OPINION OF ADVOCATE GENERAL LÉGER delivered on 6 November 2003 (1)

((Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora – Habitat of the corncrake – Special protection area – Project not connected with management of the site – Assessment of implications for the site – Need to ascertain that the project will not adversely affect the integrity of the site – Not ascertained))

1. By the present action, the Commission of the European Communities asks the Court to declare that, by authorising the planned extension of the golf course in the district of Wörschach, Styria (Austria), despite the adverse conclusions of an assessment of the implications for the habitat of the corncrake (crex crex) (2) in the special protection area, (3) within the meaning of Article 4 of Council Directive 79/409/EEC, (4) situated in that district, the Republic of Austria has failed to fulfil its obligations under Article 6(3) and (4) of Council Directive 92/43/EEC, (5) read in conjunction with Article 7 of this Directive. The Commission also seeks an order that the Republic of Austria pay the costs.

I ─ The legal background

5. Article 6 of the Habitats Directive provides: ...

II ─ The background to the dispute, the proceedings and the claims of the parties

7. By a decision dated 14 May 1999, (7) the Government of the Province of Styria, ruling on an appeal brought by the Golf- und Landclubs Ennstal (the Enns Valley Golf Club) against a decision of the Bezirkshauptmannschaft (administrative authority) of Liezen (Austria) of 4 December 1996, authorised an extension of the golf course in the district of Wörschach by way of the addition of two new holes on a site classified as a SPA. The extension authorised has been completed.

8. Following receipt of a complaint, the Commission sent a letter of formal notice to the Republic of Austria on 4 November 1999. In that letter, the Commission stated that information supplied as part of the complaint and the expert reports on which the decision of 14 May 1999 was based showed that there was a strong probability that the extension in question would have adverse effects upon the existing corncrake population, for the purposes of Article 6(3) of the Habitats Directive. The extension could therefore have been authorised only under the conditions laid down in Article 6(4), namely if the project had been justified by imperative reasons of overriding public interest and if it had been accompanied by compensatory measures of which the Commission was informed. Since these requirements were not met, the Republic of Austria had failed to fulfil its obligations.

10. By letter of 27 July 2000, the Commission issued a reasoned opinion. In that opinion, the Commission stated that, according to the report written by Mr Gepp in 1998, which could be regarded as an assessment of the implications of the disputed extension for the site, within the meaning of Article 6(3) of the Habitats Directive, the extension gave rise to a significant risk of disturbance to the corncrake population. The Commission also raised doubts concerning the effectiveness of the conditions laid down by the decision of 14 May 1999, stating that the expert had advised against the imposition of complicated conditions which would alleviate only some of the harmful effects of the extension and had considered that the extension was incompatible with the conservation of the corncrake population.

11. In its reasoned opinion, the Commission also referred to a new study carried out by Mr Schäffer, according to which, on the basis of present knowledge regarding the behaviour of the corncrake, the view was to be taken that the areas covered by the extension were situated entirely within the section of grasslands which this species could use. Some elements of its habitat would thus be destroyed.

12. At the end of its reasoned opinion, the Commission gave the Republic of Austria two months from notification of the opinion within which to comply with it.

13. By a letter dated 6 December 2000, the Austrian Government stated that it considered that the extension was not likely to have a significant effect on the site within the meaning of Article 6(3) of the Habitats Directive.

14. By an application lodged at the Court Registry on 4 June 2002, the Commission commenced these proceedings.

15. By judgment of 27 June 2002, the Verwaltungsgerichtshof (Administrative Court) (Austria) set aside the decision of 14 May 1999. In its defence, the Republic of Austria claimed that the action had to be dismissed as it had become devoid of purpose and, in the alternative, that it was not well founded.

16. In its reply, the Commission maintained the claims put forward in its application instituting proceedings. In its rejoinder, the Republic of Austria repeated the form of order sought in its defence.

III ─ The arguments of the parties

17. The Commission claims that the setting aside by the Verwaltungsgerichtshof of the decision of 14 May 1999 does not render the present action devoid of purpose. Firstly, the Commission states that a failure to fulfil obligations must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion and that the decision of 14 May 1999 was not set aside until after this date. Secondly, it maintains that the Government of the Province of Styria must take a fresh decision on the appeal lodged by the operator of the golf course against the decision of the Bezirkshauptmannschaft and that it cannot be presumed with any certainty that this new decision will bring about a situation which complies with the Habitats Directive.

18. As to the substance of the action, the Commission submits that a project is likely to have a significant effect on a SPA within the meaning of Article 6(3) of the Habitats Directive when this area, following completion of the project, can no longer fulfil its purpose, other than in a markedly restricted manner, in respect of one or several of its conservation or protection objectives. Moreover, the mere likelihood of a significant effect on the relevant SPA is sufficient to require authorisation of the project to be refused.

