CELEX: 62001CJ0434
Failure of a Member State to fulfil obligations
Directive 92/43/EEC
Conservation of natural habitats
Wild fauna and flora

By application lodged at the Court Registry on 9 November 2001, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by not ensuring the observance in its territory of Articles 12 and 16 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), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.
Legal background
Community legislation
According to Article 2(1) of the Directive, its aim is
to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the
European territory of the Member States to which the Treaty applies.
Article 12(1) of the 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.
The Great crested newt (
triturus cristatus
) is one of the species specified in Annex IV(a).
Article 16(1)(a) and (c) of the Directive provide: 1. 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):
(a)
in the interest of protecting wild fauna and flora and conserving natural habitats;
...
(c)
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
.
National legislation
Articles 12 and 16 of the Directive were, essentially, transposed in the United Kingdom by the Conservation (Natural Habitats,
&c.) Regulations 1994.
Regulation 39(1) makes it an offence deliberately to capture, kill or disturb a wild animal of a species protected at European
level, or to take or destroy its eggs, or deliberately to damage or destroy its breeding sites or resting places.
Regulation 44 enables the appropriate authority to license, for specific purposes, derogations concerning species protected
at European level. Under paragraph 2 thereof, such purposes include: ...
(c)
conserving wild animals or wild plants or introducing them to particular areas;
...
(e)
preserving public health or public safety or other imperative reasons of overriding public interest including those of a social
or economic nature and beneficial consequences of primary importance for the environment;
...
Regulation 44(3) supplements that provision by requiring that the appropriate authority is not to grant a licence thereunder
unless it is satisfied that there is no satisfactory alternative and that the action authorised will not be detrimental to
the maintenance of the population of the species concerned at a favourable conservation status in their natural range.
The appropriate authorities to grant licences under Regulations 4 and 44(4) are the appropriate nature conservation bodies,
namely, the Nature Conservancy Council for England, the Countryside Council for Wales and the Scottish Natural Heritage for
the cases referred to in Regulation 44(2)(a) to (d), and the Minister for Agriculture for the cases referred to in subparagraphs
(e) to (g).
Background to the case
On being informed that populations of Great crested newts were being subjected to disturbances on the sites at Broughton Park,
Pontblyddyn and Connah's Quay in Flintshire, Wales, the Commission, after obtaining clarifications from the United Kingdom
authorities, sent the United Kingdom a letter of formal notice on 28 April 1999 in which it maintained that the national authorities
were granting derogations from the system of strict protection of protected species in breach of Articles 12 and 16 of the
Directive. In that letter, the Commission pointed out that the disturbances of populations of Great crested newts occupying
a site of actual or potential development which had been authorised by the appropriate nature conservation agency involved
a translocation of those populations.
The United Kingdom authorities replied by letter of 12 August 1999.
In reply to the Commission's request for clarification of certain matters the United Kingdom Government intimated, by letter
of 3 April 2000, that national law required planning authorities to take account of the Directive in the exercise of their
powers. When an application for planning permission is submitted and the planning authority is informed of the presence of
a protected species on a site the development of which is envisaged, it is bound to take that fact into consideration in determining
such an application. When a developer submits an application for planning permission with a view to a development which may
affect a protected species, two outcomes are possible: either the application is refused by the planning authority, or it
is accepted subject to certain specific conditions ensuring the protection of the species in question. In the latter case,
the developer must take account of the requirements of Articles 12 and 16 of the Directive and whether he needs to apply for
a licence under Regulation 44.
By letter of 2 February 2001, the Commission issued a reasoned opinion in which it maintained the arguments set out in the
letter of formal notice and declared that, by not ensuring the observance in its territory of Articles 12 and 16 of the Directive,
the United Kingdom had failed to fulfil its obligations thereunder. The United Kingdom was requested to take the measures
necessary to comply with the reasoned opinion within 2 months of its notification.
The United Kingdom replied by letter of 15 May 2001.
Since it considered that that reply did not enable it to conclude that the United Kingdom had terminated the failure, the
Commission decided to bring this action before the Court.
The action
The Commission, which reduced, in its reply, the subject-matter of the action, maintains that the United Kingdom has failed
to put in place a system guaranteeing that, if planning permission is granted to develop sites on which live protected species,
such as the Great crested newt, the appropriate authorities comply with the conditions laid down in Article 16(1)(c) of the
Directive for the grant of a derogation.
