Judgment — ECLI:EU:C:2010:281
Date: 2010-05-20
Language of the case: Spanish
Court formation: Fourth Chamber
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Spain

summary of the final activity report drawn up by the Spanish authorities concerning the period from 1 July 2002 to 30 June 2006 (Recuperación de poblaciones de Lince ibérico en Andalucía, Proyecto Life No 02NAT/E/8609, Consejería de Medio Ambiente, Septiembre 2006) that it is important to promote the interconnection of the various territories which host the Iberian lynx population of the Doñana region, given that that population is composed of small ‘territorial nuclei’ between which the animals move when they are dispersing. 30 In particular, it emerges from the case‑file that the most important original nucleus of small Iberian lynx is to be found in the forested areas of de Coto del Rey and Matasgordas, both of which are in the Doñana national park. From that nucleus, young Iberian lynx have two basic lines of dispersal, one towards the north, which leads across the asphalt road between Villamanrique de la Condesa and El Rocío, and the other towards the west. 31 In November 2006, however, eight wildlife crossings and two bridges were built in order to make sure that it was possible to cross the road at issue and thus to avoid the barrier effect resulting from its upgrading to a regional road. 32 Admittedly, according to a report of WWF/Adena of September 2007 (Informe sobre el camino agricola asfaltado Villamanrique de la Condesa (Seville) – El Rocío (Huelva)), the wildlife crossings built have proved to be unusable and useless because of design faults and lack of maintenance or failure to implement additional corrective measures. 33 However, the technical report drawn up in November 2006 by Inerco, a consultancy, at the request of the municipality of Villamanrique de la Condesa (Informe Técnico sobre las medidas correctoras adoptadas en las obras de adecuación del firme de la via Villamanrique – El Rocío (Sevilla – Huelva)), indicates that the number of wildlife crossings across the road at issue, as well as their design, were considered to be well adapted to the characteristics of the transport link which they are intended to make safe to cross. Their usefulness was limited only in the event of exceptionally heavy rainfall. 34 As the Commission observed when quoting the follow‑up report on the effectiveness of the corrective measures implemented on the asphalt road between Villamanrique de la Condesa and El Rocío (Informe de seguimiento de la eficacia de las medidas correctoras establecidas en el camino agrícola asfaltado Villamanrique de la Condesa – El Rocío, Junta de Andalucía Consejería de Medio Ambiente, 16 March 2008), although proof that Iberian lynx had used the crossings between March 2006 and February 2007 was confined to only four occasions over a period of a year, it is also true that, at that time, the total estimated population of Iberian lynx in the Doñana parks did not even amount to 50 individual animals. Moreover, according to the final activity report referred to in paragraph 29 above, it has been established that individual specimens of Iberian lynx wander between the various territories of the Doñana region. In that regard, according to the follow-up report, the wildlife crossings have a sufficient covering of vegetation to encourage the animals to use them and the access slopes make the crossings perfectly accessible for lynx. 35 Moreover, as the final activity report states, thanks to the capture of 13 specimens and to the breeding in captivity programme, two cubs were born to broodstock originating respectively from the populations of the Andujar‑Cardeña and the Doñana regions. That represents a step forward in the preservation of current genetic variability. 36 In the light of the foregoing, it cannot be regarded as established to the requisite legal standard that the upgrading of the road, as such, has had a real impact on the habitat fragmentation of the Iberian lynx in the Doñana region. 37 As regards the allegedly high risk of being struck by a vehicle to which Iberian lynx in that region are exposed following completion of the project for upgrading the road, it is necessary to state the following. 38 The Commission referred to the pilot study for the document entitled ‘Sustainable mobility, road safety and conservation of wildlife in the Doñana region (Borrador, Movilidad sostenible, seguridad vial y conservación de la faune silvestre en la comarca de Doñana), forwarded by the Spanish authorities on 18 December 2006, which indicates that, for the Iberian lynx of the Doñana region, being struck by a vehicle has become one of the main causes of death and, accordingly, a determining factor for the future viability of the Iberian lynx population. According to that pilot study, the situation has been made worse by two main factors, namely, the increase in the number of asphalt roads, particularly in the final decade of the 20th century, and the growth of road traffic throughout the region, owing to the increase in tourist and commercial use of the main roads and the more frequent use of the asphalt country roads. 39 According to the study referred to in paragraph 27 above, during the period between 2000 and 2003, 10 Iberian lynx died because of being struck by a vehicle in the Doñana region. It is not contested that, during that period, only one Iberian lynx was killed on the country road between Villamanrique de la Condesa and El Rocío. 40 In 2004, another Iberian lynx was killed on that road. 41 However, it is common ground that, since implementation of the additional corrective measures was completed in November 2004, no Iberian lynx has been run over on that road, at least not before the end of the written procedure before the Court, which closed on 23 February 2009. 42 In that regard, it should be pointed out that the corrective measures consist in the adoption of measures to deter speeding; the provision of road signs; the erection of animal fencing; and in the improvement of wildlife crossings, bridges and drainage. 43 Thus, as regards the measures to deter speeding and the provision of road signs, it emerges from the Inerco report, referred to in paragraph 33 above, that the measures adopted by the Spanish authorities to discourage speeding have brought about a significant reduction in traffic speed on the road at issue as compared with that recorded a number of years earlier. 44 Nevertheless, it is apparent from the study of the Doñana natural park carried out in 2006 (Estudio de 2006 del Parque Natural de Doñana) that the average speeds recorded on that road exceed the authorised speed limits. 45 Against that background, the report referred to in paragraph 34 above concludes that, although the measures taken appear at the moment to yield good results, all the measures adopted could be improved by speed checks and more intensive maintenance of infrastructure, or even the adoption of new measures. 