Opinion of the Advocate General — ECLI:EU:C:1997:473
Date: 1997-10-09
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Netherlands

Summary of Annex 9 to the application. 33 — Written question No 131/93 by Mr Floras Wijsenbeek.
OJ 1993 C 258, p. 7.
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OPINION OF MR FENNELLY — CASE C-3/96
a Member State's failure to include a suffi­
cient proportion of Annex I birds within
SPAs in its territory might constitute a
readily quantifiable index of its compliance
with one aspect of Article 4(1), I am pre­
pared to accept, in the absence of any evi­
dence to the contrary, that it is not in itself a
complete guide to compliance with the obli­
gation to classify SPAs under this provision.
(iv) The existence of a breach of Article 4(1)
58. At the time of the Commission's appli­
cation in the present case, the Netherlands
had classified 23 SPAs, covering a total area
of 327 602 hectares. As the equivalent figures
which arise from IBA89 are 70 sites covering
797 920 hectares, the Commission is of the
view that the Netherlands' failure to comply
with its obligations to classify SPAs under
Article 4(1) is manifest.
59. In seeking to show that this state of
affairs constitutes a manifest breach of the
Netherlands' obligations under the Direc­
tive, the Commission has repeatedly referred
to the figure of a half of the number and
total area of sites. The Netherlands and Ger­
many have both pointed out that such a fig­
ure is not in the Directive, and is arbitrary
and unscientific. However, this is to miss the
point. The IBA reports, as I have said, are
offered by the Commission as scientific evi­
dence of what are the 'most suitable territo­
ries' for the classification of SPAs in the
Netherlands. The Netherlands has not sig­
nificantly challenged their evidential value.
Its failure to classify even fifty per cent of
the proposed areas is advanced to enable the
inference to be drawn that the Netherlands
has failed in its general obligation to classify,
while the Commission's reliance on such a
figure is a matter of presentation rather than
a definition of the obligation imposed by
Article 4(1) of the Directive.
60. As I have already stated, the obligation
which arises for the Member States by virtue
of the fourth subparagraph of Article 4(1) is
to classify all the most suitable territories,
identified by the application of reliable
objective scientific criteria. The Commis­
sion's duty in proceedings such as the
present is to indicate the total number and
total area of SPAs which a Member State
should classify on the basis of these criteria,
compared to the number and area of SPAs
which it has in fact classified. The existence
of any discrepancy between the two sets of
figures can of course be challenged by the
Member State in question; if proven before
the Court, the discrepancy is sufficient to
establish a breach of the defendant's obliga­
tions under the Directive. The Commission's
conclusion on the basis of the evidence in the
present case that the Netherlands has failed
to classify sufficient SPAs in number and
area results from the normal process of legal
reasoning, and does not rely on any pre­
sumption.
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COMMISSION v NETHERLANDS
61. At the hearing, the Netherlands argued
that the Commission had rendered very dif­
ficult the task of identifying exactly what it
should do to comply with Article 4(1) of the
Directive, while Germany wondered how
the Court would deal with a second, hypo­
thetical, action against the Netherlands under
Article 171 of the Treaty. It is clear from the
preceding analysis of the relevant provisions
that, in my view, the Netherlands' difficulties
regarding compliance stem primarily from its
erroneous interpretation of its obligations
under Article 4(1), and that sufficient, and
sufficiently reliable, ornithological data are
available for the Netherlands to identify the
action it is required to take in order properly
to comply with this provision. I do not con­
sider it either necessary or appropriate to
deal in detail with arguments based on hypo­
thetical future proceedings. As the declara­
tion the Commission is seeking is general in
character, I am of the opinion that such a
declaration, if granted, could not be relied
upon to show that the Netherlands was in
breach of its obligation to classify a particu­
lar site; the declaration alone could not
therefore be relied upon to justify
Article 171 proceedings in respect of such a
site. In any case, Germany's point was pri­
marily directed at challenging the criterion of
fifty per cent classification, which I have
already dealt with above.
62. It follows, in my view, that the Commis­
sion should be granted the declaration which
it has requested. The Commission has asked
that the Netherlands be required to pay the
costs of the present action. As the points on
which I recommend that the Court uphold
the views of the Netherlands are minor in
character and do not affect the substance of
the case, I consider that the Commission's
request regarding costs should also be
granted.
VI — Conclusion
In the light of the foregoing, I recommend to the Court that it:
(1) Declare that, by failing to classify a sufficient number and area of special pro­
tection areas in accordance with Article 4(1) of Council Directive 79/409/EEC
of 2 April 1979 on the conservation of wild birds, the Kingdom of the Neth­
erlands has failed to comply with its obligations under the EC Treaty;
(2) Order the Kingdom of the Netherlands to pay the costs.
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