62003CC0441_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction and forms of order sought
1. In these Treaty infringement proceedings the Commission accuses the Netherlands of failing to fulfil its obligations under the Treaty by not implementing various provisions contained in Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (2) (hereinafter ‘the Wild Birds Directive’) and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (3) (hereinafter ‘the Habitats Directive’).
2. After having, in its reply, withdrawn an issue from its application, the Commission claims henceforth that the Court should:
‘– declare that by failing to bring into force the laws, regulations and administrative provisions necessary:
– in order to fulfil its obligations under Article 4(1) and (2) of the Council Directive of 2 April 1979 on the conservation of wild birds (79/409/EEC) before 25 April 1981, or at any rate by failing to inform the Commission of such provisions, and
– in order to fulfil its obligations under Article 6(1), in conjunction with Article 2(2) and Article 1(a), (e) and (i), and under Articles 6(2), (3) and (4), 7, 11 and 15 of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora before 20 June 1994, or at any rate by failing to inform the Commission of such provisions,
the Kingdom of the Netherlands has failed to adopt the measures required by Article 18(1) of Directive 79/409/EEC to comply with that directive by 25 April 1981, or has failed to adopt the measures required by Article 23(1) of Directive 92/43/EEC to comply with that directive by 5 June 1994;
– declare that Article 13(4) of the Natuurbeschermingswet (Nature Conservancy Law) is contrary to Article 6(4) of Directive 92/43/EEC;
– order the Kingdom of the Netherlands to pay the costs.’
3. The Kingdom of the Netherlands requests that the action should be partially dismissed.
4. The Netherlands Government does not dispute its failure to have sufficiently implemented the provisions mentioned by the Commission, but does, however, contest the scope attributed by the Commission to the transposition obligation contained in Article 6(3) of the Habitats Directive.
II – Legal Framework
5.	As the validity of the Commission’s complaints has largely been accepted, only Article 6(3) and (4) of the Habitats Directive is of interest in the case at hand. These provisions read as follows:
‘3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’
III – Assessment
6.	The Commission claims that the Court should declare that the Netherlands has breached its duty to transpose the aforementioned provisions of both the Wild Birds and Habitats Directives within the prescribed period. As regards the expiry of the deadlines for transposition, the Commission’s submissions are, however, unclear. The Commission specifies two dates for the Wild Birds Directive, namely 6 and 25 April 1981, and for the Habitats Directive three dates, namely 5, 10 and 20 June 1994. The question as to which of these dates is applicable is one which can remain open, as the deadline for transposition had already passed in respect of all the abovementioned dates long before the commencement of the pre-litigation procedure in the present case. (4)
7.	In so far as the Netherlands Government accepts in this context the validity of the claims, the declaration sought by the application that the Kingdom of the Netherlands has failed to fulfil its obligations must be granted.
8.	As a matter of principle this is also the case for Article 6(3) of the Habitats Directive, as this is equally acknowledged by the Netherlands Government to have been inadequately transposed. However, the parties are still in disagreement in respect of the scope of the obligation contained therein. The Court needs to resolve this issue to ensure that the parties are clear about the measures required to be taken in accordance with Article 228(1) of the Treaty in order to comply with the judgment.
9.	Thus, the Commission submits that the requirements of Article 6(4) of the Habitats Directive need to be taken into account in the context of an assessment of the implications within the meaning of Article 6(3). According to the Commission, an assessment of alternatives under Article 6(4) requires knowledge of whether the alternatives adversely affect the site in question. For this reason they already need to be taken into consideration when an assessment of the implications is carried out. (5) Furthermore, when carrying out an assessment of the implications, it must be taken into account whether priority species or priority natural habitat types could be affected, (6) and this even though priority is first mentioned in Article 6(4).
10.	The Netherlands Government, on the other hand, sees no basis in the directive for this interpretation. This interpretation would also contradict the Commission’s relevant manual. (7) Article 6(3) and Article 6(4) of the Habitats Directive provide for a multi-stage evaluation of plans or projects. Thus, according to the Netherlands Government an examination of Article 6(4) of the Habitats Directive only takes place after a series of conditions have been met. In particular, the assessment of the implications must first conclude that the plan or project may adversely affect the integrity of the site in question. On the other hand, should the assessment of the implications lead to the conclusion that the integrity of the site would not be adversely affected, Article 6(4) of the Habitats Directive need not be considered.
