Opinion of the Advocate General — ECLI:EU:C:2024:150
Date: 2024-02-22
Language of the case: Greek
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary C-66/23 – 1 
Case C-66/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 February 2023 
Referring court: 
Symvoulio tis Epikrateias (Greece) 
Date of the decision to refer: 
19 December 2022 
Applicants:  
Elliniki Ornithologiki Etaireia 
Syllogos Diktyo Oikologikon Organoseon Aigaiou 
Perivallontikos Syllogos Rethymnou 
Politistikos Syllogos Thronos Kleisidiou 
KX and Others 
Defendants: 
Ypourgos Esoterikon 
Ypourgos Oikonomikon 
Ypourgos Anaptyxis kai Ependyseon 
Ypourgos Perivallontos kai Energeias 
Ypourgos Agrotikis Anaptyxis kai Trofimon 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-66/23 
 
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Subject matter of the main proceedings 
Two applications for annulment of a joint ministerial decision implementing 
provisions in compliance with the first subparagraph of Article 4(1) of Directive 
2009/147/EC. 
Subject matter and legal basis of the request 
The request for a preliminary ruling has been referred pursuant to Article 267 
TFEU, specifically because doubts have arisen as to the interpretation of 
Article 4(1) and (2) of Directive 2009/147/EC. 
Questions referred for a preliminary ruling 
(1) Must Article 4(1) and (2) of Directive 2009/147/EC, read in combination with 
Article 6(2) to (4) of Directive 92/43/EEC, be interpreted as precluding national 
regulatory provisions, such as those set out [in the grounds for the judgment], 
which provide that measures for the special protection, conservation and 
restoration of wild bird species and habitats in special protection areas (SPAs) 
apply only to the ‘classification species’, that is to say only to the species of wild 
birds listed in Annex I to Directive 2009/147/EC and to the regularly occurring 
migratory birds in each SPA which, combined with the criteria for the 
classification of SPAs contained in the national legislation, are used as indicators 
to justify the classification of an area as an SPA? 
(2) Is the answer to the preceding question affected by the fact that the measures 
referred to above for the special protection, conservation and restoration of wild 
bird species and habitats in special protection areas (SPAs) are, in essence, basic 
preventive measures to safeguard SPAs (‘precautionary safeguards’) that apply 
horizontally, that is to say, to all SPAs, or by the fact that management plans for 
each specific SPA setting out the targets and measures needed to achieve or 
ensure satisfactory conservation of each SPA and the species living within it have 
not been adopted to date in Greek law? 
(3) Is the answer to the two preceding questions affected by the fact that, based on 
the obligation to assess the environmental effects of projects and activities in 
accordance with Directive 2011/92/EU and to carry out an ‘appropriate 
assessment’ in accordance with Article 6(2) to (4) of Directive 92/43/EEC, all the 
species listed in Annex I to Directive 2009/147/EC or the regularly occurring 
migratory birds in each SPA must be recorded as part of the assessment of the 
environmental effects of each specific planned public or private project? 
ELLINKI ORNITHOLOGIKI ETAIREIA AND OTHERS 
 
