CELEX: 62005CJ0191
Failure of a Member State to fulfil obligations
Directive 79/409/EEC
Conservation of wild birds
Special protection area
Alteration without scientific basis

1       By its application, the Commission of the European Communities asks the Court to declare that, by altering the demarcation
of the ‘Moura, Mourão, Barrancos’ Special Protection Area (‘the SPA concerned’), thereby excluding from it areas providing
a habitat for species of wild birds for whose protection that SPA was designated, the Portuguese Republic has failed to fulfil
its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979
L 103, p. 1, ‘the Directive’).
2       Article 4(1) of the Directive provides:
‘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.’
3       Following a complaint stating that the SPA concerned had been altered without any scientific basis, on 17 October 2003, the
Commission sent the Portuguese Government a letter of formal notice, to which the Portuguese authorities responded by letter
of 19 December 2003.
4       On 9 July 2004, the Commission issued a reasoned opinion to the Portuguese Government, stating that, by altering the demarcation
of the SPA concerned, thereby excluding from it areas providing a habitat for species of wild birds for whose protection that
SPA was designated, the Portuguese Republic had failed to fulfil its obligations under Article 4(1) of the Directive, and
calling on that Member State to take the measures necessary to comply with the opinion within two months of receipt thereof.
After examining the Portuguese authorities’ response of 24 February 2005 and taking the view that the situation remained unsatisfactory,
the Commission brought the present proceedings.
5       In its application, the Commission maintains that, in reducing, by Decree-Law No 141/2002 of 20 May 2002 (Diário da República
I, Series A, No 116, of 20 May 2002), the extent of the SPA concerned as defined when it was created by Decree-Law No 384-B/99
of 23 September 1999 (Diário da República I, Series A, No 223, of 29 September 1999), the Portuguese Government excluded from
protection several species of wild birds listed on the Natura 2000 Standard Data Form, which was used as a basis for creating
that SPA, although those species were to be protected under the Directive.
6       The Commission further maintains that the alteration of the boundaries of the SPA concerned has no scientific basis, which
is contrary to the requirements laid down in the Court’s case-law.
7       The Portuguese Government, for its part, recognises that, irrespective of the discretion enjoyed by the Member States, the
boundaries for SPAs must be defined in accordance with the criteria laid down in the Directive, as emphasised in the case-law
of the Court.
8       That government states that new, adequate boundaries are currently being drawn up for the SPA concerned. They will take into
account, on the one hand, the requirements for adequate protection of the species on account of which that area was designated
as an SPA, such as the crane (Grus grus), the eagle owl (Bubo bubo), the black vulture (Aegypius monachus), the booted eagle
(Hieraaetus pennatus) and the griffon vulture (Gyps fulvus), and, on the other hand, the protection necessary for steppe-land
birds in suitable areas.

Findings of the Court
9       It must be borne in mind that Article 4 of the Directive lays down a protection regime which is specifically targeted and
reinforced both for the species listed in Annex I and for migratory species, an approach justified by the fact that they are,
respectively, the most endangered species and the species constituting a common heritage of the Community (see to that effect,
Case C‑169/89
Van den Burg
[1990] ECR I-2143, paragraph 11, and Case C‑44/95
Royal Society for the Protection of Birds
[1996] ECR I‑3805, paragraphs 23 and 26).
10     It is the ornithological criteria laid down in paragraphs (1) and (2) of Article 4 which are to guide the Member States in
designating and defining the boundaries of SPAs (see, to that effect,
Royal Society for the Protection of Birds
, paragraph 26).
11     It follows from the provisions of Decree-Law No 141/2002 that the boundaries of the SPA concerned were altered on the ground
that that SPA included areas which were not important habitats for steppe-land birds.
12     However, as rightly pointed out by the Commission, although the areas excluded from the SPA concerned by that Decree-Law do
not provide a habitat for steppe-land birds, they did provide a habitat for other species of wild birds listed in Annex I
to the Directive for whose protection that SPA had been designated, namely the crane (Grus grus), the eagle owl (Bubo bubo),
the black vulture (Aegypius monachus), the booted eagle (Hieraaetus pennatus) and the griffon vulture (Gyps fulvus).
13     In those circumstances a Member State may not reduce the surface area of an SPA or alter its boundaries unless the areas excluded
from the SPA are no longer the most suitable territories for the conservation of species of wild birds within the meaning
of Article 4(1) of the Directive.
14     The Portuguese Government has not even sought to establish the existence of such a situation in this case.
15     The Commission’s action must therefore be held to be well founded.
16     In the light of the foregoing considerations, it must be held that, by altering the demarcation of the SPA concerned, thereby
excluding from it areas providing a habitat for species of wild birds for whose protection that SPA was designated, the Portuguese
Republic has failed to fulfil its obligations under Article 4(1) of the Directive.

Costs
17     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 asked that the Portuguese Republic be ordered to pay
the costs and the latter has been unsuccessful in its defence, it must be ordered to pay the costs.
On those grounds, the Court (Second Chamber) hereby:
1.
Declares that, by altering the demarcation of the ‘Moura, Mourão, Barrancos’ Special Protection Area, thereby excluding from
it areas providing a habitat for species of wild birds for whose protection that area was designated, the Portuguese Republic
has failed to fulfil its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation
of wild birds;
2.
Orders the Portuguese Republic to pay the costs.
[Signatures]
*
Language of the case: Portuguese.