Opinion of the Advocate General — ECLI:EU:C:2005:372
Date: 2005-06-09
Language of the case: English
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: United Kingdom

summary, therefore, the plans at issue must in principle be subjected to the procedure under Article 6(3) and (4) of the Habitats Directive if the measures envisaged are capable of having a significant effect on areas of conservation. Since United Kingdom law does not ensure this, the transposition of Article 6(3) and (4) of the Habitats Directive is inadequate in that respect. c) Review of existing planning rights in Gibraltar 51. The Commission complains that the competent Gibraltar authorities are not obliged to review existing planning rights to ascertain whether they would have an adverse effect on areas of conservation. The United Kingdom Government relies in response on section 34 of the Town and Planning Ordinance which grants the competent authorities the power to modify existing permits, stating that, in this context, regard is to be had to the requirements of Article 6(3) of the Habitats Directive either as a consequence of the scheme to be taken into account or as material considerations. 52. It must be stated first of all that the rules applicable in Gibraltar set out by the United Kingdom Government do not contain an obligation to review existing planning rights, which the Commission demands, but only a power to review. In contrast to Gibraltar, the obligations demanded by the Commission exist in England and Wales and in Scotland (regulation 50 of the C(NH)R 1994) and also in Northern Ireland (regulation 45 of the C(NH)R(NI) 1995). 53. It is true that an obligation to review existing planning rights can be of great benefit for site protection, by preventing sites from being adversely affected on the basis of old legal positions which have arisen without account being taken of the Habitats Directive. In this regard, the obligation corresponds to the objectives of the Habitats Directive. Article 6(3) and (4) of the Habitats Directive contains no indication, however, that the Member States are obliged to review existing planning rights subsequently. The procedure prescribed therein applies in principle before the Member States create planning rights whose exercise could adversely affect a site. 54. Nor does the view of Advocate General Fennelly relied upon by the Commission lead to a different result. Advocate General Fennelly rightly pointed out that all development activities are to be subjected to an assessment with the exception of those which are unlikely to have any significant effect, either individually or in combination with other development activities, on the site’s conservation objectives. (25) That corresponds to the wording of the first sentence of Article 6(3) of the Habitats Directive. This does not mean, however, that existing planning rights must be reviewed subsequently. 55. It is not to be ruled out that such an obligation to carry out a subsequent assessment could be based on Article 6(2) of the Habitats Directive or on corresponding duties of protection prior to establishment of the Community list. In the Waddenzee judgment, the Court pointed out that Article 6(2) can be applicable where a plan authorised in accordance with Article 6(3) or such a project proves likely to give rise to deterioration or significant disturbance of an area of conservation. (26) Article 6(2) could therefore possibly also be applied where existing legal positions are liable to trigger such deterioration or significant disturbance. (27) However, the Commission has not put forward any arguments to this effect and, in particular, has pleaded no infringement of Article 6(2) in this context. Therefore, this possibility has not been debated in the proceedings and thus cannot warrant finding against the United Kingdom. 56. The action is therefore to be dismissed in this respect. 3. Articles 11, 12(4) and 14(2) of the Habitats Directive – Monitoring obligations 57. The provisions to be transposed read as follows: ‘Article 11 Member States shall undertake surveillance of the conservation status of the natural habitats and species referred to in Article 2 with particular regard to priority natural habitat types and priority species. Article 12 … 4. Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in Annex IV(a). In the light of the information gathered, Member States shall take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned. Article 13 … Article 14 … 2. Where such measures are deemed necessary, they shall include continuation of the surveillance provided for in Article 11. …’ 58. The Commission complains that the monitoring (or surveillance) obligations laid down in these provisions have not been transposed at all in United Kingdom law. It states that until these duties have, however, been clearly assigned to the competent authorities, it is unable to establish whether such monitoring is carried out. 59. The United Kingdom Government relies on the fact that sections 132 and 133 of the Environmental Protection Act 1990 and corresponding provisions for Scotland and Northern Ireland have conferred on certain statutory nature conservation agencies – English Nature, the Countryside Council for Wales, Scottish Natural Heritage and the Department for the Environment in Northern Ireland – functions which, in conjunction with the aforementioned general clauses, will ensure that the surveillance required under the directive is carried out. It states that these functions include in particular the management of national nature reserves, the provision of advice to Government on the development and implementation of policies, the establishment of common monitoring standards and the carrying out of research. Also, those agencies are, when discharging their functions, to take account of actual or possible ecological changes. 60. Articles 11, 12(4) and 14(2) of the Habitats Directive contain general obligations continuously to monitor certain situations and developments, in particular the conservation status of the natural habitats and species referred to in Article 2 with particular regard to priority natural habitat types and priority species. This obligation is not important, either directly or indirectly, for the rights and obligations of individuals. However, it is of crucial importance for the practical effectiveness of the directive, since almost all measures required under the directive can be implemented properly only on the basis of the knowledge acquired by that monitoring. The significance of a particular occurrence of a species can thus be assessed only when in possession of an overview regarding other occurrences of the species. Assessments of that kind are prerequisites for decisions concerning site protection, site management and adverse effects on the site and also for the application of the provisions for the protection of species. Transposition must therefore ensure that the surveillance obligations are fulfilled systematically and continuously. 