State has failed to fulfil its obligation under Article 4(1) of the Directive', and the Commission is not obliged to `establish, territory by territory, specific infringements of that provision'. (6) While that finding referred to the total area of SPAs in the territory of a given Member State, I am of the opinion that the same reasoning is applicable to a case, such as the present, concerning the number and total area of SPAs classified in a single larger area of acknowledged ornithological importance. The Court is not required to rule on whether France was obliged to classify the totality of the ZICO area, as the Commission has in effect contended, though this question could arise in later proceedings. It suffices that France's failure to classify a sufficient area as of 28 January 1996 is established.

(b) Insufficiency of the protection regime for SPAs

12 The Commission's second head of complaint is that France has, in breach of Article 4(4) of the Directive, failed to adopt a complete, efficient and stable protection regime in the areas which were, or should have been, classified as SPAs. In its view, the existence of such a regime requires the adoption of legally binding rules which identify in particular the activities which may be carried out in the area in conformity with the objectives of the Directive.

13 This head of complaint has to be considered against the background, largely uncontested, of the progressive reduction, over many years, of the total area of the Marsh which is suitable for bird habitats within the meaning of Article 4 of the Directive. Between 1973 and 1980 some 28 700 hectares, or 30% of the Marsh, of permanent prairie were converted to agricultural use, accompanied by drainage and the filling in of ditches. These changes led to a serious decline in the populations of some bird species: from 80 000 to 9 000 ducks wintering in the Bay of Aiguillon between 1983 and 1995; from 48 000 to 8 300 black-tailed godwits between 1983 and 1994. It is not in dispute that these trends have operated throughout the period since the coming into force of the Birds Directive.

14 France claims that the common agricultural policy of the Community conflicts with environmental protection and makes it difficult for France to match Community-financed aids for production with agri-environmental ones, which require a significant contribution by the French State. (7) It also refers to a series of measures concerning the protection of biotopes, the creation of a nature reserve in the Bay of Aiguillon and the Law of 3 January 1992 concerning water. It further argues in its rejoinder that the Directive does not, in any case, oblige the Member State to adopt specific protection measures for SPAs.

15 France's contention regarding the absence of any obligation to adopt specific protection measures was not raised in its statement in defence, and is therefore, in my view, inadmissible in accordance with Article 42(2) of the Rules of Procedure of the Court of Justice which prohibits the introduction of new pleas in law.

16 In order to examine the remaining aspects of this head of complaint, it is none the less useful to recall the obligations which arise for the Member States under Article 4 of the Directive. In particular, I need to examine the relationship between Article 4(1) and (2) and Article 4(4), on both of which the Commission relies. As the Court stated recently in Seine Estuary, Article 4(1) and (2) `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 Annex I which are, nevertheless, regular visitors.' (8) It seems to me therefore that two distinct but inseparable obligations arise for the Member States under these provisions: an obligation formally to determine the location and extent of the most suitable territories and to classify them as SPAs, and an obligation to establish in such areas the legal protection regime which is necessary to ensure the objectives of the Directive are achieved.

17 In the circumstances of the present case, it is also necessary to clarify whether France's obligations, for the purposes of this head of complaint, are those which arose under Article 4 of the Directive considered alone, or whether the modification of these under Article 7 of the Habitats Directive is relevant. Given the nature of the Commission's complaint, which relates to France's failure in the period from the coming into force of the Birds Directive in April 1981 to 28 January 1996 to take the necessary measures to conserve the bird habitats in the Marsh, I am of the view that the modification of France's obligations under the first sentence of Article 4(4) need not be considered. In particular, the general obligation to apply a sufficient protection regime `in order to ensure [the] survival and reproduction' of endangered and migratory species which arises from Article 4(1) and (2) has not changed; this is the general objective which is equally pursued by Article 4(4), both before and after the entry into force of the Habitats Directive. Moreover, France has not sought to rely on Article 7 of the Habitats Directive in order to demonstrate that it had, by the latter date, complied with its obligations under Article 4 of the Birds Directive.

18 Article 4(4) has a quantitative and a qualitative aspect. I will deal first with the former.

19 Member States are obliged by Article 4(4) to take certain steps to avoid pollution or deterioration of habitats in `respect of the protection areas referred to in' Article 4(1) and (2). The Commission rightly points out that this obligation extends both to areas already classified as SPAs and to areas which should be so classified. In Santoña Marshes, the Court rejected an argument on behalf of Spain that, because the protection measures which it envisaged could not be taken until the area was classified, it could not be accused of having infringed Article 4(1) and (2) and Article 4(4) at the same time. (9) In view of the generality of the nature of the deterioration of habitats in the present case, it is worth considering the reason for this conclusion.

