# C_2005006EN.01002203.xml

| 8.1.2005 | EN | Official Journal of the European Union | C 6/22 |
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Action brought on 29 September 2004 by the Commission of the European Communities against Ireland

(Case C-418/04)

(2005/C 6/44)

Language of procedure: English

An action against Ireland was brought before the Court of Justice of the European Communities on 29 September 2004 by the Commission of the European Communities, represented by Barry Doherty and Michel van Beek, acting as agents, with an address for service in Luxembourg.

The Commission requests the Court to:

| 1. | declare that Ireland, by failing
a)
to classify, since 1981, in accordance with Article 4(1) and (2) of Directive 79/409/EEC on the conservation of wild birds,( 1 ) all the most suitable territories in number and size for the species of Annex I of Directive 79/409/EEC as well as regularly occurring migratory species; b)
to establish, since 1981, in accordance with Article 4(1) and (2) of Directive 79/409/EEC, the necessary legal protection regime for these territories; c)
to ensure that, since 1981, the provisions of Article 4(4), first sentence are applied to areas requiring classification as special protection areas under Directive 79/409/EEC; d)
to fully and correctly transpose and apply the requirements of the second sentence of Article 4(4) of Directive 79/409/EEC; e)
in respect of classified special protection areas under Directive 79/409/EEC, to take all the measures necessary to comply with the provisions of Article 6(2), (3) and (4) of Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna( 2 ), and, in respect of recreational use of all sites intended to be subject to Article 6(2) of Directive 92/43/EEC, to take all the necessary measures to comply with the provisions of the said Article 6(2); f)
to take all the measures necessary to comply with Article 10 of Directive 79/409/EEC, has failed to comply with its obligations under those Articles of the said Directives; and | a) | to classify, since 1981, in accordance with Article 4(1) and (2) of Directive 79/409/EEC on the conservation of wild birds,( 1 ) all the most suitable territories in number and size for the species of Annex I of Directive 79/409/EEC as well as regularly occurring migratory species; | b) | to establish, since 1981, in accordance with Article 4(1) and (2) of Directive 79/409/EEC, the necessary legal protection regime for these territories; | c) | to ensure that, since 1981, the provisions of Article 4(4), first sentence are applied to areas requiring classification as special protection areas under Directive 79/409/EEC; | d) | to fully and correctly transpose and apply the requirements of the second sentence of Article 4(4) of Directive 79/409/EEC; | e) | in respect of classified special protection areas under Directive 79/409/EEC, to take all the measures necessary to comply with the provisions of Article 6(2), (3) and (4) of Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna( 2 ), and, in respect of recreational use of all sites intended to be subject to Article 6(2) of Directive 92/43/EEC, to take all the necessary measures to comply with the provisions of the said Article 6(2); | f) | to take all the measures necessary to comply with Article 10 of Directive 79/409/EEC, |
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| a) | to classify, since 1981, in accordance with Article 4(1) and (2) of Directive 79/409/EEC on the conservation of wild birds,( 1 ) all the most suitable territories in number and size for the species of Annex I of Directive 79/409/EEC as well as regularly occurring migratory species; | | | | | | | | | | | | |
| b) | to establish, since 1981, in accordance with Article 4(1) and (2) of Directive 79/409/EEC, the necessary legal protection regime for these territories; | | | | | | | | | | | | |
| c) | to ensure that, since 1981, the provisions of Article 4(4), first sentence are applied to areas requiring classification as special protection areas under Directive 79/409/EEC; | | | | | | | | | | | | |
| d) | to fully and correctly transpose and apply the requirements of the second sentence of Article 4(4) of Directive 79/409/EEC; | | | | | | | | | | | | |
| e) | in respect of classified special protection areas under Directive 79/409/EEC, to take all the measures necessary to comply with the provisions of Article 6(2), (3) and (4) of Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna( 2 ), and, in respect of recreational use of all sites intended to be subject to Article 6(2) of Directive 92/43/EEC, to take all the necessary measures to comply with the provisions of the said Article 6(2); | | | | | | | | | | | | |
| f) | to take all the measures necessary to comply with Article 10 of Directive 79/409/EEC, | | | | | | | | | | | | |

| 2) | order Ireland to pay the costs. |
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Pleas in law and main arguments:

This case concerns the failure by Ireland to comply with certain obligations laid down in directive 79/409/EEC and directive 92/43/EEC. The Commission submits that:

Since 1981, Ireland has failed to classify in accordance with article 4(1) and (2) of directive 79/409/EEC on the conservations of wild birds, (hereinafter ‘the birds directive’) all the most suitable territories in number and size for the species of Annex I of the directive as well as regularly occurring migratory species. This has two aspects. First of all, there has been an omission to make any classification in respect of certain sites (‘non-classification’). Secondly, there has been a failure to fully classify other sites (‘partial classification’). In terms of territorial coverage, the combined effect of non-classification and partial classification left Ireland with the second smallest SPA network of any Member State before the accessions that took place on 1 May 2004.

Ireland has failed to establish the necessary legal protection regime for SPAs in accordance with article 4(1) and (2) of the birds directive. The scope of the relevant Irish legislation is limited to what might be termed preventive measures, i.e. measures which seek to address threats to habitats and disturbances of wild birds arising from human interventions. Quite apart from the inherent flaws in these preventive measures, the Commission contends that the requisite legal protection regime required by article 4(1) and (2) is larger in scope and that ensuring the survival and reproduction of bird species within SPAs may require more than efforts to restrain negative human interventions.

While there is Irish legislation of relevance to habitat protection outside of classified SPAs, this lacks the specificity required by the birds directive in respect of Article 4(4), first sentence. In particular, the Irish legislation fails to impose any specific duties in respect of the habitats of the wild bird species which should benefit from SPA protection in areas not covered by Ireland's existing SPA network.

There is no specific set of provisions implementing the second sentence of Article 4(4) which provides that Member States shall ‘strive to avoid pollution or deterioration of habitats’ outside classified areas. Many activities which destroy habitats are not subject to any meaningful form of statutory control.

Directive 92/43/EEC (‘the habitats directive’) was required to be implemented from 10 June 1994. This means that Ireland should have transposed and applied the provisions of articles 6(2) to (4) to all SPAs classified under article 4(1) of the birds directive or recognised under article 4(2) of the same directive on or after that date.

The Commission considers that Ireland has not transposed or applied article 6(2) of the habitats directive.

The adoption of national measures to implement article 10 of the birds directive is necessary to ensure that the directive is fully effective. By not reflecting in the relevant statutory provisions the obligation to encourage research, Ireland has failed to implement article 10.

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( 1 )  OJ L 103, 25.04.1979, p. 1.

( 2 )  OJ L 206, 22.07.1992, p. 7.

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