CELEX: 62009CJ0522
Failure of a Member State to fulfil obligations
Directive 79/409/EEC
Conservation of wild birds
Special protection areas
Areas designated insufficient in number and size
Irregularity of the pre-litigation procedure
Inadmissibility of the action

By its application, the European Commission requests the Court to declare that, by failing to classify as special protection
areas (‘SPAs’) sufficient territories in number and size to protect adequately all the species of birds listed in Annex I
to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1; ‘the Birds Directive’)
and the migratory species which are not included in that annex, Romania has failed to fulfil its obligations under Article
4(1) and (2) of that directive.

Legal context

European Union law
Article 4(1) and (2) of the Birds Directive 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 [SPAs] 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.’
The Treaty of Accession of the Republic of Bulgaria and Romania to the European Union (OJ 2005, L 157, p. 11) entered into
force on 1 January 2007. Article 53(1) of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania
and the adjustments to the treaties on which the European Union is founded (OJ 2005, L 157, p. 203) provides that Romania
is to put into effect the measures necessary for it to comply, from the date of accession, with the provisions of directives
within the meaning of Article 249 EC, unless another time-limit is provided for in the Act. That article also provides that
Romania is to communicate those measures to the Commission at the latest by the date of accession or, where appropriate, by
the time-limit provided for in the Act.
Since the Act lays down neither a transitional period for the designation of SPAs in accordance with Article 4(1) and (2)
of the Birds Directive nor a specific time‑limit for communication of the measures transposing that directive, Romania had
to adopt and communicate the measures implementing the directive, in particular those relating to that article, by the date
of accession at the latest.

Pre-litigation procedure
Since Romania had not communicated the national list of SPAs that was required by virtue of Article 4(1) and (2) of the Birds
Directive, the Commission took the view that it had failed to fulfil the obligation laid down by those provisions by not designating
the appropriate SPAs and therefore sent a letter of formal notice to it on 23 October 2007.
In this connection, the letter of formal notice stated as follows:
‘However, to date the Romanian Government has not communicated to the Commission the national list of [SPAs]. On that basis,
it can be concluded that Romania has failed to comply with its obligation to undertake the measures provided for in Article
4(1) and (2) of the Birds Directive, given that it has not classified the relevant SPAs.
Consequently, the Commission … takes the view that, since it has not classified the most suitable territories in number and
size as SPAs for the protection of the species listed in Annex I to [the Birds Directive] and other migratory species which
regularly occur in its territory, Romania has not fulfilled the obligations laid down in Article 4(1) and (2) of that directive.’
In its reply of 21 December 2007, Romania stated that a governmental decision relating to the designation of the SPAs had
been adopted and published with its annexes containing the list of SPAs in the
Monitorul Oficial al României
of 31 October 2007.
Since the Commission took the view that the territories classified as SPAs were not sufficient in number and size having regard
to the objectives for protection of the bird species listed in Annex I to the Birds Directive and of migratory species, on
23 September 2008 it issued a reasoned opinion in which it called upon Romania to take the measures necessary to comply therewith.
By letter of 25 November 2008, the Romanian authorities responded to the Commission’s reasoned opinion, contending, in particular,
that the Commission had changed the subject-matter of the procedure since the letter of formal notice was founded on failure
to transmit the list of SPAs whereas the reasoned opinion concerned the designation of SPAs that were insufficient in number
and size. They also set out the reasons, accompanied by supporting documents, for which certain sites had not been designated
in their entirety or in part, as the case may be.
Since the Commission took the view that Romania’s breach of obligations remained, it brought the present action on 15 December
2009.