11.	As the Court has already made clear, Article 6(3) of the Habitats Directive does not specify any particular method for carrying out an assessment of the implications. (8) However, it is to be inferred from most language versions and also from the 10th recital in the German version that the assessment must be appropriate. (9) Having regard to the other language versions, for example ‘appropriate’ in English, ‘appropriée’ in French, ‘adecuada’ in Spanish, ‘adequada’ in Portuguese, ‘opportuna’ in Italian or ‘passend’ in Dutch, it would appear that this term should also be understood in the sense of ‘proper’ or ‘expedient’.
12.	Thus, an assessment is not merely a formal procedural act, but rather it has to achieve its aims. The aim of the assessment is to establish whether a plan or project is compatible with the specified conservation objectives for the particular site. Accordingly, all the aspects of a plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of a site must be identified in the light of the best scientific knowledge in the field. (10)
13.	The assessment is thus conceived very broadly indeed. In particular, as put forward by the Commission, attention is to be paid to priority species and natural habitat types. This does not, however, result from Article 6(4) of the Habitats Directive, but rather from the Directive’s overall context and in particular from the conservation objectives. The latter must accord priority natural habitat types and species particular importance as, in accordance with Article 1(d) and (h) and the first part of the 11th recital in the preamble, they constitute a special responsibility for the Community and all the Member States. (11)
14.	The other matter contained in Article 6(4) of the Habitats Directive which, according to the Commission, is to be taken into account in the context of Article 6(3) is the assessment of alternatives. The Commission rightly claims that alternatives can only be assessed when not only the effects of the original proposal on special areas of conservation are known, but also the effects of the alternatives. However, in this respect, the Commission does confuse the application of the criteria under Article 6(3) of the Habitats Directive in the context of assessment of alternatives under Article 6(4) with the implementation of the assessment programme required by Article 6(3).
15.	If alternatives have to be assessed, their effects on special areas of conservation are to be assessed in accordance with the same scientific standards as the original plan or project. Alternatives can only be compared in the first place if a comparable assessment of the effects is carried out. In practice, the reality of an authorisation procedure is that both stages of the assessment often coincide with one another as soon as it becomes foreseeable that a plan or project in its original form will adversely affect the integrity of a site. It would not be efficient first to determine the adverse effects thoroughly and only then to consider in other assessments whether alternatives actually exist and which effects they would have.
16.	Legally, however, the assessments under Article 6(3) and Article 6(4) of the Habitats Directive are to be separated rigorously. Article 6(4) is only applicable when, after
the assessment under Article 6(3), adverse implications for the integrity of the site cannot be ruled out. (12) An obligation
to assess alternatives therefore only arises if, in such a situation, the plan or project is nevertheless to be carried out for reasons of overriding public interest. If, on the other hand, it is decided not to go ahead with the plan or project, even in the case of a negative assessment of its implications an assessment of alternatives is rendered unnecessary. Consequently, the Netherlands Government interprets Article 6(3) and Article 6(4) of the Habitats Directive correctly as a multi-stage system for assessing plans and projects. (13) For these reasons it is not necessary when implementing Article 6(3) to already take elements of Article 6(4) into account. Conversely, however, the application of Article 6(4) can require assessments akin to that under Article 6(3).
17.	For the sake of completeness it is also to be noted that alternatives do exist which do not alter plans or projects in the sense of providing alternative plans or projects, but merely concern the way in which they are carried out. In relation to implications for special areas of conservation, it is to be borne in mind for example that activities causing disturbance could be carried out in periods when the disturbance is at its lowest. Such alternative methods of carrying out plans or projects can be among the aspects of a plan or project already requiring examination in the context of an assessment under Article 6(3) of the Habitats Directive. The competent authorities are required to have regard to the results of such an assessment for the purposes of the second sentence of Article 6(3) when making authorisation decisions, even when the integrity of the site is not adversely affected. Appropriate obligations can namely, in accordance with the aims of the Habitats Directive contained in Article 2(2) and Article 3(1), contribute to the maintenance, at a favourable conservation status, of natural habitats and species of wild fauna and flora of Community interest. Article 6(4) does not, however, apply to these alternative methods of carrying out plans and projects, but rather to alternative plans and projects.
