Opinion of the Advocate General — ECLI:EU:C:1998:596
Date: 1998-12-10
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Pollution
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: France

Summary of the Judgment 
1. Member States — Obligations — Implementation of directives — Failure to fulfil obligations 
—Justification — Not permissible 
(EC Treaty, Art. 169) 
2. Actions for failure to fulfil obligations — Examination by the Court of the merits — Situation 
to be taken into account — Situation at the end of the period laid doion in the reasoned 
opinion 
(EC Treaty, Art. 169) 
3. Environment — Conservation of wild birds — Directive 79/409 — Special conservation mea­
sures — Obligations of Member States — Obligation to provide special protection areas with 
an adequate legal protection regime — Scope 
(Council Directive 79/409, Art. 4(1) and (2)) 
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SUMMARY — CASE C-166/97 
4. Environment — Conservation of wild birds — Directive 79/409 — Special conservation mea­
sures — Obligations of Member States — Obligation to take steps to avoid pollution and 
deterioration of habitats — Breach •—• Condition — Area classified or to be classified as a 
special protection area 
(Council Directive 79/409, Art. 4(1), (2) and (4)) 
1. A Member State may not plead provisions, 
practices or circumstances existing in its 
internal legal system in order to justify a 
failure to comply with the obligations and 
time-limits laid down in a directive. 
2. In an action under Article 169 of the 
Treaty, the question whether a Member 
State has failed to fulfil its obligations must 
be determined by reference to the situa­
tion prevailing at the end of the period 
laid down in the reasoned opinion, 
3. Article 4(1) and (2) of Directive 79/409 on 
the conservation of wild birds requires the 
Member States to provide the special pro­
tection areas referred to therein with a 
legal protection regime that is capable, in 
particular, of ensuring both the survival 
and reproduction of the bird species listed 
in Annex I to the directive and the breeding, 
moulting and wintering of migratory spe­
cies which are regular visitors, albeit not 
listed in that annex. 
A protection regime under which — for 
want of any specific substantive measures, 
except in relation to hunting — the only 
status enjoyed by a special protection area 
is that of State-owned land and of a mari­
time game reserve is incapable of pro­
viding adequate protection for the pur­
poses of those provisions. 
4. Under Article 4(4) of Directive 79/409 on 
the conservation of wild birds, Member 
States are required to take appropriate 
steps to avoid pollution and deterioration 
of the habitats of the species concerned, 
even in relation to an area which has not 
been classified as a special protection area 
provided that, under the directive, it should 
have been so classified. It follows that any 
infringement of that provision presup­
poses that the area in question is one of 
the most suitable territories in number and 
size for the conservation of protected spe­
cies, within the meaning of the fourth 
subparagraph of Article 4(1) of the direc­
tive which lays down the criteria for such 
classification. 
In this connection, the mere fact that a site 
has been included by a Member State in 
an inventory of important areas for bird 
conservation does not prove that it ought 
to have been classified as a special protec­
tion area. 
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