Commission of the European Communities v Grand Duchy of Luxembourg

«(Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora)»

Opinion of Advocate General Tizzano delivered on 29 January 2002

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Judgment of the Court (Sixth Chamber), 13 February 2003

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Summary of the Judgment

Acts of the institutions – Directives – Implementation by the Member States – Mere administrative practice does not constitute fulfilment of that obligation (Art. 249 EC, third para.)

JUDGMENT OF THE COURT (Sixth Chamber) 13 February 2003 (1)

((Failure by a Member State to fulfil its obligations – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora))

In Case C-75/01,

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

applicant,

Grand Duchy of Luxembourg, represented by J. Faltz, acting as Agent,

defendant,

APPLICATION for a declaration that, by failing to take all the necessary measures to implement fully and correctly Articles 1, 4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b) and 13(2), 14, 15, 16(1), 22(b) and (c), and 23(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) in conjunction with Annexes I, II, IV, V and VI to that directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the directive and under the third paragraph of Article 249 EC,

THE COURT (Sixth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann (Rapporteur), V. Skouris, F. Macken and N. Colneric, Judges,

Advocate General: A. Tizzano, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 29 January 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;

(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.

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.’

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

The prohibitions referred to in paragraph 1(a) and (b) shall apply to all stages of the biological cycle of the plants to which this Article applies.

Article 14 of the Directive provides:

If, in the light of the surveillance provided for in Article 11, Member States deem it necessary, they shall take measures to ensure that the taking in the wild of specimens of species of wild fauna and flora listed in Annex V as well as their exploitation is compatible with their being maintained at a favourable conservation status.

Where such measures are deemed necessary, they shall include continuation of the surveillance provided for in Article 11. Such measures may also include in particular:

regulations regarding access to certain property,

temporary or local prohibition of the taking of specimens in the wild and exploitation of certain populations,

regulation of the periods and/or methods of taking specimens,

application, when specimens are taken, of hunting and fishing rules which take account of the conservation of such populations,

establishment of a system of licences for taking specimens or of quotas,

regulation of the purchase, sale, offering for sale, keeping for sale or transport for sale of specimens,

breeding in captivity of animal species as well as artificial propagation of plant species, under strictly controlled conditions, with a view to reducing the taking of specimens [in] the wild,

assessment of the effect of the measures adopted.

Article 15 of the Directive reads as follows: In respect of the capture or killing of species of wild fauna listed in Annex V (a) and in cases where, in accordance with Article 16, derogations are applied to the taking, capture or killing of species listed in Annex IV (a), Member States shall prohibit the use of all indiscriminate means capable of causing local disappearance of, or serious disturbance to, populations of such species, and in particular:

use of the means of capture and killing listed in Annex VI (a);

any form of capture and killing from the modes of transport referred to in Annex VI (b).

Article 16(1) of the Directive provides: Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15(a) and (b):

in the interest of protecting wild fauna and flora and conserving natural habitats;

to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;

in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;

for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants;

to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.

Article 22(b) and (c) of the Directive provides: In implementing the provisions of this directive, Member States shall:...

ensure that the deliberate introduction into the wild of any species which is not native to their territory is regulated so as not to prejudice natural habitats within their natural range or the wild native fauna and flora and, if they consider it necessary, prohibit such introduction. The results of the assessment undertaken shall be forwarded to the committee for information;

promote education and general information on the need to protect species of wild fauna and flora and to conserve their habitats and natural habitats.

Under Article 23(2) of the Directive, the laws, regulations and administrative provisions which the Member States must adopt in order to comply with the Directive must contain a reference to the Directive or be accompanied by such reference on the occasion of their official publication.

The pre-litigation procedure

On 29 April 1999, having concluded that the various measures transposing the Directive into Luxembourg law communicated to it failed to conform to Articles 1, 4, 5, 6, 7, 8, 12, 13, 14, 15, 16, 18, 22 and 23 of the Directive, the Commission gave the Grand Duchy of Luxembourg formal notice to submit its observations.

