Opinion of the Advocate General — ECLI:EU:C:2002:257
Date: 2002-04-25
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Finland

summary of the pleas in law and state the form of order sought by the applicant. 31. In accordance with the Court's case-law, in any application made under Article 169 of the Treaty, the Commission must indicate the specific complaints on which the Court is called upon to rule and the legal and factual particulars on which those complaints are based. (16) The Court has also held that, under Article 38(1)(c) of its Rules of Procedure, the merits of an application must be determined solely in the light of the submissions made in the application initiating the proceedings. (17) Again according to the Court, as any action brought under Article 169 is preceded by a pre-litigation procedure, the Commission may be led to abandon certain complaints set out in the letter of formal notice or in the reasoned opinion. (18) 32. In the present case, the Commission expressly complained, in the formal letter of notice (19) and the reasoned opinion, (20) that the Republic of Finland had infringed the provisions of Article 4(3) of the Birds Directive but did not plead accordingly in the application lodged at the Court Registry on 15 June 2000. Moreover, while the Commission mentioned the infringement of this provision indirectly in the grounds of the application, it did not substantiate the allegation with any legal or factual particulars. I conclude from this that the Commission has decided not to bring this complaint before the Court. 33. It can be concluded from the foregoing that, by failing to classify SPAs definitively as laid down by the Birds Directive by the end of the period specified in the reasoned opinion, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive. B - Second plea: the list of SPAs adopted by the Finnish Government is incomplete (infringement of Article 4(1) and (2) of the Birds Directive) 34. It is settled case-law that, in proceedings under Article 169 of the Treaty for failure to fulfil an obligation, it is incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court the information necessary to determine whether that is so. (21) 35. The Court has also held that, while the Member States have a certain margin of discretion in the choice of [SPAs], the classification of those areas is nevertheless subject to certain ornithological criteria determined by the Directive. (22) The criteria to be considered include the presence of birds listed in Annex I to the Birds Directive and the designation of a habitat as a wetland area. (23) Consequently, Member States are obliged to classify as SPAs all the sites which, applying ornithological criteria, appear to be the most suitable for conservation of the species in question. (24) 36. Concerning the relevant scientific criteria which Member States must consider in making this selection, it should moreover be noted that the Birds Directive does not recognise any particular scientific source as having legal value. It follows that the Member States are free to produce whatever scientific evidence has allowed them to select the sites on their territory that meet the requirements of Article 4(1) and (2) of the Birds Directive. (25) 37. Lastly, the Court has held that it is for the Member States, in a spirit of genuine cooperation in accordance with each Member State's duty under Article 5 of the EC Treaty (now Article 10 EC), to facilitate achievement of the general task of the Commission, which is to ensure that the provisions of the Treaty, as well as provisions adopted thereunder by the institutions, are applied. (26) 38. It is in the light of these principles that it has to be considered whether the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive in not providing the Commission, within the time-limit specified in the reasoned opinion, with a complete list of SPAs. 39. The Commission complains that the Republic of Finland has not selected all the sites which, applying ornithological criteria and on the basis of reliable scientific studies, appear to be the most suitable for conservation of the species in question. Its complaint therefore concerns the qualitative merits of the sites selected by that State. The Commission cites, by way of example, the Kemihaara bogs, which appear in both the 1997 BirdLife Report and the IBA publication for 2000 as a site that should be classified as an SPA. 40. The mere fact of this site featuring in the 1997 BirdLife Report does not constitute proof that it must necessarily be classified as an SPA by the Republic of Finland. The evidential value of that report is not therefore irrefutable. (27) It does however appear from the proceedings, and this is not disputed, that the report was drawn up by an international body, on which a number of ornithological associations are represented, in conjunction with the Finnish Environment Centre and experts in the field of bird protection. It cannot therefore be denied all scientific value. 41. The Finnish Government does moreover itself indicate that the Kemihaara bog site, which did not appear on the list of Finnish SPAs approved by the Council of Ministers on 20 August 1998, was the subject of a specific decision by the Korkein hallinto-oikeus. (28) That court ordered that the matter be referred back to the Council of Ministers in respect of four sites, including the Kemihaara peat site, that did not figure in the Natura 2000 project. (29) 42. It should further be noted that the Republic of Finland, while disputing the report's evidential value, does not call in question its scientific value nor supply any opposing scientific data. Moreover, all the scientific evidence was, according to the Finnish authorities, submitted to the Korkein hallinto-oikeus in the framework of the applications lodged under national law. That evidence, however, has been submitted neither to the Commission nor to the Court. (30) The Commission was consequently unable to determine whether the obligations laid down in Article 4(1) and (2) of the Birds Directive had been observed. 