18.	In this respect, the application is therefore to be dismissed.
IV – Costs
19.	According to 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. As in this case the Commission prevails outright with six pleas in law and to a large extent with a further one, the fact that it withdrew one of its pleas in its reply and is partly unsuccessful with another need not have any consequences as to costs. Consequently, the costs are to be imposed upon the Netherlands.
V – Conclusion
20. I therefore propose that the Court should decide as follows:
(1) The Kingdom of the Netherlands did not adopt the necessary measures required by Article 18(1) of Council Directive 74/409/EEC of 2 April 1979 on the conservation of wild birds, as it did not enact within the prescribed period the laws, regulations and administrative provisions necessary in order to comply with its obligations arising from Article 4(1) and (2) of Directive 79/409.
(2) The Kingdom of the Netherlands did not adopt the necessary measures required by Article 23(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora, as it did not enact within the prescribed period the laws, regulations and administrative provisions necessary in order to comply with its obligations arising from Article 6(1), in conjunction with Articles 2(2) and 1(a), (e) and (i), from Article 6(2) to (4), and from Articles 7, 11 and 15 of Directive 92/43.
(3) Article 13(4) of the Natuurbeschermingswet infringes Article 6(4) of Directive 92/43.
(4) The remainder of the application shall be dismissed.
(5) The Kingdom of the Netherlands shall bear the costs of the proceedings.
(1) .
(2)
–	OJ 1979 L 103, p. 1.
(3)
–	OJ 1992 L 206, p. 7.
(4)
–	With both directives it is difficult to determine the exact date on which the transposition period expired. According to Article 191(2) of the EEC Treaty which was then in force (now, after amendment, Article 254 EC), the expiry date is determined on the basis of the date on which the directive was communicated to the Member States. As far as the Wild Birds Directive is concerned, CELEX and the judgment in Case 236/85 Commission
v Netherlands
(!) [1987] ECR 3989, paragraph 2, would indicate 6 April 1981 to be the correct date. As regards the Habitats Directive, CELEX refers to 10 June 1994, whereas the Court in Case C-329/96 Commission
v Greece
[1997] ECR I‑3749, at paragraph 2, and Case C-83/97 Commission
v Germany
[1997] ECR I-7191, at paragraph 2, assumed 5 June 1994 to be the correct date.
(5)
–	In coming to this conclusion the Commission also bases its argument on its manual Managing Natura 2000 Sites, the provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC, Luxembourg (2000), at point 5.3.1 (p. 43 of the English version), according to which alternative solutions ‘should normally already have been identified within the framework of the initial assessment carried out under Article 6(3)’.
(6)
–	The Commission refers in this connection to point 4.4.1 of its manual (cited in footnote 5, p. 34 of the English version).
(7)
–	This manual (cited in footnote 5, point 4.5.2, p. 37 of the English version) expressly states: ‘It is worth noting that, although, for purposes of Article 6(3), an assessment does not, strictly speaking, need to look beyond the plan or project proposed to address alternative solutions and mitigation measures, there may be a range of benefits from doing so.’
(8)
–	Judgment in Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereinigung tot Bescherming van Vogels
(‘the Waddenzee
judgment’) [2004] ECR I-0000, paragraph 52.
(9)
–	The German version of the directive seems to have been inaccurately translated as far as this point is concerned. Thus, the competent bodies should examine whether a rectification should be made.
(10)
–	The Waddenzee
judgment (cited in footnote 8, paragraph 54).
(11)
–	See also the judgment in Case C-117/03 Dragaggi and Others
[2005] ECR I-0000, paragraph 27.
(12)
–	On this point see also the Waddenzee
judgment (cited in footnote 8, paragraphs 57 and 60).
(13)
–	On this point see my Opinion in the Waddenzee
case, points 28 and 29.