Opinion of the Advocate General — ECLI:EU:C:2000:86
Date: 2000-02-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: France

summary of the extent to which SPAs were classified in ZICOs of class C and under. The table suggests that in a few ZICOs 80%, 90% or even 100% of the area had been classified as SPAs. In one region, the 'Estuaires du Trieux et du Jaudy, the classified SPA even extends beyond the limits of the ZICO. A high percentage of classified land does not necessarily depend on the extent of the ZICO either. 100% of the class D ZICO of the 'Parc national des Cévennes, covering 84 000 hectares, was declared an SPA. On the other hand, there are also instances where the classified sites represent very small percentages, such as - 0.58% in a class D ZICO (Barthes de l'Adour) - 1.91% in a class E ZICO (Penes du Moulle de Jaut) - 0.32% in a class F ZICO (Fresnes en Woevre - Mars la Tour) - 0.83% in a class D ZICO (Plateau de l'Arbois, Garrigues de Lançon et chaîne des côtes) - 0.21% in a class D ZICO (Lac Léman) - 0.45% in a class E ZICO (Basse-Ardèche). In class C, apart from the area indicated for the Basses Corbières of 0.76%, there are percentages of - 43.77 (Baie de Saint-Brieuc) - 72.12 (Montagne de la Clape) - 96.09 (Cap Gris-Nez) - 82.42 (Estuaires Picards: Baies de Somme et d'Authie) - 11.83 (Traicts et Marais Salants de la Presqu'île guérandaise) - 37.5 (Iles d'Hyères) - 31.53 (Hauts Plateaux du Vercors et Forêt des Coulmes) - 78.11 (Parc national de la Vanoise). This numerical comparison may principally be an indication that the amount of land classified as special protection areas in the Basses Corbières is inadequate. However, in order to avoid hasty conclusions, it must be remembered that of the 199 ZICOs in classes C, D and F, only 64 appear in the list supplied by the Commission. That represents only one-third of these ZICOs. There is therefore a good deal to suggest that no SPAs were classified in the majority of designated ZICOs - around two thirds of them. The figures alone are therefore probably insufficient evidence of a Treaty infringement. 64. The essential element, therefore, is the extent to which the Commission was able to convince the Court of the additional protection measures that should have been taken. Only in its reply did the Commission (29) designate specific sites that, in its view, were particularly suitable for classification as SPAs. It had evidently been unable to give a concrete description of what it felt to be the required approach earlier on in the proceedings. Taking the abstract charge of failure to introduce special protection measures as the basis for finding against the defendant in the Treaty infringement proceedings, when a few - in some cases inadequate - measures had in fact been taken, is beset with problems. 65. So even if a comparison of areas between the ZICO and the sites protected under the biotope orders were to be an indication of the inadequacy of the conservation measures taken in relation to their geographical size, this would probably not be sufficient in itself to allow one to conclude the existence a Treaty infringement. 66. There must be additional elements enabling one to identify where the protection is inadequate and for which species. Against this background, the Commission's assertion that the French authorities had not given sufficient consideration to the migratory birds frequenting the Basses Corbières site is relevant. 67. It can probably be assumed in that respect that at the critical time for the purposes of the Treaty infringement proceedings, no special measures had been adopted in relation to migratory birds, either in the form of the classification of special protection areas or special protection measures of another type. The biotope orders do not demonstrate that they provide specific protection for migratory birds. 68. However, Article 4(2) of the birds directive calls for 'similar measures (30) for 'regularly occurring migratory species 'as regards their breeding, moulting and wintering areas and staging posts along their migration routes. The Commission has demonstrated with the help of maps that the Basses Corbières must be regarded as a route used by migratory birds, something that the French Government does not dispute in principle either. However, the Commission has never claimed that the Basses Corbières is a breeding, moulting or wintering area for migratory birds. In order to embody a special need for protection, as defined by the Directive, the site would at least have to be a 'staging post for migratory birds. The French Government has argued that there are no identifiable zones in the Basses Corbières capable of being designated 'staging posts. It maintains, in particular, that there are no specific congregating areas for migratory birds, as there are in coastal areas, for instance. 69. It should be mentioned in passing that the French Government has conceded that storks, black kites and Montagu's harriers can occasionally be seen resting or feeding there. Significantly, these are species included in Annex I to the birds directive, whose arrival in a region gives cause for the introduction of special protection measures. 