CELEX: 62001CJ0075
Failure by a Member State to fulfil its obligations
Directive 92/43/EEC
Conservation of natural habitats
Wild fauna and flora

By application lodged at the Court Registry on 14 February 2001, the Commission of the European Communities brought an action
pursuant to Article 226 EC for a declaration that, by failing to take all the necessary measures to implement fully and correctly
Articles 1, 4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b) and 13(2), 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 I, II, IV, V and VI to that directive, the Grand Duchy of Luxembourg has failed to fulfil its
obligations under the Directive and under the third paragraph of Article 249 EC.
The Directive
Article 1 of the Directive defines the principal terms used. In particular, Article 1(m) defines specimen as
any animal or plant, whether alive or dead, of the species listed in Annex IV and Annex V, any part or derivative thereof,
as well as any other goods which appear, from an accompanying document, the packaging or a mark or label, or from any other
circumstances, to be parts or derivatives of animals or plants of those species.
Article 4 of the Directive establishes a procedure in several stages for designating as special areas of conservation (
SACs) sites which host the species and habitats protected by the Directive. Under Article 4(1), each Member State must propose
a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory
the sites host. The list must be sent to the Commission, together with information on each site, within three years of notification
of the Directive.
Under Article 4(5) of the Directive, once a site is placed on the list of sites of Community importance drawn up by the Commission
it falls subject to the provisions of Article 6(2), (3) and (4).
Article 5(1) and (4) of the Directive provides:
1.
In exceptional cases where the Commission finds that a national list as referred to in Article 4(1) fails to mention a site
hosting a priority natural habitat type or priority species which, on the basis of relevant and reliable scientific information,
it considers to be essential for the maintenance of that priority natural habitat type or for the survival of that priority
species, a bilateral consultation procedure shall be initiated between that Member State and the Commission for the purpose
of comparing the scientific data used by each.
...
4.
During the consultation period and pending a Council decision, the site concerned shall be subject to Article 6(2).
Article 6 of the Directive provides:
1.
For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be,
appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate
statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types
in Annex I and the species in Annex II present on the sites.
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,
[o]bligations 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.
Under Article 11 of the Directive,
Member States shall undertake surveillance of the conservation status of the natural habitats and species referred to in Article
2 with particular regard to priority natural habitat types and priority species.
Article 12(1)(b) and (c), (2) and (4) of the Directive reads as follows:
1.
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:
...
(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;
...
2.
For these species, Member States shall prohibit the keeping, transport and sale or exchange, and offering for sale or exchange,
of specimens taken from the wild, except for those taken legally before this directive is implemented.
...
4.
Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in Annex
IV (a). In the light of the information gathered, Member States shall take further research or conservation measures as required
to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.
Article 13(1)(b) and (2) provides:
1.
Member States shall take the requisite measures to establish a system of strict protection for the plant species listed in
Annex IV (b), prohibiting:
...
(b)
the keeping, transport and sale or exchange and offering for sale or exchange of specimens of such species taken in the wild,
except for those taken legally before this directive is implemented.
2.
The prohibitions referred to in paragraph 1(a) and (b) shall apply to all stages of the biological cycle of the plants to
which this Article applies.
Article 14 of the Directive provides:
1.
If, in the light of the surveillance provided for in Article 11, Member States deem it necessary, they shall take measures
to ensure that the taking in the wild of specimens of species of wild fauna and flora listed in Annex V as well as their exploitation
is compatible with their being maintained at a favourable conservation status.
2.
Where such measures are deemed necessary, they shall include continuation of the surveillance provided for in Article 11.
Such measures may also include in particular:
─
regulations regarding access to certain property,
─
temporary or local prohibition of the taking of specimens in the wild and exploitation of certain populations,
─
regulation of the periods and/or methods of taking specimens,
─
application, when specimens are taken, of hunting and fishing rules which take account of the conservation of such populations,
─
establishment of a system of licences for taking specimens or of quotas,
─
regulation of the purchase, sale, offering for sale, keeping for sale or transport for sale of specimens,
─
breeding in captivity of animal species as well as artificial propagation of plant species, under strictly controlled conditions,
with a view to reducing the taking of specimens [in] the wild,
─
assessment of the effect of the measures adopted.
