CELEX: 62011CJ0416
Appeal
Directive 92/43/EEC
Conservation of natural habitats
List of sites of Community importance for the Mediterranean biogeographical region
Inclusion in the list of a site proposed by the Kingdom of Spain
Site allegedly covering an area of British Gibraltar territorial waters and an area of the high seas
Action for annulment
Measure merely confirmatory

By its appeal, the United Kingdom of Great Britain and Northern Ireland seeks to have set aside the order of the General Court
of the European Union of 24 May 2011 in Case T-115/10
United Kingdom
v
Commission
(‘the order under appeal’), by which that court dismissed as inadmissible its action for partial annulment of Commission
Decision 2010/45/EU of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of
Community importance for the Mediterranean biogeographical region (OJ 2010 L 30, p. 322; ‘the contested decision’) to the
extent that that decision lists the site called ‘Estrecho oriental’ (‘Site ES6120032’) as a site of Community importance (‘SCI’)
for the Mediterranean biogeographical region.

Legal context
Article 4(1) and (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), as amended by Regulation (EC) No 1882/2003 of the European Parliament and the Council of
29 September 2003 (OJ 2003 L 284, p. 1) (‘the Habitats Directive’), provides:
‘1.      On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall 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 shall be transmitted to the Commission, within three years of the notification of this Directive, together with information
on each site. That information shall include a map of the site, its name, location, extent and the data resulting from application
of the criteria specified in Annex III (Stage 1) provided in a format established by the Commission in accordance with the
procedure laid down in Article 21.
2.      On the basis of the criteria set out in Annex III (Stage 2) …, the Commission shall establish, in agreement with each Member
State, a draft list of [SCIs] drawn from the Member States’ lists identifying those which [host] one or more priority natural
habitat types or priority species.
...
The list of sites selected as [SCIs], identifying those which host one or more priority natural habitat types or priority
species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.’
According to Article 20 of the Habitats Directive, the Commission is to be assisted by a committee (‘the Habitats Committee’).
Article 21 of that directive refers to Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures
for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), as amended by Council Decision
2006/512/EC of 17 July 2006 (OJ 2006 L 200, p. 11), which provides:
‘1.      The Commission shall be assisted by a regulatory committee composed of the representatives of the Member States and chaired
by the representative of the Commission.
2.      The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall
deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter.
The opinion shall be delivered by the majority laid down in Article 205(2) and (4) of the Treaty in the case of decisions
which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States
within the Committee shall be weighted in the manner set out in that Article. The chairman shall not vote.
3.      The Commission shall ... adopt the measures envisaged if they are in accordance with the opinion of the committee.
…’

Background to the dispute and the contested decision
On 19 July 2006 the Commission adopted, on the basis of the third subparagraph of Article 4(2) of the Habitats Directive,
Decision 2006/613/EC adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the
Mediterranean biogeographical region (OJ 2006 L 259, p. 1). That list, set out in Annex 1 to the decision, included, inter
alia, Site UKGIB0002, called ‘Southern Waters of Gibraltar’ (‘Site UKGIB0002’), as proposed by the United Kingdom.
The adoption of that decision was preceded by an exchange of declarations between the United Kingdom and the Kingdom of Spain,
initiated by the Commission, in which the Kingdom of Spain declared, inter alia, that any action by the United Kingdom in
respect of Gibraltar in relation to the Natura 2000 network is done, and must be understood to be done, without prejudice
to the position of the Kingdom of Spain on her sovereignty over Gibraltar, including its waters.
On 12 December 2008, the Commission adopted Decision 2009/95/EC adopting, pursuant to Council Directive 92/43/EEC, a second
updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2009 L 43, p. 393), still including
Site UKGIB0002, and, for the first time, Site ES6120032, proposed by the Kingdom of Spain. That decision states the name,
surface area and geographical coordinates (longitude and latitude of the centre of the site) of the sites in question. The
decision was notified to the United Kingdom on 16 December 2008.
At the meeting of the Habitats Committee on 15 October 2009, the subject of which was, inter alia, the draft of the contested
decision, concerning a third updated list of SCIs for the Mediterranean biogeographical region, which included, in the annex
thereto, as previously, Sites UKGIB0002 and ES6120032, the United Kingdom objected to the inclusion of that latter site in
the list in question on account of its overlapping with Site UKGIB0002 and with what were allegedly United Kingdom territorial
waters, and requested the Commission to reconsider the designation of Site ES6120032.
The Kingdom of Spain then argued that it had sovereignty over Gibraltar’s marine waters and declared that it was in favour
of retaining Site ES6120032 on the list. The Commission stated, inter alia, that its role was not to check whether proposed
sites were concerned by territorial disputes. Nor did it have the task of ascertaining, in respect of each site proposed by
a Member State, whether the site covered the same area as other proposals from other Member States. Furthermore, overlapping
of sites had already occurred, even if it concerned a smaller surface area than in the present case.
All the Member States present at that meeting of the Habitats Committee except the United Kingdom then voted in favour of
the draft of the contested decision. Subsequently, the Commission adopted the contested decision.