70. Otherwise, the Commission has failed to give any indication as to whether and, if appropriate, where the staging posts of migratory birds are to be found. Against this background, the complete absence of special protection measures for migratory birds could lead one to conclude, at worst, that the Member State has failed in one of its duties. Nevertheless, the simple fact that an area lies in a flying corridor used by migratory birds cannot be sufficient to unleash the duties incumbent on a Member State under Article 4(2) of the birds directive. 71. Other circumstances indicated in Article 4(2), which compel a Member State to act, must also exist. Therefore, the charge of failure to introduce protective measures for migratory birds based on Article 4(2) of the birds directive must be rejected. 72. In the context of the first cause of action, therefore, it is only the charge of failure to classify special protection areas, as defined by Article 4(1) of the birds directive, that constitutes an infringement of the Treaty. V - On the second cause of action 1. Arguments of the parties 73. The Commission claims with its second cause of action that the French Republic has failed to take appropriate measures to prevent disturbance of the birds inhabiting the Basses Corbières and deterioration of their habitat. The obligations arising from Article 4(4) of the birds directive would also apply to sites that had not been declared special protection areas, contrary to Article 4(1) and (2) of the directive. 74. In view of the fact that since the date of implementation of the habitats directive, i.e. 10 July 1994, the obligations under Article 6(2), (3) and (4) of the habitats directive have replaced those arising from the first sentence of Article 4(4) of the birds directive, the Commission believes that the provisions of Article 6(2) to (4) of the habitats directive should also be applied to the present case. The limestone quarry had been opened in defiance of these provisions, it is claimed. 75. The quarry had resulted in significant deterioration. It had reduced the size of Bonelli's eagle's hunting ground, something that can cause problems, particularly when rearing young. In addition, the limestone quarry had led to visual andacoustic deterioration. The noise, in particular, and also power lines could represent a danger to the Bonelli eagles. 76. It is true that the French authorities indicated that permission for the quarry had been granted under conditions meeting the requirements of Article 6(3) of the habitats directive, in that a comprehensive assessment of its implications had been carried out. Compensatory measures had been introduced based on the results of this study, in order to reduce the quarry's impact on the natural environment. However, the Commission had never seen the study. The information supplied to the Commission was therefore insufficient to enable it to assess whether or not the licence procedure satisfied the requirements of Article 6(2) to (4) of the habitats directive. The attempt made to justify this subsequently could not therefore eliminate the infringement of the provisions under the Directive. 77. In its reply, the Commission specifically points out that the studies undertaken were incomplete and did not satisfy the requirements of Community law. Furthermore, the French Government spoke only of precautionary measures (mesures de précaution) and not of compensatory measures (mesures compensatoires), as laid down by the directive. 78. The French Government begins by pointing out that the Commission has produced no evidence to the effect that the limestone quarry causes significant disturbance to the pair of Bonelli's eagles and other protected birds. The French Government claims that (a) no scientific study had concluded that the enterprise could have a significant impact on protected species and Bonelli's eagle in particular, (b) the opening of the quarry had been preceded by a comprehensive assessment of its implications that had concluded that the project would have no significant impact on the environment, (c) precautionary measures had been taken to prevent any negative impact on the environment. With regard to (a) 79. The French Government begins by pointing out that the limestone quarry had been in operation in the commune of Tautavel since 1968. Throughout this time, the Bonelli eagles had nested on the crags at Vingrau each year without any evident disturbance. 80. Even when the biotope order was issued, the French Government had advocated expanding the conservation sites, to prevent the Bonelli eagles' nesting sites from being disturbed by mountaineers. Furthermore, local natureconservation groups had been involved in planning the expansion of the limestone quarry, in order to prevent any deterioration of the nesting sites. 81. Scientific investigations conducted at national level had shown that although Bonelli's eagle is threatened by man, it is also equally at risk from natural causes. Thus, for instance, an unusually high mortality among young eagles had been observed for a number of years and must be attributed to a parasitic attack (Trichomonas columbiae) on birds of prey. 82. Furthermore, the power lines supplying the quarry had been laid underground, so they could not represent an acute risk to the birds. In order to reduce any noise impact, a natural screen had been erected. It can also be inferred from the assessment of the project's implications, which preceded the licensing, that almost all animals were capable of becoming accustomed to noise, as demonstrated by the quarrying operation at Tautavel. 