CELEX: 62001CJ0324
Failure by a Member State to fulfil its obligations
Conservation of natural habitats
Wild fauna and flora
Incomplete transposition

By application lodged at the Court Registry on 28 August 2001, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by failing to take all the measures necessary to ensure the full and proper transposition
of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 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, hereinafter
the Directive), in conjunction with Annexes II, IV, V and VI thereto, the Kingdom of Belgium has failed to fulfil its obligations under
the Directive and the third paragraph of Article 249 EC.
The Directive
Article 1 of the Directive defines the main concepts used therein. Article 4(5) sets out the system which applies to priority
sites placed on the list of sites of Community importance. Article 5(4) defines the system which applies to the sites concerned
during the consultation period. Articles 6 and 7 relate to the measures necessary to ensure the protection of special areas
of conservation and special protection areas. Articles 12 and 13 concern measures of protection for animal and plant species.
Article 14 applies to the taking in the wild of specimens of species of wild fauna and flora. Article 15 prohibits certain
indiscriminate means of capture or killing of certain species of wild fauna. Article 16(1) defines the conditions in which
the Member States may, for specific purposes, derogate from certain provisions of the Directive. Article 22(b) concerns the
introduction into the wild of non-indigenous species. Article 22(c) requires Member States to promote education and information
on the need to protect species of wild fauna and flora and to conserve their habitats, and Article 23(2) requires that the
implementation measures adopted by the Member States contain a reference to the Directive or be accompanied by such reference
on the occasion of their official publication.
Article 23(1) of the Directive provides that Member States are 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 to
the Kingdom of Belgium in June 1992, the prescribed period for its implementation expired in June 1994.
Pre-litigation procedure
Since it took the view that the various measures of which it had been informed in connection with the transposition of the
Directive into Belgian law were inadequate, in particular with respect to compliance with Articles 1, 4(5), 5(4), 6, 7, 12,
13, 14, 15, 16(1), 22(b) and (c) and 23(2), the Commission gave the Kingdom of Belgium formal notice on 1 July 1999 to submit
its comments in that regard.
By letters of 27 September 1999 and 16 February 2000, the Kingdom of Belgium notified the Commission of the position of the
Flemish Region and that of the Ministre-président of the Walloon Government, respectively. The former letter reported the
progress in drawing up measures to implement the Directive, while the latter reported a series of decrees considered by the
Walloon authorities to ensure the implementation of the Directive.
Since it was of the opinion that the comments submitted by the Kingdom of Belgium in reply to its letter of formal notice
were not satisfactory, the Commission issued a reasoned opinion on 10 February 2000 in which it observed that, by failing
to take all the measures necessary to ensure the full and proper implementation of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 14,
15, 16(1), 22(b) and (c) and 23(2) of the Directive, in conjunction with Annexes II, IV, V and VI thereto, the Member State
had failed to fulfil its obligations under the Directive and under the third paragraph of Article 249 EC.
The reasoned opinion was followed by several letters from the Belgian authorities describing the steps being taken to transpose
the Directive into national law.
Since it considered that the Kingdom of Belgium had not adopted, within the period laid down in the reasoned opinion, the
measures required to comply with it, the Commission brought the present action.
Substance
First, as regards the Flemish Region, the Commission claims that the regional authorities failed to adopt the measures necessary
to ensure the transposition of all the provisions referred to in the application, with the exception of Article 22(c) of the
Directive. The Kingdom of Belgium does not dispute the Commission's complaints in that regard. It acknowledges that the measures
currently in force only partially transpose the Directive.
Secondly, with respect to the Region de Bruxelles-Capitale, the Commission maintains that the competent authorities have not
adopted the measures necessary to ensure the transposition of the second sentence in the first subparagraph of Article 6(4),
Article 7 and Article 22(c) of the Directive. The Kingdom of Belgium disputes those claims.
Finally, in its reply, the Commission withdrew its complaints against the Walloon Region.
It therefore appears that only the complaints based on the failure to transpose certain provisions of the Directive by the
Region de Bruxelles-Capitale are disputed by the Kingdom of Belgium.
Consequently, the Court need only consider the substance of those complaints.
As regards the Flemish Region, since the parties agree that the measures in force at the end of the period laid down in the
reasoned opinion do not ensure the full transposition of the provisions of the Directive set out in paragraph 1 of the present
judgment, with the exception of Article 22(c), the Commission's application must be held to be well founded, within those
limits.
Failure to transpose the second sentence in the first subparagraph of Article 6(4) of the Directive
Article 6 of the Directive defines the system which applies to special areas of conservation and sites of Community importance.
It is worded as follows:
1.
For special areas of conservation, Member States shall establish the necessary conservation measures ...
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 ...
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 ... shall be subject to appropriate assessment of its implications ...
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.
...
According to the Commission, no provision was adopted which requires the competent authorities to inform the Commission of
the compensatory measures adopted for the Region de Bruxelles-Capitale pursuant to Article 6(4) of the Directive.
The Belgian Government, which does not deny the Commission's claim, nevertheless contends that the transposition of the second
sentence of the first subparagraph of Article 6(4) of the Directive cannot be achieved by legislation.  The provision has
no normative scope since it does not create either rights or obligations for a general category of individuals.
