Opinion of the Advocate General — ECLI:EU:C:1999:374
Date: 1999-07-08
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 Judgment 
1. 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 down in the 
reasoned opinion 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
2. Environment — Conservation of wild birds — Directive 79/409 — Special conserva­
tion measures — 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-96/98 
3. Environment — Conservation of wild birds — Directive 79/409 — Special conserva­
tion measures — Obligations of Member States — Obligation to take steps to avoid 
deterioration of habitats — Scope — Covers areas which are, or ought to be, classed as 
special protection areas — Whether the obligation has been breached — Conditions 
(Council Directive 79/409, Art. 4(1), (2) and (4)) 
4. Environment — Conservation of wild birds — Directive 79/409 — Special conserva­
tion measures — Obligations of Member States — Obligation to take steps to avoid 
pollution or deterioration of habitats — Whether that obligation has been breached — 
Where part of an area classed as a special protection area has been declassified 
(Council Directive 79/409, Art. 4(4)) 
1. In an action under Article 169 of the 
Treaty (now Article 226 EC), the ques­
tion whether a Member State has failed 
to fulfil its obligations must be deter­
mined by reference to the situation 
prevailing at the end of the period laid 
down in the reasoned opinion. 
2. Article 4( 1 ) and (2) of Directive 79/409 
on the conservation of wild birds 
requires the Member States to provide 
the special protection areas referred to 
therein with a legal protection regime 
that is capable, in particular, of ensur­
ing both the survival and reproduction 
of the bird species listed in Annex I to 
the Directive and the breeding, moult­
ing and wintering of migratory species 
which are regular visitors, albeit not 
listed therein. 
Sufficient protection for the purposes 
of that provision is not ensured by 
national legislation concerning water 
which fails to make provision for water 
management or by agri-environmental 
measures that are voluntary and purely 
hortatory in nature in relation to farm­
ers working holdings located in special 
protection areas. 
3. The first sentence of Article 4(4) of the 
Directive 79/409 on the conservation 
of wild birds requires Member States to 
take appropriate steps to avoid, inter 
alia, deterioration of habitats, not only 
in areas classed as special protection 
areas in accordance with Article 4(1), 
but also in areas which are the most 
suitable for the conservation of wild 
birds, even if they have not been 
classified as special protection areas, 
provided that they merit such classifi­
cation. It follows, with regard to the 
latter areas, that any infringement of 
the first sentence of Article 4(4) of 
Directive 79/409 presupposes that the 
areas in question are among the most 
suitable territories in number and size 
for the conservation of protected spe-
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COMMISSION V FRANCE 
cies, within the meaning of the fourth 
subparagraph of Article 4(1), and that 
these areas have suffered deterioration. 
Even if it were assumed that Commu­
nity aid measures for agriculture are 
disadvantageous to agriculture compa­
tible with the conservation require­
ments laid down by Directive 79/409, 
that would not dispense a Member 
State from its obligations under that 
Directive, in particular, those under the 
first sentence of Article 4(4) thereof. 
4. For a complaint to be upheld, where it 
is alleged that Article 4(4) of Directive 
79/409 on the conservation of wild 
birds has been infringed by reason of 
the declassification, through a reduc­
tion in size, of a portion of an area 
which has been classified as a special 
protection area, the area in, question 
must have been part of the classified 
special protection area. 
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