83. Great care had to be taken when defining the hunting ground of Bonelli's eagle. It was of such magnitude as to prevent one from concluding that the quarry could lead to a 'significant deterioration in the eagles habitat. The limestone quarry and associated installations were spread over an area of 30 hectares, whereas the Basses Corbières ZICO covers some 47 000 hectares. With regard to (b) 84. The French Government first disputes the Commission's assertion that no alternative solutions to the project had been considered. Both the company OMYA and the French authorities had looked into possible alternatives. The limestone deposit at Salses-Opoul mentioned by the Commission had been considerably smaller than that at Vingrau-Tautavel. While the deposit at Salses-Opoul could have been expected to run out within eight or nine years of working, a 30-year licence had been granted for quarrying at Vingrau-Tautavel. There were therefore no alternatives. 85. Apart from this, a complex assessment of the implications had been undertaken in accordance with the prevailing national law. The study had been based on eight preliminary investigations (geological, hydrological, on the course of the quarry, acoustic disturbances, vine cultivation, dust deposits and the natural environment). All studies had been prepared before the critical date of implementation of the habitats directive, namely, 10 June 1994. The Conseil d'État had specifically commented on the scope and content of the studies and had come to the conclusion that the assessment of the project's implications had been of sufficient magnitude according to the requirements of national law. 86. All possible sources of interference with the birds' habitat mentioned by the Commission, namely, noise, power lines and a reduction in the size of the hunting ground of birds of prey, had been examined. With regard to (c) 87. Finally, a series of precautionary measures had been adopted. To protect the eagles' hunting ground, watering places were to be set up and meadows maintained, favouring the reproduction of small game. At the suggestion of local ornithologists, the company OMYA had expressly undertaken to colonise the area with species of small game, in order to increase the eagles' food sources. The introduction of hares was planned. 88. To protect the adjacent natural environment, a natural screen had been erected. This was capable of moderating both optical and acoustic impairments. All measures came together to produce an overall plan aimed at maintaining the natural environment. Thus, the changes in the landscape associated with limestone quarrying were not irreversible either. The project manager was entrusted with the restoration of the area's natural appearance. 89. With regard to clarifying the terminology used, the French Government points out that the term 'compensatory measures (mesures compensatoires) had been used within the meaning of national law (31) and included measures aimed at lessening any impact a project might have. By contrast, the term used in Article 6 of the habitats directive refers to measures aimed at compensating for the negative effects on a habitat. To eliminate any misunderstandings, the French Government had used the term 'precautionary measures (mesures de précaution). 90. With regard to substance, it had to be stated that the French authorities felt the quarrying could not be expected to have a 'significant impact on the birds habitat, which meant that the Commission did not have to be notified of any compensatory measures as defined by Article 6 of the habitats directive. 2. Appraisal On the applicability of the habitats directive (a) The applicability of the habitats directive to the present case is questionable in so far as the licensing procedure involved in extending the limestone quarry undoubtedly began before the date cited for complete applicability of the directive, namely 10 July 1994. It is true that the licence was only granted on 9 November 1994. Nevertheless, there are a number of factors suggesting that the licence application had been made far earlier. Firstly, the French Government mentionsthat all individual studies for the assessment of the project's implications had been carried out long before July 1994. Secondly, it states that a licence to extend the limestone quarry had already been granted in 1991 and this, following objections by opponents to the project, was now also valid. In the end, the company OMYA had two licences for the same project, with the later one laying down more stringent conditions than the earlier one. As a result, it is only the later one that is the subject-matter of the present proceedings. 