61. The functions set out by the United Kingdom Government that are discharged by certain agencies cannot, even in conjunction with the aforementioned general clauses, be understood as providing for the surveillance demanded by the directive. On the contrary, the fact that the agencies referred to are to lay down common monitoring standards leads to the converse conclusion that the actual surveillance is to be carried out by other bodies. However, these bodies are not specified. 62. The example, given by the United Kingdom Government, of the review of certain schedules to the Wildlife and Countryside Act 1981 pursuant to section 24 of that Act, also does not provide for the undertaking of surveillance but only for the making of proposals that animals and plants be added to or removed from those schedules. It is admittedly to be assumed that the proposals are based on the results of surveillance of the populations in question, but there is no indication whatsoever as to which body undertakes that surveillance. If no United Kingdom body is, however, entrusted with the task of surveillance, the aforementioned general clauses designed to make the Habitats Directive binding grasp at thin air. 63. It is to be feared, with this legal position, that surveillance measures carried out are not orientated to the Habitats Directive but pursue other objectives and thus meet the objectives of those provisions only by chance. The systematic and continuous surveillance required cannot be ensured in that way. 64. The situation set out with regard to Gibraltar is even less capable of constituting transposition of Articles 11, 12(4) and 14(2) of the Habitats Directive. There surveillance is supposed to be ensured by not allowing operations likely to damage the flora and fauna of areas of conservation to be proceeded with until there has been an assessment of their impact. The surveillance required pursuant to Articles 11 and 14(2) of the Habitats Directive does not, however, simply amount to nothing more than specific studies when definite proposals are made, but is intended to document generally the conservation status of species and habitat types, so that, inter alia, it is possible to assess the results of specific studies in individual cases. 65. Consequently, the United Kingdom has not adequately transposed Articles 11, 12(4) and 14(2) of the Habitats Directive. 4. Article 12(1)(d) of the Habitats Directive – Protection of breeding sites and resting places 66. Article 12(1) of the Habitats Directive provides as follows: ‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting: (a) all forms of deliberate capture or killing of specimens of these species in the wild; (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; (c) deliberate destruction or taking of eggs from the wild; (d) deterioration or destruction of breeding sites or resting places.’ 67. The Commission objects to the transposition of Article 12(1)(d) of the Habitats Directive in two respects. It submits, first, that there is a divergence between the text of this provision and that of the implementing rules. Where the directive uses the term ‘deterioration’, the United Kingdom rules contain the verb ‘to damage’. Second, in Gibraltar only the deliberate damaging or destruction of breeding sites and resting places is prohibited. a) Transposition of the term ‘deterioration’ 68. The Commission bases this objection on the fact that the directive uses the term ‘deterioration’ but the United Kingdom rules use the verb ‘to damage’. In the course of the procedure the Commission has attached three complaints to this difference. 69. The first complaint is contained in the reasoned opinion. There the Commission stressed that the result of the use of ‘to damage’ instead of ‘deterioration’ is that the effects of neglect are not covered. On the other hand, the Commission explicitly specified in its reply that, in its view, Article 12(1)(d) does not require breeding sites and resting places to be protected from deterioration due to neglect or inactivity. Therefore the Commission did object to the treatment of neglect in the pre-litigation procedure, but withdrew this objection in its reply. It is consequently no longer necessary for the Court to rule on this point. 70. The second complaint is first made by the Commission in its application and then dealt with in greater detail in its reply. It complains that the transposition of Article 12(1)(d) of the Habitats Directive in the United Kingdom as a whole is limited to deliberate and intentional acts. The action is of course admissible in this regard only if this objection has already been raised in the pre-litigation procedure. The Court cannot examine a complaint which was not contained in the reasoned opinion. (28) 71. The only element in the pre-litigation procedure that could have covered this objection is the statement that ‘deterioration’ also encompasses neglect but ‘to damage’ does not. ‘Neglect’ can denote both a lack of attention to something and breach of a duty to take due care. The latter is a standard of fault. In relation to Gibraltar the Commission therefore also uses the term ‘neglect’ in contrast to ‘deliberately’. (29) Had the Commission, however, wanted in the reasoned opinion to raise the complaint that use of the term ‘to damage’ entails a standard of fault that is too stringent, it should have expressed this more clearly – as occurred in relation to Gibraltar. The terms ‘deterioration’ and ‘to damage’ do not, in accordance with their lexical meaning, differ as regards the standard of fault. A further indication that this complaint was inadequately set out in the pre-litigation procedure and possibly even in the application is that the United Kingdom Government first defends itself in this regard in the rejoinder. Therefore the complaint that only deliberate and intentional conduct is covered, in relation to the United Kingdom as a whole, was not made in the pre-litigation procedure. The objection in respect of the standard of fault is therefore to be dismissed as inadmissible. 