delivered on 8 July 2004(1)

Regione Autonoma del Friuli-Venezia Giulia

(Reference for a preliminary ruling from the Consiglio di Stato (Italy))

(Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora – Proposed sites of Community importance)

I – Introduction

II – Relevant legislation

A – Community law

5. The relevant passages of Article 4 of the Habitats Directive read as follows:

‘1. On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host. … The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information on each site. …

Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be applied more flexibly in selecting all the sites of Community importance in their territory.

The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.

5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article 6(2), (3) and (4).’

6. For assessment of the Community importance of the sites included on the national lists, Annex III (Stage 2) provides as follows:

‘1. All the sites identified by the Member States in Stage 1 which contain priority natural habitat types and/or species will be considered as sites of Community importance.

(a) relative value of the site at national level;

(b) geographical situation of the site in relation to migration routes of species in Annex II and whether it belongs to a continuous ecosystem situated on both sides of one or more internal Community frontiers;

(c) total area of the site;

(d) number of natural habitat types in Annex I and species in Annex II present on the site;

(e) global ecological value of the site for the biogeographical regions concerned and/or for the whole of the territory referred to in Article 2, as regards both the characteristic or unique aspect of its features and the way they are combined.’

B – National law

III – Facts

10. Italy proposed the ‘Foce del Timavo’ (Mouth of the Timavo) site to the Commission as a site of Community importance. The site hosts inter alia priority habitats listed in Annex I to the Habitats Directive. The Commission has not thus far decided whether that site will be included on the list of sites of Community importance under Article 4(2) of the Habitats Directive. Indeed, the Commission has thus far adopted only the lists concerning the Alpine (6) and Macaronesian (7) biogeographical regions. The site in question is located in the Continental biogeographical region.

12. However, Italy’s Environment Ministry did not approve the award. The invitation to tender was subsequently annulled on the ground that the reclaimed land was to be regarded as a site of Community importance; it was stated that the depositing of dredged material therefore had to be subjected to an assessment of implications under Presidential Decree No 357 and that the project could not possibly be approved in that procedure.

13. Dragaggi considers that the annulment of the invitation to tender is unlawful since the protective regime for sites of Community importance is applicable only after the Commission has placed the relevant site on the list of sites of Community importance.

14. The Consiglio di Stato (Council of State, Italy) has therefore referred the following question to the Court of Justice for a preliminary ruling:

‘Is Article 4(5) of Directive 92/43 of 21 May 1992 to be interpreted as meaning that the measures under Article 6 and, in particular, under Article 6(3) of that directive are mandatory for the Member States only after final approval at Community level of the list of sites under Article 21 or, alternatively, in addition to determination of the ordinary commencement date of conservation measures, must a distinction be drawn between declaratory listing and determinative listing (including in the first category the listing of priority sites) with the result that, in order to ensure the effectiveness of the directive, where a Member State identifies a site of Community importance sustaining priority natural habitat types or species, there must be considered to be an obligation to carry out an assessment of plans and projects with a significant effect on the site even before the Commission draws up the draft list of sites or the adoption of the final version of that list pursuant to Article 21 of the directive and, in fact, with effect from the drawing‑up of the national list?’

IV – Legal assessment

15.

By its question, the Consiglio di Stato seeks, in essence, to ascertain whether and, if so, under what conditions Member States must protect potential sites of Community importance pursuant to the Habitats Directive before the Commission has adopted the list of sites of Community importance. Although Article 4(5) of the Habitats Directive provides that the protective provisions laid down in Article 6(2), (3) and (4) are to apply only after the Commission has placed a site on the Community list of sites of Community importance, the Regione Autonoma del Friuli‑Venezia Giulia (Autonomous Region of Friuli-Venezia Giulia; hereinafter ‘the Friuli-Venezia Giulia Region’) takes the view that Member States should, in fact, subject proposed sites with priority features to those protective provisions before that stage. The Swedish Government extends that requirement to all proposed sites. The Commission goes even further, seeking to apply the protective provisions to all sites which ought to be placed on the Community list by reason of their characteristics.

Relying on the wording of Article 4(5), Dragaggi, on the other hand, argues that there is no requirement to afford protection under the Habitats Directive so long as the Commission has not placed the relevant site on the Community list. The French Government concurs with Dragaggi as regards application of Article 6(2), (3) and 4 of the Habitats Directive to sites which are not as yet included on the Community list. It does, however, proceed on the basis that Member States are required to prevent the deterioration of sites so that the objectives of the directive are not seriously compromised.