19. The Commission further states that it can be seen from the report written by Mr Gepp that the extension to the golf course in question has the effect of causing loss of part of the feeding and resting areas of the corncrake population and the division and destruction of areas of its habitat. It can also be seen from the report that the conditions laid down by the decision of 14 May 1999 were not sufficient to prevent such disturbance. The ineffective nature of these conditions was confirmed by another expert's report, dated 26 June 1999, carried out by Mr Lentner. In addition, this reason was also given in the judgment of the Verwaltungsgerichtshof setting aside the decision of 14 May 1999.

21. As to the substance, the Austrian Government states that the requirements of Article 6 of the Habitats Directive have been complied with. It points out that, following the assessment of the implications of the project, the decision of 14 May 1999 required that certain measures be taken, and these have removed all significant threat to the corncrake population. This assertion is supported by the comments of Mr Gepp dated 15 July 2002 on his 1998 report. It can be seen from these comments that the Commission interpreted that report far too pessimistically. The Austrian Government also states that the measures laid down by the decision of 14 May 1999 have in fact been implemented, as shown by the checks which it carried out during 2002.

IV ─ Appraisal

22. The admissibility of these proceedings appears to be indisputable in the light of the Court's case-law.

23. The Court has consistently held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State in question at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes. (9) It is also settled case-law that the subject-matter of an action for failure to fulfil obligations is determined by the reasoned opinion and that, even when the default has been remedied after the time-limit prescribed by that opinion, pursuit of the action still has an object. In accordance with a frequently repeated form of words, that object may consist in particular in establishing the basis of the liability that a Member State may incur towards those who acquire rights as a result of its default, such as other Member States, the Community or individuals. (10) Finally, it is settled case-law that, in exercising its powers under Article 226 EC, the Commission does not have to show that there is a specific interest in bringing an action. (11) According to this case-law, the bringing and continuation of such an action before the Court is a matter for the Commission in its entire discretion, and it is not part of the Court's role to take a view on the Commission's exercise of its discretion.

24. In the present case, the decision of 14 May 1999 to which the action for failure to fulfil obligations relates was not set aside until 27 June 2002. As a result, at the end of the period of two months laid down by the Commission in the reasoned opinion dated 27 July 2000, the decision in question was still in force. Furthermore, the extension has been completed. Thus the argument that, under Austrian law, the setting aside of the decision has retroactive effect such that it is deemed never to have existed must be considered immaterial given the case-law cited above, since the date to be used by the Court in determining whether the Republic of Austria failed to fulfil its obligations is that on which the time-limit imposed on it in the reasoned opinion came to an end. In other words, the retroactivity of the setting aside of the decision of 14 May 1999 cannot render this action devoid of purpose because this setting aside arises from an event which occurred after the expiry of the time-limit set in the reasoned opinion and, according to the case-law cited above, such an event cannot be taken into account.

25. The grounds put forward by the Commission to justify its continuance of the action are a matter for it in its entire discretion and it is not for the Court to verify their relevance, as we have seen.

26. In the light of these factors, these proceedings must be declared admissible.

B ─ Substance

27. The Austrian Government does not dispute that the land on which the golf course was extended forms part of a site classified as a SPA within the meaning of Article 4 of the Birds Directive and that, as a result, the extension was subject to the requirements laid down in Articles 6 and 7 of the Habitats Directive.

28. The content of these requirements is not under discussion in the present case. It is apparent from Article 6(3) and (4) of the Habitats Directive, read in conjunction with Article 7, that every plan or project not directly connected with or necessary to the management of a SPA but likely to have a significant effect thereon is to be subject to appropriate assessment of its implications for the SPA in view of the SPA's conservation objectives. Where the assessment of the project's implications for the site in question gives a negative result, the project may be authorised only on the basis of imperative reasons of overriding public interest, under the conditions laid down in Article 6(4) of the Habitats Directive. If the project cannot be justified by such reasons, the national authorities may agree to it only after having ascertained that, in the light of the assessment, it will not adversely affect the integrity of the site concerned.

29. In this case, it is common ground that the Austrian authorities did not consider the extension to the golf course to be a project which could be justified by imperative reasons of overriding public interest, within the meaning of Article 6(4) of the Habitats Directive. The authorities did not put forward any argument as to the existence of such an interest and the conditions laid down in Article 6(4) of the Habitats Directive, concerning the adoption of compensatory measures and their communication to the Commission, were not fulfilled.

30. In accordance with the abovementioned provisions, the extension to the golf course could therefore have been validly authorised by the Austrian authorities only if, in the light of the assessment of its implications for the site involved, they had ascertained that it would not adversely affect the integrity of the site. In other words, if, in the light of the assessment of the implications of the extension, there was a significant chance that the extension would adversely affect the conservation objectives for a species protected under the Birds Directive, the Austrian authorities should have refused authorisation for it.

