CELEX: 62001CJ0415
Failure by a Member State to fulfil its obligations
Conservation of wild birds
Special protection areas

By application lodged at the Court Registry on 19 October 2001, as amended by the reply, the Commission of the European Communities
brought an action under Article 226 EC for a declaration that, in so far as the Région flamande (Flemish Region) has failed
to transpose Article 4(1) and (2) of and Annex I to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild
birds (OJ 1979 L 103, p. 1, hereinafter
the directive on birds), to demarcate special protection areas (hereinafter
SPAs) within its territory capable of being relied upon as against third parties, and to adopt the measures necessary to ensure
that the classification of a site as an SPA automatically and simultaneously entails the application of a system of protection
and conservation complying with Community law, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1)
and (2) of the directive on birds and Article 4(4) of that directive, as partially amended, in accordance with Article 7 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, hereinafter
the directive on habitats), by Article 6(2) to (4) of the latter directive.
Legal framework
Article 4(1), (2) and (4) of the directive on birds provides:
1.
The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to
ensure their survival and reproduction in their area of distribution.
In this connection, account shall be taken of:
(a)
species in danger of extinction;
(b)
species vulnerable to specific changes in their habitat;
(c)
species considered rare because of small populations or restricted local distribution;
(d)
other species requiring particular attention for reasons of the specific nature of their habitat.
Trends and variations in population levels shall be taken into account as a background for evaluations.Member States shall classify in particular the most suitable territories in number and size as special protection areas for
the conservation of these species, taking into account their protection requirements in the geographical sea and land area
where this directive applies.
2.
Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind
their need for protection in the geographical sea and land area where this directive applies, as regards their breeding, moulting
and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention
to the protection of wetlands and particularly to wetlands of international importance.
...
4.
In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to
avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant
having regard to the objectives of this article. Outside these protection areas, Member States shall also strive to avoid
pollution or deterioration of habitats.
Article 6(2) to (4) of the directive on habitats provides:
2.
Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats
and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such
disturbance could be significant in relation to the objectives of this directive.
3.
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.
4.
If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan
or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social
or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of
Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may
be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment
or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.
Under Article 7 of the directive on habitats, obligations arising under Article 6(2), (3) and (4) thereof are to replace any
obligations arising under the first sentence of Article 4(4) of the directive on birds in respect of areas classified pursuant
to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of the directive on
habitats or the date of classification or recognition by a Member State under the directive on birds, where the latter date
is later.
Member States were required under Article 23(1) of the directive on habitats to bring into force the laws, regulations and
administrative provisions necessary to comply with the directive within two years of its notification. Since the directive
was notified in June 1992, that period expired in June 1994.
Pre-litigation procedure
By a letter of formal notice sent to the Belgian Government on 4 April 2000, the Commission stated among other things that,
according to its information, it appeared that the Région flamande had failed to transpose Article 4(1) and (2) of and Annex
I to the directive on birds, to demarcate SPAs within its territory capable of being relied upon as against third parties,
and to adopt the measures necessary to ensure that the classification of a site as an SPA automatically and simultaneously
entails the application of a system of protection and conservation complying with Community law, and that, therefore, the
Kingdom of Belgium had failed to fulfil its obligations under Article 4(1) and (2) of the directive on birds and Article 4(4),
as partially amended, of that directive in accordance with Article 7 of the directive on habitats, by Article 6(2) to (4)
of the latter directive.
Since it received no reply to that letter, the Commission, by letter of 19 July 2000, sent the Kingdom of Belgium a reasoned
opinion repeating the complaints set out in the formal notice and requesting it to take the measures necessary to comply with
that reasoned opinion within a period of two months from the date of its notification.
By letter of 6 October 2000, the Belgian Government forwarded to the Commission a reply from the Région flamande to the reasoned
opinion.
Since it considered, in particular, that that reply did not enable it to conclude that the Kingdom of Belgium had adopted
the measures necessary to put an end to the alleged default, the Commission decided to bring this action before the Court.
The action
The alleged failure to transpose Article 4(1) and (2) of and Annex I to the directive on birds
The Commission claims that no legally binding provision applying to the territory of the Région flamande requires the classification
as SPAs of the most appropriate areas in terms of number and surface area for the conservation of the bird species listed
in Annex I to the directive on birds and of the regularly occurring migratory species not listed in Annex I.  Therefore, Article
4(1) and (2) of that directive have not been fully transposed.
The Belgian Government, whilst maintaining that Article 4(1) and (2) of the directive on birds has been partially transposed,
does not dispute that complaint.
The action must therefore be upheld on that point.
The alleged lack of a system of protection of SPAs
The Commission points out the lack of any provision applying to the Région flamande which automatically links the classification
of a site as an SPA to the application of the system of protection and conservation provided for by Community law in that
respect.
While, on the one hand, the Belgian Government observes that there already exist, in the Région flamande, certain general
and sectorial protection measures which affect SPAs, it recognises, on the other hand, that no provision applying to that
region provides that the classification of a site as an SPA is automatically accompanied by the application to that site of
the system of protection established by the directive on birds.
In that regard, it must be borne in mind that, according to the Court's case-law, Article 4(1) and (2) of the directive on
birds requires the Member States to provide SPAs with a legal protection regime that is capable, in particular, of ensuring
both the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering
of migratory species not listed in that annex which are regular visitors (see Case C-166/97
Commission
v
France
[1999] ECR I-1719, paragraph 21).
Since Article 7 of the directive on habitats provides that the obligations which arise, among others, under Article 6(2) of
that directive are to replace those arising under the first sentence of Article 4(4) of the directive on birds in respect
of SPAs, the legal status of protection of those areas must also guarantee the avoidance therein of the deterioration of natural
habitats and the habitats of species as well as significant disturbance of the species for which those areas have been designated.