72. Should the Court, on the other hand, hold this complaint to be admissible, it is in any event unfounded. It is true that Article 12(1)(d) of the Habitats Directive requires all acts resulting in deterioration or destruction of breeding sites or resting places to be prohibited irrespective of whether they are deliberate or intentional. However, the Commission has not proved that the offences in the United Kingdom are by their definitions limited to deliberate or intentional conduct. While the Commission maintains that intent is required for criminal liability, the United Kingdom Government submits that the offence is a strict liability offence and therefore requires neither intent nor negligence. (30) Also, irrespective of the United Kingdom Government’s submission, there are strong hints that criminal liability is in any event not restricted to intentional acts. (31) The burden of this lack of clarity rests on the Commission, which must prove that an obligation under the Treaty has not been fulfilled. (32) In the present case, therefore, it should at least have adduced convincing evidence supporting its interpretation of United Kingdom law. 73. Finally, in its reply the Commission specifies as the third complaint the difference which in its view exists between ‘deterioration’ and ‘to damage’, stating that the term ‘to damage’ in the United Kingdom rules would cover only direct damage whereas the term ‘deterioration’ used in the Habitats Directive also includes indirect adverse effects. This complaint can be understood as a development from the starting point in the pre-litigation procedure, since it relates to the alleged difference between the two terms and the proposition advanced by the Commission is not, at any rate manifestly, in conflict with the lexical meaning of both terms. The action is therefore admissible so far as this complaint is concerned. 74. The Commission is right in stating that Article 12(1)(d) of the Habitats Directive prohibits not only direct damage but also acts which lead only indirectly to adverse effects on breeding sites and resting places. According to Article 12(1)(d), any deterioration or destruction of breeding sites and resting places is to be prohibited. No distinction is drawn between direct and indirect adverse effects. 75. The Commission has however, despite the contesting of its arguments by the United Kingdom Government, adduced no evidence that the interpretation of the term ‘to damage’ in the United Kingdom does in fact diverge from the interpretation of the term ‘deterioration’ which it proposes. In this respect too, the Commission has therefore not shown a failure to fulfil obligations. 76. With regard to the transposition of Article 12(1)(d) of the Habitats Directive in the United Kingdom as a whole, the action is therefore partially inadmissible and unfounded as to the remainder. b) The restriction to deliberate acts in Gibraltar 77. In relation to Gibraltar, the Commission has objected throughout that section 17T(1)(d) of the NPO prohibits only the deliberate damaging or destruction of breeding sites and resting places. (33) As the United Kingdom Government acknowledges, this falls short of Article 12(1)(d) of the Habitats Directive. This provision has consequently not been transposed correctly as regards Gibraltar. 5. Articles 12(2) and 13(1) of the Habitats Directive 78. Article 12(2) of the Habitats Directive provides that, for the animal species in Annex IV(a), the Member States are to prohibit the keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild. Specimens taken legally before implementation of the Habitats Directive are exempted from the prohibition. 79. Article 13(1) of the Habitats Directive reads as follows: ‘Member States shall take the requisite measures to establish a system of strict protection for the plant species listed in Annex IV(b), prohibiting: (a) the deliberate picking, collecting, cutting, uprooting or destruction of such plants in their natural range in the wild; (b) the keeping, transport and sale or exchange and offering for sale or exchange of specimens of such species taken in the wild, except for those taken legally before this Directive is implemented.’ 80. The Commission complains that the United Kingdom provisions intended to transpose Article 12(2) of the Habitats Directive contain an exemption for specimens which have been lawfully taken, killed or sold. The provisions in question are regulation 39(4) of the C(NH)R 1994, regulation 34(4) of the C(NH)R(NI) 1995 and section 17T(4) of the NPO. The Commission states that an exemption also exists for plants protected under Article 13(1) of the Habitats Directive where the relevant specimen has been lawfully sold. The provisions at issue here are regulation 43(5) of the C(NH)R 1994, regulation 38(5) of the C(NH)R(NI) 1995 and section 17X(5) of the NPO. 81. The United Kingdom Government accepts that the exemptions are incompatible with the Habitats Directive. It submits, however, that a licensing system is in place which ensures compliance with the objectives of Articles 12(2) and 13(1). 82. The Commission is right in stating that Articles 12(2) and 13(1) of the Habitats Directive do not allow an exemption for lawfully acquired specimens. This accords with the wording of the provisions, and precludes misuse, for the purpose of achieving commercial objectives, of the possibility of lawful detriment to the strictly protected species of fauna and flora. 83. In so far as the United Kingdom Government relies on its licensing system, this defence is, first, belated, since it was put forward for the first time in the rejoinder, and second, not sufficiently substantiated to counter the complaint of inadequate transposition. 84. Article 12(2) and Article 13(1) of the Habitats Directive have therefore not been adequately transposed in the United Kingdom. 6. Article 15 of the Habitats Directive – Indiscriminate means of capture and killing 85. Article 15 of the Habitats Directive provides as follows: ‘In respect of the capture or killing of species of wild fauna listed in Annex V(a) and in cases where, in accordance with Article 16, derogations are applied to the taking, capture or killing of species listed in Annex IV(a), Member States shall prohibit the use of all indiscriminate means capable of causing local disappearance of, or serious disturbance to, populations of such species, and in particular: (a) use of the means of capture and killing listed in Annex VI(a); (b) any form of capture and killing from the modes of transport referred to in Annex VI(b).’ 86. The Commission initially put forward two complaints in this connection. First, while it is true that the United Kingdom has prohibited the methods expressly listed in Annex VI(a) and (b), (34) it has not introduced a general prohibition on the use of indiscriminate means. Second, the Conservation of Seals Act 1970 prohibits only two methods of killing and allows licences to be granted under conditions which go beyond the derogations in the Habitats Directive. a) The prohibition of all indiscriminate means 87. Article 15 of the Habitats Directive requires the prohibition in particular of the methods expressly listed in Annex VI(a) and (b), but at the same time also the prohibition of the use of all indiscriminate means capable of resulting in the local disappearance of populations of the protected species or of causing serious disturbance to populations. It is therefore not sufficient to limit transposition to the methods expressly referred to. On the contrary, a general prohibition must be introduced. 88. The United Kingdom Government contends, however, that its listing of prohibited methods covers all the methods that would be forbidden even under a general prohibition for the United Kingdom. If new methods were discovered, the list would be added to. The competent authorities are already obliged to do so under the aforementioned general clauses. In the United Kingdom Government’s submission, this approach ensures in practice that Article 15 of the Habitats Directive is transposed, while a general prohibition would conflict with the principle of legal certainty. 