Opinion of the Advocate General — ECLI:EU:C:2005:653
Date: 2005-10-27
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 wild birds – Directive 79/409 – Choice and designation of special protection areas (Council Directives 79/409, Art. 4(1) and (2), and 92/43, Art. 6(4)) 2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Temporal application (Council Directive 92/43, Art. 6(3) and (4)) 1. The Member States’ margin of discretion in choosing the most suitable territories for classification as special protection areas under Article 4(1) and (2) of Directive 79/409 on the conservation of wild birds concerns not the appropriateness of classifying as special protection areas the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species listed in Annex I. Moreover, when designating such an area and defining its boundaries, Member States may not take account of economic requirements as constituting a general interest superior to that represented by the ecological objective of the Birds Directive or as constituting imperative reasons of overriding public interest of the kind referred to in the first subparagraph of Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora. (see paras 33, 40) 2. The principle that projects likely to have significant effects on the environment must be subjected to an environmental assessment does not apply where the application for authorisation for a project was formally lodged before the expiry of the time-limit for transposition of a directive. That formal criterion is the only one which accords with the principle of legal certainty and preserves a directive’s effectiveness. The reason for that is that a directive such as Directive 92/43 on the conservation of natural habitats and of wild fauna and flora is primarily designed to cover large-scale projects which will most often require a long time to complete. It would therefore not be appropriate for the relevant procedures, which are already complex at national level and which were formally initiated prior to the date of the expiry of the period for transposing the directive, to be made more cumbersome and time-consuming by the specific requirements imposed by the directive and for situations already established to be affected by it. (see paras 56-57)