A – Whether the provisions of Article 6(2), (3) and (4) of the Habitats Directive are directly applicable

16.Italy would be required to protect the ‘Foce del Timavo’ site if the provisions of Article 6(2), (3) and (4) of the Habitats Directive were directly applicable to sites of Community importance before the Community list was adopted. In principle, provisions of a directive which have not been transposed or have been transposed only in part into national law are directly applicable after expiry of the period prescribed for their transposition, if, and in so far as, the obligations contained therein, so far as their subject-matter is concerned, are unconditional and sufficiently precise. The Habitats Directive was to be implemented by 10 June 1994.

However, as Dragaggi and the French Government point out, under Article 4(5) of the Habitats Directive application of Article 6(2), (3) and (4) of the directive to sites of Community importance is conditional upon the Commission’s having placed the site concerned on the Community list. That condition precludes the direct applicability of Article 6(2), (3) and (4) of the Habitats Directive. Direct applicability of those provisions would – unlawfully – anticipate the Commission’s selection decision. As Dragaggi submits, in accordance with Article 4(2) of the Habitats Directive, read in conjunction with Annex III (Stage 2) thereto, only the Commission can, in principle, determine whether a site must be placed on the Community list since it alone has an overview of the entire European territory of the Member States to which the EC Treaty applies. The Commission must, after all, subject the proposals of the Member States to a complex scientific assessment of the site concerned compared with other sites when it draws up the Community list. As far as sites which do not host priority natural habitat types or species are concerned, that is already clear from the criteria laid down in paragraph 2 of Annex III (Stage 2).

Although proposed sites which contain priority features are automatically considered as sites of Community importance pursuant to paragraph 1 of Annex III (Stage 2) to the Habitats Directive, automatic consideration as such is no longer guaranteed if the conditions set out in the second subparagraph of Article 4(2) of the Habitats Directive are met. Under that provision, Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be applied more flexibly in selecting all the sites of Community importance in their territory. That flexibility can reasonably be extended to sites comprising priority features since the criteria for selecting other sites in any event allow sufficient scope for flexibility.

The Commission’s argument that the Community list is not adopted in its entirety for the sole reason that the Member States have failed to send sufficient proposals militates in this context against, rather than in favour of, application of Article 6(2), (3) and (4) of the Habitats Directive. The question whether the conditions for increased flexibility of application are met can be assessed, in the event of doubt, only once all the proposals of the Member State concerned have been submitted.

The analogy that the Friuli-Venezia Giulia Region, the Swedish Government and the Commission draw with the case-law on bird protection areas that have not been designated is not appropriate either. As far as such areas are concerned, the Court of Justice has held that areas which have not been classified as special protection areas, but should have been so classified, must be protected pursuant to Article 4(4) of the Wild Birds Directive. Dragaggi and the French Government rightly object that bird protection areas are designated by the Member States alone whereas sites of Community importance are merely proposed by the Member States and are actually selected by the Commission.

Article 6(2), (3) and (4) of the Habitats Directive cannot, therefore, be directly applicable in this case.

B – Temporary prohibition of deterioration

However, lapses on the part of the Member States and the Commission in transposing the directive must not result ultimately in a failure to meet the objective of protection pursued by it. If account is in addition taken of the general legal principle of nemini licet venire contra factum proprium and the principle of cooperation in good faith, the result is at least a temporary prohibition of deterioration.

As the Swedish Government and the Friuli-Venezia Giulia Region point out, it would be contradictory for the Member States first to propose sites for Natura 2000 and then to impair the very features that predetermine inclusion of the sites in that network. Such conduct would be incompatible with the principle of nemini licet venire contra factum proprium.

The nemini licet venire contra factum proprium principle takes on special significance in the procedure for establishing the Community list since impairment or deterioration of proposed sites would also undermine the proper decision-making process and would consequently breach the principle of cooperation in good faith. The Commission is capable of selecting the best sites only if the lists transmitted by the Member States accurately describe the condition of the sites concerned. However, if, in the meantime, certain sites were adversely affected or if they deteriorated in some other manner, the basis for the Commission’s decision would be distorted. The problem is even more acute in practice as Member States have proposed sites only after very considerable delay and, according to the Commission, those proposals do not to this day meet the requirements of the directive. Proceeding in association with the Member States, the Commission has therefore subjected proposals to an interim assessment to identify possible shortcomings. The results of that interim assessment would – in turn – be undermined by a deterioration of sites that have already been proposed.