Article 15 of the Directive reads as follows: In respect of the capture or killing of species of wild fauna listed in Annex V (a) and in cases where, in accordance with
Article 16, derogations are applied to the taking, capture or killing of species listed in Annex IV (a), Member States shall
prohibit the use of all indiscriminate means capable of causing local disappearance of, or serious disturbance to, populations
of such species, and in particular:
(a)
use of the means of capture and killing listed in Annex VI (a);
(b)
any form of capture and killing from the modes of transport referred to in Annex VI (b).
Article 16(1) of the Directive provides: 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;
(b)
to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;
(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;
(d)
for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations
necessary for these purposes, including the artificial propagation of plants;
(e)
to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain
specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.
Article 22(b) and (c) of the Directive provides: In implementing the provisions of this directive, Member States shall:...
(b)
ensure that the deliberate introduction into the wild of any species which is not native to their territory is regulated so
as not to prejudice natural habitats within their natural range or the wild native fauna and flora and, if they consider it
necessary, prohibit such introduction. The results of the assessment undertaken shall be forwarded to the committee for information;
(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.
Under Article 23(2) of the Directive, the laws, regulations and administrative provisions which the Member States must adopt
in order to comply with the Directive must contain a reference to the Directive or be accompanied by such reference on the
occasion of their official publication.
The pre-litigation procedure
On 29 April 1999, having concluded that the various measures transposing the Directive into Luxembourg law communicated to
it failed to conform to Articles 1, 4, 5, 6, 7, 8, 12, 13, 14, 15, 16, 18, 22 and 23 of the Directive, the Commission gave
the Grand Duchy of Luxembourg formal notice to submit its observations.
In his letter of reply of 13 July 1999, addressed to the Commission (
the letter of reply) the Minister for the Environment of the Grand Duchy of Luxembourg stated that various national laws and regulations could
help to attain certain of the Directive's objectives and that the Law of 21 May 1999 on regional planning (
Mémorial
A 1999, p. 1402, hereinafter
the Regional Planning Law), the draft Grand-Ducal regulation on biodiversity and the Law of 11 August 1982 on the protection of nature and natural
resources (
Mémorial
A 1999, p. 1486, hereinafter
the Nature Protection Law) would shortly ensure that the Directive's objectives were fully met. The letter also expressly disputed certain of the Commission's
complaints.
The Commission was not satisfied by the observations submitted to it by the Grand Duchy of Luxembourg in its letter of reply
and on 21 January 2000 issued a reasoned opinion in which it observed that, by failing to take all the necessary measures
to implement fully and correctly Articles 1, 4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b) and 13(2), 14, 15,
16(1), 22(b) and (c), and 23(2) of the Directive in conjunction with Annexes I, II, IV, V and VI to the Directive, the Grand
Duchy of Luxembourg had failed to fulfil its obligations under the Directive and under the third paragraph of Article 249
EC. The Commission therefore called upon the Grand Duchy to adopted the measures required to comply with the reasoned opinion
within two months of its notification.
By letter of 6 April 2000, the Luxembourg authorities acknowledged that, in order to transpose the Directive into national
law, it would be necessary to supplement or amend its existing legislation.
Finding that the Grand Duchy of Luxembourg had failed to adopt the necessary measures to comply with the reasoned opinion
within the time specified therein, the Commission brought the present action.
The action
In its defence the Luxembourg Government merely indicates that a draft law transposing the Directive was approved by the government
in council on 23 February 2001 and asks the Court to dismiss the action.
Incomplete transposition of Article 1 of the Directive
The Commission points out that, in its letter of formal notice, it observed that there were no provisions of Luxembourg law
that had as their object or effect the correct, complete and precise transposition of the definitions set out in Article 1
of the Directive and that the Luxembourg authorities did not dispute that complaint in the letter of reply.
On this point, it should be borne in mind that the letter of reply stated that the Article 1 definitions were to be included
in a sectoral plan provided for by the Regional Planning Law.
However, it appears that no such measure was adopted within the period of time specified in the reasoned opinion.
The complaint of incomplete transposition of Article 1 of the Directive must therefore be regarded as well founded.
