Opinion of the Advocate General — ECLI:EU:C:2010:85
Date: 2010-02-25
Language of the case: German
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded;Action for failure to fulfil obligations - inadmissible
Origin: Austria

Summary of the Judgment 1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) 2. Environment – Conservation of wild birds – Directive 79/409 – Selection and delimitation of special protection areas (Council Directive 79/409, Art. 4(1) and (2)) 3. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination of the subject-matter during the pre-litigation procedure – Coherent and detailed statement of the complaints – No such statement – Inadmissibility (Art. 226 EC) 4. Actions for failure to fulfil obligations – Pre-litigation procedure – Reasoned opinion – Content (Art. 226 EC) 5. Environment – Conservation of wild birds – Directive 79/409 – Special conservation measures – Obligations of the Member States (Council Directives 79/409, Art. 4(1) and (2), and 92/43, Art. 6(2) and (7)) 1. In an action under Article 226 EC, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that 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. 22) 2. Since the legal regimes of Directive 79/409 on the conservation of wild birds and Directive 92/43 on the conservation of natural habitats and of wild fauna and flora are separate, a Member State cannot exonerate itself from its obligations under Article 4(1) and (2) of Directive 79/409 by relying on measures other than those prescribed by that directive. Furthermore, the fact that a site in respect of which a Member State is subject to a classification obligation under that directive has not suffered any deterioration is not capable of affecting the obligation imposed on Member States to classify sites as special protection areas. (see para. 24) 3. The subject-matter of an action for failure to fulfil obligations is determined by the Commission’s reasoned opinion, so that the action must be based on the same grounds and pleas as the reasoned opinion. The letter of formal notice sent by the Commission to the Member State and then the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure. If that is not the case, that irregularity cannot be regarded as having been cured by the fact that the defendant Member State submitted observations on the reasoned opinion. The reasoned opinion and the action must set out the complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of European Union law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged. (see paras 40-42) 4. While the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty, the Commission is not, however, obliged to set out in that opinion the steps to be taken to remedy the infringement complained of. Nor, likewise, is the Commission obliged to set out such steps in its application. (see para. 50) 5. Whilst it is true that faithful transposition becomes particularly important in the case of Directive 79/409 on the conservation of wild birds, where management of the common heritage is entrusted to the Member States in their respective territories, it cannot, in any event, require the Member States to include the obligations and prohibitions flowing from Article 4(1) and (2) of that directive and Article 6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora in legal measures laying down for each special protection area (SPA) the protected species and habitats and the conservation objectives. As regards those obligations, the adoption of positive measures to preserve and improve the state of an SPA is not systematic in nature, but depends on the specific situation in the SPA concerned. Whilst it is true, for example, that protection of SPAs against the activities of individuals requires that the latter be prevented in advance from engaging in potentially harmful activities, it does not appear that attainment of that objective necessarily requires prohibitions specific to each area or to each particular species to be laid down. As regards identification of the protected species and habitats in each SPA, just as the delimitation of an SPA must be invested with unquestionable binding force, the identification of the species which have warranted classification of that SPA must satisfy the same requirement. If that were not the case, the protective objective arising from Article 4(1) and (2) of Directive 79/409 and from Article 6(2), read in conjunction with Article 7, of Directive 92/43 might not be fully attained. So far as concerns conservation objectives, the protective legal status which SPAs must obtain does not mean that those objectives have to be specified for each species considered separately. Nor can it be held in any event that the conservation objectives must be contained in the same legal measure as that relating to the protected species and habitats of a particular SPA. As to the protective legal status of SPAs linked to an existing nature reserve or classified site of another type that is protected by national or regional measures, Article 4 of Directive 79/409 lays down a regime which is specifically targeted and reinforced, both for the species listed in Annex I to the directive and for migratory species. That is the particular nature of the protection regime which SPAs must enjoy, in contrast to the general, less strict, protection regime laid down in Article 3 of that directive for all the species of birds covered by the directive. It does not follow, however, that only a specifically defined legal regime established for each SPA might protect this kind of site effectively. (see paras 61-66)