In his letter of reply of 13 July 1999, addressed to the Commission (the letter of reply) the Minister for the Environment of the Grand Duchy of Luxembourg stated that various national laws and regulations could help to attain certain of the Directive's objectives and that the Law of 21 May 1999 on regional planning (Mémorial A 1999, p. 1402, hereinafter the Regional Planning Law), the draft Grand-Ducal regulation on biodiversity and the Law of 11 August 1982 on the protection of nature and natural resources (Mémorial A 1999, p. 1486, hereinafter the Nature Protection Law) would shortly ensure that the Directive's objectives were fully met. The letter also expressly disputed certain of the Commission's complaints.

The Commission was not satisfied by the observations submitted to it by the Grand Duchy of Luxembourg in its letter of reply and on 21 January 2000 issued a reasoned opinion in which it observed that, by failing to take all the necessary measures to implement fully and correctly Articles 1, 4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b) and 13(2), 14, 15, 16(1), 22(b) and (c), and 23(2) of the Directive in conjunction with Annexes I, II, IV, V and VI to the Directive, the Grand Duchy of Luxembourg had failed to fulfil its obligations under the Directive and under the third paragraph of Article 249 EC. The Commission therefore called upon the Grand Duchy to adopt the measures required to comply with the reasoned opinion within two months of its notification.

By letter of 6 April 2000, the Luxembourg authorities acknowledged that, in order to transpose the Directive into national law, it would be necessary to supplement or amend its existing legislation.

Finding that the Grand Duchy of Luxembourg had failed to adopt the necessary measures to comply with the reasoned opinion within the time specified therein, the Commission brought the present action.

The action

In its defence the Luxembourg Government merely indicates that a draft law transposing the Directive was approved by the government in council on 23 February 2001 and asks the Court to dismiss the action.

Incomplete transposition of Article 1 of the Directive

The Commission points out that, in its letter of formal notice, it observed that there were no provisions of Luxembourg law that had as their object or effect the correct, complete and precise transposition of the definitions set out in Article 1 of the Directive and that the Luxembourg authorities did not dispute that complaint in the letter of reply.

On this point, it should be borne in mind that the letter of reply stated that the Article 1 definitions were to be included in a sectoral plan provided for by the Regional Planning Law.

However, it appears that no such measure was adopted within the period of time specified in the reasoned opinion.

The complaint of incomplete transposition of Article 1 of the Directive must therefore be regarded as well founded.

Failure to transpose Article 4(5) of the Directive

According to the Commission, the transposing provisions notified by the Luxembourg authorities do not have the object or effect of transposing Article 4(5) of the Directive. Thus, sites of Community importance are not automatically brought within the protection regime provided for in Article 6(2), (3) and (4) of the Directive. The letter of reply disputes this complaint but only to the extent that the Commission charged the Grand Duchy of Luxembourg with having failed to put in place a system for applying the protection regime provided for in Article 6(2) to sites of Community importance.

It is important to bear in mind that, according to the letter of reply, the administrative practice in Luxembourg of refusing the necessary authorisation for certain projects falling within the scope of the Nature Protection Law is an appropriate means of ensuring that the nuisances mentioned in Article 6(2) of the Directive do not occur on the sites referred to in Article 4(5). The Luxembourg Government has, however, acknowledged its failure as regards application of Article 6(3) and (4) of the Directive to sites of Community importance.

Now, according to the settled case-law of the Court of Justice relating to the obligations incumbent upon Member States in the transposition of Community directives, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations arising under the EC Treaty (see, in particular, Case C-159/99 Commission v Italy [2001] ECR I-4007, paragraph 32, and Case C-394/00 Commission v Ireland [2002] ECR I-581, paragraph 11).

Given the foregoing, the Commission's complaint of failure to transpose Article 4(5) of the Directive must be upheld.