The action
Arguments of the parties
Romania submits that the action is inadmissible on the ground that the Commission changed its subject-matter. The Commission
complained in its letter of formal notice that Romania had not communicated the list of SPAs, whereas in the reasoned opinion
its argument was that the SPAs designated were insufficient in number and size. Romania states that, in accordance with settled
case-law of the Court, the reasoned opinion must be based on the same complaints as those relied upon in the letter of formal
notice.
In Romania’s submission, the Commission relied upon the insufficient number and size of the designated SPAs for the first
time in the reasoned opinion, so that the Romanian authorities had no reason to demonstrate, or means of demonstrating, in
their reply to the letter of formal notice that the designation of those areas sufficed. The defendant Member State further
submits that, in the period that elapsed between the reply to the letter of formal notice and the reasoned opinion, it was
kept in a state of uncertainty so far as concerns the insufficiency of the SPAs designated, so that it was unable to prepare
an appropriate defence from the beginning of the pre-litigation phase.
The Commission counters by stating that in its letter of formal notice it complained that Romania had not communicated to
it the national list of SPAs that was required by virtue of Article 4(1) and (2) of the Birds Directive and had failed to
fulfil the obligation laid down by those provisions by not designating the appropriate SPAs. In the reasoned opinion, the
Commission, after assessing the national implementing measures, specified that the territories classified as SPAs were not
sufficient in number and size in light of the provisions in question. In this connection, it notes that, according to the
Court’s case-law, and in particular Case C-32/05
Commission
v
Luxembourg
[2006] ECR I‑11323, paragraph 56, a complaint concerning incomplete transposition is necessarily included in a complaint alleging
a complete failure to transpose and is subsidiary to that complaint.
The Commission also states that, while the letter of formal notice and the reasoned opinion must be based on the same complaints,
that procedural requirement cannot go so far as to mean that in every case they must be exactly the same, if the subject-matter
of the proceedings has not been extended or altered but, on the contrary, limited. Thus, Romania’s rights of defence have
not been infringed.
Findings of the Court
It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity,
on the one hand, to comply with its obligations under European Union law and, on the other, to avail itself of its right to
defend itself against the complaints formulated by the Commission (see, inter alia, Case C‑147/03
Commission
v
Austria
[2005] ECR I‑5969, paragraph 22 and the case-law cited).
The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof,
constitutes an essential guarantee intended by the FEU Treaty, adherence to which is an essential formal requirement of the
procedure for finding that a Member State has failed to fulfil its obligations (see, inter alia, Case 211/81
Commission
v
Denmark
[1982] ECR 4547, paragraph 9).
In the present case, it is clear that, by its letter of formal notice, the Commission essentially complained that Romania
had not communicated to it the national list of SPAs, and that it relies on this complaint to infer, in very general terms,
a failure on the part of Romania to fulfil its obligation to classify suitable SPAs for the purposes of Article 4(1) and (2)
of the Birds Directive.
Also, on 21 December 2007, less than two months after receiving the letter of formal notice, Romania forwarded to the Commission
the national list of the SPAs that it had classified in the meantime, a list which shows that a significant number of SPAs
were classified by Romania pursuant to Article 4(1) and (2) of the Birds Directive. Nevertheless, in a reasoned opinion issued
on 23 September 2008 the Commission complained, relying on detailed arguments, that the SPAs classified by Romania were insufficient
in number and size in light of Article 4(1) and (2) of the Birds Directive, without first having given Romania the opportunity
to put forward its observations in that regard.
Such a situation is therefore clearly distinguishable from the situation, invoked by the Commission, that gave rise to the
judgment in
Commission
v
Luxembourg
. In that case, the Grand Duchy of Luxembourg had failed to mention any measure transposing the directive in question in the
course of the pre-litigation procedure and had merely let it be understood that the measures necessary for implementation
were about to be adopted. It was not until after the Commission brought proceedings before the Court that the Grand Duchy
of Luxembourg submitted, in its defence, that a law transposing the directive in question correctly had been adopted. In such
circumstances, the Court has held that, if the pre-litigation procedure attained its objective of protecting the rights of
the Member State concerned, the latter cannot complain that the Commission has extended or altered the subject-matter of the
action as defined by the pre-litigation procedure on the ground that the Commission, after alleging a failure by the Member
State to transpose a directive, has specified in its reply that the implementation pleaded for the first time by the Member
State concerned in its defence is incorrect or incomplete so far as certain provisions of the directive are concerned (
Commission
v
Luxembourg
, paragraphs 54 to 56).
In light of the foregoing it must therefore be found that the letter of formal notice did not identify sufficiently the failure
to fulfil obligations of which Romania was subsequently accused in the reasoned opinion and that the pre-litigation procedure
did not attain its objective of guaranteeing the right of the Member State concerned to submit its observations against the
complaints formulated by the Commission, so that the action must be held inadmissible.

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 Romania has applied for costs and the Commission has been unsuccessful,
the latter must be ordered to pay the costs.
On those grounds, the Court (Fourth Chamber) hereby:
1.
Dismisses the action as inadmissible;
2.
Orders the European Commission to pay the costs.
[Signatures]
*
Language of the case: Romanian.