In that respect, it should be recalled that, according to settled case-law, each of the Member States to which a directive
is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure
that the directive is fully effective, in accordance with the objective it pursues (see in particular Case C-336/97
Commission
v
Italy
[1999] ECR I-3771, paragraph 19; Case C-97/00
Commission
v
France
[2001] ECR I-2053, paragraph 9; and Case C-478/99
Commission
v
Sweden
[2002] ECR I-4147, paragraph 15).
In the present case, the second sentence of the first subparagraph of Article 6(4) of the Directive requires the Member State
to inform the Commission of the compensatory measures adopted.
The purpose of that requirement to inform is to enable the Commission to consider whether the compensatory measures adopted
are such as to ensure that the overall coherence of Natura 2000 is protected and, depending on the circumstances, to draw
the appropriate conclusions.
In the absence of a provision in national law which lays down adequate detailed rules concerning information on the compensatory
measures adopted by the Region de Bruxelles-Capitale, it is not possible to ensure that the second sentence of the first subparagraph
of Article 6(4) of the Directive has full effect and attains its objective. Uncertainty at the domestic level concerning the
procedure to be followed in order to comply with the obligation to inform is likely to hinder compliance with that obligation
and, consequently, the attainment of its objective, as recalled in paragraph 20 of the present judgment.
Therefore, the complaint alleging failure to transpose the second sentence of the first subparagraph of Article 6(4) of the
Directive is well founded.
Failure to transpose Article 7 of the Directive
Article 7 of the Directive provides that: Obligations arising under Article 6(2), (3) and (4) of this directive shall replace any obligations arising under the first
sentence of Article 4(4) of Directive 79/409/EEC 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 this Directive or the date of classification or recognition
by a Member State under Directive 79/409/EEC, where the latter date is later.
The Commission claims that the Region de Bruxelles-Capitale failed to adopt the measures necessary to ensure the implementation
of Article 7 of the Directive.
The Belgian Government does not deny that fact. However, it contends that Article 7 need not be transposed into national law.
The absence of transposition is merely the consequence of the fact that the Region de Bruxelles-Capitale does not consider
it necessary to implement Article 6 in national law.
It should be recalled that Article 7 of the Directive provides that the system for protecting special areas of conservation
defined in Article 6(2), (3) and (4) of the Directive is to replace the system of protection arising from the first sentence
of Article 4(4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) as
regards the special protected areas created pursuant to that directive.
However, in the absence of any national measure requiring the application to special protected areas created pursuant to Directive
79/409 of the system of protection for special areas of conservation defined in Article 6(2), (3) and (4) of the Directive,
the attainment of the objective set out in Article 7 cannot be satisfactorily ensured. In order to ensure the full application
of that provision in law and not only in fact and to satisfy the requirement of legal certainty, the Member States must provide
a precise legal framework for the field in question (see, to that effect, Case C-360/87
Commission
v
Italy
[1991] ECR I-791, paragraphs 11 and 13).
It follows that the complaint relating to failure to transpose Article 7 of the Directive is well founded.
Failure to transpose Article 22(c) of the Directive
Article 22 of the Directive provides: In implementing the provisions of this Directive, Member States shall:...
(c)
promote education and general information on the need to protect species of wild fauna and flora and to conserve their habitats
and natural habitats.
The Commission maintains that the Region de Bruxelles-Capitale did not notify it of any laws, regulations or administrative
provisions that would form the basis for the implementation of Article 22(c) of the Directive.
The Belgian Government states that the Region de Bruxelles-Capitale has complied with the obligations arising from Article
22(c) of the Directive through various agreements financing nature education programmes.
In that regard, it should be observed that Article 22(c) of the Directive requires Member States to promote education and
general information on the need to protect species of wild fauna and flora and to conserve their habitats and natural habitats.
However, while the Belgian authorities maintain that they guarantee the financing of nature-related education programmes and
that agreements to that effect have been concluded with the bodies concerned, no measure which is likely to ensure the implementation
of Article 22(c) of the Directive in the Region de Bruxelles-Capitale has been notified to the Commission.
In those circumstances, the complaint alleging failure to transpose Article 22(c) of the Directive must be held to be well
founded.
Accordingly, it must be held that, by failing to adopt all the laws, regulations and administrative measures necessary to
ensure the full and proper transposition of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 14, 15, 16(1), 22(b) and (c) and 23(2) of
the Directive, in conjunction with Annexes II, IV, V and VI thereto, the Kingdom of Belgium 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 they have been
applied for in the successful party's pleadings. Since the Commission has asked that the Kingdom of Belgium be ordered to
pay the costs and the latter has been essentially unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1.
Declares that by failing to adopt all the laws, regulations and administrative measures necessary to ensure the full and proper
transposition of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 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, in conjunction with Annexes II, IV, V
and VI thereto, the Kingdom of Belgium has failed to fulfil its obligations under the Directive;
2.
Orders the Kingdom of Belgium to pay the costs.
Puissochet
Gulmann
Macken
Colneric
Cunha Rodrigues
Delivered in open court in Luxembourg on 5 December 2002.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: French.