Failure to transpose Article 5(4) of the Directive

The Commission argues that no laws in Luxembourg make the sites referred to in Article 5(4) of the Directive subject to the protection regime provided for by Article 6(2). The Luxembourg authorities dispute this complaint in the letter of reply.

As is clear from the letter of reply, the Luxembourg Government maintains, in essence, that the administrative practice of refusing the necessary authorisation for certain projects falling within the scope of the Nature Protection Law is an appropriate means of ensuring that the nuisances mentioned in Article 6(2) of the Directive do not occur on the sites referred to in Article 5(4).

However, having regard to the case-law of the Court mentioned in paragraph 28 of the present judgment, that argument must be rejected.

It is also submitted in the letter of reply that the Grand Duchy of Luxembourg has, in any event, probably already included in the list sent to the Commission pursuant to Article 4(1) of the Directive all the sites within its territory which are essential to maintaining certain types of habitat present in its territory and that, consequently, there would be no need to have recourse to the procedure laid down in Article 5(4) of the Directive.

That submission cannot be upheld either because, in any event, it cannot be ruled out that the Commission might find, pursuant to Article 5(1) of the Directive, that the list sent by the Grand Duchy of Luxembourg omits a site which it regards as essential to the preservation of a given priority natural habitat type or the survival of a given priority species and that the bilateral consultation procedure will therefore have to be initiated, during the currency of which the site in question will, in accordance with Article 5(4), have to be made subject to the protection regime laid down in Article 6(2).

Consequently, the complaint of failure to transpose Article 5(4) of the Directive must be regarded as well founded.

Failure to transpose Article 6 of the Directive

Article 6(1) of the Directive

The Commission complains that the Grand Duchy of Luxembourg has failed to transpose this provision.

37In the letter of reply, the Luxembourg Government acknowledged that failure.

The complaint of non-transposition of Article 6(1) of the Directive must therefore be upheld.

Article 6(2) of the Directive

39The Commission observes that, subject to exceptional ministerial derogation based on public interest, Article 14 of the Nature Protection Law prohibits the reduction, destruction or modification of certain types of biotope. A provision such as that, however, does not appear adequate to ensure that all habitats falling within SACs benefit from the protection provided for. The Commission also emphasises that the provisions of the Nature Protection Law envisage only certain types of disturbance. In particular, under Article 12 it is possible to prevent only certain types of disturbance in forests. There is therefore a lack of any general measure, binding upon third parties, making it possible to prevent, in SACs, disturbance of species which could have a significant effect on those species, in relation to the objectives of the Directive. The Commission also points out that, in the letter of reply, infringement of this aspect of the Directive is expressly disputed.

40It is submitted in the letter of reply that Article 14 of the Nature Protection Law protects all biotopes, including those forming part of an SAC and that it is incorrect to say that this law contemplates only certain types of disturbance: Article 23, which has a general scope, prohibits disturbance of fauna and Articles 21 and 22 prohibit any kind of unjustified exploitation, use, mutilation or destruction of wild plants and animals that are not protected by means of a more stringent set of national rules. Moreover, the Nature Protection Law is backed by a ministerial circular, whose very purpose is to transpose the Directive, and this states that any degradation of habitats and disturbance of protected species must be avoided by means of rigorous application of the Nature Protection Law.

41It should be borne in mind that, subject to exceptional ministerial derogation based on public interest, Article 14 of the Nature Protection Law prohibits the reduction, destruction or modification of biotopes such as ponds, fens, marshlands, land covered in reeds and rushes, hedgerows, scrub and groves.

42A provision such as that, which makes express reference to certain types of biotope only does not appear to be capable of ensuring, as is required by Article 6(2) of the Directive, that all natural habitats and habitats of species found within SACs are protected against acts liable to deteriorate them.