The absence of any provision applying to the Région flamande linking the classification of a site as an SPA to the application
of a status of protection such as that described in paragraphs 15 and 16 of this judgment undermines the objective of special
protection for wild bird life set out in Article 4 of the directive on birds (see, in particular,  Case C-374/98
Commission
v
France
[2000] ECR I-10799, paragraph 55).
Accordingly, the action must be upheld on that point.
The alleged unenforceability as against third parties of the demarcation of SPAs
The Commission claims that the directive on birds has not been properly transposed on the ground that the maps demarcating
the SPAs in the Région flamande do not have binding force with regard to third parties and cannot, therefore, be relied upon
as against them.  In Belgian law, measures adopted by the regional authorities must be published in the
Moniteur belge
in order to have binding force.  Only such publication creates, as regards citizens, an irrebuttable presumption of their
awareness of the measures adopted and ensures, thereby, that they are enforceable against third parties.  The maps demarcating
the SPAs in the Région flamande have not been published in the
Moniteur belge
.  They have simply been lodged in municipal offices to enable the population to become acquainted with them.
The Kingdom of Belgium submits that the question of the binding force of the maps demarcating the SPAs is a matter for the
domestic law of the Member States.  They enjoy a broad discretion in determining the manner in which they ensure the binding
force of measures transposing directives.  The fact that, under Belgian law, publication in the
Moniteur belge
is the general rule does not prevent, in particular cases, the possibility of choosing another method of publication, on
condition that all citizens may effectively become acquainted with the legislation in question.  The Cour de cassation (Court
of Cassation, Belgium) has accepted that principle concerning publication of regional and area plans in the context of town
and country planning.  The Belgian Government maintains that the deposit at the relevant municipal offices of the maps on
which the SPAs are demarcated, as prescribed by Article 3 of the Arrêté de l'exécutif flamand (Order of the Flemish Executive)
of 17 October 1988 on the designation of special protection zones for the purposes of Article 4 of the directive on birds
(
Moniteur belge
of 29 October 1988, p. 15068),  constitutes, in this case, a sufficient method of publication, given that those concerned
have a real possibility of becoming acquainted with those maps.  Nevertheless, an amendment of the Décret de la Communauté
flamande (Decree of the Flemish Community) of 21 October 1997 concerning nature conservation and the natural environment (
Moniteur belge
of 10 January 1998, p. 599), is being prepared in order for the maps demarcating the SPAs to be published in the
Moniteur belge
.
In that regard, it is important to recall that, according to consistent case-law, the provisions of directives must be implemented
with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal
certainty (see, in particular, Case C-159/99
Commission
v
Italy
[2001] ECR I-4007, paragraph 32).  The principle of legal certainty requires appropriate publicity for the national measures
adopted pursuant to Community rules in such a way as to enable the persons concerned by such measures to ascertain the scope
of their rights and obligations in the particular area governed by Community law (see Case C-313/99
Mulligan and Others
[2002] ECR I-5719, paragraphs 51 and 52).
With regard to maps demarcating SPAs, they must be invested with unquestionable binding force.  If not, the boundaries of
SPAs could be challenged at any time.  Also, there would be a risk that the objective of protection under Article 4 of the
directive on birds mentioned at paragraph 17 of this judgment would not be fully attained.
In the reply to the reasoned opinion, it is admitted that, in principle, only publication of a measure in the
Moniteur belge
ensures an irrebuttable presumption of awareness of that measure by third parties.  The fact that the Cour de cassation has
accepted, in the context of town and country planning, the binding nature of  regional and area plans, although they have
been published otherwise than in the
Moniteur belge
, does not, in this case, show that the same applies to maps demarcating SPAs in the Région flamande, which, according to
the amendment referred to in paragraph 20 of this judgment, will in any case have to be published in the
Moniteur belge
.
Even assuming that a rebuttable presumption of awareness of a measure could, as maintained in the reply to the reasoned opinion,
arise from a method of publication other than entire publication in the
Moniteur belge
, it must be pointed out that maps demarcating SPAs with the benefit of such a presumption do not appear to have unquestionable
binding force.
It follows that the action is also well founded on that point.
Having regard to the foregoing, it must be held that, in so far as the Région flamande has failed to transpose Article 4(1)
and (2) of and Annex I to the directive on birds, to demarcate SPAs within its territory capable of being relied upon as against
third parties, and to adopt the measures necessary to ensure that the classification of a site as an SPA automatically and
simultaneously entails the application of a system of protection and conservation complying with Community law, the Kingdom
of Belgium has failed to fulfil its obligations under Article 4(1) and (2) of the directive on birds and the first sentence
of Article 4(4) thereof, as amended, in accordance with Article 7 of the directive on habitats, by Article 6(2) to (4) of
the latter directive.
Costs
Under Article 69(2) of the Rules of Procedure, 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 Kingdom of Belgium has
been essentially unsuccessful, the latter must be ordered to pay the costs.
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1.
Declares that, in so far as the Région flamande has failed to transpose Article 4(1) and (2) of and Annex I to Council Directive
79/409/EEC of 2 April 1979 on the conservation of wild birds, to demarcate special protection areas within its territory capable
of being relied upon as against third parties, and to adopt the measures necessary to ensure that the classification of a
site as a special protection area automatically and simultaneously entails the application of a system of protection and conservation
complying with Community law, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) and (2) of Directive
79/409 and the first sentence of Article 4(4) thereof, as amended, in accordance with Article 7 of Council Directive 92/43/EEC
of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, by Article 6(2) to (4) of the latter directive;
2.
Orders the Kingdom of Belgium to pay the costs.
Puissochet
Schintgen
Gulmann
Macken
Cunha Rodrigues
Delivered in open court in Luxembourg on 27 February 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: French.