91. In Treaty infringement proceedings in Case C-431/92, (32) brought by the Commission against the Federal Republic of Germany on the grounds of failure to observe the directive on the assessment of environmental effects (33) in a specific project, the Federal government defended itself by arguing that the licensing procedure concerned had already been initiated before the critical date for implementation of the directive. The argument did not succeed, since the Court focused on the formal initiation of the licensing procedure, which was indisputably after the critical date and, to that extent, all preliminary proceedings could be regarded as irrelevant. The possibility cannot be excluded that the Federal government's argument might have been upheld, had the sequence of events been different. 92. In the present proceedings, the precise date marking the formal beginning of the licensing procedure is not contained in the documents. Therefore, the examination is to continue below, despite the reservations that exist. (b) A second objection to the applicability of the habitats directive in terms of its content emerges from the inclusion of the birds directive in the habitats directive pursuant to Article 7 of the latter. According to Article 7 of the habitats directive, the obligations arising from Article 6(2) to (4) of this directive replace those arising from the first sentence of Article 4(4) of the birds directive, specifically with regard to sites classified as SPAs or recognised as such, within the meaning of Article 4(1) and (2) of the birds directive. According to Article 7, this applies from the date of implementation of the habitats directive or thereafter 'as from ... the date of classification or recognition by a Member State under Directive 79/409/EEC .... 93. This wording, therefore, quite clearly focuses on the fact that the site must first have SPA status, as defined by the birds directive, before the obligations laid down in Article 6 of the habitats directive can apply. The deferred validity for protected areas already classified 'from the date of implementation of this directive and for those still to be classified 'from the date of classification or recognition ... leaves no scope for any other interpretation. 94. The first formal classification of special protection areas in the Basses Corbières took place in 1999. (34) Based on a literal interpretation, therefore, the habitats directive cannot be applied to the events forming the subject-matter of the present Treaty infringement proceedings. 95. Having been made aware of these problems, the Commission nevertheless maintained its view that Article 6 of the habitats directive should apply to the present case. Its argument is as follows. In its judgment of 2 August 1993 in Case C-355/90 (35) the Court ruled that the obligations arising from Article 4(4) of the birds directive had to be observed not only if an SPA had been classified beforehand. (36) This authority was supported by the judgments in cases C-166/97 (37) and C-96/98. (38) According to these, the obligations arising from the first sentence of Article 4(4) of the birds directive had to be observed, even if the site concerned had not been classified an SPA, although it should have been. (39) 96. The arguments supporting the applicability of Article 4(4) of the birds directive, even in the absence of any SPA classification, would also apply to the applicability of Article 6(2) to (4) of the habitats directive. If this were not the case, a duality of provisions would exist under Article 4(4) of the birds directive, on the one hand, and Article 6(2) to (4) of the habitats directive, on the other. The provision of Article 4(4) of the birds directive was in some senses more rigorous, as it did not provide for the possibility of exceptions to the same extent as Article 6(2) to (4) of the habitats directive. It would be paradoxical if the stricter provision were to apply to sites that had not actually been classified than to formally classified special protection areas or those recognised as such. 97. It is true that the Court acknowledged the applicability of Article 4(4) of the birds directive to sites that should have been classified special protection areas in accordance with Article 4(1) and (2), but had not actually been classified. However, the legal consequence attached to this by the Commission in favour of the applicability of Article 6(2) to (4) of the habitats directive is not the only one possible. To avoid an interpretation of Article 7 of the habitats directive contra legem, another formulation may be preferred. In this case, it can be assumed onthe basis of existing authorities (40) that the Member States take appropriate measures in accordance with Article 4(4) to avoid the pollution or deterioration of habitats and disturbance of the birds, in so far as these would have a significant impact on the aims of this Article, specifically in areas that should have been classified as SPAs within the meaning of paragraphs 1 and 2 of the article. 98. The procedural law position in which the Court postulated this obligation for the first time should be noted here. The Kingdom of Spain was charged in the context of Treaty infringement proceedings with having failed to meet its obligations under Article 4(1) and (2) of the birds directive. In response to the further accusation that it had also failed, contrary to its obligations, to take appropriate measures within the meaning of Article 4(4), the Spanish Government defended itself, saying that it could not be prosecuted for a failure to classify special protection areas and at the same time for failing to introduce the measures required in those areas. This defence was rejected by the Court at the time and hence came the declaration described above on the applicability of Article 4(4) of the birds directive and the compulsory measures envisaged therein. 