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Provisions of European Union law relied on 
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds 
(OJ 1979 L 103, p. 1), Article 4, 
Directive 2009/147/EC of the European Parliament and of the Council of 
30 November 2009 on the conservation of wild birds (Codified version) (OJ 2010 
L 20, p. 7), Articles 1 to 9 and 18, 
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), Articles 6 and 7. 
Provisions of national law relied on 
Law 1650/1986 gia tin prostasia tou perivallontos (Law on environmental 
protection) (Government Gazette, Series I, No 160, 16.10.1986), as amended by 
Law 3937/2011 (Government Gazette, Series I, No 60, 31.3.2011) and Law 
4685/2020 (Government Gazette, Series I, No 92, 7.5.2020), Articles 18, 19 and 
21. 
Joint Ministerial Decision No 37338/1807/2010 ‘Kathorismos metron kai 
diadikasion gia tin diatirisi tis agrias ornithopanidas kai ton 
oikotopon/endiaitimaton tis, se symmorfosi me tin Odigia 79/409/ΕΟΚ peri tis 
diatiriseos ton agrion ptinon tou Evropaikou Symvouliou tis 2as Apriliou 1979, 
opos kodikopoiithike me tin Odigia 2009/147/ΕΚ’ (Definition of measures and 
procedures for the conservation of wild birds and their habitats, in compliance 
with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild 
birds, as codified in Directive 2009/147/EC) (Government Gazette, Series II, 
No 1495, 6.9.2010) (‘the 2010 decision’). 
Joint Ministerial Decision No 8353/276/Ε103 ‘Tropopoiisi kai symplirosi tis yp’ 
arith. 37338/1807/2010 koinis ypourgikis apofasis “Kathorismos metron kai 
diadikasion gia tin diatirisi tis agrias ornithopanidas kai ton 
oikotopon/endiaitimaton tis, se symmorfosi me tin Odigia 79/409/ΕΟΚ …” (B’ 
1495), se symmorfosi me tis diataxeis tou protou edafiou tis paragrafou 1 tou 
arthrou 4 tis Odigias 79/409/EEC peri tis diatiris ton agrion ptinon tou Evropaikou 
Symvouliou tis 2as Apriliou 1979, opos kodikopoiithike me tin odigia 
2009/147/EEC’ (Amendments and addenda to Joint Ministerial Decision 
No 37338/1807/2010 ‘Definition of measures and procedures to conserve wild 
birds and their habitats, in compliance with Directive 79/409/EEC …’ (GG 
II/1495), in compliance with the provisions of the first subparagraph of 
Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation 
of wild birds, as codified in Directive 2009/147/EEC) (‘the contested decision’). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-66/23 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 By its judgments of 25 October 2007, Commission v Greece, C-334/04, 
EU:C:2007:628, and of 11 December 2008, Commission v Greece, C-293/07, not 
published, EU:C:2008:706, in connection with the transposition of Directive 
79/409 into Greek law, the Court found that the Hellenic Republic had failed to 
fulfil its obligations under Article 4 of Directive 79/409 as regards, respectively, 
the classification of special protection areas (SPAs) and their sustainable 
management and effective protection. 
2 The 2010 decision implemented measures in order to comply with the judgments 
of the Court referred to above. 
3 In addition, a study was carried out in July 2009 in order to identify activities 
compatible with the classification species of existing SPAs, which included a draft 
joint ministerial decision. The contested decision was adopted on the basis of that 
study. 
4 The contested decision lays down, inter alia, specific measures, terms, procedures 
and interventions (which apply horizontally, that is, to all SPAs) to protect the 
classification species of an SPA. That means the species of wild birds listed in 
Annex I to Article 14 of the 2010 decision and the migratory birds which, 
although not listed in that annex, regularly cross Greek territory, which, combined 
with the criteria for the classification of SPAs included in Annex I to that 
decision, are used as indicators to justify the classification of an area as an SPA. 
The SPAs and the classification species of each SPA are listed in the annex to 
Article 4 of the contested decision, which is included as Annex IV to the 2010 
decision. Specifically, the contested decision seeks to prevent disturbances which 
have a significant impact on the species for the protection of which SPAs have 
been designated. 
5 The Elliniki Ornithologiki Etaireia (Hellenic Ornithological Society), the first 
applicant in the main proceedings, lodged an application for annulment with the 
referring court, seeking annulment of certain articles of the contested decision. 
The other applicants lodged a separate application for annulment, seeking the 
annulment of the contested decision in its entirety. 
6 The referring court decided to join the two applications for annulment. 
The essential arguments of the parties in the main proceedings 
7 The applicants in the main proceedings submit, inter alia, that the arrangements 
adopted in the contested decision infringe the provisions of Directive 79/409, as 
codified in Directive 2009/147. 
8 In particular, the applicants in the main proceedings submit, inter alia, that the 
contested decision transposed Directive 2009/147 into Greek law incorrectly, in 
ELLINKI ORNITHOLOGIKI ETAIREIA AND OTHERS 
 
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that it provides for horizontal protection for all SPAs without, in fact, protecting 
all the species listed in Annex I to the directive or the regularly occurring 
migratory birds in each SPA, as required under Article 4(1) and (2) of the 
directive. 
9 Specifically, under the arrangements adopted in the contested decision, only the 
classification species of an SPA are protected, provided they fulfil the numerical 
criteria laid down in Annex I to Article 14 of the 2010 decision. By contrast, 
Article 4(1) and (2) of Directive 2009/147 defines protection based on whether 
certain species are listed in Annex I to that directive, not based on whether they 
are included in a national list of the classification species of an SPA selected by 
the national authorities. Therefore, the applicants in the main proceedings argue 
that this also infringes the principle of the effective application of Directive 
2009/147. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The contested decision includes special conservation measures, terms, 
prohibitions, procedures and interventions of a ‘horizontal’ nature, that is, that 
apply to all SPAs, depending on their ‘classification species’. This includes the 
bird species for which these zones were classified following an assessment (for 
classification purposes) of the specific scientific/ornithological criteria listed in 
Annex I to the 2010 decision, which broadly correspond to the Birdlife 
International criteria. 
11 Those measures, which were adopted following consultation with EU institutions 
based on a special scientific study, grouped SPA wild bird classification species 
depending on their ecological requirements, identified the threats to them and 
general principles for their protection by species or group of species, proposed 
measures for regulating activities which endanger the classification species and 
outlined general appropriate management measures. 
12 The contested decision contains not only measures regulating projects and 
activities within SPAs in accordance with the procedure adopted in Directive 
2011/92 and Directive 92/43, but also protection measures for activities which are 
not subject to prior environmental licensing or an appropriate assessment in 
accordance with the above legislation (e.g. hunting, reforestation, forestry, use of 
poison baits, fishing, scientific research, etc.). These measures do not, as a whole, 
negate the procedures by which the competent authorities take additional ad hoc 
steps to protect and manage SPAs or the obligation to assess the environmental 
effects of projects and activities in accordance with Directive 2011/92 and to 
conduct an ‘appropriate assessment’ as and where necessary, in accordance with 
Article 6(2) to (4) of Directive 92/43. 
13 The contested decision provides guidelines for activities exercised within SPAs 
and the administration has confirmed that those measures are regarded as 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-66/23 
 