89. These arguments are not convincing. The possibility of updating a list of prohibited methods is less effective than a general prohibition. Delays in updating necessarily lead to lacunae in protection which are specifically supposed to be prevented by means of the general prohibition in Article 15 of the Directive. 90. The principle of legal certainty invoked by the United Kingdom Government requires inter alia that legislation be certain and its application foreseeable by those affected by it, in particular if it entails burdensome consequences. (35) A general prohibition on the capture or killing of protected species of animals by the use of indiscriminate means capable of resulting in the local disappearance of populations of the protected species or in serious disturbance accords, however, with those requirements. The term ‘indiscriminate means’ is clear and is foreseeable in its application. It is restricted even further by the additional condition that use of the means be capable of resulting in the local disappearance of populations of the protected species or in serious disturbance. It is true that an express list of all prohibited methods would be even clearer, but that degree of clarity is not a precondition in order for a prohibition to be lawful. Nor are the United Kingdom authorities prevented from ensuring clarity by maintaining, alongside the general prohibition, a non-exhaustive list of prohibited methods that is constantly updated in the light of changing circumstances. 91. The United Kingdom has therefore not transposed Article 15 of the Habitats Directive adequately as regards the prohibition of all indiscriminate means. b) The Conservation of Seals Act 1970 92. Since the Commission withdrew the complaint concerning the Conservation of Seals Act in its reply, but then declared at the hearing that it wished however to maintain the complaint, the admissibility of the complaint must be examined first. 93. The Commission’s conduct can be explained by the fact that the United Kingdom Government stated in its defence that it intended to amend the Conservation of Seals Act in accordance with the Commission’s view. After the complaint was withdrawn, however, the United Kingdom Government made it clear in its rejoinder that it would await the outcome of the present proceedings and introduce amending legislation only in so far as that was necessary in accordance with the judgment of the Court of Justice. The Commission then stated at the hearing that it was maintaining this complaint after all since its withdrawal rested on a mistake. The United Kingdom Government did not comment on this submission. 94. For the purposes of procedural law, the Commission’s actions are to be classified as follows. The statement that it was not pursuing the complaint is unambiguous and unconditional. It consequently involves partial withdrawal of the application. There is no legal basis for subsequently revoking this procedural act or disputing it on grounds of error. Therefore, the Commission’s statement at the hearing that it was after all maintaining the complaint contains a new plea vis-à-vis the reply. 95. In proceedings before the Court, Article 42(2) of the Rules of Procedure governs the conditions under which the subject-matter of the proceedings may be amended by a new plea. It states that ‘no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure’. 96. Such a matter of fact is present here. The withdrawal of the complaint rested on a commitment on the part of the United Kingdom Government which was subsequently withdrawn. It is true that this commitment was not legally binding as regards its content, but the Commission could, if only on the basis of the principle of cooperation in good faith, trust that the United Kingdom Government would at least endeavour to put it into effect. It was only after reading the rejoinder that the Commission was able to realise that the United Kingdom Government was not meeting this expectation. A matter of fact which has come to light in the course of the procedure is therefore involved. 97. There are of course additional restrictions on putting forward new pleas in Treaty infringement proceedings. The Commission may not extend the subject-matter of the dispute in the course of Treaty infringement proceedings. The Court has held that to be so in particular where a complaint has been referred to in the letter of formal notice but not in the reasoned opinion. (36) This is intended to ensure that the subject-matter of the dispute is clearly defined and that the Member State concerned can avail itself of its right to defend itself. 98. Since in proceedings before the Court the definiteness of the subject-matter of the dispute is already governed by Article 42(2) of the Rules of Procedure, which does not preclude the Commission’s plea, the only question remaining is whether the United Kingdom’s rights of defence are prejudiced if the complaint concerning the Conservation of Seals Act 1970 is admitted. Since the same complaint was, before being withdrawn in the interim, covered in the pre-litigation procedure and in the proceedings before the Court, the United Kingdom Government has been able to avail itself of its right to defend itself against all the Commission’s complaints. Nor does the United Kingdom Government appear to have any objections to the examination of this complaint. Its silence regarding the reintroduction of the complaint at the hearing and its submissions in its rejoinder indicate rather that it tacitly agrees to the complaint’s being taken up again, so that the dispute in relation to the Conservation of Seals Act is now decided. 99. It is therefore, exceptionally, justifiable to admit the complaint concerning the Conservation of Seals Act notwithstanding its withdrawal in the interim. 100. As regards the substance, it must be stated first that Article 15 of the Habitats Directive is applicable to the hunting of the seal species covered by Annex IV, that is to say the Mediterranean monk seal Monachus monachus and the Saimaa ringed seal Phoca hispida saimensis, but also, in accordance with Annex V, to the hunting of all other species of ‘true seal’ or ‘earless seal’ (the Phocidae family). (37) In the United Kingdom, the common or harbour seal (Phocavitulina) and grey seal (Halichoerus grypus), for example, are to be found. 101. The Conservation of Seals Act 1970 relates to all seal species. It expressly prohibits the poisoning of seals and hunting with certain firearms. In addition, the competent authorities are given the power to grant licences under certain circumstances for the use of poison to kill seals. 