20 The Court cited, as in other cases, the language of the ninth recital in the preamble to the Directive, which reads:

`Whereas the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds; whereas certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution; whereas such measures must also take account of migratory species and be coordinated with a view to setting up a coherent whole.'

The Court pointed out that the declared objectives of protection `could not be achieved if Member States had to comply with the obligations arising under Article 4(4) only in cases where a special protection area had previously been established'. (10) The expression `the protection areas' in Article 4(4) is not limited, therefore, to areas classified under Article 4(1) and (2). This is clear, not only from the fact that that expression does not correspond to the wording, `special protection areas', used in Article 4(1), but from the fact that the broader protective purposes of Article 4(1) and (2) are clearly not limited to those areas.

21 Of particular relevance for the present case is the second sentence of Article 4(2):

`To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.'

The Marsh contains, by common consent, wetlands of international importance and clearly comes, therefore, also within the scope of Article 4(4).

22 Turning to the qualitative content of Article 4(4), I think that it is clear also from the ruling of the Court in Santoña Marshes that this provision must be read with Article 4(1) and (2), as well as in light of the ninth recital. The obligation to `take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting birds' cannot be considered in isolation from `special conservation measures concerning [birds'] habitat in order to ensure their survival and reproduction in their area of distribution'; this latter phrase identifies the result to be achieved within the meaning of the third paragraph of Article 189 of the EC Treaty (now Article 249 EC). The Commission acknowledges this overlap between the two provisions and says that Article 4(4) is broader. Consequently, in addressing the issue of the avoidance of `pollution or deterioration of habitats', I think it is permissible to consider the adequacy of the `conservation measures' which should have been taken to `ensure [birds'] survival and reproduction in their area of distribution'.

23 The Commission has correctly pointed out that the adoption of the prefectorial decrees concerning the protection of biotopes cited by France, and the classification of the Bay of Aiguillon as a nature reserve, all post-date the date for compliance with its reasoned opinion, and cannot therefore, in accordance with a particularly well-established line of case-law of the Court, be taken into consideration. (11)

24 I also agree with the Commission that the 1992 Law on Water, where it applies in the Marsh, falls well short of providing the legal protection regime described by the Court in Seine Estuary. (12) In the first place, according to France, the Law, as interpreted by the Cour de Cassation (Court of Cassation) in its judgment of 25 March 1998, subjects to an authorisation procedure any work in wetlands or marshes which will result in the drying out of an area of 10 000 m2 or more. I do not see how such a limited provision could be said to ensure the necessary level of protection of endangered or migratory species. There are, as the Commission points out, two major shortcomings in this provision in so far as it relates to France's compliance with Article 4(4) of the Directive. Firstly, it does not prohibit developments such as those which have occurred in the Marsh since the Directive came into force. Although France claimed at the hearing that these might be prohibited particularly in accordance with the Law on Water, it is clear that, at best, ornithological interests constitute merely one of a number of considerations, which include social and economic ones, to be placed in the balance. This approach is incompatible with the ruling of the Court in RSPB (13) that such considerations could not be taken into account in applying Article 4. Secondly, the Law applies only to wetlands and has no relevance to those parts of the Marsh which, as I have said at paragraph 2 above, contain other types of habitat.

25 France contends that, since 1991, it has implemented local agri-environmental measures on the entirety of the most important territories for the conservation of bird habitats. In particular, between 1990 and 1995 the entirety of the Marsh had been covered by coordinated operations of land-use management (`Opérations Groupées d'Aménagement Foncier', hereinafter `OGAF') of an environmental character, followed by local operations, and more than 85% of the prairies are covered by contracts. By encouraging the maintenance of extensive cultivation, it claims to have conserved wetlands, and avoided drainage and hydraulic modifications. It also claims to have slowed down or even stopped new cultivation in the areas covered by these measures.

26 The Commission says that the OGAF measures are insufficient both because of their inadequate legal status and the ineffectiveness of their protective effect. On the first, it points out the voluntary and purely hortatory character of the measures; any such measures should be legally binding. On the second, France has failed to adopt any measures to prevent the deterioration of natural habitats for all the sites of ornithological interest. It is true that the OGAF measures contribute to the conservation of bird habitats. However, for the two reasons given by the Commission, they do not represent an adequate response to the obligation to create a regime of protection for wild bird species and their habitats.