43In so far as concerns protection against deterioration, as provided for by Article 6(2) of the Directive, it is plain that, whilst certain provisions of the Nature Protection Law pleaded in the present case, and in particular Articles 12 and 23, may contribute to the prevention of certain types of disturbance, the fact remains that they are incapable of completely transposing Article 6(2) of the Directive because they do not cover all types of disturbance that are significant in relation to the objectives of the Directive of the species for which the SACs are designated.

44As regards the ministerial circular to which the Luxembourg Government refers, it must be held that, in light of the case-law mentioned in paragraph 28 of the present judgment, it is not capable of ensuring proper transposition of Article 6(2).

It follows that the complaint of incomplete transposition of Article 6(2) of the Directive must be regarded as well founded.

Article 6(3) and (4) of the Directive

46The Commission maintains that the Luxembourg legislation sent to it contains no provision for an assessment to be carried out of the effects on protected sites in all the cases mentioned in Article 6(3) of the Directive. Furthermore, Luxembourg law fails to ensure that projects and plans are approved by the competent authority only after the authority has satisfied itself that the project or plan will not compromise the integrity of the site in question. As far as Article 6(4) of the Directive is concerned, the Commission argues that no provision of national law requires that alternative solutions be pursued before approval is given to projects regarded as having an adverse effect on protected sites. Luxembourg law also fails to provide for the adoption of compensatory measures where such projects are authorised.

47It is appropriate to observe that these complaints were already formulated in the same terms in the letter of formal notice and that, in the letter of reply, the Luxembourg Government acknowledged that the existing provisions of national law were inadequate as regards Article 6(3) and (4) of the Directive.

48That being so, the Court must also uphold this aspect of the Commission's action.

Failure to transpose Article 7 of the Directive

49The Commission submits that no provision of Luxembourg law provides for the application of Article 6(2), (3) and (4) of the Directive to special protection areas designated under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), as is required by Article 7 of the Directive. The arguments put forward in the letter of reply also fail to persuade that Article 7 has been transposed.

50It should be borne in mind that the letter of reply states that the sectoral plan which it anticipated drawing up would provide a precise legal framework, in particular as regards special protection areas classified under Directive 79/409.

51Given that, and taking particular account of what is stated in paragraph 24 of the present judgment, it must be held that the complaint of failure to transpose Article 7 of the Directive is well founded.

Inadequate transposition of Article 12(1)(b) and (c), (2) and (4) of the Directive

52The Commission maintains, first of all, that Article 12(1)(b) of the Directive has been incompletely transposed into Luxembourg law because none of the national transposing provisions communicated to it prohibits the deliberate disturbance of the species concerned during the migration period. Secondly, none of the provisions has as its object or effect the complete transposition of Article 12(1)(c) of the Directive. Thirdly, the national provisions communicated to the Commission fail to prohibit the exchange and the offering for exchange of specimens of the species concerned, as is required by Article 12(2) of the Directive. Fourthly, no provision of Luxembourg law ensures that the definition of animal in national law is as broad as that of specimen within the meaning of the Directive. Lastly, none of the provisions communicated has as its object or effect the transposition of Article 12(4) of the Directive. According to the Commission, the arguments to the contrary set out in the letter of reply cannot be accepted.

Article 12(1)(b) of the Directive

53As the Commission rightly observes, Article 23 of the Nature Protection Law, which the Luxembourg Government regards as conforming to Article 12(1)(b) of the Directive, is incapable of transposing the latter provision fully because, whilst prohibiting the disturbance of fauna during the periods of breeding, rearing and hibernation, the prohibition fails expressly to mention the migration period.

Consequently, the complaint of inadequate transposition of Article 12(1)(b) of the Directive must be regarded as well founded.

