Opinion of the Advocate General — ECLI:EU:C:2007:254
Date: 2007-04-26
Language of the case: Spanish
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 - inadmissible
Origin: Spain

summary it must therefore be found that, by the environmental impact statement for the plan to irrigate the irrigable area of the Segarra-Garrigues Canal, the Kingdom of Spain has failed to fulfil its obligations under Article 4(1) and (4) of the Birds Directive. V – Costs 70. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Although the claim must be dismissed in part as inadmissible, the Commission has been successful in the present case in its submissions against the contested project. Thus Spain must be ordered to pay the costs. VI – Conclusion 71. I therefore propose that the Court should: (1) Declare that, by the environmental impact statement for the project to irrigate the irrigable area of the Segarra-Garrigues Canal, the Kingdom of Spain has failed to fulfil its obligations under Article 4(1) and (4) of Council Directive 79/409/EEC on the conservation of wild birds; (2) Dismiss the remainder of the action; (3) Order the Kingdom of Spain to pay the costs. 1 – Original language: German. 2 – OJ 1979 L 103, p. 1. 3 – OJ 1992 L 206, p. 7. 4 – See Case C‑374/98 Commission v France (‘Basses Corbières’) [2000] ECR I‑10799, paragraphs 47 and 57. 5 – The judgment in Case C‑166/97 Commission v France (‘Bouches de la Seine’) [1999] ECR I‑1719, paragraph 5, also mentions only June 1994. It is in fact difficult to determine the precise time-limit prescribed for implementation of the Habitats Directive. It is based, in accordance with Article 191(2) of the EEC Treaty in force at the time (now, after amendment, Article 254 EC) on the date on which it was notified to the Member States. Eur-Lex gives 10 June 1994 as the expiry date, whilst the Court, in Case C‑329/96 Commission v Greece (‘failure to transpose’) [1997] ECR I‑3749, paragraph 2, and Case C‑83/97 Commission v Germany (‘failure to transpose’) [1997] ECR I‑7191, paragraph 2, took 5 June 1994 as the date. 6 – Carlota Viada (Ed.), Áreas importantes para las aves en España, Madrid 1998. Included in the annexes to the application in Case C‑235/04 Commission v Spain, pending before the Court. 7 – BOE of 31 December 1994. 8 – Case C‑350/02 Commission v Netherlands [2004] ECR I‑6213, paragraph 20. 9 – Case C‑289/94 Commission v Italy [1996] ECR I‑4405, paragraph 15, and Case C‑230/99 Commission v France [2001] ECR I‑1169, paragraph 31. 10 – Case C‑365/97 Commission v Italy [1999] ECR I‑7773, paragraphs 23 and 24. 11 – Case C‑191/95 Commission v Germany [1998] ECR I‑5449, paragraph 55, and Commission v Italy, cited in footnote 10, paragraph 23. 12 – Commission v Germany, cited in footnote 11, paragraph 54, and Commission v Italy, cited in footnote 10, paragraph 26. 13 – The provisional translation of the draft of the letter of formal notice there mentions also Article 2, but that reference is absent from the final Spanish version. 14 – In that respect proceedings are pending against Spain regarding the entirely insufficient overall classification of SPAs. See in that regard my Opinion of 14 September 2006 in Case C‑235/04 Commission v Spain [2007] ECR I-0000. 15 – See my Opinion of 19 April 2007 in Case C‑304/05 Commission v Italy (‘Santa Catarina’) [2007] ECR I-0000, point 74 et seq. 16 – Case C‑355/90 Commission v Spain (‘Santoña Marshes’) [1993] ECR I‑4221, paragraph 22. 17 – Cited in footnote 4, paragraphs 47 and 57. 18 – Opinion of 9 June 1993, Case C‑355/90 Commission v Spain (‘Santoña Marshes’) [1993] ECR I‑4221, point 50. 19 – Cf. Santoña Marshes (cited in footnote 16, paragraphs 33 et seq.), Bouches de la Seine (cited in footnote 5, paragraph 27 et seq.) and the order of the President of the Court in Case C‑57/89 R Commission v Germany (‘Leybucht’) [1989] ECR 2849, paragraph 16. 20 – Cf. in particular Santoña Marshes (cited in footnote 16, paragraph 42 et seq.) regarding the substance of the case, in respect of which Advocate General Van Gerven made his comments mentioned in point 27 above. 21 – Order in Leybucht (cited in footnote 19, paragraph 16 et seq.). 22 – Page 54 of the annexes to the defence. 23 – Bouches de la Seine (cited in footnote 5, paragraph 42). 24 – Paragraphs 40 and 42 of the defence. 25 – Page 52 of the annexes to the defence. The letters of the environmental authorities produced by the Commission in annex 5 to the application also appear to indicate a significant environmental impact. 26 – Page 55 of the annexes to the defence. 27 – Case C‑57/89 Commission v Germany (‘Leybucht’) [1991] ECR I‑883, paragraph 21 et seq., and Santoña Marshes (cited in footnote 16, paragraph 19). 28 – Expressly laid down in Article 6(4) and Article 16 of the Habitats Directive and in Article 9 of the Birds Directive. Cf., with regard to justification of restrictions on fundamental freedoms on the basis of equally unwritten objectives in the general interest, Case C‑6/01 Anomar and Others [2003] ECR I‑8621, paragraph 86; Case C‑366/04 Schwarz [2005] ECR I‑10139, paragraph 33; Joined Cases C‑151/04 and C‑152/04 Nadin and Nadin-Lux [2005] ECR I‑11203, paragraph 39; and Case C‑441/04 A-Punkt Schmuckhandel [2006] ECR I‑2093, paragraph 26 et seq. 29 – Leybucht (cited in footnote 27, paragraph 22) and Santoña Marshes (cited in footnote 16, paragraphs 19 and 45). 30 – Leybucht (cited in footnote 27, paragraph 26). 31 – Cf. my Opinion of 27 April 2006 in Case C‑239/04 Commission v Portugal (‘Castro Verde’) [2006] ECR I-10183, point 35. 32 – Leybucht (cited in footnote 27, paragraph 23). 33 – Leybucht (cited in footnote 27, paragraph 24). 34 – Opinion of 5 December 1990 in Case C‑57/89 Commission v Germany (‘Leybucht’) [1991] ECR I‑883, point 39. 35 – Basses Corbières (cited in footnote 4, paragraph 50). 36 – Case C‑44/95 Royal Society for the Protection of Birds (‘Lappel Bank’) [1996] ECR I‑3805, paragraph 37. 37 – Cf. my Opinion in Santa Catarina (cited in footnote 15, point 75) and of 23 February 2006 in Case C‑191/05 Commission v Portugal (‘Moura, Mourão, Barrancos’) [2006] ECR I‑6853, point 14, and, for classified SPAs, Case C‑6/04 Commission v United Kingdom (‘Conformity’) [2005] ECR I‑9017, paragraph 33 et seq. 38 – Cf. Case C‑344/03 Commission v Finland (‘Spring hunting of water fowl’) [2005] ECR I‑11033, paragraphs 35, 38 and 40, and my Opinion of 11 January 2007 in Case C‑507/04 Commission v Austria (‘Conformity’), point 61.