43. Finally, the Republic of Finland, while contesting the second complaint made against it, acknowledges that the proposed list of SPAs is liable to be amended following the applications lodged with the Korkein hallinto-oikeus against the decision of the Council of Ministers. In other words, sites appearing on that list could be withdrawn from, or added to, the list of Finnish SPAs to be definitively adopted. It follows that the list of SPAs proposed by the Finnish authorities cannot be considered to have been exhaustive on expiry of the time-limit specified in the reasoned opinion. 44. It can be concluded from the foregoing that, by failing to classify fully, by the end of the period laid down in the reasoned opinion, the SPAs provided for by the Birds Directive, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive. V - Costs 45. 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. Since the Commission applied for the costs and the Republic of Finland failed in its defence, the latter should be ordered to pay the costs. VI - Conclusion 46. For the foregoing reasons, I therefore propose that the Court should: (1) declare that, by not fully and definitively classifying special protection areas, the Republic of Finland has failed to fulfil its obligations as a member of the European Community under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds; (2) order the Republic of Finland to pay the costs. 1: - Original language: French. 2: - Council Directive of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, hereinafter the Birds Directive). 3: - Hereinafter SPAs. 4: - Hereinafter the decision of the Council of Ministers. 5: - Council Directive of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna (OJ 1992 L 206, p. 7, hereinafter the Habitats Directive). The aim of this Directive is to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. To this end, it provides for a coherent European ecological network of special areas of conservation (hereinafter SACs) to be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II and also comprising the SPAs, is to enable the natural habitat types and the species' habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range (Article 3(1) of the Habitats Directive). Each Member State is to contribute to the creation of Natura 2000 in proportion to the representation within its territory of the natural habitat types and the habitats of species referred to in Article 3(1). To that effect each Member State is to designate sites as SACs taking account of the objectives already referred to, namely to maintain or restore at a favourable conservation status the habitats concerned within its territory (Article 3(2) of the Habitats Directive). 6: - Supreme Administrative Court. 7: - Hereinafter the 1997 BirdLife Report or the 1997 IBA Proposal. 8: - Important Bird Areas (hereinafter IBAs). 9: - Paragraph 24 of the Commission's application. 10: - Commission Decision of 18 December 1996 concerning a site information format for proposed Natura 2000 sites (OJ 1997 L 107, p. 1). 11: - The Commission also identifies other areas whose ornithological importance is, in its view, underlined in the 1997 BirdLife Report (see paragraph 33 of the application). 12: - Important Bird Areas in Europe - BirdLife International 2000, BirdLife Conservation Series No 8, Volume 1: Northern Europe. 13: - This survey identifies fewer sites than the survey appearing in the 1997 IBA proposal. 14: - [1998] ECR I-3031. 15: - See, in particular, Case C-67/99 Commission v Ireland [2001] ECR I-5757, paragraph 36, Case C-71/99 Commission v Germany [2001] ECR I-5811, paragraph 29, Case C-220/99 Commission v France [2001] ECR I-5831, paragraph 33, Case C-394/00 Commission v Ireland [2002] ECR I-586, paragraph 12 and Case C-29/01 Commission v Spain [2002] ECR I-2503, paragraph 11. 16: - See in particular Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 28. 17: - See, in particular, Case 232/78 Commission v France [1979] ECR 2729, paragraph 3, and Case C-256/98 Commission v France [2000] ECR I-2487, paragraph 31. 18: - See Case C-347/88 Commission v Greece cited above, paragraph 29. 19: - Operative part of the letter of formal notice of 10 July 1998, SG (98) D/5656 (p. 3). 20: - Operative part of the reasoned opinion of 17 December 1998, SG (98) D/11906 (p. 5). 21: - See, in particular, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6, Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 40, and Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 36. 22: - See, in particular, Case C-355/90 Commission v Spain [1993] ECR I-4221, paragraph 26, and Case C-3/96 Commission v Netherlands, cited above, paragraph 60. 23: - Case C-355/90 Commission v Spain, cited above, paragraph 26. 24: - Case C-3/96 Commission v Netherlands, cited above, paragraph 62. 25: - Ibid., paragraph 69. 26: - See, in particular, Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 85. 27: - See point 36 of the present Opinion. 28: - See point 22 of the present Opinion. 29: - See paragraph 31 of the Finnish Government's defence. 30: - Although the Court expressly asked the Finnish Government to produce the documents setting out the scientific criteria that had been applied in selecting and delimiting the sites concerned for the purpose of classification as SPAs, the documents submitted by the Finnish Government make no reference to the scientific sources on which it had supposedly based its conclusions.