Procedure before the General Court and the order under appeal
By application lodged at the Registry of the General Court on 4 March 2010, the United Kingdom brought an action for annulment
of the contested decision to the extent that it lists Site ES6120032 as a SCI for the Mediterranean biogeographical region.
By separate document, the Commission raised a plea of inadmissibility pursuant to Article 114 of the Rules of Procedure of
the General Court, submitting that, as regards the listing of Site ES6120032, the contested decision was a measure which was
merely confirmatory of Decision 2009/95, which had not been challenged by the United Kingdom within the prescribed period.
By the order under appeal, made pursuant to Article 114 of the Rules of Procedure, the General Court, without initiating the
oral procedure, dismissed the action as inadmissible.
It firstly held that the disputed provision of the contested decision had already appeared in the earlier Decision 2009/95
so that, as regards the designation of Site ES6120032 as a SCI, the contested decision contained no new factor.
Next, the General Court observed that, nevertheless, the confirmatory or other nature of a measure cannot be determined solely
with reference to its content as compared with that of the previous decision which it confirms. If the challenged measure
constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested
to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes
a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision. Therefore,
it was necessary to examine whether the overlapping of Sites UKGIB0002 and ES6120032 constituted a substantial new fact which
led to the reconsideration of the designation of the latter site in Decision 2009/95.
In that regard, the General Court found that, since both sites were already listed in Decision 2009/95, their overlapping
already existed in that decision and could not in itself be regarded as a new fact subsequent to the adoption of that decision.
Furthermore, it could not be accepted that neither the United Kingdom nor the Commission could have had prior knowledge of
the overlapping of the sites when Decision 2009/95 was adopted. The United Kingdom was involved in the procedure for the adoption
of that decision and, in October 2008, was sent the list of SCIs for the Mediterranean biogeographical region including the
sites proposed by all the Member States concerned and the information which was due to be included in that decision. The Commission,
for its part, was in possession of information relating to the sites proposed by the Member States when the draft of that
list was drawn up, information which included, inter alia, the most recent and definitive site map transmitted.
The General Court concluded that the overlapping of Sites UKGIB0002 and ES6120032 in the contested decision could not be regarded
as a new fact and that, consequently, the designation of Site ES6120032 in the contested decision could not be regarded as
the result of a reconsideration of Decision 2009/95 on the basis of new facts.
In addition, the General Court held that, from the notification of Decision 2009/95 to the United Kingdom on 16 December 2008,
that party could not claim to be unaware of the content of that decision or of the overlapping of the two sites in question.
Having regard to the foregoing considerations, the General Court concluded that, as regards the designation of Site ES6120032
in the list of SCIs, the contested decision had to be held to be merely confirmatory of Decision 2009/95, and that the action
was therefore inadmissible.

Forms of order sought
By its appeal, the United Kingdom requests the Court to:
–        set aside the order under appeal;
–        declare its action admissible and refer the case back to the General Court for a decision on the substance;
–        order the Commission to pay the costs of the present proceedings and those of the proceedings at first instance relating to
the plea of inadmissibility; and
–        reserve the costs as to the remainder.
The Commission and the Kingdom of Spain contend that the Court should dismiss the appeal and order the United Kingdom to pay
the costs.