Failure to transpose Article 4(5) of the Directive
According to the Commission, the transposing provisions notified by the Luxembourg authorities do not have the object or effect
of transposing Article 4(5) of the Directive. Thus, sites of Community importance are not automatically brought within the
protection regime provided for in Article 6(2), (3) and (4) of the Directive. The letter of reply disputes this complaint
but only to the extent that the Commission charged the Grand Duchy of Luxembourg with having failed to put in place a system
for applying the protection regime provided for in Article 6(2) to sites of Community importance.
It is important to bear in mind that, according to the letter of reply, the administrative practice in Luxembourg of refusing
the necessary authorisation for certain projects falling within the scope of the Nature Protection Law is an appropriate means
of ensuring that the nuisances mentioned in Article 6(2) of the Directive do not occur on the sites referred to in Article
4(5). The Luxembourg Government has, however, acknowledged its failure as regards application of Article 6(3) and (4) of the
Directive to sites of Community importance.
Now, according to the settled case-law of the Court of Justice relating to the obligations incumbent upon Member States in
the transposition of Community directives, mere administrative practices, which by their nature are alterable at will by the
authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations
arising under the EC Treaty (see, in particular, Case C-159/99
Commission
v
Italy
[2001] ECR I-4007, paragraph 32, and Case C-394/00
Commission
v
Ireland
[2002] ECR I-581, paragraph 11).
Given the foregoing, the Commission's complaint of failure to transpose Article 4(5) of the Directive must be upheld.
Failure to transpose Article 5(4) of the Directive
The Commission argues that no laws in Luxembourg make the sites referred to in Article 5(4) of the Directive subject to the
protection regime provided for by Article 6(2). The Luxembourg authorities dispute this complaint in the letter of reply.
As is clear from the letter of reply, the Luxembourg Government maintains, in essence, that the administrative practice of
refusing the necessary authorisation for certain projects falling within the scope of the Nature Protection Law is an appropriate
means of ensuring that the nuisances mentioned in Article 6(2) of the Directive do not occur on the sites referred to in Article
5(4).
However, having regard to the case-law of the Court mentioned in paragraph 28 of the present judgment, that argument must
be rejected.
It is also submitted in the letter of reply that the Grand Duchy of Luxembourg has, in any event, probably already included
in the list sent to the Commission pursuant to Article 4(1) of the Directive all the sites within its territory which are
essential to maintaining certain types of habitat present in its territory and that, consequently, there would be no need
to have recourse to the procedure laid down in Article 5(4) of the Directive.
That submission cannot be upheld either because, in any event, it cannot be ruled out that the Commission might find, pursuant
to Article 5(1) of the Directive, that the list sent by the Grand Duchy of Luxembourg omits a site which it regards as essential
to the preservation of a given priority natural habitat type or the survival of a given priority species and that the bilateral
consultation procedure will therefore have to be initiated, during the currency of which the site in question will, in accordance
with Article 5(4), have to be made subject to the protection regime laid down in Article 6(2).
Consequently, the complaint of failure to transpose Article 5(4) of the Directive must be regarded as well founded.
Failure to transpose Article 6 of the Directive
Article 6(1) of the Directive
The Commission complains that the Grand Duchy of Luxembourg has failed to transpose this provision.
In the letter of reply, the Luxembourg Government acknowledged that failure.
The complaint of non-transposition of Article 6(1) of the Directive must therefore be upheld.
Article 6(2) of the Directive
The Commission observes that, subject to exceptional ministerial derogation based on public interest, Article 14 of the Nature
Protection Law prohibits the reduction, destruction or modification of certain types of biotope. A provision such as that,
however, does not appear adequate to ensure that all habitats falling within SACs benefit from the protection provided for.
The Commission also emphasises that the provisions of the Nature Protection Law envisage only certain types of disturbance.
In particular, under Article 12 it is possible to prevent only certain types of disturbance in forests. There is therefore
a lack of any general measure, binding upon third parties, making it possible to prevent, in SACs, disturbance of species
which could have a significant effect on those species, in relation to the objectives of the Directive. The Commission also
points out that, in the letter of reply, infringement of this aspect of the Directive is expressly disputed.