102. The Commission complains that these requirements fall short of Article 15 of the Habitats Directive. It states that the Conservation of Seals Act 1970 prohibits only two methods of killing and enables licences to be granted under conditions which go beyond the derogations in the Habitats Directive. 103. The United Kingdom Government pleads that the requirements of this Act supplement the general rules implementing Article 15 of the Habitats Directive. Regulation 41 of the C(NH)R 1994 guarantees the protection required by the directive. Any licences under the Conservation of Seals Act must, by virtue of the aforementioned general clauses, be consistent with the Habitats Directive. 104. These submissions are not persuasive as regards permitted killing methods. The Conservation of Seals Act 1970 gives an innocent reader the impression that only the two methods expressly mentioned there are prohibited for the killing of seals. It may admittedly be correct that the prohibitions under regulation 41 of the C(NH)R apply in addition, but there is a substantial risk that those prohibitions will be overlooked given the manifest pertinence of the Conservation of Seals Act 1970. Consequently, the regulation of killing methods in the Conservation of Seals Act 1970 is incompatible with Article 15 of the Habitats Directive. 105. On the other hand, it is to be assumed that, when making decisions on licences under the Conservation of Seals Act 1970, the United Kingdom competent authorities are aware that they must also comply with the obligations imposed by the relevant provisions transposing Articles 15 and 16 of the Habitats Directive. While it would be welcome, an express statutory reference in this regard does not appear absolutely necessary in order to make the legal obligations clear to a specialised authority. Therefore, no infringement of the Habitats Directive can be found in this regard. 7. Article 16(1) of the Habitats Directive – Derogations from species protection 106. Article 16(1) of the Habitats Directive reads as follows: ‘Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15(a) and (b): (a) in the interest of protecting wild fauna and flora and conserving natural habitats; (b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property; (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; (d) for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants; (e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.’ 107. The Commission puts forward two complaints relating to the transposition of this provision. First, the derogations in regulation 40 of the C(NH)R 1994, regulation 35 of the C(NH)R(NI) 1995 and section 17U of the NPO contain no reference to the fact that derogations are permissible only if, first, there is no satisfactory alternative and, second, the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. Second, derogations incompatible with Article 16 exist where the acts forbidden in Articles 12 and 13 are committed in connection with a lawful operation. a) Lack of regard to alternatives and conservation status 108. The United Kingdom Government acknowledges that derogations from species protection are permissible only if, first, there is no satisfactory alternative and, second, the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. It pleads, however, that the competent authorities would apply both conditions, pursuant to the aforementioned general clauses. Moreover, both conditions are implicitly a precondition of both the specific derogations, for the taking of disabled animals for the purpose of tending them and for the killing of animals that cannot recover. In both cases no satisfactory alternative exists and the population’s conservation status is not prejudiced. 109. In relation to the rules complained of here, the general clauses relied on by the United Kingdom Government are relevant at most in so far as they possibly preclude public authorities from having recourse to the derogations where one of the two conditions is not met. Private individuals, on the other hand, can invoke the derogations laid down in United Kingdom law, without having regard to those conditions. The general clauses are therefore not capable of repelling the Commission’s complaint. 110. With regard to the specific derogations for the tending or killing of ill or disabled animals, it is not necessarily the case, contrary to the submissions of the United Kingdom Government, that they are applicable only where there are no satisfactory alternatives. Under United Kingdom law the tending of an animal is justified irrespective of whether it would be a satisfactory alternative to leave it in the wild so that it can recover by itself. So far as concerns the killing of incurably sick animals, the question, not raised by the Commission, arises as to whether Article 16(1) of the Habitats Directive contains a justification therefor in the first place. At least in some cases it will indeed be a satisfactory alternative to let matters take their natural course, instead of stepping in and taking charge in order, in the final analysis, to give effect to human conceptions concerning dealing with animal suffering. 111. Therefore, the failure to include in the United Kingdom rules specified by the Commission the conditions requiring the absence of alternatives and the maintenance of the conservation status of the population concerned is incompatible with Article 16(1) of the Habitats Directive. b) Harm in connection with lawful operations 112. Under regulations 40(3)(c) and 43(4) of the C(NH)R 1994, regulations 35(3)(c) and 38(4) of the C(NH)R(NI) 1995 and sections 17U(2)(c) and 17X(4) of the NPO, the prohibitions enacted in transposing Articles 12, 13 and 16 of the Habitats Directive do not apply if the act in question occurred in connection with a lawful operation and could not reasonably be avoided. (38) 113. Article 16(1) of the Habitats Directive does not provide for any derogations from the protective provisions for fauna and flora covered by Annex IV where they have been infringed in connection with a lawful operation. The United Kingdom Government stresses, however, that the derogations transpose not Article 16(1) but Article 12 in relation to animals and Article 13 in relation to plants. This view is justified in so far as any restriction on the provisions protecting species can be understood either as a delimitation of their field of application, which would constitute transposition of Article 12(1) or Article 13(1), or as a derogation, which would have to be assessed under Article 16(1). This shows, however, that Articles 12, 13 and 16 jointly form a closed system of protection, so that every derogation from the provisions protecting species that is incompatible with the directive would infringe both the prohibitions in Articles 12 and 13 and the derogating provision in Article 16. Consequently, the Commission can object to the derogating provisions at issue here as an infringement of Article 16. 