The appeal
The United Kingdom advances two grounds in support of its appeal. By those grounds it disputes only the General Court’s findings
relating to the issue of whether the United Kingdom and the Commission could have known of the overlapping of the sites at
issue, without calling into question other aspects of the General Court’s reasoning.
The first ground alleges an error of law in respect of the identity of the parties whose ‘constructive’ knowledge of the overlapping
of Sites ES6120032 and UKGIB0002 was relevant. The second ground alleges an error of law, and manifest errors of appraisal
of the facts, in respect of the issue of whether a party ‘could have had prior knowledge’ of the overlapping of those sites.

Second ground of appeal
Arguments of the parties
By its second ground, which it is appropriate to examine first, the United Kingdom alleges that the General Court committed
errors so far as concerns the test which enables the issue of whether a party ‘could have had prior knowledge’ of the overlapping
of sites to be assessed.
First, the General Court’s reasoning shows that it did not identify the correct legal test. Knowledge cannot be imputed in
cases where a prudent person could not have been expected to discover the fact in question.
Secondly, concerning the issue of what can be expected of a prudent person, the General Court incorrectly failed to take into
consideration the fact that, in breach of the duty of sincere cooperation set out in Article 10 EC and of the Habitats Directive,
the Kingdom of Spain did not fulfil its obligation to notify the United Kingdom and the Commission of the overlapping of the
sites at issue. The United Kingdom could reasonably expect to be informed and had no reason to be particularly attentive.
In addition, in assessing whether it was reasonable to expect the Commission to have known of the overlapping of the sites
at issue, the General Court should have examined to what extent it was part of the Commission’s obligations to check whether
proposed sites overlapped with other sites.
Lastly, it was not reasonable on the part of the General Court to expect Member States to check whether there was any overlapping
of sites on the list of SCIs for the Mediterranean biogeographical region, since that list does not contain any map of the
sites and contains thousands of sites, both new and existing.
The Commission submits that the General Court properly established the constructive knowledge of the United Kingdom, by relying
on the notification of Decision 2009/95 to the latter. Application of the test of actual knowledge, as wished by the United
Kingdom, would have the consequence of rendering the two-month period for bringing proceedings entirely subjective, defeating
the objective of that time-limit of providing legal certainty, and would be unverifiable. Furthermore, the conduct of the
Kingdom of Spain, specifically the issue of whether it infringed European Union law, is not relevant in an action for annulment.
The Kingdom of Spain essentially endorses the Commission’s arguments.
Findings of the Court
First of all, an action for annulment brought against a decision which is merely confirmatory of an earlier decision that
was not challenged within the time-limit for bringing proceedings is inadmissible and it is common ground, in the present
case, that the United Kingdom did not bring an action for annulment of Decision 2009/95 before the expiry of the time-limit
for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU.
So far as concerns assessment of whether the contested decision is merely confirmatory, it is also common ground that, as
the General Court observes in paragraphs 26 and 27 of the order under appeal, Site ES6120032 was listed for the first time
as a SCI in Decision 2009/95 and that site was then re-listed in an identical form in the list adopted in the contested decision.
Thus, the contested provision of that decision was already included in the earlier decision, so that, in respect of the designation
of Site ES6120032 as a SCI, the contested decision does not contain any new factor as such.
The only aspect of the General Court’s reasoning against which the appeal is directed consists of the examination of whether
the contested decision might not have been confirmatory on the ground that, at the time of the adoption of Decision 2009/95,
the United Kingdom and the Commission could not have known of the overlapping of Sites ES6120032 and UKGIB0002.
To reach the conclusion that the United Kingdom could have known of that overlapping, the General Court relied, in paragraphs
34 to 36 of the order under appeal, on the United Kingdom’s participation, as a member of the Habitats Committee, in the procedure
for the adoption of Decision 2009/95, taking into consideration the various items of information provided to the United Kingdom
during that procedure and prior to the decision’s adoption, and the vote in favour of its adoption by the representative of
the United Kingdom.
The United Kingdom merely claims that the General Court identified an incorrect legal test, in that knowledge cannot be imputed
in cases where a prudent person cannot be expected to discover the fact in question. However, the appeal does not state what
different, incorrect test the General Court allegedly applied. Subsequently, the United Kingdom submits only that the circumstances
taken into consideration by the General Court were insufficient to enable the United Kingdom to know of the overlapping of
the sites at issue at the time of the adoption of Decision 2009/95 and that other factual matters should have been taken into
consideration.
By that argument, the United Kingdom is in actual fact seeking to call into question the assessment made by the General Court
of all the factual matters submitted to it. Thus, the United Kingdom is, in essence, simply challenging the assessment of
the facts made by the General Court without, moreover, pleading any distortion of the clear sense of the evidence in the file.
Such an appraisal of the facts does not, save where the clear sense of the evidence submitted to it has been distorted, constitute
a point of law which is subject, as such, to review by the Court of Justice on appeal.  Under Article 256(1) TFEU and the
first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law
only. The General Court therefore has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of
its findings is apparent from the documents submitted to it, and to appraise those facts (see, inter alia, Case C-53/92 P
Hilti
v
Commission
[1994] ECR I-667, paragraph 42; Case C-238/06 P
Develey
v
OHIM
[2007] ECR I-9375, paragraph 97, and Case C‑431/07 P
Bouygues and Bouygues Télécom
v
Commission
[2009] ECR I-2665, paragraph 137).
The second ground of appeal must therefore be rejected as inadmissible.