It is submitted in the letter of reply that Article 14 of the Nature Protection Law protects all biotopes, including those
forming part of an SAC and that it is incorrect to say that this law contemplates only certain types of disturbance: Article
23, which has a general scope, prohibits disturbance of fauna and Articles 21 and 22 prohibit any kind of unjustified exploitation,
use, mutilation or destruction of wild plants and animals that are not protected by means of a more stringent set of national
rules. Moreover, the Nature Protection Law is backed by a ministerial circular, whose very purpose is to transpose the Directive,
and this states that any degradation of habitats and disturbance of protected species must be avoided by means of rigorous
application of the Nature Protection Law.
It should be borne in mind that, subject to exceptional ministerial derogation based on public interest, Article 14 of the
Nature Protection Law prohibits the reduction, destruction or modification of biotopes such as ponds, fens, marshlands, land
covered in reeds and rushes, hedgerows, scrub and groves.
A provision such as that, which makes express reference to certain types of biotope only does not appear to be capable of
ensuring, as is required by Article 6(2) of the Directive, that all natural habitats and habitats of species found within
SACs are protected against acts liable to deteriorate them.
In so far as concerns protection against deterioration, as provided for by Article 6(2) of the Directive, it is plain that,
whilst certain provisions of the Nature Protection Law pleaded in the present case, and in particular Articles 12 and 23,
may contribute to the prevention of certain types of disturbance, the fact remains that they are incapable of completely transposing
Article 6(2) of the Directive because they do not cover all types of disturbance that are significant in relation to the objectives
of the Directive of the species for which the SACs are designated.
As regards the ministerial circular to which the Luxembourg Government refers, it must be held that, in light of the case-law
mentioned in paragraph 28 of the present judgment, it is not capable of ensuring proper transposition of Article 6(2).
It follows that the complaint of incomplete transposition of Article 6(2) of the Directive must be regarded as well founded.
Article 6(3) and (4) of the Directive
The Commission maintains that the Luxembourg legislation sent to it contains no provision for an assessment to be carried
out of the effects on protected sites in all the cases mentioned in Article 6(3) of the Directive. Furthermore, Luxembourg
law fails to ensure that projects and plans are approved by the competent authority only after the authority has satisfied
itself that the project or plan will not compromise the integrity of the site in question. As far as Article 6(4) of the Directive
is concerned, the Commission argues that no provision of national law requires that alternative solutions be pursued before
approval is given to projects regarded as having an adverse effect on protected sites. Luxembourg law also fails to provide
for the adoption of compensatory measures where such projects are authorised.
It is appropriate to observe that these complaints were already formulated in the same terms in the letter of formal notice
and that, in the letter of reply, the Luxembourg Government acknowledged that the existing provisions of national law were
inadequate as regards Article 6(3) and (4) of the Directive.
That being so, the Court must also uphold this aspect of the Commission's action.
Failure to transpose Article 7 of the Directive
The Commission submits that no provision of Luxembourg law provides for the application of Article 6(2), (3) and (4) of the
Directive to special protection areas designated under Council Directive 79/409/EEC of 2 April 1979 on the conservation of
wild birds (OJ 1979 L 103, p. 1), as is required by Article 7 of the Directive. The arguments put forward in the letter of
reply also fail to persuade that Article 7 has been transposed.
It should be borne in mind that the letter of reply states that the sectoral plan which it anticipated drawing up would provide
a precise legal framework, in particular as regards special protection areas classified under Directive 79/409.
Given that, and taking particular account of what is stated in paragraph 24 of the present judgment, it must be held that
the complaint of failure to transpose Article 7 of the Directive is well founded.
Inadequate transposition of Article 12(1)(b) and (c), (2) and (4) of the Directive
The Commission maintains, first of all, that Article 12(1)(b) of the Directive has been incompletely transposed into Luxembourg
law because none of the national transposing provisions communicated to it prohibits the deliberate disturbance of the species
concerned during the migration period. Secondly, none of the provisions has as its object or effect the complete transposition
of Article 12(1)(c) of the Directive. Thirdly, the national provisions communicated to the Commission fail to prohibit the
exchange and the offering for exchange of specimens of the species concerned, as is required by Article 12(2) of the Directive.
Fourthly, no provision of Luxembourg law ensures that the definition of
animal in national law is as broad as that of
specimen within the meaning of the Directive. Lastly, none of the provisions communicated has as its object or effect the transposition
of Article 12(4) of the Directive. According to the Commission, the arguments to the contrary set out in the letter of reply
cannot be accepted.