114. The United Kingdom Government further invokes the fact that Articles 12 and 13 of the Habitats Directive have been transposed by criminal offences. It submits that it is therefore necessary to restrict their application where persons would be acting without knowledge of the risk to protected species. However, as soon as a person is aware of the risk, he can no longer rely on the derogations since he could reasonably have avoided the harm. 115. The United Kingdom Government’s account of the derogating provisions to be dealt with here is, however, inconsistent with recent English case-law. Two judgments in Newsum and Others v Welsh Assembly Government indicate that the derogating provision in regulation 40(3)(c) of the C(NH)R 1994 goes beyond the framework permissible under Article 16(1) of the Habitats Directive. The High Court explicitly expresses the view that regulation 40(3)(c) precludes application of the prohibitions enacted in transposition of Article 12 if the harm occurs in pursuing an operation which as such is lawful and the operation could not reasonably be pursued in another form. (39) The question at issue there was whether operating a quarry enjoying consent was permissible although it would destroy a population of great crested newts (Triturus Cristatus) and a pond, that is to say the population’s breeding site and resting place. It is true that the Court of Appeal set aside that judgment, but it indicated in an obiter dictum that it inclines to the view that the derogation allows harm of that kind within the framework of a lawful operation. (40) In view of this case-law, which is closer than the United Kingdom Government’s interpretation to the wording of regulation 40(3)(c) of the C(NH)R 1994, it is to be assumed that the derogation for lawful conduct allows acts which, with or without the knowledge of the person performing them, lead to the killing of specimens of protected species or to deterioration or destruction of their breeding sites and resting places, if those acts as such are lawful. 116. This derogation is not expressly provided for in the Habitats Directive. However, it would be compatible with the Habitats Directive if it correctly transposed either the prohibitions in Articles 12(1) and 13 in the sense of a delimitation or the derogations in Article 16. 117. It must be stated first, with regard to Article 12(1)(d), that the prohibition on deterioration or destruction of breeding sites or resting places does not allow such a derogation. This prohibition does not require intent, and applies even irrespective of knowledge on the part of the person committing the act. 118. The remaining prohibitions under Article 12(1)(a) to (c) and Article 13(1)(a) are, however, also not limited so as to exclude lawful operations. It can remain undecided in what particular way the term ‘deliberate’ which – in contrast to Article 12(1)(d) – is used there is to be interpreted. The judgment on the sea turtle Caretta caretta seems to interpret this term in the sense of conscious acceptance of consequences. (41) Even if ‘deliberate’ is interpreted restrictively, however, the term cannot be transposed by a derogation in favour of lawful operations, since lawful conduct does not necessarily preclude an intention to harm. (42) 119. Article 16(1) of the Habitats Directive also cannot justify such derogations. The derogations permissible under that provision cannot be founded on the lawfulness of the particular action, but only on quite specific grounds, for example imperative reasons of overriding public interest. Moreover, in order to have recourse to such a derogation, there must be no satisfactory alternative and the populations of the species concerned must be maintained at a favourable conservation status. (43) 120. Nor can the United Kingdom Government plead that the provisions of criminal law under discussion here should be limited by a derogation for lawful acts. These offences are almost all limited to intentional acts. In England, Wales, Scotland and Northern Ireland, only the protection of breeding sites and resting places is not tied to an intention to cause harm but – according to information provided by the United Kingdom Government (44) – is secured irrespective of fault. It can remain undecided here whether Article 12(1)(d) of the Habitats Directive in fact requires an offence regardless of fault. Under no circumstances is transposition adequate if an offence which might be too broad is limited by a derogation that is too broad. 121. Consequently, the derogations for harm in the event of lawful conduct are incompatible with Article 16 of the Habitats Directive. 8. Application of the directive outside territorial waters 122. This final plea relates to maritime areas within which the United Kingdom admittedly does not exercise full sovereignty, but does exercise at least certain powers. Under the United Nations Convention on the Law of the Sea signed at Montego Bay on 10 December 1982 (‘UNCLOS’), (45) to which the Community acceded in 1998, (46) full sovereignty of a coastal State extends to its territorial waters. Under UNCLOS, these waters are called ‘the territorial sea’. Under Article 3 of UNCLOS, the coastal State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the Convention. 123. In addition, the coastal State can claim an exclusive economic zone, which may not extend beyond 200 nautical miles from the baselines. Under Article 56(1)(a) of UNCLOS, in this zone the coastal State has in particular sovereign rights for the purpose of exploring and exploiting, managing and conserving the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil. It also has, under Article 56(1)(b)(iii), jurisdiction with regard to the protection and preservation of the marine environment as provided for in the relevant provisions of UNCLOS. 124. Finally, the continental shelf can extend to a maximum of 350 nautical miles from the baselines. Under Article 77 of UNCLOS, the coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. This covers only immobile natural resources. 125. The Commission complains that the United Kingdom has limited application of the provisions intended to transpose the Habitats Directive to territorial waters. It takes the view that account is to be taken of the directive wherever the Member States exercise sovereign powers, in particular in the exclusive economic zone. It expressly pleads Article 56(1)(a) of UNCLOS in support of this submission. It states that in the exclusive economic zone the United Kingdom has in particular not complied with the obligations to propose sites of Community importance under Article 4 of the directive and to protect species under Article 12. 126. The United Kingdom Government in principle admits this complaint and states that appropriate rules were enacted for the oil industry in 2001 (47) and are being prepared as to the remainder. 