# C_2005205EN.01000802.xml

| 20.8.2005 | EN | Official Journal of the European Union | C 205/8 |
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20.8.2005

EN

Official Journal of the European Union

C 205/8

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Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) by order of that court of 19 April 2005 in Bund Naturschutz in Bayern e.V. v Freistaat Bayern

(Case C-244/05)

(2005/C 205/16)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) of 19 April 2005, received at the Court Registry on 19 April 2005, for a preliminary ruling in the proceedings between Bund Naturschutz in Bayern e.V. and Freistaat Bayern on the following question:

| 1. | What protection regime is required under Article 3(1) of Directive 92/43 EEC (1) in conjunction with the sixth recital in the preamble to that Directive in the light of the prohibition on frustrating the objectives of the Treaty laid down in Article 10(2) of the EC Treaty (Treaty establishing the European Community of 25 March 1957, as most recently amended by the 2003 EU Treaty of Accession of 16 April 2003) and following the judgment of the European Court of Justice of 13 January 2005 in Case C-117/03 for sites which could be designated sites of Community importance, particularly those with priority natural habitat types and/or priority species, before they appear on the list of sites of Community importance adopted by the Commission of the European Communities under the procedure provided for in Article 21 of the Directive? |
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1.

What protection regime is required under Article 3(1) of Directive 92/43 EEC (1) in conjunction with the sixth recital in the preamble to that Directive in the light of the prohibition on frustrating the objectives of the Treaty laid down in Article 10(2) of the EC Treaty (Treaty establishing the European Community of 25 March 1957, as most recently amended by the 2003 EU Treaty of Accession of 16 April 2003) and following the judgment of the European Court of Justice of 13 January 2005 in Case C-117/03 for sites which could be designated sites of Community importance, particularly those with priority natural habitat types and/or priority species, before they appear on the list of sites of Community importance adopted by the Commission of the European Communities under the procedure provided for in Article 21 of the Directive?

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| 2. | What is the effect on that protection regime if the said sites already appear on the list of national recommendations submitted to the Commission under Article 4(1) of Directive 92/43/EEC? |
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2.

What is the effect on that protection regime if the said sites already appear on the list of national recommendations submitted to the Commission under Article 4(1) of Directive 92/43/EEC?

| 3. | Is a national protection regime for the said sites under Article 48(2) of the Bavarian Naturschutzgesetz (Nature Conservancy Law) sufficient to satisfy the requirements of Community law under Article 3(1) of Directive 92/43/EEC in conjunction with the sixth recital in the preamble to that Directive in the light of the prohibition on frustrating the objectives of the Treaty laid down in Article 10(2) of the EC Treaty?
  Article 48(2) of the Bavarian Naturschutzgesetz is worded as follows:
  ‘Until such time as regulations are brought in under Part III the institutes for nature conservation having authority under Article 45 or agencies for the provisional safeguarding of areas of conservation and objects meriting protection may bring in general or specific regulations imposing the bans on changes provided for under Part III for a period of up to two years if it is feared that the purpose of the intended protective measure would be adversely affected by changes; if special circumstances so require, the period may be extended for a maximum of one further year. The measure may not be brought in unless the competent institute for nature conservation or agency instigates procedure for definitive protection at the same time or immediately thereafter.’ |
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3.

Is a national protection regime for the said sites under Article 48(2) of the Bavarian Naturschutzgesetz (Nature Conservancy Law) sufficient to satisfy the requirements of Community law under Article 3(1) of Directive 92/43/EEC in conjunction with the sixth recital in the preamble to that Directive in the light of the prohibition on frustrating the objectives of the Treaty laid down in Article 10(2) of the EC Treaty?

Article 48(2) of the Bavarian Naturschutzgesetz is worded as follows:

‘Until such time as regulations are brought in under Part III the institutes for nature conservation having authority under Article 45 or agencies for the provisional safeguarding of areas of conservation and objects meriting protection may bring in general or specific regulations imposing the bans on changes provided for under Part III for a period of up to two years if it is feared that the purpose of the intended protective measure would be adversely affected by changes; if special circumstances so require, the period may be extended for a maximum of one further year. The measure may not be brought in unless the competent institute for nature conservation or agency instigates procedure for definitive protection at the same time or immediately thereafter.’

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(1)  OJ. 1992 L 206, p . 7

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