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‘precautionary’, clearly pending the adoption of an integrated protective 
framework for each individual SPA. 
14 However, appropriate conservation targets have not been set in Greece to date, nor 
have appropriate conservation measures been adopted for each individual SPA, as 
required under the national legislation which applied when the contested decision 
was adopted and still required under the legislation which applies today. 
15 Therefore, doubts remain as to whether, under those circumstances and given the 
long period of time during which the regulator has failed to introduce management 
plans for each individual SPA (with the relevant conservation targets and 
measures), the arrangements enacted by the contested decision, which include 
horizontal ‘precautionary safeguards’ for all SPAs predicated solely on the 
‘classification species’ of an SPA (that is, those which fulfil the mainly numerical 
criteria laid down in Annex I to Article 14 of the 2010 decision) fully and 
adequately transpose the provisions of Article 4(1) and (2) of Directive 2009/147, 
read in combination with the provisions of Article 6(2), (3) and (4) of Directive 
92/43, into national law. 
16 That is because those provisions of EU law require, first, special conservation 
measures for all the species listed in Annex I to Directive 2009/147 or for the 
migratory birds regularly occurring in each SPA and, second, appropriate 
conservation targets and measures to be defined for each individual SPA, 
especially given the long period of time since the relevant requirements were 
adopted under EU and national law (see also judgment of 17 December 2020, 
Commission v Greece, C-849/19, not published, EU:C:2020:1047). One member 
of the referring court held in particular that, having failed to date to adopt 
management plans for each individual SPA (with the relevant conservation targets 
and measures), the Greek legislature is in autonomous breach in this case of the 
provisions of Article 4(1) and (2) of Directive 2009/147, read in combination with 
the provisions of Article 6(2), (3) and (4) of Directive 92/43, irrespective of the 
more specific issue of whether providing protection for ‘classification species’ 
alone is compatible with Annex I to, and Article 4(1) and (2) of, Directive 
2009/147. 
17 The question whether a national system for the protection of SPAs with the above 
characteristics complies with the requirements of Directive 2009/147 is not 
addressed in the case-law of the Court. 
18 Specifically, the Court has found that an SPA must be made the subject of special 
conservation measures capable of ensuring, in particular, the survival and 
reproduction ‘of the bird species mentioned in Annex I to that directive’, that is, 
all the species that must be protected (judgment of 7 December 2000, Commission 
v France, C-374/98, EU:C:2000:670, paragraph 26). 
19 By its judgment of 7 February 2013, Commission v Greece (C-517/11, not 
published, EU:C:2013:66, paragraph 34), the Court found that Article 6(2) of 
ELLINKI ORNITHOLOGIKI ETAIREIA AND OTHERS 
 
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Directive 92/43, like the first sentence of Article 4(4) of Directive 79/409, requires 
the Member States to take appropriate steps to avoid ‘disturbance significantly 
affecting the species for which the SPAs have been classified’ (see also judgments 
of 24 November 2016, Commission v Spain, C-461/14, EU:C:2016:895, 
paragraph 95, and of 14 October 2010, Commission v Austria, C-535/07, 
EU:C:2010:602, paragraph 58 and the case-law cited), that is the ‘classification 
species’ alone. 
20 Moreover, the judgment of 14 October 2010 (Commission v Austria, C-535/07, 
EU:C:2010:602, paragraphs 63, 65 and 66) gives rise to the following 
conclusions: (a) attainment of the objective of protecting SPAs does not 
necessarily require prohibitions specific to each SPA or to each species to be laid 
down; (b) conservation objectives need not be specified for each species 
considered separately; (c) the conservation objectives need not be contained in the 
same legal measure as that relating to the protected species and habitats of a 
particular SPA; (d) Article 4 of Directive 79/409 does not require the Member 
States to establish a specifically defined legal regime for each SPA for the purpose 
of ensuring that that type of site is protected effectively. 
21 In the opinion of the referring court, doubts arise in the light of those judgments as 
to whether the national legislature has failed to transpose Directive 2009/147 into 
national law correctly given that, first, it has failed to define appropriate 
conservation targets and measures for each individual SPA and, second, although 
it has maintained the horizontal ‘precautionary safeguards’ referred to above, they 
only relate to the protection of the ‘classification species’ of the SPAs within the 
meaning explained above. 
22 In the light of the foregoing, the referring court finds that Article 267 TFEU 
applies and that a reference for a preliminary ruling should be made to the Court 
of Justice.