Opinion of the Advocate General — ECLI:EU:C:2007:9
Date: 2007-01-11
Language of the case: German
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: Austria

Summary of the Judgment 1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Management of a common heritage (Art. 249, third para., EC; Council Directive 92/43) 2. Acts of the institutions – Directives – Implementation by Member States (Art. 249, third para., EC; Council Directive 92/43) 3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Adoption of necessary conservation measures (Council Directive 92/43, Art. 6(1)) 4. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Protection of species – Exceptions (Council Directive 92/43, Arts 12 to 14, 15(a) and (b), and 16) 5. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Protection of species – Exceptions (Council Directive 92/43, Arts 12 to 14, 15(a) and (b), and 16) 1. As is apparent from the 4th and 11th recitals in the preamble to Directive 92/43 on the conservation of natural habitats and of wild flora and fauna, the habitats and species covered by the Directive form part of the Community’s natural heritage and the threats to them are often of a transboundary nature, so that the adoption of conservation measures is a common responsibility of all Member States. In this field, where management of the common heritage is entrusted to the Member States in their respective territories, faithful transposition is particularly important. (see paras 57-58) 2. Directive 92/43 on the conservation of natural habitats and of wild flora and fauna lays down complex and technical rules in the field of environmental law and that, accordingly, the Member States are under a particular duty to ensure that their legislation intended to transpose the Directive is clear and precise. The argument put forward by the government of a Member State that, in any event, a provision of domestic law is interpreted in a manner consistent with the Directive where conservation measures are necessary cannot be upheld. Such interpretation of provisions of domestic law in a manner consistent with a directive cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty. Moreover, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting fulfilment of the obligations owed by the Member States in the context of transposition of a directive. (see paras 73, 78-80) 3. By means of the words used in Article 6(1) of Directive 92/43 on the conservation of natural habitats and of wild flora and fauna, the Community legislature sought to impose on the Member States the obligation to take the necessary conservation measures that correspond to the ecological requirements of the natural habitat types and species covered by Annex I and Annex II to the Directive respectively, which excludes any discretion in this regard on the part of the Member States and restricts any latitude of the national authorities when laying down rules or taking decisions to the means to be applied and the technical choices to be made in connection with those measures. (see paras 76, 87) 4. Articles 12 to 14 and 15(a) and (b) of Directive 92/43 on the conservation of natural habitats and of wild flora and fauna form a coherent body of provisions which require the Member States to establish strict regimes of protection for the animal and plant species concerned. Article 16 of the Directive, which defines in a precise manner the criteria on the basis of which the Member States may provide for derogations from the prohibitions set out in Articles 12 to 15, is a provision constituting an exception to the system of protection which the Directive imposes. Consequently, Article 16 must be interpreted restrictively. (see paras 109-110) 5. Under Article 16(1) of Directive 92/43 on the conservation of natural habitats and of wild flora and fauna any measure adopted at national level which derogates from the prohibitions laid down by the Directive must be conditional on there being no satisfactory alternative. It follows that national provisions under which the grant of derogations from the prohibitions established by Articles 12 to 14 and 15(a) and (b) of the Directive is subject not to all the criteria and conditions set out in Article 16 of the Directive but, incompletely, to certain elements of them, cannot constitute a regime consistent with Article 16. (see paras 111-112)