29 November 2012 (*1)

(Appeal – Directive 92/43/EEC – Conservation of natural habitats – List of sites of Community importance for the Mediterranean biogeographical region – Inclusion in the list of a site proposed by the Kingdom of Spain – Site allegedly covering an area of British Gibraltar territorial waters and an area of the high seas – Action for annulment – Measure merely confirmatory)

In Case C‑416/11 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 August 2011,

United Kingdom of Great Britain and Northern Ireland, represented by S. Ossowski, acting as Agent, D. Wyatt QC and V. Wakefield, Barrister,

appellant,

the other parties to the proceedings being:

European Commission, represented by D. Recchia and K. Mifsud‑Bonnici, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

supported by:

Kingdom of Spain, represented by N. Díaz Abad and A. Rubio González, acting as Agents,

THE COURT (Third Chamber),

composed of R. Silva de Lapuerta, acting for the President of the Third Chamber, K. Lenaerts, G. Arestis, J. Malenovský and T. von Danwitz (Rapporteur), Judges,

Advocate General: J. Mazák,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1By its appeal, the United Kingdom of Great Britain and Northern Ireland seeks to have set aside the order of the General Court of the European Union of 24 May 2011 in Case T-115/10 United Kingdom v Commission (‘the order under appeal’), by which that court dismissed as inadmissible its action for partial annulment of Commission Decision 2010/45/EU of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2010 L 30, p. 322; ‘the contested decision’) to the extent that that decision lists the site called ‘Estrecho oriental’ (‘Site ES6120032’) as a site of Community importance (‘SCI’) for the Mediterranean biogeographical region.

Legal context

2Article 4(1) and (2) 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), as amended by Regulation (EC) No 1882/2003 of the European Parliament and the Council of 29 September 2003 (OJ 2003 L 284, p. 1) (‘the Habitats Directive’), provides:

The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information on each site. That information shall include a map of the site, its name, location, extent and the data resulting from application of the criteria specified in Annex III (Stage 1) provided in a format established by the Commission in accordance with the procedure laid down in Article 21.

The list of sites selected as [SCIs], 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.

3According to Article 20 of the Habitats Directive, the Commission is to be assisted by a committee (‘the Habitats Committee’).

4Article 21 of that directive refers to Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ 2006 L 200, p. 11), which provides:

…

Background to the dispute and the contested decision

5On 19 July 2006 the Commission adopted, on the basis of the third subparagraph of Article 4(2) of the Habitats Directive, Decision 2006/613/EC adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Mediterranean biogeographical region (OJ 2006 L 259, p. 1). That list, set out in Annex 1 to the decision, included, inter alia, Site UKGIB0002, called ‘Southern Waters of Gibraltar’ (‘Site UKGIB0002’), as proposed by the United Kingdom.

6The adoption of that decision was preceded by an exchange of declarations between the United Kingdom and the Kingdom of Spain, initiated by the Commission, in which the Kingdom of Spain declared, inter alia, that any action by the United Kingdom in respect of Gibraltar in relation to the Natura 2000 network is done, and must be understood to be done, without prejudice to the position of the Kingdom of Spain on her sovereignty over Gibraltar, including its waters.

7On 12 December 2008, the Commission adopted Decision 2009/95/EC adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2009 L 43, p. 393), still including Site UKGIB0002, and, for the first time, Site ES6120032, proposed by the Kingdom of Spain. That decision states the name, surface area and geographical coordinates (longitude and latitude of the centre of the site) of the sites in question. The decision was notified to the United Kingdom on 16 December 2008.

8At the meeting of the Habitats Committee on 15 October 2009, the subject of which was, inter alia, the draft of the contested decision, concerning a third updated list of SCIs for the Mediterranean biogeographical region, which included, in the annex thereto, as previously, Sites UKGIB0002 and ES6120032, the United Kingdom objected to the inclusion of that latter site in the list in question on account of its overlapping with Site UKGIB0002 and with what were allegedly United Kingdom territorial waters, and requested the Commission to reconsider the designation of Site ES6120032.

9The Kingdom of Spain then argued that it had sovereignty over Gibraltar’s marine waters and declared that it was in favour of retaining Site ES6120032 on the list. The Commission stated, inter alia, that its role was not to check whether proposed sites were concerned by territorial disputes. Nor did it have the task of ascertaining, in respect of each site proposed by a Member State, whether the site covered the same area as other proposals from other Member States. Furthermore, overlapping of sites had already occurred, even if it concerned a smaller surface area than in the present case.