99. The legal thinking permeating Community law, whereby a Member State should be unable to draw any benefit from its failure to comply with obligations under Community law, is evident from these authorities. (41) If the Court had followed the logic of the Spanish Government's defence in Case C-355/90, it would have signified for Member States that if they had failed to classify special protection areas, they could in any event have been prosecuted for such inactivity. Beyond that, however, they would have found themselves in a quasi 'lawless area, in view of which they could not have been prosecuted for the pollution or deterioration of the habitats of species of birds meriting protection. 100. A dilatory approach on the part of Member States in their classification of special protection areas would undoubtedly have been promoted, had the Court not ruled in favour of the applicability of Article 4(4), even if there were no SPA classification, yet the Court established a very strict criterion in another context with regard to the deterioration of special protection areas. (42) On that occasion, the Court did not allow either economic or recreational requirements to justify encroachments changing the environment, (43) even though the United KingdomGovernment, as intervener, had expressly referred to Article 2 of the directive, (44) but allowed only imperative considerations of the public interest which took priority over the environmental concerns of the Directive, such as the aversion of flood risks and coastal protection. (45) 101. It is precisely this initial situation that applies when the Commission talks about a stricter regime under Article 4(4) of the birds directive compared with the obligations arising from Article 6(2) to (4) of the habitats directive, in which economic or social reasons can be taken into consideration in the form of 'imperative reasons of overriding public interest. 102. The duality of the regime for classified special protection areas, on the one hand, and those that should have been classified, on the other, as alluded to by the Commission, may be unproblematic, but it will create a certain incentive for Member States to classify SPAs if they thereby open up the possibility of deviating from the rigid requirements laid down by Article 4(4) of the birds directive (as interpreted by the Court (46)). 103. Neither is it by any means the case that all regions, irrespective of their nature and quality, would be assessed under the stricter requirements laid down by Article 4(4) of the birds directive, simply because they had not been classified as SPAs. On the contrary, such sites must be those that should have been classified as SPAs. They must be of a particular quality, characterised by a high degree of certainty in terms of their importance to the bird population. In accordance with paragraph 4 of Article 4(1), it must be one of the 'most suitable territories in number and size for the conservation of the species. When a site qualifies as an area that should have been classified as an SPA, there is associated with this a certain judgment of unworthiness with regard to omissions in the fulfilment of the Member State's obligations under Article 4(1) and (2) of the birds directive. In all other regions, the duty of endeavour embodied in the second sentence of Article 4(4), which reads, 'Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats, continues to apply. 104. As a result of this consideration of the rivalry between Article 4(4) of the birds directive and Article 6(2) to (4) of the habitats directive, it must be stated that Article 6(2) to (4) is not applied by operation of Article 7 of the habitats directive to sites that were not the subject of a formal classification as SPAs or recognised as such. In the present case, therefore, Article 4(4) of the birds directive will continue to apply. 105. Within the framework of the second cause of action, the important element, therefore, is to clarify whether the French authorities infringed their obligations under Community law arising from Article 4(4) of the birds directive, by granting a licence for the extension of the limestone quarry in the communes of Vingrau and Tautavel. Since it is in no way contested that the site was not classified as an SPA in November 1994, it must initially have been a site that should have been classified as an SPA. 106. The territory of the communes of Vingrau and Tautavel lies within the area protected by biotope order No 774/91. In the meantime, this very area was classified as an SPA in January 1999. Against this background, there can be no reservations about regarding the site to which the licence applies as one located in an area that should be classified as an SPA. The duty incumbent on the Member State was and is, therefore, to take appropriate measures 'to avoid pollution or deterioration of habitats or any disturbance affecting the birds, in so far as these would be significant having regard to the objectives of this Article. (47) 107. The Commission quite naturally assumes that the environmental changes associated with the limestone quarrying would lead to such significant deterioration of habitats and disturbance affecting the birds. The French Government, on the other hand, claims that the change is not 'significant within the meaning of the provision. 