Opinion of the Advocate General — ECLI:EU:C:2005:713
Date: 2005-11-24
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Delimitation during the pre-litigation procedure (Art. 226 EC) 2. Environment – Conservation of natural habitats and wild fauna and flora – Directive 92/43 – Special areas of conservation – Obligations of the Member States (Council Directive 92/43, Art. 6(3)) 3. Environment – Conservation of natural habitats and wild fauna and flora – Directive 92/43 – Special areas of conservation – Obligations of the Member States (Council Directive 92/43, Art. 6(3) and (4)) 4. Environment – Conservation of natural habitats and wild fauna and flora – Directive 92/43 – Protection of species (Council Directive 92/43, Art. 12(1)(d)) 5. Environment – Conservation of natural habitats and wild fauna and flora – Directive 92/43 – Protection of species (Council Directive 92/43, Art. 16) 6. Environment – Conservation of natural habitats and wild fauna and flora – Directive 92/43 – Protection of species (Council Directive 92/43, Arts. 12, 13 and 16) 7. Member States – Obligations – Implementation of directives – Failure to fulfil obligations (Art. 249, third para., EC) 1. The subject-matter of an action for failure to fulfil obligations brought under Article 226 EC is delimited by the pre-litigation procedure under that provision, so that the application cannot be based on provisions other than those stated in that procedure. However, that requirement cannot go so far as to make it necessary for the national provisions mentioned in the reasoned opinion and those in the application to be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application. (see para. 27) 2. Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora makes the requirement for an appropriate assessment of the implications of a plan or project not directly connected with or necessary to the management of a site in a special area of conservation conditional on its being likely to have a significant effect on the site. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned. Therefore, the condition to which the assessment of the implications of a plan or a project on a particular site is subject does not permit that assessment to be avoided in respect of certain categories of projects, on the basis of criteria which do not adequately ensure that those projects will not have a significant effect on the protected sites. (see paras 40-41) 3. A system established by national legislation, which excludes authorisation for installations which cause emissions only where the latter appear likely particularly to affect a protected site situated in the area of impact of those installations does not appear to be capable of ensuring compliance with Article 6(3) and (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, since that system does not guarantee that projects or plans relating to those installations will not affect protected sites situated outside their area of impact. (see paras 50-51) 4. Article 12(1)(d) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, which prohibits the deterioration or destruction of breeding sites or resting places, covers not only deliberate acts but also non-deliberate ones. By not limiting that prohibition to deliberate acts, contrary to what it did in respect of acts referred to in Article 12(1)(a) to (c), the Community legislature has demonstrated its intention to give breeding grounds or resting places increased protection against acts causing their deterioration or destruction. Given the importance of the objectives of protecting biodiversity which the directive aims to achieve, it is by no means disproportionate that the prohibition laid down in Article 12(1)(d) is not limited to deliberate acts. (see para. 55) 5. A national provision does not therefore provide a legal framework consistent with the derogatory regime established by Article 16 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora if it does not submit the grant of the derogations to all of the conditions laid down in Article 16, but merely provides as the sole condition for authorisation for those derogations that animals, including their nesting or incubation sites, habitat or resting places and plant species which are particularly protected must not be subject to deliberate harm. Even if the derogations from the prohibitions under the directive are the subject of administrative decisions on the issuing of which the competent authorities do in fact comply with the conditions to which Article 16 of the Directive subjects the authorisation of derogations, the national legal framework remains in conflict with that provided for by the directive. (see para. 61) 6. Articles 12, 13 and 16 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora form a coherent body of provisions for ensuring a system of strict protection for animal and plant species. A national provision which, when listing the situations in which the use of pesticides is prohibited, does not clearly, specifically and strictly express the prohibitions under Articles 12 and 13 of the directive on protected species being adversely affected does not ensure such a system. (see paras 66-67) 7. For the purposes of the correct implementation of a directive, a legislative framework existing in a Member State, in which regional provisions which infringe Community law coexist with a Federal law which complies with it, does not ensure effectively, and in a clear and precise manner, the full effectiveness of the directive. (see para. 78)