Article 12(1)(b) of the Directive
As the Commission rightly observes, Article 23 of the Nature Protection Law, which the Luxembourg Government regards as conforming
to Article 12(1)(b) of the Directive, is incapable of transposing the latter provision fully because, whilst prohibiting the
disturbance of fauna during the periods of breeding, rearing and hibernation, the prohibition fails expressly to mention the
migration period.
Consequently, the complaint of inadequate transposition of Article 12(1)(b) of the Directive must be regarded as well founded.
Article 12(1)(c) of the Directive
The letter of reply maintains that Article 12(1)(c) of the Directive has been transposed into national law by Article 17 of
the Nature Protection Law and Article 6 of the Convention on the Conservation of European Wildlife and Natural Habitats, signed
in Bern on 19 September 1979 and approved by the Law of 26 November 1981 (
Mémorial
A 1981, p. 2130), to which the Community became a party by Council Decision 82/72/EEC of 3 December 1981 (OJ 1982 L 38, p.
1) (hereinafter
the Bern Convention). Article 17 of the Nature Protection Law provides that animals which are the subject of complete protection may not be disturbed,
killed, hunted, captured, kept in captivity or tamed, at any stage of their development. As regards Article 6 of the Bern
Convention, that provision prohibits the deliberate destruction or taking of eggs from the wild or keeping these eggs even
if empty.
In this connection, it should be pointed out that Article 17 of the Nature Protection Law does not expressly mention the collection
of eggs in the wild. The prohibition in Article 17 on keeping in captivity animals which are the subject of complete protection
at any stage of their development does not appear to include with sufficient certainty the collection of eggs in the wild,
particularly as, under Article 144 et seq. of the Nature Protection Law, this prohibition is one that is backed by criminal
sanction.
As regards Article 6(d) of the Bern Convention, which prohibits the deliberate destruction or taking of eggs from the wild
or keeping such eggs, it is appropriate to point out that that provision applies only to the species listed in Annex II to
the convention, which does not include certain of the species listed in Annex IV (a) to the Directive, to which Article 12
of the Directive refers.
It follows that Article 12(1)(c) of the Directive has not been correctly transposed into Luxembourg law.
Article 12(2) of the Directive
The letter of reply states that, in so far as it prohibits the keeping of animals which receive complete protection, Article
17 of the Nature Protection Law also precludes the exchange of such animals. Indeed, to exchange something which may not be
held is impossible. Moreover, Article 15 of the Nature Protection Law, read together with the Grand-Ducal Regulation of 8
April 1986 on the Complete and Partial Protection of Certain Species of Wild Animal (
Mémorial
A 1986, p. 1174), provides for the classification of rare wild animals for the purposes of their conservation, without restriction
to indigenous species. In addition, Article 20 of the Nature Protection Law extends the definition of animal beyond the meaning
conferred by national law.
The Luxembourg Government's argument cannot be accepted.
Indeed, the prohibition, laid down in Article 17 of the Nature Protection Law, on keeping animals which receive complete protection
would not seem to include the exchange or the offering for exchange of such animals, the concept of keeping being distinct
from that of exchanging or offering for exchange, particularly from the viewpoint of a system of criminal sanctions, such
as that mentioned in paragraph 56 of the present judgment.
As regards the meaning of the term animal in Luxembourg law, it must be held that, in any event, the law on which the Luxembourg
Government relies in the letter of reply does not include within the definition of animal
any ... derivative [of any animal] ... as well as any other goods which appear, from an accompanying document, the packaging
or a mark or label, or from any other circumstances, to be ... derivatives of animals ... of those species, as is provided for in Article 1(m) of the Directive, which defines the meaning of specimen as it appears, in particular,
in Article 12(2) of the Directive.
Article 12(2) of the Directive has not, therefore, been correctly transposed into Luxembourg law.
Article 12(4) of the Directive
It is appropriate to recall that the Luxembourg Government acknowledged in the letter of reply that there had yet to be established
in Luxembourg law a monitoring system such as that provided for by Article 12(4) of the Directive.
It also appears that no such monitoring system was adopted within the period of time laid down in the reasoned opinion.
It thus appears that Article 12(4) of the Directive has not been transposed into the internal legal system of the defendant
Member State.