A duty of protection ensues, moreover, from the prohibition against frustrating the objectives of the Treaty. Under the second paragraph of Article 10 EC, to which the Friuli-Venezia Giulia Region, the Swedish Government and the Commission refer, Member States are to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. The concept of objectives of the Treaty includes the objectives of secondary law and, in particular, of directives. As the Commission and the French Government point out, the Court of Justice has concluded from the second paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC that, during the period prescribed in a directive for its transposition into national law, Member States must refrain from taking any measures liable seriously to compromise achievement of the result prescribed in the directive.

The Habitats Directive is intended inter alia to create a network containing the sites of Community importance recognised by the Commission. In this context, the Commission is to take as its basis of assessment an exhaustive list of the sites which, at national level, have an ecological interest which is relevant from the point of view of the directive’s objective of conservation of natural habitats and wild fauna and flora. In the absence of a duty of protection, it is to be feared that faits accomplis would be established and irreplaceable features of the common European natural heritage would be irretrievably lost before the Community lists are drawn up. Accordingly, the objective of the Habitats Directive, and its effectiveness – which is cited by the Friuli-Venezia Giulia Region, the Swedish Government and the Commission – would both be seriously jeopardised.

The prohibition against frustrating the objectives of the Treaty therefore also precludes any impairment or deterioration of proposed sites, in so far as the future realisation of the Natura 2000 network would be jeopardised as a result. This would be so if the sites concerned no longer qualified for inclusion in the Natura 2000 network or if their contribution to that network were reduced. In the case at issue, it can remain undecided whether the prohibition against frustrating the objectives of the Treaty – unlike the other reasons giving rise to a duty of protection set out above – also calls for the protection of sites which have not been proposed but which, on account of their characteristics, clearly ought to be included in the Natura 2000 network. It is recognised that Italy has proposed the ‘Foce del Timavo’ site, the only site at issue in these proceedings, as a site of Community importance.

Consequently, the Member States would be acting in breach of the Habitats Directive, the nemini licet venire contra factum proprium principle in conjunction with the principle of cooperation in good faith between the Member States and the Commission – in particular with regard to the proper decision-making process – and the prohibition against frustrating the objectives of the Treaty if, prior to a decision by the Commission, their actions resulted in impairment or deterioration in some other manner of the sites proposed to the Commission.

The temporal scope of the temporary prohibition of deterioration imposed on the Member States cannot be unlimited once a proposal has been submitted because the prohibition is intended to bridge the period up to establishment of the Community list. It is apparent from the schedule under Article 4(1) and (3) of the Habitats Directive that, once the Member States have submitted their proposals, the Commission has three years to make a decision on the establishment of the Community list. That period should not commence until the Member States have fully complied with their obligation to propose a list under Article 4(1) of the Habitats Directive as it is only on that basis that the Commission can decide, in full knowledge of the facts, which sites are to be placed on the Community list. Member States have complied with the obligation incumbent on them if they have forwarded to the Commission an exhaustive list of the sites which, at national level, have an ecological interest which is relevant from the point of view of the directive’s objective of conservation of natural habitats and wild fauna and flora.

The material scope of the duty of protection is clear from the objective of the directive, namely the conservation of the Natura 2000 network while having regard to other interests. In order to achieve that objective, the substantive provisions of the protective regime must already be effective. Member States are accordingly required to avoid deterioration and significant disturbance for the purposes of Article 6(2) of the Habitats Directive. Furthermore, they may approve projects likely to affect adversely the integrity of a site only subject to the provisions of Article 6(4) of the Habitats Directive, that is to say, for imperative reasons of overriding public interest, in the absence of alternative solutions. By including any measures which may be necessary to ensure the coherence of Natura 2000, the Commission’s basis of assessment is ultimately also preserved. Finally, the duty to inform provided for in that provision must apply so that the Commission is informed of changes made to the basis for its assessment. In contrast, it does not appear necessary to apply the other procedural rules laid down in Article 6(2), (3) and (4) of the Habitats Directive.

It should therefore be concluded in this case that the ‘Foce del Timavo’ site proposed by Italy must be protected from deterioration if the three-year period following Italy’s submission of sufficient proposals to the Commission has not as yet expired.