31. In the present proceedings, the parties are in agreement that Mr Gepp's report, drawn up in 1998 and reproduced in the decision of 14 May 1999, must be regarded as the assessment of the implications of the disputed extension on the site concerned, for the purposes of Article 6(3) of the Habitats Directive. It is therefore on the basis of the comments in this expert's report that the assessment must be made as to whether the Republic of Austria, as the Commission claims, failed to fulfil its obligations under Articles 6 and 7 of the Habitats Directive by authorising the disputed extension.

32. It is clear from the report that there is a corncrake population present in the SPA where the disputed extension was to be sited. According to the report, in order to live and reproduce, the corncrake needs fairly extensive treeless areas (13) and the part of the SPA in question corresponding to its habitat is relatively small. (14) The report also states that the deciding factor for the formation of a population of these birds is the presence of large connected meadows which are not crossed by roads or paths or otherwise subject to disturbance. (15)

33. So far as the possible effects of the extension on the corncrake population present on the site are concerned, the expert stated that the extension would entail the loss of part of the feeding and resting areas of the species concerned, the destruction of functional relationships by the division of the various areas used by the corncrake and the loss of and disturbance to elements of its habitat. (16) Also mentioned as a source of disturbance is noise caused by maintenance of the fairways and by persons looking for golfballs in the rough particularly if they are accompanied by dogs off the lead. The expert pointed out that disturbance caused by passage along minor byways can suffice to make a corncrake population leave an area permanently. (17)

34. The expert then answered the question regarding the conditions which should be imposed in order for the requirements prescribed by the Habitats Directive to be fulfilled. For each form of disturbance liable to be caused, he examined measures which might remedy it. From his examination, he ascertained that such measures would be only partially effective, that they would be difficult to implement and that their long term effectiveness was doubtful. (18) He recommended alternative solutions, such as creating the two new holes elsewhere. (19)

35. The expert stated in conclusion that the combined effects of the construction of the two holes on the corncrake population were liable to jeopardise its continuation at this site. In his view, this population, the only one capable of reproduction in the central Alps, would be faced with the following three dangers as a result of the extension: firstly, the reduction in size of its habitat; secondly, the destruction of and disturbance to elements of its habitat; and, thirdly, the noise caused by grass cutting and by players, the effects of which carry over a distance of up to 200 m from the fairways. (20)

36. The expert stressed that the conditions which would reduce these disturbances were complex and difficult to monitor, that they would be only partially effective and that a risk to the corncrake population would subsist that could not be considered entirely negligible. (21)

37. In answer to the question whether the project was feasible from an ecological point of view, Mr Gepp stated that that depended, in the end, on an assessment of the need to protect the corncrake. He added that, in the view of the Commission's expert, the need to do so was in the Community interest. (22)

38. In the light of these matters, it is not possible to accept the Austrian Government's line of argument that the Commission has interpreted Mr Gepp's report in an excessively pessimistic manner since, firstly, the disturbances mentioned are mere possibilities and, secondly, he did not mean that measures such as those laid down by the decision of 14 May 1999 would automatically be ineffective.

39. So far as the first of the Austrian Government's arguments is concerned, one has only to refer to the expert's report contained in the decision of 14 May 1999 to see that the expert did not suggest that the risk of serious disturbance to the corncrake population was very improbable, but in fact that it was not insignificant. Furthermore, this assessment is corroborated by the very fact that the Styrian authorities considered it necessary to lay down a number of conditions in the decision of 14 May 1999, precisely in order to prevent the risk from materialising. I therefore consider that it cannot be disputed that the assessment of the implications of the project showed that it entailed a risk, which was not insignificant, of serious disturbance to the corncrake population.

40. With regard to the second argument, we have seen that, when a project, on the basis of an assessment of its implications, appears likely to have a significant effect on the relevant SPA, the competent authorities cannot legitimately agree to its implementation without first having ascertained that it will not adversely affect the integrity of the site concerned. In this case, it is the Austrian authorities who must show that, at the time of the adoption of the decision of 14 May 1999, they could be satisfied that the measures laid down by that decision were capable of eliminating the risk apparent from Mr Gepp's report, of serious disturbance to the corncrake population. However, the Austrian authorities have clearly not demonstrated this. As I have stated above, while Mr Gepp did not categorically exclude the possibility that measures such as those laid down by the decision of 14 May 1999 might eliminate certain of the harmful effects of the extension, he did nevertheless express very clear reservations as to the actual effectiveness of these measures and stressed that they would be only partially effective. It should also be noted that he recommended that the extension be sited elsewhere. Accordingly, the Austrian authorities could not have been satisfied, in the light of the expert's report, that the measures in question would ensure the preservation of the integrity of the site were the extension to be carried out.

41. Nor does it appear from the decision of 14 May 1999 that the Austrian authorities had available to them other information which would satisfy them of this.

