Opinion of the Advocate General — ECLI:EU:C:2004:420
Date: 2004-07-08
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, that Member States are required under the Habitats Directive in conjunction, in particular, with the principle of cooperation in good faith to avoid deterioration of the sites proposed by them until three years have passed since the submission of an exhaustive list of the sites which, at national level, have an ecological interest that is relevant from the point of view of the directive’s objective of conservation of natural habitats and wild fauna and flora. C – Effect on third parties 34. In line with the foregoing considerations, the Italian authorities are temporarily required to protect the ‘Foce del Timavo’ site against deterioration. It is open to question whether that requirement can be relied upon against private persons, such as Dragaggi in this case. 35. It has been consistently held that a directive cannot impose obligations on an individual and cannot therefore be relied upon as such against an individual. (23) That case-law has concerned, first, the application of directives in civil-law relations between individuals (24) and, second, obligations of individuals towards the State, in particular in the context of criminal law. (25) It can be inferred, moreover, from the Busseni judgment, (26) which concerned the rank of a Community claim in the list of creditors’ claims in insolvency proceedings, that directly applicable directives cannot undermine legal positions which are protected by Community law. Those principles must also apply to the prohibition of deterioration which has been developed here in relation to a conditional provision of the directive. 36. In this case, only a legal position protected by Community law that is enjoyed by Dragaggi as successful tenderer for the contested contract could preclude application of the prohibition of deterioration. There are elements in procurement law to suggest that the Italian authorities could comply with their duty of protection by annulling the award procedure. The Community rules on the award of public contracts, the applicability of which cannot be examined here in the absence of further details, do not require a contracting authority to carry an award procedure through to its conclusion. (27) Community law has not thus far even provided that the discontinuation of an award procedure is to be limited to exceptional cases or has necessarily to be based on serious grounds. (28) 37. If Dragaggi were already in a position protected by Community law, the Italian authorities would at least be required to exhaust all other possibilities to avoid harm to the site. They could, conceivably, rely on any rights they might have to terminate the contract or try to reach an amicable solution, for example with a view to avoiding damage when the contract is performed. V – Conclusion 38. I therefore propose that the question referred for a preliminary ruling should be answered as follows: Member States are required under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora in conjunction, in particular, with the principle of cooperation in good faith to avoid deterioration of the sites proposed by them until three years have passed since the submission of an exhaustive list of the sites which, at national level, have an ecological interest that is relevant from the point of view of the directive’s objective of conservation of natural habitats and wild fauna and flora. 1 – Original language: German. 2 – OJ 1992 L 206, p. 7. 3 – Date as specified in CELEX – in its judgments in Case C-329/96 Commission v Greece [1997] ECR I-3749, paragraph 2, and Case C-83/97 Commission v Germany [1997] ECR I-7191, paragraph 2, the Court of Justice, curiously, proceeded in its deliberations on the basis of notification effected on 5 June 1992. 4 – OJ 1979 L 103, p. 1. 5 – See, however, Case C-143/02 Commission v Italy [2003] ECR I-2877 on the defective implementation of Articles 5, 6 and 7 of the Habitats Directive. 6 – Commission Decision 2004/69/EC of 22 December 2003 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Alpine biogeographical region (OJ 2004 L 14, p. 21). 7 – Commission Decision 2002/11/EC of 28 December 2001 adopting the list of sites of Community importance for the Macaronesian biogeographical region, pursuant to Council Directive 92/43/EEC (OJ 2002 L 5, p. 16). 8 – See inter alia Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 25, and the case-law cited therein. 9 – Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraph 23; Case C-67/99 Commission v Ireland [2001] ECR I-5757, paragraph 35; Case C-71/99 Commission v Germany [2001] ECR I-5811, paragraph 28; and Case C-220/99 Commission v France [2001] ECR I-5831, paragraph 32. 10 – Case C-355/90 Commission v Spain (Santoña marshes) [1993] ECR I-4221, paragraph 22, and Case C-374/98 Commission v France (Basses Corbières) [2000] ECR I-10799, paragraph 49. 11 – To that effect, see also Case C-57/89 Commission v Germany(Leybucht) [1991] ECR I-883, paragraph 20. 12 – Thus the judgments cited in footnote 9 have already been delivered in infringement proceedings against Ireland, Germany and France. 13 – According to the Commission’s Natura Barometer as at 12 May 2004, at http://europa.eu.int/comm/environment/nature/nature_conservation/useful_info/barometer/barometer.htm (page visited on 4 July 2004), only the Netherlands has submitted a list of proposed sites which is described as ‘largely complete/largement complète’ whilst the result recorded for the other old Member States, including Italy, is ‘substantial but still incomplete/substantielle mais encore incomplète’. 14 – For the Continental biogeographical region, see European Commission Directorate-General for the Environment and European Environment Agency/European Topic Centre on Nature Protection and Biodiversity, ‘Continental Region, Conclusions on representativity within pSCI of habitat types and species’, Doc. Cont./C/rev.3 of December 2002, at http://europa.eu.int/comm/environment/nature/nature_conservation/natura_2000_network/biogeographic_regions/continental/pdf/conclusions_continental.pdf (page visited on 4 July 2004). 15 – Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 45; Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 58; and Case C-157/02 Rieser Internationale Transporte [2004] ECR I-0000, paragraph 66. 16 – See the judgments cited in footnote 9 in First Corporate Shipping, at paragraph 22, Commission v Ireland, at paragraph 34, Commission v Germany, at paragraph 27, and Commission v France, at paragraph 31. 17 – See the references in footnote 16. 18 – See Case C-44/95 Royal Society for the Protection of Birds (Lappel Bank) [1996] ECR I-3805, paragraph 37 et seq. 19 – As regards Article 6(2) of the Habitats Directive, see my Opinion in Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee [2004] ECR I-0000, point 116 et seq. 20 – However, practical considerations militate in favour of applying the whole protective regime established for sites of Community importance to sites even at the proposal stage. Some Member States, including Italy in the meantime, have even adopted provisions to that effect. 21 – In accordance with the Natura Barometer mentioned in footnote 13, the Commission concludes that the Italian proposals are substantial but still incomplete. 22 – See Article 1(e) of the Habitats Directive. 23 – Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545, paragraph 19; and Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20 et seq. 24 – Judgments in Faccini Dori and Marshall, cited in footnote 23. 25 – Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 6 et seq., and Pretore di Salò v Persons unknown, cited in footnote 23. 26 – Case C-221/88 [1990] ECR I-495, paragraph 23 et seq. 27 – Case C-92/00 HI [2002] ECR I-5553, paragraph 41. 28 – Case C-27/98 Fracasso and Leitschutz [1999] ECR I-5697, paragraph 23.