Arguments of the parties
According to the Commission, the criteria applied by local planning authorities in granting planning permission are not as
rigorous as those laid down in Article 16(1)(c) of the Directive. They are obliged to observe only a general requirement to
take account of the presence of protected species, such presence being described as
a factor to be taken into consideration for the purposes of town and country planning at national level. In particular, they are not legally required to enquire
as to satisfactory solutions other than the proposed project or to check that the said project serves one of the purposes
defined in that provision.
The Commission argues that, in practice, planning permission for development is most often granted before the application
for a licence is made. Once the planning authority has decided to grant planning permission, the appropriate nature conservation
agency or the Minister for Agriculture, in deciding whether to grant a licence, is no longer really in a position to establish,
in accordance with Article 16(1) of the Directive, that there is no satisfactory alternative to the proposed development or
that the development is really justified for reasons of overriding public interest within the meaning of Article 16(1)(c).
In fact, those central authorities depend, in determining whether the two conditions in question are fulfilled, on information
supplied to them by the relevant local planning authorities, which have considered the development proposals at the planning
stage.
The United Kingdom Government points out that none of the appropriate central authorities may grant a licence unless it is
satisfied that it falls within one of the grounds set out in Article 16(1)(a) to (e) of the Directive and that the two conditions
in Article 16(1) are met. For that purpose, the appropriate authority must itself carry out an independent assessment of the
relevant information and considerations, even if planning permission has already been granted by the local planning authority.
While, as a general rule, it is true that the factual information in the possession of the planning authorities is the principal
source of factual information available to the central authorities, where it appears to those authorities that the information
supplied to them needs to be supplemented or more detailed, they have the power to suspend the grant of a licence until they
are convinced that the information required to enable them to take a decision is available to them.
Findings of the Court
It is settled case-law that, in proceedings for failure to fulfil an obligation, it is incumbent upon the Commission to prove
the allegation that the obligation has not been fulfilled. It is the Commission's responsibility to provide the Court with
the evidence necessary to enable it to establish that the obligation has not been fulfilled and, in so doing, the Commission
may not rely on any presumption (see, for example, Case 96/81
Commission
v
Netherlands
[1982] ECR 1791, paragraph 6, and Case C-404/00
Commission
v
Spain
[2003] ECR I-6695, paragraph 26).
Thus, in the context of this action, it is incumbent upon the Commission to adduce evidence that the practice followed in
the United Kingdom which is in question in these proceedings adversely affects the system of strict protection of the animal
species listed in Annex IV(a) to the Directive, as laid down by Article 12(1) thereof, on the ground that derogations from
that system are not granted in compliance with the conditions laid down in Article 16(1)(c) of the Directive.
In support of that argument, the Commission relies on a letter of 25 October 2000 sent by the Department of Environment, Transport
and the Regions to a complainant. In that letter it is stated that the appropriate authority, when it is a matter of granting
a derogation from the system of strict protection, takes into account the fact that the local authorities have decided to
permit the development. However, in the following passage of that letter, it is stated that the final administrative decision
concerning the derogation in question is taken by the appropriate authority which is responsible for the observance of the
conditions set out in Regulation 44.
It is not disputed that Regulation 44 transposes Article 16 of the Directive properly into national law.
In the circumstances of this case, it must be observed that it is not clear from the letter of 25 October 2000 that the central
authorities grant derogations from the system of strict protection laid down in Article 12(1) of the Directive without ascertaining
whether the conditions of Article 16(1)(c) thereof are fulfilled. Nor does that appear from any other evidence in the file.
In addition, the simple fact that two authorities are called on in turn to assess the same facts does not, of itself, mean
that assessments made by the second authority systematically follow those of the first, especially as, in this case, in contrast
to local authorities which are simply required to take the principles of the Directive into consideration, the central authorities
are themselves required to apply the strict conditions of Regulation 44.
Since, therefore, the Commission has not proved that the United Kingdom has failed to fulfil its obligations under the Directive,
this action must be dismissed.
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 United Kingdom of Great Britain and Northern Ireland has applied
for costs and the Commission has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders the Commission of the European Communities to pay the costs.
Puissochet
Gulmann
Macken
Colneric
Cunha Rodrigues
Delivered in open court in Luxembourg on 6 November 2003.
R. Grass
V. Skouris
Registrar
President
–
Language of the case: English.