Opinion of the Advocate General — ECLI:EU:C:2006:566
Date: 2006-09-14
Language of the case: Greek
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: Greece

Summary of the Judgment Environment – Conservation of wild birds – Directive 79/409 – Classification as special protection area (Council Directive 79/409, Art. 4(1) and (2)) Article 4 of Directive 79/409 on the conservation of wild birds lays down a system which is specifically targeted and reinforced both for the species listed in Annex I to that directive and for migratory species not included in that annex, an approach justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage of the Community. Furthermore, it is clear from the ninth recital in the preamble to that directive that the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. The Member States are therefore required to adopt the measures necessary for the conservation of those species and thus to classify as special protection areas (SPAs) all the sites which, applying ornithological criteria, appear to be the most suitable for conservation of the species in question. For that purpose, the updating of scientific data is necessary to determine the situation of the most endangered species and the species constituting the common heritage of the Community. The Inventory of Important Bird Areas in the European Community (IBA 2000) provides an up-to-date inventory of the areas of importance for the conservation of birds which, in the absence of scientific evidence to the contrary, constitutes a basis of reference for assessing whether that Member State has classified as SPAs areas sufficient in number and size to offer protection to all the species of birds listed in Annex I to Directive 79/409 and also to the migratory species not included in that annex. In the absence of the submission of scientific studies capable of disproving the results of the IBA 2000, a Member State fails to fulfil its obligations under Article 4(1) and (2) of Directive 79/409 if it classifies as SPAs territories the number and overall size of which fall clearly short of the number and overall size of the territories fulfilling the preconditions for classification as SPAs, fails to designate SPAs to offer protection to certain species, and classifies as SPAs areas in which other species are insufficiently represented. Although the Member States bear sole responsibility for the classification of SPAs and must base that classification on the best scientific knowledge available, that does not mean that such an obligation does not apply as long as the competent authorities have not evaluated and verified the new scientific knowledge. Such an obligation to classify has existed since the expiry of the period for transposition of Directive 79/409. (see paras 24-25, 28, 32, 34, 48, 60, 62, operative part)