# C_2008051EN.01003202.xml

| 23.2.2008 | EN | Official Journal of the European Union | C 51/32 |
| --------- | -- | -------------------------------------- | ------- |

---

Action brought on 30 November 2007 — Commission of the European Communities v Republic of Austria

(Case C-535/07)

(2008/C 51/55)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: R. Sauer and D. Recchia, Agents)

Defendant: Republic of Austria

Form of order sought

| — | Declare that, by failing
(a)
in accordance with ornithological criteria correctly to designate or delimit (‘Hansag’ in the Province of Burgenland and ‘Niedere Tauern’ in the Province of Steiermark respectively) the most suitable areas in Austria in terms of numbers and size as special protection areas under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds,( 1 ) and (b)
to provide legal protection, in accordance with the requirements of Article 4(1) and (2) of Directive 79/409/EEC or Article 6(2) in conjunction with Article 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora,( 2 ) for part of the special protection areas already designated, the Republic of Austria has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409/EEC and Article 6(2) in conjunction with Article 7 of Directive 92/43/EEC; | (a) | in accordance with ornithological criteria correctly to designate or delimit (‘Hansag’ in the Province of Burgenland and ‘Niedere Tauern’ in the Province of Steiermark respectively) the most suitable areas in Austria in terms of numbers and size as special protection areas under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds,( 1 ) and | (b) | to provide legal protection, in accordance with the requirements of Article 4(1) and (2) of Directive 79/409/EEC or Article 6(2) in conjunction with Article 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora,( 2 ) for part of the special protection areas already designated, |
| --- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| (a) | in accordance with ornithological criteria correctly to designate or delimit (‘Hansag’ in the Province of Burgenland and ‘Niedere Tauern’ in the Province of Steiermark respectively) the most suitable areas in Austria in terms of numbers and size as special protection areas under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds,( 1 ) and | | | | |
| (b) | to provide legal protection, in accordance with the requirements of Article 4(1) and (2) of Directive 79/409/EEC or Article 6(2) in conjunction with Article 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora,( 2 ) for part of the special protection areas already designated, | | | | |

| — | order Republic of Austria to pay the costs. |
| - | ------------------------------------------- |

Pleas in law and main arguments

Article 4(1) and (2) of Council Directive 79/409/EEC (bird protection directive) requires the Member States to declare as special protection areas (SPAs) all those areas which are the most suitable territories in number and size for the conservation of the species listed in Annex I and to take similar measures for the conservation of regularly occurring migratory species not listed in Annex I to the Directive. An SPA is to be given a legal protection status that is appropriate, inter alia, to secure the survival and reproduction of the species listed in Annex I to the Directive and the breeding, moulting and wintering of regularly occurring migratory species not listed in Annex I to the Directive. Since, under Article 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (fauna and flora directive), obligations arising, inter alia, under Article 6(2) of that directive in respect of special areas of conservation are to replace the obligations under the first sentence of Article 4(1) of the bird protection directive, the legal protection status of those areas must also ensure that there is no deterioration of the natural habitats of the species for which the areas have been designated and no significant disturbance of those species.

The Republic of Austria has infringed its obligations under those Community law provisions by failing to designate the ‘Hansag’ area as an SPA, delimit the ‘Niedere Tauern’ special protection area in accordance with the requirements of the bird protection directive, and provide part of the existing special protection areas with the legal protection required by the above provisions.

Although the Republic of Austria has recognised the need to designate ‘Hansag’ as an SPA and has, on several occasions, confirmed its intention to do so, it has not complied with its designation obligation within the period laid down in the reasoned opinion.

The failure to delimit the ‘Niedere Tauern’ area in accordance with the requirements of the bird protection directive relates to the failure to have sufficient regard to the necessary habitat of the dotterel and the inadequate inclusion of the established habitats of certain woodland bird species, namely the grey-headed woodpecker (picus canus) and the hazel hen (Bonasa bonasia). Although the Member States enjoy some latitude in the selection and delimitation of SPAs, it is limited by the requirement that the delimitation of those areas must comply with particular ornithological criteria laid down in the Directive. In particular, when selecting and delimiting an SPA, a Member State is not entitled to take into account the economic requirements referred to in Article 2 of the bird protection directive or Article 6(4) of the fauna and flora directive.

As regards the legal protection status of the protection areas already designated in Austria, special conservation measures are necessary for each bird fauna designated in an area that satisfies the criteria for designation as an SPA, and it is also necessary to establish with precision the necessary conservation measures and adapt them to the specific features and environmental conditions of the BSG and the species living there. The specific conservation aims contained in the legal protection instruments for the purposes of Article 4(1) and (2) of the bird protection directive and Article 6(2) of the fauna and flora directive for each bird species in question, together with the necessary concrete measures and conditions (prohibitions and requirements) for the area should also be binding and given adequate publicity. After an examination of the rules existing in the individual provinces, it has been found that the legal protection status does not comply with the above requirements and thus can not be regarded as adequate when measured against the provisions of the bird protection directive and the fauna and flora directive.

---

( 1 )  OJ 1979 L 103, p. 1.

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

---