Article 12(1)(c) of the Directive

55The letter of reply maintains that Article 12(1)(c) of the Directive has been transposed into national law by Article 17 of the Nature Protection Law and Article 6 of the Convention on the Conservation of European Wildlife and Natural Habitats, signed in Bern on 19 September 1979 and approved by the Law of 26 November 1981 (Mémorial A 1981, p. 2130), to which the Community became a party by Council Decision 82/72/EEC of 3 December 1981 (OJ 1982 L 38, p. 1) (hereinafter the Bern Convention). Article 17 of the Nature Protection Law provides that animals which are the subject of complete protection may not be disturbed, killed, hunted, captured, kept in captivity or tamed, at any stage of their development. As regards Article 6 of the Bern Convention, that provision prohibits the deliberate destruction or taking of eggs from the wild or keeping these eggs even if empty.

56In this connection, it should be pointed out that Article 17 of the Nature Protection Law does not expressly mention the collection of eggs in the wild. The prohibition in Article 17 on keeping in captivity animals which are the subject of complete protection at any stage of their development does not appear to include with sufficient certainty the collection of eggs in the wild, particularly as, under Article 144 et seq. of the Nature Protection Law, this prohibition is one that is backed by criminal sanction.

57As regards Article 6(d) of the Bern Convention, which prohibits the deliberate destruction or taking of eggs from the wild or keeping such eggs, it is appropriate to point out that that provision applies only to the species listed in Annex II to the convention, which does not include certain of the species listed in Annex IV (a) to the Directive, to which Article 12 of the Directive refers.

It follows that Article 12(1)(c) of the Directive has not been correctly transposed into Luxembourg law.

Article 12(2) of the Directive

59The letter of reply states that, in so far as it prohibits the keeping of animals which receive complete protection, Article 17 of the Nature Protection Law also precludes the exchange of such animals. Indeed, to exchange something which may not be held is impossible. Moreover, Article 15 of the Nature Protection Law, read together with the Grand-Ducal Regulation of 8 April 1986 on the Complete and Partial Protection of Certain Species of Wild Animal (Mémorial A 1986, p. 1174), provides for the classification of rare wild animals for the purposes of their conservation, without restriction to indigenous species. In addition, Article 20 of the Nature Protection Law extends the definition of animal beyond the meaning conferred by national law.

60The Luxembourg Government's argument cannot be accepted.

61Indeed, the prohibition, laid down in Article 17 of the Nature Protection Law, on keeping animals which receive complete protection would not seem to include the exchange or the offering for exchange of such animals, the concept of keeping being distinct from that of exchanging or offering for exchange, particularly from the viewpoint of a system of criminal sanctions, such as that mentioned in paragraph 56 of the present judgment.

62As regards the meaning of the term animal in Luxembourg law, it must be held that, in any event, the law on which the Luxembourg Government relies in the letter of reply does not include within the definition of animal any ... derivative [of any animal] ... as well as any other goods which appear, from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be ... derivatives of animals ... of those species, as is provided for in Article 1(m) of the Directive, which defines the meaning of specimen as it appears, in particular, in Article 12(2) of the Directive.

Article 12(2) of the Directive has not, therefore, been correctly transposed into Luxembourg law.

Article 12(4) of the Directive

64It is appropriate to recall that the Luxembourg Government acknowledged in the letter of reply that there had yet to be established in Luxembourg law a monitoring system such as that provided for by Article 12(4) of the Directive.

65It also appears that no such monitoring system was adopted within the period of time laid down in the reasoned opinion.

66It thus appears that Article 12(4) of the Directive has not been transposed into the internal legal system of the defendant Member State.

67In light of the foregoing, it must be held that the complaint of inadequate transposition of Article 12(1)(b) and (c), (2) and (4) of the Directive is well founded.

Inadequate transposition of Article 13(1)(b) and (2) of the Directive

Article 13(1)(b) of the Directive

68The Commission submits that, despite the arguments advanced by the Luxembourg authorities in the letter of reply, Article 13(1)(b) of the Directive has not been completely transposed into Luxembourg law, which neither prohibits the keeping, exchange or offering for sale or exchange of specimens of the plant species protected under that provision nor ensures that the prohibitions laid down in the provision apply also to the non-indigenous species protected under it.