108. The fact is that the provision does not prohibit interference of any sort with the environment, but only those cases that would have a significant impact on the objectives of Article 4. It must not be forgotten in this respect that the bird population can be highly sensitive in its reaction to man's interference with the environment. 109. To be able to assess whether interference is 'significant within the meaning of the provision, the objectives of Article 4 of the birds directive must be applied. The provision requires special efforts to be made in relation to the habitats of species classified worthy of protection under Annex I to the birds directive. The existence of a few such species in the region, Bonelli's eagle in particular, is undisputed. 110. With regard to the much cited Bonelli's eagle, it should be noted at the outset that the limestone quarry in Tautavel has been operating since 1968. Throughout this time, the Bonelli eagles have repeatedly nested in the crags at Vingrau. The fact that the pair of eagles failed to appear in 1997/98 cannot be connected to the extension of the limestone quarry, since those activities had not yet begun at that time. 111. According to the argument presented by the French Government, which has remained uncontested in this respect, the power lines necessary in order to operate the plant were laid underground, so that they did not represent an acute risk to the birds. 112. The extended limestone quarry can be expected to cover an area of 30 hectares, once it is in full operation. In relation to the total area of the biotope protected under order No 774/91 or the present SPA covering 231 hectares, this represents 7.7%. If one relates the 30 hectares of space used to ZICO LR07, which covers an area of 47 400 hectares, the extent of the land in use is once again modified considerably. 113. Nevertheless, the possibility that the quarrying operation will result in noise disturbance and a deterioration in the hunting ground used by the birds of prey cannot be ruled out. 114. In this connection, the French Government has referred to the natural screen specifically approved as a compensatory measure and to measures aimed at increasing the stock of small game for the birds of prey. 115. However, the extent to which such compensatory measures can be taken into account as part of the examination of Article 4(4) of the birds directive, if indeed at all, is questionable. 116. Unlike Article 4(4) of the birds directive, Article 6(2) to (4) of the habitats directive envisages compensatory measures in the event of the project nevertheless being implemented, despite a negative assessment of the implications for the environment, out of predominantly public interest considerations. 117. Article 4(4) of the birds directive does not in itself make any provision for exceptions. Apart from the priority given in the case-law, as has already been mentioned, to the public interest in the form of measures aimed at protecting human life, (48) no deviations are possible in principle. Irrespective of this, however, the Court took into account in its severe judgment the fact that the project in question had 'specific positive consequences for the habitat of birds. (49) 118. It may therefore be permissible for certain compensatory measures to be taken into account when examining the significance of the effects. This is because, firstly, the provision contained in Article 4(4) of the birds directive is not to be regarded as an absolute ban on any change. Secondly, the significance of the effects of the project must be seen in its entirety. On this condition, compensatory measures prescribed or suggested by the French authorities may be taken intoconsideration for the purposes of the overall assessment. If one takes account, therefore, of the erection of the natural screen and its planting with vegetation, the management of meadows, creation of watering places, introduction of small game and increase in existing stocks and the obligation to restore the landscape's original appearance, it is quite possible that the habitat of the resident bird population will not be disturbed to any 'significant extent. It is therefore proposed that the second cause of action should be rejected. 119. In the event that the Court should choose not to follow the solution outlined above and prefer to proceed on the basis of the applicability of Article 6(2) to (4) of the habitats directive, notwithstanding the reservations pursuant to Article 7 in relation to timing and content, a few considerations to assist in this are set out below. 