46 As regards the animal fencing, the WWF/Adena report referred to in paragraph 32 above indicates that this has not been erected along the entire length of the road between Villamanrique de la Condesa and El Rocío, one side of that road remaining unfenced for a section of approximately three kilometres. Thus, along that section, the Iberian lynx had unrestricted access to the road. According to the Inerco report, referred to in paragraphs 33 and 43 above, the road has been fully fenced off and the measures adopted in that connection must be considered appropriate in relation to the objectives pursued, even though it is necessary to check the fencing to ensure that it remains secure. Moreover, accidental gaps in certain fences have exceptionally allowed wildlife to pass through. 47 The follow‑up report, referred to in paragraphs 34 and 45 above, indicates that, with regard to the 11 000 metre section of the country road which crosses the Doñana natural park, the first 9 300 metres – which correspond to the forested area constituting a favourable habitat for the Iberian lynx – are entirely bordered by animal fencing on both sides of the road. The remaining 1 700 metres are unfenced, since the road crosses a floodplain and serves as a ford during heavy floods. Moreover, there are no trees or bushes, the land being intended for grazing. 48 Furthermore, it emerges from the document drawn up on the initiative of the National Commission for nature protection of the Kingdom of Spain and entitled ‘Technical specifications for the design of wildlife crossings and perimeter fencing’ (‘Prescripciones técnicas para el diseño de pasos de fauna y vallados perimetrales’) – to which the Commission referred – that, for the Iberian lynx, twisted wire or soldered fences are recommended, which should reach two metres above the ground. However, it is undisputed that the animal fencing at issue in the present case complies with the recommended specifications, which – contrary to the Commission’s assertions in its reply – are not prohibited for roads with the same characteristics as the road at issue. 49 Furthermore, it is indicated in the follow‑up report that, by way of corrective measure in relation to the animal fencing and in order to facilitate escape if an Iberian lynx were to break through on to the road at issue, a sufficient number of escape points have been set up along the entire length of the fence, concentrated in the vicinity of possible points of access, such as crossroads or the places where the fencing ends. However, it has not yet been possible to test the effectiveness of those escape points, since the fences have fulfilled their function well and no Iberian lynx has been able to pass through them. 50 As for the wildlife crossings, bridges and drainage, reference should be made to paragraphs 32 to 34 above. 51 In the light of all of the foregoing, considered as a whole, it is clear that the Commission has failed to prove that the implementation of the project for upgrading the country road placed the Iberian lynx in great danger of being struck by vehicles. 52 Thus, although certain elements in the case‑file appear to indicate that the overall situation of the Doñana site might not be satisfactory in the light of the requirements relating to conservation of the Iberian lynx – in particular, because of the relatively high number of cases in which animals of that priority species have died because of being struck by a vehicle – the evidence before the Court is not sufficient for it to find that the project for upgrading the country road, accompanied by the corrective measures, constitutes in itself intervention of a kind which places the Iberian lynx on the site concerned in danger of extinction and which, accordingly, risks seriously compromising the ecological characteristics of that site. 53 The first plea in law must therefore be rejected. The second plea, alleging failure to fulfil the obligations incumbent on the defendant Member State under Article 12(4) of the Habitats Directive Arguments of the parties 54 The Commission claims that, although the Spanish authorities have acknowledged the accidental deaths of three Iberian lynx, in 1996, 2002 and 2004 respectively, on the country road between Villamanrique de la Condesa and El Rocío, they have not established a system for monitoring closely the incidental killing of Iberian lynx on the asphalt road at issue and have failed to take the conservation measures necessary to ensure that those accidental deaths do not have a significant negative impact on that protected species. 55 The Kingdom of Spain contends that it has adopted measures which are suitable and which drastically reduce the risk of incidental killing. In addition, the Spanish authorities are making sure that the measures adopted are satisfactorily monitored and continue to study new measures which may be even more appropriate with respect to the conservation and improvement of the species. Findings of the Court 56 Under Article 12(4) of the Habitats Directive, read together with Annex IV(a) thereto, Member States are to establish a system to monitor, inter alia, the incidental killing of Iberian lynx. In the light of the information gathered, Member States are to undertake further research, or take the conservation measures required, to ensure inter alia that incidental killing does not have a significant negative impact on the species concerned. 57 As regards the establishment of a system for monitoring the incidental killing of Iberian lynx, it should be pointed out that, according to the summary of the final activity report, referred to in paragraph 29 above, a database has been created, according to geographical criteria, on deaths of Iberian lynx attributable to non‑natural causes, such as being struck by a vehicle. This means that it has been possible to determine the areas within the natural range of the Iberian lynx where it is most at risk. 58 As regards the conservation measures needed to ensure that the incidental killing of Iberian lynx does not have a significant negative impact on the species, the findings made in relation to the first plea and on the basis of which it fell to be rejected may, in essence, be applied again in this connection. 59 In the present case, as the Kingdom of Spain has contended, the fact that the Spanish authorities continue to study new measures capable of further improving the conditions for conservation and improvement of the species cannot in itself lead to a finding that the measures adopted are inappropriate in relation to the aim underlying Article 12(4) of the Habitats Directive, specified in paragraph 58 above. 60 The second plea in law must therefore be rejected. 61 In the light of all the foregoing and there being no need now to rule on the plea of inadmissibility raised by the Kingdom of Spain in its rejoinder, on the ground that the first plea is vague and imprecise, the action brought by the Commission must be dismissed. Costs 62 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Kingdom of Spain has applied for costs to be awarded against the Commission and the latter has been unsuccessful, the Commission must be ordered to pay the costs. On those grounds, the Court (Fourth Chamber) hereby: 1. Dismisses the action; 2. Orders the European Commission to pay the costs. [Signatures] * Language of the case: Spanish.