69The letter of reply states that the sale of plants which receive complete protection is prohibited by Article 16 of the Nature Protection Law and that, in so far as is necessary, keeping such plants is prohibited by Article 5 of the Bern Convention. Moreover, Article 15 of the Nature Protection Law does not exclude the protection of non-indigenous species. In this connection it would be sufficient to incorporate the species concerned into the Grand-Ducal Regulation of 19 August 1989 on the Complete and Partial Protection of Certain Species of Wild Flower (Mémorial A 1989, p. 1102, hereinafter the Wild Flower Regulation). Article 20 of the Nature Protection Law extends the definition of plant beyond the meaning conferred by national law.

It should be observed that whilst Article 16 of the Nature Protection Law prohibits the sale of plants that receive complete protection, it does not prohibit the possession, exchange or offering for sale or exchange of such plants. Article 5 of the Bern Convention provides that each contracting party must, as appropriate, prohibit the possession of protected species. However, it does not appear that the Luxembourg authorities have adopted any supplementary measure further defining application of the Bern Convention as regards this point. As far as this aspect is concerned, therefore, Article 13(1)(b) of the Directive has not been properly transposed into Luxembourg law.

71

As regards the complaint that Luxembourg law fails to ensure that the prohibitions laid down in Article 13(1)(b) of the Directive apply to the non-indigenous plant species protected by the Directive, it is important to recall that the Luxembourg Government itself has acknowledged that the non-indigenous plant species covered by Article 13(1)(b) are not protected by Article 15 of the Nature Protection Law, read together with the Wild Flower Regulation. Also, Article 20 of the law provides that the plants and animals protected under approved and published international conventions may be purchased, imported, offered for sale, exported or held only pursuant to the relevant provisions of such conventions. However, Article 20 is, in any event, incapable of ensuring as such the protection of non-indigenous species provided for by Article 13(1)(b) of the Directive. Moreover, the Luxembourg Government has provided no further information as to which international conventions are relevant in the matter.

72

It follows that Article 13(1)(b) of the Directive has not been properly transposed into Luxembourg law.

Article 13(2) of the Directive

73

According to the Commission, the Luxembourg Government's assertion that Article 13(2) of the Directive has been transposed by Article 16 of the Nature Protection Law, which extends the prohibitions laid down in that provision to parts of the plants concerned, fails to establish that the definition of plant in national law is as broad as that of specimen given in Article 1(m) of the Directive, particularly in so far as concerns the inclusion of any part of or derivative obtained from a plant and any other goods which appear, from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be parts of derivatives of plants of those species.

74

It is important to bear in mind that, under Article 13(2) of the Directive, the prohibitions referred to in Article 13(1)(a) and (b) apply to all stages of the biological cycle of the plants to which Article 13 applies.

Even if the definition of plant in national law is narrower than that of specimen in Article 1(m), the Court finds that the Commission has failed to demonstrate why that should be inconsistent with Article 13(2) of the Directive, which makes no direct reference to specimens but instead refers to Article 13(1)(b) which does refer to specimens and lays down precise prohibitions in relation to specimens of protected specimens.

76

Consequently, the complaint of incomplete transposition of Article 13(2) of the Directive, as formulated by the Commission, must be rejected.

77

In view of the foregoing, the complaint of incomplete transposition of Article 13(1)(b) of the Directive must be upheld.

Non-transposition of Article 14 of the Directive

78

The Commission maintains that Article 14 of the Directive is not optional but contains an unconditional obligation of surveillance of the species listed in Annex V together with an obligation to take appropriate measures to ensure that those species are maintained at a favourable conservation status where the competent authorities deem it necessary, that is to say where surveillance reveals that, without such measures, the conservation status of the species would be endangered.

79

In the letter of reply, the Luxembourg authorities acknowledged that national law fails to provide for the surveillance obligation relating to completely and partially protected species or the associated obligation to adopt appropriate measures to ensure that those species are maintained at a favourable conservation status. They have acknowledged the need to modify the law on this point.