27 The OGAF measures do not, of course, affect the Bay of Aiguillon, which is not threatened by intensive farming and is entirely within public maritime property. France, however, relies upon the establishment of a nature reserve covering 2 300 hectares of the Bay. Even if the latter were to be considered a sufficiently specific protection measure, which I doubt, it did not occur until July 1996, some months after the expiry of the date for compliance with the Commission's reasoned opinion. For the reasons I have given above, this fact cannot therefore be taken into account. Nor does the fact that the property in question was owned by the State constitute a proper protection regime for the purposes of the Directive; though acknowledging that the Seine Estuary SPA was State-owned land, the Court concluded that `[for] want of any specific substantive measures' France had failed to provide this with an adequate legal protection regime. (14)

28 I am therefore of the opinion that France has failed to provide a sufficient protection regime for the areas of the Poitevin Marsh which were, or should have been, classified as SPAs.

(c) Deterioration of habitats and disturbances of birds

29 The third head of complaint concerns the deterioration of bird habitats due to motorway construction works. In particular the Commission charges France with excluding from the `Marais Poitevin intérieur' SPA a strip of land 300 metres wide through which runs a section of the new A 83 Nantes to Niort motorway linking Sainte-Hermine and Oulmes. This resulted in the isolation of one section of the SPA from the remainder, disturbance of the birds by reason of the works, and a reduction in the area of the SPA. In its view, the declassification of this strip constitutes an infringement of France's obligations under Article 4(4) of the Directive, as it applied at the time the works were carried out, that is prior to the partial replacement of the Member States' obligations by those arising under Article 6(2), (3) and (4) of the Habitats Directive.

30 France contends that the 300 metre strip of land (hereinafter `the contested strip') had been included by mistake in the SPA notified to the Commission, and that the French authorities had already decided prior to the classification of the French SPA on the route for the new section of the A 83. It further claims to have taken numerous measures to ensure the protection of the environment affected. It also argues that the obligations of the Member States regarding the criteria for the delimitation of SPAs were only laid down by the Court in RSPB after the events giving rise to this head of complaint. (15)

31 It is important, though not easy, to establish the chronology of the classification of the area involving the contested strip on the one hand and its formal designation as part of a motorway on the other. This inquiry is not assisted by the rather surprising fact which emerged from answers to questions at the hearing, that the classification of a site as an SPA is deemed to be effected in France by the sending of a letter informing the Commission of the classification, without any other formal legal or administrative step being required.

32 Since all of the information relative to both the classification of the site and its area, as well as that concerning the designation of lands for public purposes, are peculiarly within the knowledge of the Member States, I think it is appropriate to modify the rules regarding the burden of proof to some extent. The Commission should be required to establish a prima facie case that the land has been classified and later declassified. Such a mitigation of the burden of proof can be justified on grounds analogous to those which led the Court to hold in cases concerning the clearance of EAGGF accounts that because `... it is the Member State which is best placed to collect and verify the information required for the clearance of the EAGGF accounts ... it is for the State to adduce the most detailed and comprehensive evidence that its figures are accurate and, if appropriate, that the Commission's calculations are incorrect'. (16)

33 According to the Commission, it was informed by France by letter dated 6 July 1993 that it had designated 25 625 hectares in the Marsh as an SPA. In its reply of 27 September 1993 to the letter of formal notice, the French Government confirmed that it had recently designated 25 625 hectares, including `the zones of prairies concerned with the environmental OGAF, Nord des Iles, Maillezais and the central sector in Vendée amounting to 21 917 hectares'. While it is not possible from a study of the maps or the descriptions furnished in the pleadings to identify with any precision these areas or descriptions with the contested strip, it seems to me that France does not seriously contest that it falls within one of them. If it were otherwise, France should have stated this clearly with supporting evidence.

34 France has, none the less, contended that its administrative steps to designate the contested strip for the motorway pre-dated its classification as an SPA. However, in its defence it contents itself with a vague assertion that the classification as an SPA took place subsequent to the `studies for the putting into effect of the autoroute project' and that `the final tracing had avoided all the zones which France was preparing to class as SPAs'. The Commission states in its application, probably on the basis of a statement in the French Government's reply to the reasoned opinion, that the part of the motorway from Sainte Hermine to Oulmes containing the contested strip had been declared of public interest (17) in October 1993. France has not directly contradicted this statement. If this date is correct, the designation post-dates at least two of the notifications to the Commission, which in the French Government's case constitute the formal classification of the SPA. In my view the vague generalities quoted above from France's defence are wholly insufficient to establish that it had designated the contested site as being destined for use as a section of the A 83 prior to the classification of the SPA.