First ground of appeal
Arguments of the parties
By its first ground of appeal, the United Kingdom’s primary complaint is that the General Court committed an error of law
in respect of the identity of the parties whose ‘constructive’ knowledge of the overlapping of Sites ES6120032 and UKGIB0002
was legally relevant. The correct test was what the United Kingdom could have known. In its view, the issue of whether the
Commission could have known of that overlapping is irrelevant.
In Case T-141/97
Yasse
v
EIB
[1999] ECR‑SC I‑A-177 and II-929, paragraphs 126 to 128, which is the underlying authority for the purposes of examination
of ‘constructive’ knowledge, the General Court examined only what the applicant could have known, without mentioning the knowledge
either of the ‘administration’ or of any other party.
In the alternative, if it was relevant to ascertain the circumstances of which the author of the decision could have known,
in the present case the author of the contested decision was both the Commission and the Habitats Committee, and not the Commission
alone, since, in accordance with Articles 4 and 21 of the Habitats Directive, the Commission could adopt the contested decision
only with the approval of that committee.
According to the Commission, this ground of appeal must be rejected as ineffective. First, the General Court did not disregard
the United Kingdom’s constructive knowledge, which it expressly evaluated in paragraphs 35 and 36 of the order under appeal.
Secondly, the analysis of the constructive knowledge both of the United Kingdom and of the Commission was not decisive for
the purposes of the order under appeal, and was set out by the General Court only in response to the arguments put forward.
Moreover, the Commission alone adopted the contested decision, albeit subject to certain procedural requirements, inter alia
an opinion of the competent committee.
The Kingdom of Spain essentially endorses the Commission’s arguments.
Findings of the Court
It must be pointed out that, in accordance with settled case-law, where one of the grounds adopted by the General Court is
sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment
concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective
and must be dismissed (see, inter alia, Case C-326/91 P
de Compte
v
Parliament
[1994] ECR I-2091, paragraph 94, and Case C‑496/99 P
Commission
v
CAS Succhi di Frutta
[2004] ECR I-3801, paragraph 68).
As follows from paragraphs 32 to 36 above, the General Court determined that the United Kingdom could have known of the overlapping
of the sites at the time of the adoption of Decision 2009/95, and that finding has not been properly called into question
by the United Kingdom.
Accordingly, even if the General Court committed an error of law in examining, in addition, the issue of whether the Commission
also could have known of that overlapping, such an error would have had no effect on the outcome of the action at first instance
and thus would have had no bearing on the operative part of the order under appeal.
Therefore, even if the first ground of appeal, according to which the correct test was what the United Kingdom could have
known, should prove well founded, it would not be such as to result in the order under appeal being set aside.
Consequently, this ground of appeal must be rejected as ineffective.
In the light of all the foregoing considerations, the appeal must be dismissed.

Costs
Under Article 138(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article
184 thereof, 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 applied for costs and the United Kingdom has been unsuccessful, the latter must be ordered
to pay the costs.
In accordance with Article 138(3) of the Rules of Procedure, which is also applicable by virtue of Article 184 thereof, the
Kingdom of Spain is to bear its own costs.
On those grounds, the Court (Third Chamber) hereby:
1.
Dismisses the appeal;
2.
Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs;
3.
Orders the Kingdom of Spain to bear its own costs.
[Signatures]
*
Language of the case: English.