80

It therefore appears that the taking in the wild of specimens of species of wild fauna and flora listed in Annex V to the Directive as well as their exploitation is not coupled in Luxembourg law with an obligation to adopt, where their conservation status so warrants, appropriate measures to ensure that those species are maintained at a favourable conservation status.

81

The complaint of non-transposition of Article 14 of the Directive must therefore be regarded as well founded.

Incorrect transposition of Article 15 of the Directive

82

The Commission maintains that the transposition measures communicated to it by the Grand Duchy of Luxembourg fail to ensure the correct transposition of Article 15 of the Directive. It refutes the reasoning put forward in the letter of reply in support of the contrary view.

83

Indeed, the letter of reply states that, since the Grand Duchy of Luxembourg intended to avail itself of the derogation provided for by Article 16 of the Directive, it was necessary for it to transpose Article 15 of the Directive. The means of capture and killing mentioned in Article 15(a) and (b) of the Directive are exactly the same as those provided for in and prohibited by the Bern Convention. They are also prohibited, without exception, by the rules on hunting and fishing. Moreover, the Luxembourg Government has stated that the arrêté grand-ducal du 10 mars 1959 ayant pour objet la destruction des animaux malfaisants et nuisibles (Grand-Ducal Decree of 10 March 1959 on the elimination of harmful animals and vermin, hereinafter the Grand-Ducal Decree), which imposes no restriction on the means of destruction used, is to be repealed by a new Grand-Ducal regulation of which a draft already exists.

84

It is important to bear in mind that Annex VI (a) to the Directive, to which Article 15 refers, includes amongst the prohibited methods and means of capture and killing traps which are non-selective according to their principle or their conditions of use and smoking out. However, in so far as it authorises the destruction of animals of the species listed in Annex V (a) to the Directive such as the marten and polecat, by means of smoking out with terriers or with the aid of traps, which, moreover, are not expressly required to be selective, the Grand-Ducal Decree is inconsistent with Article 15 of the Directive. Furthermore, it is not apparent from the file that the Grand-Ducal Decree was repealed within the period laid down in the reasoned opinion.

85

It follows that, in any event, the complaint of incorrect transposition of Article 15 of the Directive must be regarded as well founded.

Unsatisfactory transposition of Article 16(1) of the Directive

86

According to the Commission, the transposition measures mentioned in the letter of reply are unsatisfactory as regards Article 16(1) of the Directive.

87

As far as concerns Article 26 of the Nature Protection Law, which provides that the competent minister may grant derogations from Articles 13 to 18 of that law for scientific purposes or in the public interest, it should be observed that the grant of such derogations has not been made conditional upon there being no other satisfactory solution, as is required by Article 16(1) of the Directive.

88

As regards Article 9 of the Bern Convention, even if that provision makes the grant of derogations from the protection rules laid down in the convention subject to the same conditions as those specified in Article 16(1) of the Directive, and in particular the condition that there be no other satisfactory solution, the fact that that system of derogations and that implemented by Article 26 of the Nature Protection Law coexist in Luxembourg's national law is, in any event, contrary to Article 16(1) of the Directive because that situation in fact creates in this case an ambiguity liable to render compliance with Article 16(1) less than certain.

89

The complaint of unsatisfactory transposition of Article 16(1) of the Directive must therefore be upheld.

Incorrect transposition of Article 22(b) and (c) of the Directive

90

In reply to the complaint of incorrect transposition of Article 22(b) of the Directive, as formulated in the letter of formal notice, the Luxembourg authorities state that that provision was transposed by Article 25 of the Nature Protection Law, which prohibits the introduction of non-indigenous species into the wild except with the authorisation of the competent minister, to which appropriate conditions may be attached.