120. The quarry extension project would then have to satisfy the requirements of this directive. To begin with, it should be pointed out with regard to the conditions formulated in Article 6(2) on the application of the directive, that despite the far-reaching agreement in the formulations of Article 4(4) of the birds directive and Article 6(2) of the habitats directive, their contents do not concur. Thus, for instance, a 'significant effect on the objective of Article 4(1) and (2) of the birds directive is not the same as a 'significant effect on the aims of the habitats directive. Article 4(1) and (2) of the birds directive specifically deals with the protection of certain species of birds, while the aim of the habitats directive must be defined differently and possibly more broadly. (50) Article 6(2) and (3) talk about disturbances that 'could be significant and of projects that are 'likely to have a significant effect on an SPA. It goes without saying that the mere possibility of the effect produces more far-reaching obligations for avoidance than cases in which the effect actually materialises. The use of the conditional indicates a broader obligation than that of the indicative in Article 4(4) of the birds directive. Therefore, the considerations set out earlier in relation to the significance of the effects cannot necessarily be transferred to Article 6(2) of the habitats directive. 121. It is entirely possible, or even probable, in this respect that the planned extension of the limestone quarry is a 'project as defined by Article 6(3) of the habitats directive. This necessarily requires an assessment to be carried out with regard to the likely implications, as also specified in Article 6(3). So that the project can be allowed, despite a negative outcome to the assessment, under the condition of compensatory measures, the grounds for exception indicated in Article 6(4) must be examined beforehand. Economic and social interests can also play a part in this. The Commission must be informed on this. 122. In actual fact, the French authorities arranged for a series of preliminary investigations to be carried out, which concluded that the project was compatiblewith the environmental goals formulated. Even if the authorities had reached a negative outcome during the initial stages, they would have had to continue in the further course of proceedings under Article 6(4) of the habitats directive. 123. Assuming the French authorities had obtained a negative result from their examination under Article 6(3) of the habitats directive, (51) they would have had the opportunity of implementing the plan or project under Article 6(4) for 'imperative reasons of overriding reasons of public interest, including those of a social or economic nature, in so far as there was no alternative solution at hand. With regard to the alternative solution, the French Government declared that this possibility had been examined, but with a negative outcome. The alternative referred to of quarrying the limestone deposit at Salses-Opoul had been viable from the point of view of the quality of the minerals, but not the quantity available. 124. From a procedural point of view, the way was therefore open for the French authorities to advance social and economic grounds. The maintenance or creation of 200 jobs, in view of the region's high unemployment, undoubtedly has a part to play here. The assessment of the individual elements represents a discretionary decision, which can only be examined with regard to its legality and not the appropriateness of its content. The French authorities evidently decided in favour of this process of consideration, without gross defects being evident in this process. The Member State opting to proceed according to Article 6(4) of the habitats directive is, however, obliged to take compensatory measures. The fact that such compensatory measures were adopted has already been referred to in my examination of Article 4(4) of the birds directive. 125. The Commission then claimed it had not been notified of the procedure in the form required under Article 6(4). In that respect, the counter-argument raised by the French Government, to the effect that all studies had been carried out before 10 July 1994, the crucial date on which the habitats directive came into force, is convincing. Having regard to the time when the events took place, one cannot insist on observance of the formal requirements arising from this Directive. What must then be decisive and sufficient is that, as to the substance, the requirements of the habitats directive were taken into account. (52) 126. Therefore, even if there is an affirmative answer to the problems posed by the application of Article 6(2) to (4) of the habitats directive, the second pleas in law cannot lead to the application being upheld. VI - Costs 127. Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be order to pay the costs. However, the first subparagraph of Article 69(3) provides that the Court may order that the costs be shared or that the parties bear their own costs if each party succeeds on some and fails on other heads. Since the Commission will only succeed in part of its action, according to the solution proposed here, I propose that each party should bear its own costs. VII - Conclusion 128. I therefore propose that the Court should rule as follows: (1) The French Republic has failed in its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of species of wild birds, in that it has omitted to classify special protection areas as defined by the directive in the area of Basses Corbières. (2) The remainder of the application is dismissed. (3) Each party is ordered to bear its own costs. 