Opinion of the Advocate General — ECLI:EU:C:2003:606
Date: 2003-11-06
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Austria

Summary of the Judgment 
1. Actions for failure to fulfil obligatiofts — Examination of the merits by the Court — 
Situation to be taken mto consideration — Situation on expiry of the period laid down 
by the reasoned opinion 
(Art. 226 EC) 
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SUMMARY — CASE C-209/02 
2. Actions for failure to fulfil obligations — Subject-matter of the dispute — Deter­
mination by the reasoned opinion — Time-limit imposed on the Member State — 
Later cessation of the failure to fulfil obligations — Interest in continuing the 
action — National decision which is the source of the failure to fulfil obligations still 
in force on expiry of the time-limit imposed on the Member State 
(Art. 226 EC) 
3. Environment — Conservation of natural habitats and of wild fauna and flora — 
Directive 92/43 — Special protection areas — Obligations of Member States — 
Assessment of the impact of a project on a site — Negative conclusions — Obligation 
to take into account the likelihood of adverse effects on the integrity of the area 
(Council Directives 79/409, Art. 4, and 92/43, Arts 6(3) and (4) and 7) 
1. The question whether a Member State 
has failed to fulfil obligations must be 
determined by reference to the situ­
ation prevailing in the Member State at 
the end of the period laid down in the 
reasoned opinion and the Court cannot 
take account of any subsequent 
changes. 
(see para. 16) 
2. An action for failure to fulfil obli­
gations cannot in any case be regarded 
as being devoid of purpose when, on 
expiry of the time-limit fixed by the 
Commission for the Member State in 
question to comply with the reasoned 
opinion, the national decision regarded 
by the Commission as the source of the 
Member State's failure to fulfil its 
obligations and subsequently quashed 
by a court decision was still in force 
and, moreover, the extension to the 
golf course provided for by that 
decision had in the meantime been 
created. 
(see paras 17-18) 
3. It can be seen from Article 6(3) of 
Directive 92/43 on the conservation of 
natural habitats and of wild fauna and 
flora, read in conjunction with Article 7 
of that directive, that any plan or 
project not directly connected with or 
necessary to the management of a 
special protection area classified under 
Article 4 of Directive 79/409 on the 
conservation of wild birds but likely to 
have a significant effect on that special 
protection area, either individually or 
in combination with other plans or 
projects, is to be subject to appropriate 
assessment of its implications for that 
area in view of its conservation objec-
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COMMISSION v AUSTRIA 
tives. In the light of the conclusions of 
the assessment of the implications for 
the special protection area, the com­
petent national authorities are to agree 
to the plan or project only after having 
ascertained that it will not adversely 
affect the integrity of the special pro­
tection area concerned and, if appro­
priate, after having obtained the 
opinion of the general public. 
A Member State which authorises a 
planned extension to a golf course 
despite the negative conclusions of an 
impact assessment on the habitat of the 
corncrake (crex crex) in a special pro­
tection area classified under Article 4 
of Directive 79/409 fails to fulfil its 
obligations under Article 6(3) and (4) 
in conjunction with Article 7 of Direc­
tive 92/43. 
(see paras 22, 29, operative part) 
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