In light of the foregoing, it must be held that the complaint of inadequate transposition of Article 12(1)(b) and (c), (2)
and (4) of the Directive is well founded.
Inadequate transposition of Article 13(1)(b) and (2) of the Directive
Article 13(1)(b) of the Directive
The Commission submits that, despite the arguments advanced by the Luxembourg authorities in the letter of reply, Article
13(1)(b) of the Directive has not been completely transposed into Luxembourg law, which neither prohibits the keeping, exchange
or offering for sale or exchange of specimens of the plant species protected under that provision nor ensures that the prohibitions
laid down in the provision apply also to the non-indigenous species protected under it.
The letter of reply states that the sale of plants which receive complete protection is prohibited by Article 16 of the Nature
Protection Law and that, in so far as is necessary, keeping such plants is prohibited by Article 5 of the Bern Convention.
Moreover, Article 15 of the Nature Protection Law does not exclude the protection of non-indigenous species. In this connection
it would be sufficient to incorporate the species concerned into the Grand-Ducal Regulation of 19 August 1989 on the Complete
and Partial Protection of Certain Species of Wild Flower (
Mémorial
A 1989, p. 1102, hereinafter
the Wild Flower Regulation). Article 20 of the Nature Protection Law extends the definition of plant beyond the meaning conferred by national law.
It should be observed that whilst Article 16 of the Nature Protection Law prohibits the sale of plants that receive complete
protection, it does not prohibit the possession, exchange or offering for sale or exchange of such plants. Article 5 of the
Bern Convention provides that each contracting party must, as appropriate, prohibit the possession of protected species. However,
it does not appear that the Luxembourg authorities have adopted any supplementary measure further defining application of
the Bern Convention as regards this point. As far as this aspect is concerned, therefore, Article 13(1)(b) of the Directive
has not been properly transposed into Luxembourg law.
As regards the complaint that Luxembourg law fails to ensure that the prohibitions laid down in Article 13(1)(b) of the Directive
apply to the non-indigenous plant species protected by the Directive, it is important to recall that the Luxembourg Government
itself has acknowledged  that the non-indigenous plant species covered by Article 13(1)(b) are not protected by Article 15
of the Nature Protection Law, read together with the Wild Flower Regulation. Also, Article 20 of the law provides that the
plants and animals protected under approved and published international conventions may be purchased, imported, offered for
sale, exported or held only pursuant to the relevant provisions of such conventions. However, Article 20 is, in any event,
incapable of ensuring as such the protection of non-indigenous species provided for by Article 13(1)(b) of the Directive.
Moreover, the Luxembourg Government has provided no further information as to which international conventions are relevant
in the matter.
It follows that Article 13(1)(b) of the Directive has not been properly transposed into Luxembourg law.
Article 13(2) of the Directive
According to the Commission, the Luxembourg Government's assertion that Article 13(2) of the Directive has been transposed
by Article 16 of the Nature Protection Law, which extends the prohibitions laid down in that provision to parts of the plants
concerned, fails to establish that the definition of plant in national law is as broad as that of specimen given in Article
1(m) of the Directive, particularly in so far as concerns the inclusion of any part of or derivative obtained from a plant
and any other goods which appear, from an accompanying document, the packaging or a mark or label, or from any other circumstances,
to be parts of derivatives of plants of those species.
It is important to bear in mind that, under Article 13(2) of the Directive, the prohibitions referred to in Article 13(1)(a)
and (b) apply to all stages of the biological cycle of the plants to which Article 13 applies.
Even if the definition of plant in national law is narrower than that of specimen in Article 1(m), the Court finds that the
Commission has failed to demonstrate why that should be inconsistent with Article 13(2) of the Directive, which makes no direct
reference to specimens but instead refers to Article 13(1)(b) which does refer to specimens and lays down precise prohibitions
in relation to specimens of protected specimens.
Consequently, the complaint of incomplete transposition of Article 13(2) of the Directive, as formulated by the Commission,
must be rejected.
In view of the foregoing, the complaint of incomplete transposition of Article 13(1)(b) of the Directive must be upheld.