127. Moreover, the High Court of England and Wales found the Habitats Directive to be applicable outside territorial waters back in 1999. (48) In so deciding, it relied in particular on the following considerations. First, while it is true that the concern of the directive is very much land-based, its protective objectives in relation to certain species and habitat types – in particular sea mammals and cold-water coral reefs (49) – can be attained only if it is not limited to territorial waters. Second, this outcome follows in particular from the Court’s case-law on the territorial scope of Community fisheries law, from the United Kingdom interpretation of Directive 85/337 on the assessment of environmental effects in relation to its territorial scope and from public statements by Government members on the scope of the Habitats Directive. 128. Although the United Kingdom does not dispute the applicability of the Habitats Directive outside territorial waters, it must be examined before giving judgment against it in this respect whether the directive does in fact apply there. 129. In Kramer, the Court deduced from a legal basis for regulating fishing with a view to ensuring protection of fishing grounds and conservation of the biological resources of the sea (50) and from the very nature of things that the rule-making authority of the Community ratione materiae also extends – in so far as the Member States have similar authority under public international law – to fishing on the high seas. It stated that the only way to ensure the conservation of the biological resources of the sea both effectively and equitably is through a system of rules binding on all the States concerned, including non-member countries. (51) In a further judgment, when determining the geographical area to which a regulation applied, the Court interpreted it in the light of the legal context in which it appeared and of its subject-matter and purpose. The Court thereby reached the conclusion that its territorial scope coincided with that of Community law in its entirety at any given time. Therefore, any extension of Member States’ maritime zones automatically entailed the same extension of the regulation’s field of application. (52) 130. The Habitats Directive is consequently applicable outside the territorial waters of the United Kingdom if two conditions are met. First, the United Kingdom must have extended sovereign rights to the area outside territorial waters and, second, the Habitats Directive must require to be interpreted as extending to that area. 131. It is common ground between the parties that the United Kingdom exercises sovereign rights in the area of the exclusive economic zone and on the continental shelf. Relevant Community law can therefore also apply there. 132. While the Habitats Directive admittedly contains no express rule concerning its territorial scope, it is consonant with its objectives to apply it beyond coastal waters. In accordance with Article 2(1), the directive is meant to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. This objective supports the conclusion that the area within which the directive applies coincides with that of the Treaty. In accordance with the aforementioned case-law, the area within which the Treaty applies is not limited to the territorial waters. Also, the directive protects habitats such as reefs and species such as sea mammals which are frequently, in part even predominantly, to be found outside territorial waters. 133. The Community legislature too has thus been concerning itself meanwhile with the transposition of the Habitats Directive beyond the coastal sea. Council Regulation (EC) No 812/2004 of 26 April 2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98 (53) transposes for fisheries the requirements for protection of cetaceans pursuant to Articles 12 and 16 of the Habitats Directive and Annex IV(a) thereto. Areas outside territorial waters are affected in particular. 134. Nor is any reason apparent why the Member States should be freed from the obligations of the Habitats Directive when exercising sovereign powers outside territorial waters. UNCLOS admittedly imposes limits on their powers, but it obliges them in principle to protect the marine environment – including in the exclusive economic zone and on the continental shelf. The Convention on Biological Diversity (Rio Convention), to which the Community and the Member States have acceded, (54) strengthens this obligation. In accordance with Article 4(b) of this Convention, its provisions apply, in relation to each Contracting Party, in the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction. This relates in particular to activities in the exclusive economic zone and on the continental shelf. 135. The Habitats Directive is therefore also to be transposed in respect of areas outside territorial waters, in so far as the Member States or the Community exercise sovereign rights there. 136. It is of course to be noted that the provisions for the oil industry entered into force before the period set in the reasoned opinion expired and the United Kingdom therefore, to this extent at least, fulfilled in time its obligation to transpose outside territorial waters. However, since these rules cover only the oil industry, the United Kingdom has not fully transposed the directive outside territorial waters. III – Costs 137. 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 Commission is largely successful here, the fact that it withdrew some subsidiary complaints and was unsuccessful on other points can be disregarded for the purposes of costs. The United Kingdom is therefore to be ordered to bear the costs. IV – Conclusion 138. I therefore suggest that the Court: (1) declares that, by failing to transpose correctly the following provisions: – Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in relation to Gibraltar, – Article 6(3) and (4), in relation to certain water abstraction plans and projects and in relation to land use plans, – Article 11, – Article 12(1)(d), in relation to Gibraltar, – Article 12(2), – Article 12(4), – Article 13(1), – Article 14(2), – Article 15, – Article 16(1) and – the entire directive in respect of maritime areas outside territorial waters and in which the United Kingdom of Great Britain and Northern Ireland exercises sovereign rights, with the exception of the oil industry, the United Kingdom of Great Britain and Northern Ireland has infringed Articles 10 and 249 of the Treaty and Article 23 of the directive; (2) dismisses the action as to the remainder; (3) orders the United Kingdom to pay the costs. 1 – Original language: German. 2 – OJ 1992 L 206, p. 7. 3 – Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 18. 4 – The United Kingdom Government relies on Friends of the Earth v Environment Agency and Able [2003] EWHC 3193, paragraphs 57 and 59. 5 – The Commission relies on Commission v Germany, cited in footnote 3, paragraphs 18 and 24, Case C-225/97 Commission v France [1999] ECR I-3011, paragraph 37, and Case C-159/99 Commission v Italy [2001] ECR I-4007, paragraph 32. 6 – Case C-296/01 Commission v France [2003] ECR I-13909, paragraph 55. 7 – OJ 1979 L 103, p. 1. 