42. This analysis is corroborated, firstly, by Mr Lentner's report, dated 26 June 1999, regarding the value of Mr Gepp's report. It follows from Mr Lentner's report that the proposition that the measures prescribed by the decision of 14 May 1999 would enable adverse effects on the corncrake population to be avoided and would ensure its preservation is in no way supported by the Gepp report or by other ornithological reports or opinions available to the authorities. (23)

44. Finally, the inspections carried out by the Austrian authorities in 2002 on the site concerned are not relevant to the resolution of the dispute since, as I have indicated above, it is in the light of the information available to the authorities prior to the adoption of the decision of 14 May 1999 that it must be determined whether they could legitimately have been satisfied that the extension would not adversely affect the integrity of the site concerned.

45. In the light of all these factors, I consider that the action brought by the Commission against the Republic of Austria is well founded. I therefore propose that the Court should allow the Commission's application and, in accordance with Article 69(2) of the Rules of Procedure, order the Republic of Austria to bear the costs of the action.

V ─ Conclusion

46. In the light of the foregoing, I propose that the Court should:

(1) declare that, by authorising the planned extension of the golf course in the district of Wörschach, Styria (Austria), despite the adverse conclusions of an assessment of the implications for the habitat of the corncrake (crex crex) in the special protection area, within the meaning of Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, situated in that district, the Republic of Austria has failed to fulfil its obligations under Article 6(3) and (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, read in conjunction with Article 7 of this Directive;

(2) order the Republic of Austria to pay the costs.

1 – Original language: French.

2 – The corncrake is a migratory bird which is found in Europe from May to September and winters in eastern Africa. It weighs between 100 and 200 g and measures between 22 and 25 cm. It has a long neck and a short, blunt beak and its plumage is yellow, grey or brownish (Le guide ornitho, Les guides du naturaliste series, Delachaux et Niestlé, 2001).

3 – Hereinafter SPA.

4 – Directive of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, hereinafter the Birds Directive).

5 – Directive of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7, hereinafter the Habitats Directive).

6 – Directive of 25 July 1985 amending Directive 79/409 (OJ 1985 L 233, p. 33).

7 – Hereinafter the decision of 14 May 1999.

The decision of 14 May 1999 lays down the following conditions: the work on the extension is to be carried out between 1 September and 28 February (when the corncrake is not found in the affected area); the two new holes are to be used only when the vegetation to the south of the golf course, level with the paddocks, has reached a minimum height in spring of 30 to 50 cm (movement of the bird from the northern sector to the southern sector of the area); playing these holes is to be forbidden between the hours of 6.00 p.m. and 8.00 a.m. from May to the end of August (the males parade during this period at dusk, at night and at dawn); the grassed areas are to be cut only by mechanical lawnmower, a barrier of trees and hedges is to be planted to reduce noise and a 2 m high noise barrier is to be erected to the south of both tees; noise and dogs are to be banned on holes 16 and 17 and signs giving information (regarding noise nuisance) are to be erected at 50 m intervals; the holes, with the exception of the noise barriers, are to be created without earth-moving, the use of chemical fertilisers and other chemical products for the upkeep of the grassed areas is to be avoided (protection of the environment and groundwater), and a person is to be responsible for ensuring observation of the instructions regarding silence and the periods during which the holes may not be played.

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9Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13, and Case C-323/01 Commission v Italy [2002] ECR I-4711, paragraph 8. For an example involving the Habitats Directive, see Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraphs 23 to 25.

10See, in particular, Case 154/85 Commission v Italy [1987] ECR 2717, paragraph 6; Case C-287/87 Commission v Greece [1990] ECR I-125, paragraph 9; Case C-263/88 Commission v France [1990] ECR I-4611, paragraph 9; Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 35; Case C-280/89 Commission v Ireland [1992] ECR I-6185, paragraph 7; and Case C-299/01 Commission v Luxembourg [2002] ECR I-5899, paragraph 11.

11See, in particular, Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-3609, paragraph 29.

12Case C-474/99 Commission v Spain [2002] ECR I-5293, paragraph 25, and the case-law cited.

13A family unit of corncrakes, namely a male, a female and a chick, needs between 3 and 6 hectares. A female needs, before laying, an area not exceeding 3 hectares and, whilst brooding, an area not exceeding 1 hectare (decision of 14 May 1999, p. 12).

14This area does not exceed 25 hectares. According to the expert, it is sufficient to support a small corncrake population including, at the most, two or three males.

15Decision of 14 May 1999, p. 12.

16Ibid. pp. 15 and 16.

17Idem.

18Ibid., p. 22.

19Ibid., p. 23.

20Ibid., pp. 24 and 25.

21Ibid., p 25.

22Idem.

23Annex 6 to the application, p. 7.

24Annex A to the defence, p. 33.