Non-transposition of Article 14 of the Directive
The Commission maintains that Article 14 of the Directive is not optional but contains an unconditional obligation of surveillance
of the species listed in Annex V together with an obligation to take appropriate measures to ensure that those species are
maintained at a favourable conservation status where the competent authorities deem it necessary, that is to say where surveillance
reveals that, without such measures, the conservation status of the species would be endangered.
In the letter of reply, the Luxembourg authorities acknowledged that national law fails to provide for the surveillance obligation
relating to completely and partially protected species or the associated obligation to adopt appropriate measures to ensure
that those species are maintained at a favourable conservation status. They have acknowledged the need to modify the law on
this point.
It therefore appears that the taking in the wild of specimens of species of wild fauna and flora listed in Annex V to the
Directive as well as their exploitation is not coupled in Luxembourg law with an obligation to adopt, where their conservation
status so warrants, appropriate measures to ensure that those species are maintained at a favourable conservation status.
The complaint of non-transposition of Article 14 of the Directive must therefore be regarded as well founded.
Incorrect transposition of Article 15 of the Directive
The Commission maintains that the transposition measures communicated to it by the Grand Duchy of Luxembourg fail to ensure
the correct transposition of Article 15 of the Directive. It refutes the reasoning put forward in the letter of reply in support
of the contrary view.
Indeed, the letter of reply states that, since the Grand Duchy of Luxembourg intended to avail itself of the derogation provided
for by Article 16 of the Directive, it was necessary for it to transpose Article 15 of the Directive. The means of capture
and killing mentioned in Article 15(a) and (b) of the Directive are exactly the same as those provided for in and prohibited
by the Bern Convention. They are also prohibited, without exception, by the rules on hunting and fishing. Moreover, the Luxembourg
Government has stated that the arrêté grand-ducal du 10 mars 1959 ayant pour objet la destruction des animaux malfaisants
et nuisibles (Grand-Ducal Decree of 10 March 1959 on the elimination of harmful animals and vermin, hereinafter
the Grand-Ducal Decree), which imposes no restriction on the means of destruction used, is to be repealed by a new Grand-Ducal regulation of which
a draft already exists.
It is important to bear in mind that Annex VI (a) to the Directive, to which Article 15 refers, includes amongst the prohibited
methods and means of capture and killing traps which are non-selective according to their principle or their conditions of
use and smoking out. However, in so far as it authorises the destruction of animals of the species listed in Annex V (a) to
the Directive such as the marten and polecat, by means of smoking out with terriers or with the aid of traps, which, moreover,
are not expressly required to be selective, the Grand-Ducal Decree is inconsistent with Article 15 of the Directive. Furthermore,
it is not apparent from the file that the Grand-Ducal Decree was repealed within the period laid down in the reasoned opinion.
It follows that, in any event, the complaint of incorrect transposition of Article 15 of the Directive must be regarded as
well founded.
Unsatisfactory transposition of Article 16(1) of the Directive
According to the Commission, the transposition measures mentioned in the letter of reply are unsatisfactory as regards Article
16(1) of the Directive.
As far as concerns Article 26 of the Nature Protection Law, which provides that the competent minister may grant derogations
from Articles 13 to 18 of that law for scientific purposes or in the public interest, it should be observed that the grant
of such derogations has not been made conditional upon there being no other satisfactory solution, as is required by Article
16(1) of the Directive.
As regards Article 9 of the Bern Convention, even if that provision makes the grant of derogations from the protection rules
laid down in the convention subject to the same conditions as those specified in Article 16(1) of the Directive, and in particular
the condition that there be no other satisfactory solution, the fact that that system of derogations and that implemented
by Article 26 of the Nature Protection Law coexist in Luxembourg's national law is, in any event, contrary to Article 16(1)
of the Directive because that situation in fact creates in this case an ambiguity liable to render compliance with Article
16(1) less than certain.
The complaint of unsatisfactory transposition of Article 16(1) of the Directive must therefore be upheld.
Incorrect transposition of Article 22(b) and (c) of the Directive
Article 22(b) of the Directive
In reply to the complaint of incorrect transposition of Article 22(b) of the Directive, as formulated in the letter of formal
notice, the Luxembourg authorities state that that provision was transposed by Article 25 of the Nature Protection Law, which
prohibits the introduction of non-indigenous species into the wild except with the  authorisation of the competent minister,
to which appropriate conditions may be attached.