10All the Member States present at that meeting of the Habitats Committee except the United Kingdom then voted in favour of the draft of the contested decision. Subsequently, the Commission adopted the contested decision.

Forms of order sought

21By its appeal, the United Kingdom requests the Court to:

– set aside the order under appeal;

– declare its action admissible and refer the case back to the General Court for a decision on the substance;

– order the Commission to pay the costs of the present proceedings and those of the proceedings at first instance relating to the plea of inadmissibility; and

– reserve the costs as to the remainder.

22The Commission and the Kingdom of Spain contend that the Court should dismiss the appeal and order the United Kingdom to pay the costs.

The appeal

23The United Kingdom advances two grounds in support of its appeal. By those grounds it disputes only the General Court’s findings relating to the issue of whether the United Kingdom and the Commission could have known of the overlapping of the sites at issue, without calling into question other aspects of the General Court’s reasoning.

24The first ground alleges an error of law in respect of the identity of the parties whose ‘constructive’ knowledge of the overlapping of Sites ES6120032 and UKGIB0002 was relevant. The second ground alleges an error of law, and manifest errors of appraisal of the facts, in respect of the issue of whether a party ‘could have had prior knowledge’ of the overlapping of those sites.

Second ground of appeal

Arguments of the parties

25By its second ground, which it is appropriate to examine first, the United Kingdom alleges that the General Court committed errors so far as concerns the test which enables the issue of whether a party ‘could have had prior knowledge’ of the overlapping of sites to be assessed.

26First, the General Court’s reasoning shows that it did not identify the correct legal test. Knowledge cannot be imputed in cases where a prudent person could not have been expected to discover the fact in question.

27Secondly, concerning the issue of what can be expected of a prudent person, the General Court incorrectly failed to take into consideration the fact that, in breach of the duty of sincere cooperation set out in Article 10 EC and of the Habitats Directive, the Kingdom of Spain did not fulfil its obligation to notify the United Kingdom and the Commission of the overlapping of the sites at issue. The United Kingdom could reasonably expect to be informed and had no reason to be particularly attentive.

28In addition, in assessing whether it was reasonable to expect the Commission to have known of the overlapping of the sites at issue, the General Court should have examined to what extent it was part of the Commission’s obligations to check whether proposed sites overlapped with other sites.

29Lastly, it was not reasonable on the part of the General Court to expect Member States to check whether there was any overlapping of sites on the list of SCIs for the Mediterranean biogeographical region, since that list does not contain any map of the sites and contains thousands of sites, both new and existing.

30The Commission submits that the General Court properly established the constructive knowledge of the United Kingdom, by relying on the notification of Decision 2009/95 to the latter. Application of the test of actual knowledge, as wished by the United Kingdom, would have the consequence of rendering the two-month period for bringing proceedings entirely subjective, defeating the objective of that time-limit of providing legal certainty, and would be unverifiable. Furthermore, the conduct of the Kingdom of Spain, specifically the issue of whether it infringed European Union law, is not relevant in an action for annulment.

31The Kingdom of Spain essentially endorses the Commission’s arguments.

Findings of the Court

32First of all, an action for annulment brought against a decision which is merely confirmatory of an earlier decision that was not challenged within the time-limit for bringing proceedings is inadmissible and it is common ground, in the present case, that the United Kingdom did not bring an action for annulment of Decision 2009/95 before the expiry of the time-limit for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU.

33So far as concerns assessment of whether the contested decision is merely confirmatory, it is also common ground that, as the General Court observes in paragraphs 26 and 27 of the order under appeal, Site ES6120032 was listed for the first time as a SCI in Decision 2009/95 and that site was then re-listed in an identical form in the list adopted in the contested decision. Thus, the contested provision of that decision was already included in the earlier decision, so that, in respect of the designation of Site ES6120032 as a SCI, the contested decision does not contain any new factor as such.

34The only aspect of the General Court’s reasoning against which the appeal is directed consists of the examination of whether the contested decision might not have been confirmatory on the ground that, at the time of the adoption of Decision 2009/95, the United Kingdom and the Commission could not have known of the overlapping of Sites ES6120032 and UKGIB0002.

35To reach the conclusion that the United Kingdom could have known of that overlapping, the General Court relied, in paragraphs 34 to 36 of the order under appeal, on the United Kingdom’s participation, as a member of the Habitats Committee, in the procedure for the adoption of Decision 2009/95, taking into consideration the various items of information provided to the United Kingdom during that procedure and prior to the decision’s adoption, and the vote in favour of its adoption by the representative of the United Kingdom.