However, it would not necessarily follow from the prohibition of deterioration that performance of the contract subject to tender would be incompatible with that duty of protection. The national court would, in that regard, have to examine Dragaggi’s objections that the boundaries of the ‘Foce del Timavo’ site are illogical as regards the reclaimed land and that there are no priority natural habitat types or species in the vicinity of the reclaimed land that can be adversely affected. In that connection, however, it should be noted that deterioration of non-priority species and habitat types mentioned in the Habitats Directive, including deterioration of the typical species of those habitat types, is to be avoided.

Interim conclusion

It must be stated, in summary, that Member States are required under the Habitats Directive in conjunction, in particular, with the principle of cooperation in good faith to avoid deterioration of the sites proposed by them until three years have passed since the submission of an exhaustive list of the sites which, at national level, have an ecological interest that is relevant from the point of view of the directive’s objective of conservation of natural habitats and wild fauna and flora.

Effect on third parties

In line with the foregoing considerations, the Italian authorities are temporarily required to protect the ‘Foce del Timavo’ site against deterioration. It is open to question whether that requirement can be relied upon against private persons, such as Dragaggi in this case.

It has been consistently held that a directive cannot impose obligations on an individual and cannot therefore be relied upon as such against an individual. That case-law has concerned, first, the application of directives in civil-law relations between individuals and, second, obligations of individuals towards the State, in particular in the context of criminal law. It can be inferred, moreover, from the Busseni judgment, which concerned the rank of a Community claim in the list of creditors’ claims in insolvency proceedings, that directly applicable directives cannot undermine legal positions which are protected by Community law. Those principles must also apply to the prohibition of deterioration which has been developed here in relation to a conditional provision of the directive.

In this case, only a legal position protected by Community law that is enjoyed by Dragaggi as successful tenderer for the contested contract could preclude application of the prohibition of deterioration. There are elements in procurement law to suggest that the Italian authorities could comply with their duty of protection by annulling the award procedure. The Community rules on the award of public contracts, the applicability of which cannot be examined here in the absence of further details, do not require a contracting authority to carry an award procedure through to its conclusion. Community law has not thus far even provided that the discontinuation of an award procedure is to be limited to exceptional cases or has necessarily to be based on serious grounds.

If Dragaggi were already in a position protected by Community law, the Italian authorities would at least be required to exhaust all other possibilities to avoid harm to the site. They could, conceivably, rely on any rights they might have to terminate the contract or try to reach an amicable solution, for example with a view to avoiding damage when the contract is performed.

Conclusion

I therefore propose that the question referred for a preliminary ruling should be answered as follows: Member States are required under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora in conjunction, in particular, with the principle of cooperation in good faith to avoid deterioration of the sites proposed by them until three years have passed since the submission of an exhaustive list of the sites which, at national level, have an ecological interest that is relevant from the point of view of the directive’s objective of conservation of natural habitats and wild fauna and flora.

*

Original language: German.

OJ 1992 L 206, p. 7.

Date as specified in CELEX – in its judgments in Case C-329/96 Commission v Greece [1997] ECR I-3749, paragraph 2, and Case C-83/97 Commission v Germany [1997] ECR I-7191, paragraph 2, the Court of Justice, curiously, proceeded in its deliberations on the basis of notification effected on 5 June 1992.

OJ 1979 L 103, p. 1.

See, however, Case C-143/02 Commission v Italy [2003] ECR I-4431 on the defective implementation of Articles 5, 6 and 7 of the Habitats Directive.

Commission Decision 2004/69/EC of 22 December 2003 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Alpine biogeographical region (OJ 2004 L 14, p. 21).

Commission Decision 2002/11/EC of 28 December 2001 adopting the list of sites of Community importance for the Macaronesian biogeographical region, pursuant to Council Directive 92/43/EEC (OJ 2002 L 5, p. 16).

See inter alia Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 25, and the case-law cited therein.

ECLI:EU:C:2025:140

Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545, paragraph 19; and Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20 et seq.

24Judgments in Faccini Dori and Marshall, cited in footnote 23.

25Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 6 et seq., and Pretore di Salò v Persons unknown, cited in footnote 23.

26Case C-221/88 [1990] ECR I-495, paragraph 23 et seq.

27Case C-92/00 HI [2002] ECR I-5553, paragraph 41.

28Case C-27/98 Fracasso and Leitschutz [1999] ECR I-5697, paragraph 23.