8 – Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9, Case 236/85 Commission v Netherlands [1987] ECR 3989, paragraph 5, and Case C-38/99 Commission v France [2000] ECR I-10941, paragraph 53. 9 – Opinions of Advocate General Fennelly in Case C-256/98 Commission v France [2000] ECR I‑2487, point 20, and of Advocate General Tizzano in Case C-75/01 Commission v Luxembourg [2003] ECR I-1585, point 38. 10 – Opinion in Case C-256/98, cited in footnote 9, point 25. 11 – Case C-117/00 Commission v Ireland [2002] ECR I-5335, paragraph 22 et seq. 12 – Opinion in Case C-117/00, cited in footnote 11, point 77. 13 – See, for the special situation of authorisation of a scheme which is not to be regarded as a plan or project, my Opinion in Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels [2004] ECR I-0000 (‘Waddenzee’), point 118. 14 – Article 6(2) of the Habitats Directive is interpreted in this way by Advocate General Fennelly in his Opinion in Case C-256/98, cited in footnote 9, point 25. 15 – The English and Dutch appellations for example (unlike the German ‘Magere Flachland-Mähwiesen’ and ‘Berg-Mähwiesen’) refer not to the mowing but to hay, which, however, presupposes mowing. 16 – This aspect is stressed by Advocate General Fennelly in the Opinion in Case C-256/98, cited in footnote 9, point 19. 17 – OJ 1985 L 175, p. 40. 18 – The Waddenzee judgment, cited in footnote 13, paragraph 24 et seq. 19 – In Germany a comparable system of protection exists for smaller plans and projects which outside areas of protection do not require approval. There, however, the third sentence of Paragraph 33(3) of the Bundesnaturschutzgesetz (Federal Law on Nature Conservation) contains an express obligation with regard to the content of the declaration of protection: ‘Appropriate orders and prohibitions and management and development measures shall ensure that the requirements of Article 6 of Directive 92/43/EEC are met’. 20 – See, for example, Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35, Case C-63/02 Commission v United Kingdom [2003] ECR I-821, paragraph 11, and Case C-417/02 Commission v Greece [2004] ECR I-0000, paragraph 22. 21 – The Waddenzee judgment, cited in footnote 13, paragraph 43. 22 – The Waddenzee judgment, cited in footnote 13, paragraph 41. 23 – The Waddenzee judgment, cited in footnote 13, paragraph 44. 24 – See, to this effect, Case C-201/02 Wells [2004] ECR I-723, paragraph 49 et seq. 25 – Opinion in Case C-256/98, cited in footnote 9, point 33. 26 – The Waddenzee judgment, cited in footnote 13, paragraph 37. 27 – See my Opinion in Waddenzee, cited in footnote 13, point 58. 28 – Case C-350/02 Commission v Netherlands [2004] ECR I-0000, paragraph 20, with further references. This admissibility condition for an action for failure to fulfil obligations may be considered by the Court of its own motion: Case C-439/99 Commission v Italy [2002] ECR I‑305, paragraph 8, and Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 8. 29 – With regard to this complaint see below, point 77. 30 – This interpretation is confirmed by guidance of the Scottish Environment Department ‘European Protected Species, Development Sites and the Planning System’ (October 2001), at http://www.scotland.gov.uk/library3/environment/epsg.pdf, p. 2, paragraph 12, visited on 27 May 2005. On the other hand, the question whether a strict liability offence is involved is expressly left open in R v Secretary of State for Trade and Industry ex parte Greenpeace Ltd 2000 [CMLR] 2000, p. 94 (at p. 122). See also ‘Environmental Audit – Sixth Report’ of 5 May 2004, http://www.publications.parliament.uk/pa/cm200304/cmselect/cmenvaud/126/12602.htm (visited on 27 May 2005), paragraph 9, according to which the majority of environmental offences are strict liability offences. 31 – See two consultation papers, namely the ‘Consultation Paper on Legislative Proposals for Integration of the Habitats Directive Provisions on Conservation of European Protected Species into the Land-Use Planning Regime’ of the Welsh Assembly Government of June 2002, http://www.wales.org.uk/subienvironment/content/consultations/landuseplan.doc (visited on 27 May 2005), Section 1, paragraph 4, and ‘Technical Amendments to the Conservation (Natural Habitats &c.) Regulations 1994, A Consultation Paper on Amendments to the Habitats Regulations’ of the Scottish Executive of March 2003, http://www.scotland.gov.uk/consultations/environment/tacnh.pdf (visited on 27 May 2005), paragraph 20, and the judgment of the High Court of 4 February 2004 in Newsum and Others v Welsh Assembly Government [2004] EWHC 50 (Admin), paragraphs 17 and 101. 32 – Case C-434/01 Commission v UnitedKingdom [2003] ECR I-13239, paragraph 21, with further references. 33 – This provision states: ‘It is an offence … (d) deliberately to damage or destroy a breeding site or resting place of any such animal.’ 34 – Regulation 41 of the C(NH)R 1994, regulation 36(2) of the C(NH)R(NI) 1995 und section 17V(2) of the NPO. 35 – Case 326/85 Netherlands v Commission [1987] ECR 5091, paragraph 24, Case C-301/97 Netherlands v Council [2001] ECR I-8853, paragraph 43, and Case C-17/01 Sudholz [2004] ECR I-0000, paragraph 34. 36 – Case C-350/02, cited in fotnote 28, paragraph 18 et seq. 37 – In addition to ‘earless seals’, there is also the ‘eared seal’ (Otariidae) family. 38 – Regulation 40(3)(c) of the C(NH)R 1994 provides: ‘… a person shall not be guilty of an offence by reason of … any act made unlawful by that regulation if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided.’ The wording of the other provisions is basically identical. 39 – Cited in footnote 31, paragraph 101. 40 – Judgment of 22 November 2004, [2004] EWCA Civ 1565, paragraphs 8, 15 and 16. 41 – Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraph 32 et seq. 42 – See Case 412/85 Commission v Germany [1987] 3503, paragraphs 14 and 15: the intention to use land, for example for agricultural purposes, does not preclude the simultaneous deliberate killing or capture of birds, the deliberate destruction of, or damage to, their nests and eggs and their deliberate disturbance, within the meaning of Article 5 of the Wild Birds Directive. 43 – On this, see above, point 108 et seq. 44 – On this, see above, point 73. 45 – Third United Nations Conference on the Law of the Sea, Official Documents, vol. XVII, 1984, doc. A/Conf.62/122, pp. 157-231. 46 – Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof (OJ 1998 L 179, p. 1). 47 – The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001, which entered into force on 31 May 2001. 48 – Judgment cited in footnote 29, p. 102 et seq. (p. 114). 49 – According to the High Court, this type of coral is covered by protected habitat type ‘reefs’ (Natura 2000 Code 1170). 50 – Article 102 of the Act of Accession of 22 January 1972. 51 – Joined Cases 3/76, 4/76 and 6/76 Kramer [1976] ECR 1279, paragraphs 30/33. 52 – Case 61/77 Commission v Ireland [1978] ECR 417, paragraphs 45 to 51. 53 – OJ 2004 L 150, p. 12. 54 – OJ 1993 L 309, p. 3.