36The United Kingdom merely claims that the General Court identified an incorrect legal test, in that knowledge cannot be imputed in cases where a prudent person cannot be expected to discover the fact in question. However, the appeal does not state what different, incorrect test the General Court allegedly applied. Subsequently, the United Kingdom submits only that the circumstances taken into consideration by the General Court were insufficient to enable the United Kingdom to know of the overlapping of the sites at issue at the time of the adoption of Decision 2009/95 and that other factual matters should have been taken into consideration.

37By that argument, the United Kingdom is in actual fact seeking to call into question the assessment made by the General Court of all the factual matters submitted to it. Thus, the United Kingdom is, in essence, simply challenging the assessment of the facts made by the General Court without, moreover, pleading any distortion of the clear sense of the evidence in the file.

38Such an appraisal of the facts does not, save where the clear sense of the evidence submitted to it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. Under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court therefore has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to appraise those facts (see, inter alia, Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42; Case C-238/06 P Develey v OHIM [2007] ECR I-9375, paragraph 97, and Case C‑431/07 P Bouygues and Bouygues Télécom v Commission [2009] ECR I-2665, paragraph 137).

39The second ground of appeal must therefore be rejected as inadmissible.

First ground of appeal

Arguments of the parties

40By its first ground of appeal, the United Kingdom’s primary complaint is that the General Court committed an error of law in respect of the identity of the parties whose ‘constructive’ knowledge of the overlapping of Sites ES6120032 and UKGIB0002 was legally relevant. The correct test was what the United Kingdom could have known. In its view, the issue of whether the Commission could have known of that overlapping is irrelevant.

41In Case T-141/97 Yasse v EIB [1999] ECR‑SC I‑A-177 and II-929, paragraphs 126 to 128, which is the underlying authority for the purposes of examination of ‘constructive’ knowledge, the General Court examined only what the applicant could have known, without mentioning the knowledge either of the ‘administration’ or of any other party.

42In the alternative, if it was relevant to ascertain the circumstances of which the author of the decision could have known, in the present case the author of the contested decision was both the Commission and the Habitats Committee, and not the Commission alone, since, in accordance with Articles 4 and 21 of the Habitats Directive, the Commission could adopt the contested decision only with the approval of that committee.

43According to the Commission, this ground of appeal must be rejected as ineffective. First, the General Court did not disregard the United Kingdom’s constructive knowledge, which it expressly evaluated in paragraphs 35 and 36 of the order under appeal. Secondly, the analysis of the constructive knowledge both of the United Kingdom and of the Commission was not decisive for the purposes of the order under appeal, and was set out by the General Court only in response to the arguments put forward. Moreover, the Commission alone adopted the contested decision, albeit subject to certain procedural requirements, inter alia an opinion of the competent committee.

44The Kingdom of Spain essentially endorses the Commission’s arguments.

Findings of the Court

45It must be pointed out that, in accordance with settled case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, inter alia, Case C-326/91 P de Compte v Parliament [1994] ECR I-2091, paragraph 94, and Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraph 68).

46As follows from paragraphs 32 to 36 above, the General Court determined that the United Kingdom could have known of the overlapping of the sites at the time of the adoption of Decision 2009/95, and that finding has not been properly called into question by the United Kingdom.

47Accordingly, even if the General Court committed an error of law in examining, in addition, the issue of whether the Commission also could have known of that overlapping, such an error would have had no effect on the outcome of the action at first instance and thus would have had no bearing on the operative part of the order under appeal.

48Therefore, even if the first ground of appeal, according to which the correct test was what the United Kingdom could have known, should prove well founded, it would not be such as to result in the order under appeal being set aside.

49Consequently, this ground of appeal must be rejected as ineffective.

50In the light of all the foregoing considerations, the appeal must be dismissed.

Costs

51Under Article 138(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article 184 thereof, 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 United Kingdom has been unsuccessful, the latter must be ordered to pay the costs.

52In accordance with Article 138(3) of the Rules of Procedure, which is also applicable by virtue of Article 184 thereof, the Kingdom of Spain is to bear its own costs.

On those grounds, the Court (Third Chamber) hereby:

Dismisses the appeal;

Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs;

Orders the Kingdom of Spain to bear its own costs.

[Signatures]

*

Language of the case: English.