In this connection it should be observed that Article 25 of the Nature Protection Law does not make the grant of the ministerial
authorisation referred to in that provision conditional upon satisfaction of the requirements of Article 22(b) of the Directive,
particularly the requirement that authorisation should be granted only where no harm would be caused to natural habitats.
Consequently, Article 25 of the Nature Protection Law does not correctly transpose Article 22(b) of the Directive. The Commission's
complaint in this regard must therefore be regarded as well founded.
Article 22(c) of the Directive
The letter of reply maintains that Article 22(c) of the Directive, which is designed to promote education and general information
on the need to protect species of wild fauna and flora and to conserve natural habitats, is transposed by Article 3(3) of
the Bern Convention, by Article 13 of the Convention on Biological Diversity concluded in Rio de Janeiro on 5 June 1992 and
approved by the Law of 4 March 1994 (
Mémorial
A 1994, p. 429), to which the European Community became a party by Council Decision 93/626/EEC of 25 October 1993 concerning
the conclusion of the Convention on Biological Diversity (OJ 1993 L 309, p. 1), and by the Law of 10 August 1992 on freedom
of access to environmental information and rights of action of associations for the protection of nature and the environment
(
Mémorial
A 1992, p. 2204).
Whilst it maintains that the Law of 10 August 1992 just mentioned contains no provision for actively supplying the public
with information, the Commission acknowledges that Article 3(3) of the Bern Convention and Article 13 of the Convention on
Biological Diversity are in principle capable of transposing Article 22(c) of the Directive satisfactorily. Nevertheless,
the institution objects that the Grand Duchy of Luxembourg has failed to show that its legal system includes the principle
of direct effect of the so-called self-executing provisions of international conventions that are properly approved and published.
Since it is not disputed that the provisions of the Bern Convention and of the Convention on Biological Diversity just mentioned
are capable of satisfactorily transposing Article 22(c) of the Directive, the Court must confine itself to considering whether
those provisions have in fact been incorporated into Luxembourg law.
There is no doubt that the provisions have been incorporated in the present case. Indeed the conventions in question were
approved by laws of the Grand Duchy of Luxembourg and require no further measures to be taken in order for them to achieve
their full effect in the internal legal system of that Member State.
That being so, the complaint of incorrect transposition of Article 22(c) of the Directive must be rejected.
In view of the foregoing, the Court must uphold the complaint of inappropriate transposition of Article 22(b) of the Directive.
Infringement of Article 23(2) of the Directive
The Commission maintains that the Grand Duchy of Luxembourg has infringed Article 23(2) of the Directive in that the transposition
measures which that Member State adopted after the Directive's entry into force and communicated to the Commission contain
no reference to the Directive or were not accompanied by any such reference when officially published.
The letter of reply states that the essential purpose of the proposed sectoral plan provided for by the Regional Planning
Law is the implementation of Directives 79/409 and 92/43 and that a list of all national measures transposing the Directive
is to be published in the
Mémorial
.
However, it is apparent that no such list has been published within the period laid down in the reasoned opinion.
It follows that the complaint of infringement of Article 23(2) of the Directive is well founded.
In light of the foregoing, it must be held that, by failing to take all the necessary measures to implement fully and correctly
Articles 1, 4(5), 5(4), 6, 7, 12(1)(b) and (c), 12(2), 12(4), 13(1)(b), 14, 15, 16(1), 22(b) and 23(2) of the Directive in
conjunction with Annexes I, II, IV, V and VI to the Directive, the Grand Duchy of Luxembourg 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 there has been
an application to that effect. Since the Commission has applied for costs and the Grand Duchy of Luxembourg has been unsuccessful
in the majority of its pleas, the latter must be ordered to pay the costs.
On those grounds,
THE COURT (Sixth Chamber),
hereby:
1.
Declares that, by failing to take all the necessary measures to implement fully and correctly Articles 1, 4(5), 5(4), 6, 7,
12(1)(b) and (c), 12(2), 12(4), 13(1)(b), 14, 15, 16(1), 22(b) 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 I, II, IV, V and VI to that directive,
the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
2.
Orders the Grand Duchy of Luxembourg to pay the costs.
Puissochet
Gulmann
Skouris
Macken
Colneric
Delivered in open court in Luxembourg on 13 February 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: French.