35 The terms of the letter of 19 April 1994 from the Minister for the Environment tend to confirm this reading. It speaks of `possible incompatibility' between the autoroute passage and the SPA, stating there, however, that the former, contrary to its earlier affirmation, had been declared of public interest in August 1993, and that the SPA had been notified to the Commission on 22 November 1993. It concludes that the contested strip should be considered as excluded from the SPA. A glance at the plan accompanying that letter shows that strip as a road-shaped cutting through the area of the SPA. Furthermore, the Minister's declaration that the uncertainty concerning the route of the planned motorway `prevented the taking into account of this infrastructure in the delimitation of the SPA' shows clearly that the SPA has been curtailed in the interests of motorway construction, rather than that the area should have been excluded from the SPA on ornithological grounds as was the case of the titanogypsum plant at Le Hode in Seine Estuary. (18)

36 As both the classification of the SPA and the subsequent notification to the Commission of its exclusion pre-dated the entry into force of Article 7 of the Habitats Directive, I am of the opinion that France's obligations are those which arose under Article 4(4) of the Directive considered alone, a view not contested by France.

37 The inclusion of the contested strip in the `Marais Poitevin intérieur' SPA is strong prima facie evidence that this was amongst the `most suitable territories' for the conservation of endangered and migratory species of wild birds. The fact that the contested area is bounded on both sides by areas classified as SPAs also points to the likelihood that it is a territory meriting classification, and France has not provided any scientific evidence to the contrary, as it had in Seine Estuary. (19) Finally, while not of itself decisive, it is revealing that the contested strip is still included in the corresponding SPA in the map dated 25 August 1998 drawn up by the Direction Régional de l'Environnement Poitou-Charentes included in Annex II to France's rejoinder.

38 Member States `do not have the same discretion under Article 4(4) of the directive in modifying or reducing the extent of the areas' already classified as they have when making their initial choice of the areas most suitable for classification. (20) As the site had, in my view, been classified before its designation as being of public interest and the subsequent construction of a section of the A 83, France would only have been entitled to declassify it if the criteria established by the Court in Leybucht Dykes had been satisfied. Declassification is only possible on grounds which `correspond to a general interest which is superior to the general interest represented by the ecological objective of the directive. In that context ... economic and recreational requirements ... do not enter into consideration'. (21) France has not sought to show that the declassification of the contested strip could be justified on any such grounds of a superior general interest.

39 As, on the balance of probabilities, the site should not have been declassified, the Commission must also succeed on the question of the substantive deterioration of the habitats and disturbances of the birds in the sense of the first sentence of Article 4(4) of the Directive.

IV - Conclusion

40 In the light of the foregoing, I recommend to the Court that it:

(1) Declare that, by failing to classify as a special protection area a sufficiently large area of the Marais Poitevin, by failing to adopt measures to provide the classified special protection area with an adequate protection regime, by declassifying a strip of land previously classified as a special protection area in order to allow motorway construction works and by allowing significant disturbances affecting wild birds in that area, the French Republic has failed in its obligations under Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

(2) Order the French Republic to bear the costs.

(1) - Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ 1979 L 103, p. 1; hereinafter `the [Birds] Directive'.

(2) - The total figure has variously been given as 91 000, 95 000 and 110 000 hectares; the figure of 80 000 is that used in the Commission's reasoned opinion.

(3) - It appears that it had furnished similar information to the Commission in July 1993. See paragraph 33 below.

(4) - 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.

(5) - See paragraphs 18 and 38 below.

(6) - Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraph 63.

(7) - See Council Regulation (EEC) No 2078/92 of 30 June 1992 on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside, OJ 1992 L 215, p. 85.

(8) - Case C-166/97 Commission v France (hereinafter `Seine Estuary') [1999] ECR I-0000, paragraph 21.

(9) - Case C-355/90 Commission v Spain (hereinafter `Santoña Marshes') [1993] ECR I-4221.

(10) - Loc. cit., paragraph 22.

(11) - See, for example, Case C-166/97, cited at footnote 8 above, paragraph 18.

(12) - Loc. cit., paragraph 21.

(13) - Case C-44/95 Royal Society for the Protection of Birds (hereinafter `RSPB') [1996] ECR I-3805.

(14) - Case C-166/97, cited at footnote 8 above, paragraphs 25 and 26.

(15) - Case C-44/95, cited at footnote 13 above.

(16) - Case C-48/91 Netherlands v Commission [1993] ECR I-5611, paragraph 17.

(17) - The formal administrative designation of the land as being destined for public purposes, following public enquiries and the opinion of the Conseil d'État.

(18) - Case C-166/97, cited at footnote 8 above, paragraphs 39 to 47.

(19) - Case C-166/97, cited at footnote 8 above, paragraphs 44 to 46.

(20) - Case C-57/89 Commission v Germany (hereinafter `Leybucht Dykes') [1991] ECR I-883, paragraph 20.

(21) - Loc. cit., paragraph 22.