Opinion of the Advocate General — ECLI:EU:C:2006:338
Date: 2006-05-18
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation (Council Directive 92/43, Arts 3(1) and 4(1)) Before a site is placed on the list of sites of Community importance adopted by the Commission in accordance with Article 4(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, Member States must take appropriate protective measures in order to maintain the ecological characteristics of the sites which appear on the national list transmitted to the Commission under Article 4(1) of that directive. That appropriate protection scheme not only requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites, but also to take, in accordance with the provisions of national law, all the measures necessary to avoid such interventions. The Commission must be sure of having available an exhaustive list of sites eligible as special areas of conservation, the drawing up of which is aimed at a coherent European ecological network. It follows from this that, at the time of the decision which the Commission is called upon to take, the sites identified by the Member States must reflect the situation on the basis of which the scientific evaluations of potential sites of Community importance have been carried out. If that were not the case, the Community decision-making process which is not only based on the integrity of the sites as notified by the Member States, but is also characterised by the ecological comparisons between the different sites proposed by the Member States, would run the risk of being distorted and the Commission would no longer be in a position to fulfil its duties in the area concerned. Furthermore, in so far as, in accordance with the first part of Annex III to the directive, the ecological characteristics of a site identified by the competent national authorities must reflect a number of assessment criteria which are expressly listed there, Member States cannot authorise interventions which may pose the risk of seriously compromising the ecological characteristics of a site, as defined by those criteria. This is particularly the case when an intervention poses the risk either of significantly reducing the area of a site, or of leading to the disappearance of priority species present on the site, or, finally, of having as an outcome the destruction of the site or the destruction of its representative characteristics. (see paras 41-42, 44-47, 51, operative part 1-2)