91

In this connection it should be observed that Article 25 of the Nature Protection Law does not make the grant of the ministerial authorisation referred to in that provision conditional upon satisfaction of the requirements of Article 22(b) of the Directive, particularly the requirement that authorisation should be granted only where no harm would be caused to natural habitats.

Consequently, Article 25 of the Nature Protection Law does not correctly transpose Article 22(b) of the Directive. The Commission's complaint in this regard must therefore be regarded as well founded.

Article 22(c) of the Directive

93

The letter of reply maintains that Article 22(c) of the Directive, which is designed to promote education and general information on the need to protect species of wild fauna and flora and to conserve natural habitats, is transposed by Article 3(3) of the Bern Convention, by Article 13 of the Convention on Biological Diversity concluded in Rio de Janeiro on 5 June 1992 and approved by the Law of 4 March 1994 (Mémorial A 1994, p. 429), to which the European Community became a party by Council Decision 93/626/EEC of 25 October 1993 concerning the conclusion of the Convention on Biological Diversity (OJ 1993 L 309, p. 1), and by the Law of 10 August 1992 on freedom of access to environmental information and rights of action of associations for the protection of nature and the environment (Mémorial A 1992, p. 2204).

94

Whilst it maintains that the Law of 10 August 1992 just mentioned contains no provision for actively supplying the public with information, the Commission acknowledges that Article 3(3) of the Bern Convention and Article 13 of the Convention on Biological Diversity are in principle capable of transposing Article 22(c) of the Directive satisfactorily. Nevertheless, the institution objects that the Grand Duchy of Luxembourg has failed to show that its legal system includes the principle of direct effect of the so-called self-executing provisions of international conventions that are properly approved and published.

95

Since it is not disputed that the provisions of the Bern Convention and of the Convention on Biological Diversity just mentioned are capable of satisfactorily transposing Article 22(c) of the Directive, the Court must confine itself to considering whether those provisions have in fact been incorporated into Luxembourg law.

96

There is no doubt that the provisions have been incorporated in the present case. Indeed the conventions in question were approved by laws of the Grand Duchy of Luxembourg and require no further measures to be taken in order for them to achieve their full effect in the internal legal system of that Member State.

97

That being so, the complaint of incorrect transposition of Article 22(c) of the Directive must be rejected.

98

In view of the foregoing, the Court must uphold the complaint of inappropriate transposition of Article 22(b) of the Directive.

Infringement of Article 23(2) of the Directive

99

The Commission maintains that the Grand Duchy of Luxembourg has infringed Article 23(2) of the Directive in that the transposition measures which that Member State adopted after the Directive's entry into force and communicated to the Commission contain no reference to the Directive or were not accompanied by any such reference when officially published.

100

The letter of reply states that the essential purpose of the proposed sectoral plan provided for by the Regional Planning Law is the implementation of Directives 79/409 and 92/43 and that a list of all national measures transposing the Directive is to be published in the Mémorial.

101

However, it is apparent that no such list has been published within the period laid down in the reasoned opinion.

102

It follows that the complaint of infringement of Article 23(2) of the Directive is well founded.

103

In light of the foregoing, it must be held that, by failing to take all the necessary measures to implement fully and correctly Articles 1, 4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b), 14, 15, 16(1), 22(b) and 23(2) of the Directive in conjunction with Annexes I, II, IV, V and VI to the Directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the Directive.

Costs

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if there has been an application to that effect. Since the Commission has applied for costs and the Grand Duchy of Luxembourg has been unsuccessful in the majority of its pleas, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber),

hereby:

Declares that, by failing to take all the necessary measures to implement fully and correctly Articles 1, 4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b), 14, 15, 16(1), 22(b) and 23(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora in conjunction with Annexes I, II, IV, V and VI to that directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

Orders the Grand Duchy of Luxembourg to pay the costs.

Delivered in open court in Luxembourg on 13 February 2003.

Registrar

President of the Sixth Chamber

* Language of the case: French.