1: Original language: German. 2: - Council Directive of 2 April 1979, OJ 1979 L 103, p. 1, last amended by Commission Directive 97/49/EC of 29 July 1997, OJ 1997 L 223, p. 9. 3: - 181 individual species are listed in the most recent version of Annex I. 4: - Council Directive of 21 May 1992, OJ 1992 L 206, p. 7. 5: - Subparagraph 1 of Article 4(1) of the birds directive reads: 'The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat, in order to ensure their survival and reproduction in their area of distribution. 6: - According to the Commission's argument, these species include: Hieraaetus fasciatus, Ciconia nigra, Ciconia ciconia, Pernis apivorus, Milvus migrans, Milvus milvus, Neophron percnopterus, Circaetus gallicus, Circus aeruginosus, Circus cyaneus, Circus pygargus, Tetrax tetrax, Bubo Bubo, Caprimulgus europaeus, Coracias garrulus, Lulluta arborea, Sylvia undata, Emberiza hortulana. 7: - Arrêté préfectoral No 774/91 of 21 May 1991. 8: - Arrêté préfectoral No 773/91 of 21 May 1991. 9: - Arrêté préfectoral No 95.0226 of 22 February 1995. 10: - Zones Importantes pour la Conservation des Oiseaux sauvages. 11: - In January 1999 special protection areas had been classified in the territory covered by biotope orders Nos 773/91 and 774/91. The procedure involved in classifying a further protection area covering 280 hectares, which was in turn based on a biotope order from 1995 (Prefect order No 95.0226 in the commune of Feuilla of 22 February 1995) was underway. The Commission had still not received notification at the time of the hearing. 12: - Judgment of the Conseil d'État of 29 December 1997 No 186354. 13: - Pyrénées-Orientales and l'Aude. 14: - Cf. Opinion of Advocate General Fennelly of 10 December 1998 (judgment delivered on 18 March 1999, ECR I-1719, I-1721, paragraph 19). 15: - Cf. Directive 79/409, Annex I; the Bern Treaty on the Conservation of European Wild Plants and Animals and their Natural Habitats, Annex II (cf. Council Decision 82/72/EEC of 3 December 1981, OJ 1982 L 38 of 10.2.1982, p. 1); according to the argument put forward by the French Government, the Bonelli's eagle, like other birds of prey, is protected by conservation measures under the Nature Conservation Law of 10 July 1976. 16: - Ciraetus gallicus, Aquila Chrysaetos, Caprimulgus europaeus, Anthus campestris, Sylvia undata, Pyrrhocorax Pyrrhocorax, Emberiza hortulana, Bubo Bubo, Pernis apivorus, Milus migrans, Circus pygargus, Lullula arborea, Falco peregrinus. 17: - Cf. judgment of 25 November 1999 in Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 19). 18: - Cf. Article 1 of each of the biotope orders. 19: - Cf. order No 773/91. 20: - Cf. order No 774/91. 21: - Cf. Annex I to the birds directive in the version contained in Directive 91/244/EEC of 6 March 1991 (OJ 1991 L 115, p. 14). 22: - This probably means a screen in the form of an earthwork. 23: - According to the Commission's argument of April 1998. 24: - Récemment. 25: - Cf. judgment in Case C-166/97 (cited at footnote 13, paragraph 42). 26: - Cf. judgment of 18 March 1999 (cited at footnote 13). 27: - Judgment of 25 November 1999 (cited at footnote 16). 28: - ZICO LR06 is estimated as covering 74 750 hectares and ZICO LR07 47 400 hectares. 29: - Based on a study conducted by the GOR in March 1999. 30: - Special protection measures and special protection areas. 31: - With reference to Article 2 of Law No 76/629 of 10 July 1976 - Nature Conservation Law. 32: - Judgment of 11 August 1995 Commission v Germany [1995] ECR I-2189. 33: - Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). 34: - The classified areas correspond to the biotope orders; cf. point 13 above and footnotes 6, 7 and 8. 35: - Commission v Spain [1993] ECR I-4221. 36: - Cf. Case C-355/90 (cited at footnote 34, paragraph 22). 37: - Cited at footnote 13. 38: - Cited at footnote 16. 39: - Cf. judgment in Case C-166/97 (cited at footnote 13, paragraph 38) and judgment in Case C-96/98 (cited at footnote 16, paragraph 46). 40: - Cases C-355/90 (cited at footnote 34), C-166/97 (cited at footnote 13) and C-96/98 (cited at footnote 16). 41: - Thus, the entire doctrine of direct applicability of Directives is based on this thinking. 42: - Cf. judgment in Case C-57/89 Commission v Germany [1991] ECR I-883. 43: - Cf. also judgments in Case 247/85 Commission v Belgium [1987] ECR 3029 and Case 262/85 Commission v Italy [1987] ECR 3073. 44: - Cf. judgment in Case C-57/89 (cited at footnote 41, paragraph 15). 45: - Cf. judgment in Case C-57/89 (cited at footnote 41, paragraphs 22 and 23). 46: - Cf. Cases C-57/89 (cited at footnote 41), 247/85 (cited at footnote 42), 262/85 (cited at footnote 42). 47: - Accentuation by the author. 48: - Cf. Case C-57/89, cited at footnote 41. 49: - Cf. Case C-57/89, cited at footnote 41, paragraph 25. 50: - Cf. Article 2 of the habitats directive. 51: - Even in the pre-litigation proceedings, the French Government insisted that the licences had been granted under conditions that satisfied the requirements of Article 6(3). 52: - Cf. Case C-431/92 (cited at footnote 31, paragraphs 42 ff.).