62001CC0378_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1.
By this action the Commission of the European Communities seeks a declaration that the Italian Republic has failed to fulfil its obligations under Article 4(1), (2) and (3) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds
(2) (hereinafter
"the Directive"
).
2.
The purpose of the Directive is the conservation of all species of naturally occurring birds in the wild state in the Member States.
It establishes a system of protection, management and control of those species.
3.
Article 4 of the Directive deals with special conservation measures and similar measures.
Paragraph 1 thereof requires the Member States to designate the most suitable territories for the conservation of the species mentioned in Annex I to the Directive and to classify them as special protection areas.
(3)
Paragraph 2 thereof requires the Member States to adopt similar measures for regularly occurring migratory species not listed in Annex I.
In that respect, they are to pay particular attention to the protection of wetlands, above all those of international importance.
Finally, paragraph 3 thereof provides that Member States shall send the Commission all relevant information so that it can coordinate the areas referred to in paragraphs 1 and 2 of the said provision into a coherent network.
4.
In the present case, the Commission makes two complaints against the Italian Republic.
5.
First, the Commission claims that the Italian Republic has infringed Article 4(1) and (2) of the Directive.
It accuses it of not having classified as SPAs a sufficient number of suitable territories and of certain wetlands of international importance.
The Italian Republic disputes that complaint.
6.
Secondly, the Commission accuses the Italian Republic of having infringed Article 4(3) of the Directive in that it has not forwarded all the data and all the necessary information about the designated SPAs.
The Italian Republic does not dispute that complaint.
7.
It follows from those matters that the only point disputed by the Italian Republic concerns the first complaint, based on the failure to classify as SPAs certain territories and certain wetlands of international importance.
I shall therefore confine my remarks to the consideration of that complaint, while suggesting to the Court that it upholds the remainder of the action.
I ─ The complaint based on failure to classify as SPAs a sufficient number of appropriate territories and of certain wetlands
8.
The Commission accuses the Italian Republic of having infringed Article 4(1) and (2) of the Directive, in that it has failed to classify as SPAs a sufficient number of suitable territories for the conservation of the species mentioned in Annex I to the Directive and of the regularly occurring migratory species not listed in that Annex.
The Commission also accuses it of having failed to classify certain wetlands of international importance as SPAs.
9.
The Commission bases itself on the
Inventory of Important Bird Areas in the European Community
, published in 1989,
(4) in finding that there are 164 areas of importance for bird life in Italy and that their total area is 3 609 070 hectares.
However, some of those areas have not yet been classified as SPAs.
10.
The Italian Republic asserts that the Commission is making purely abstract criticisms insufficient to found a declaration of infringement.
It argues that the Commission has not put forward any scientific proof in support of its allegations.
11.
It is appropriate to point out that, under the Court's case-law, Article 4(1) and (2) of the Directive requires the Member States to classify as SPAs certain territories with a view to the effective conservation both of the species listed in Annex I to that Directive and of those regularly occurring species which are not listed in that Annex, in order to ensure, in particular, their survival and reproduction in their area of distribution.
That obligation affects all the most suitable territories.
(5)
12.
It is also apparent from the Court's case-law that it is for the Member States to identify the most suitable territories basing themselves solely on ornithological criteria derived from Article 4(1) and (2) of the Directive.
(6)
It follows that the Member States, having identified those criteria, are bound to classify those territories as SPAs and to attach particular importance to wetlands of international interest.
However, the Directive does not lay down the content of the ornithological criteria to be applied by the Member States.
13.
In that regard the Court considers that the Member States' margin of discretion in choosing the most suitable territories for classification as SPAs does not concern the appropriateness of classifying as SPAs the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species listed in Annex I to the Directive.
(7)
It follows therefrom that Member States have a discretion as to the choice of the ornithological and scientific criteria which will apply to the designation of SPAs.
(8)
14.
In this case, the Italian Republic has not indicated either in the course of the pre-litigation procedure or of the proceedings themselves the ornithological criteria which it intends to use for the designation of the SPAs.
In the absence of such indications, the Commission refers to the scientific criteria contained in the IBA Inventory 89.
It appears from the contents of the file that that inventory is the document which enables the Commission to check whether the Member States are effectively classifying the most suitable territories as SPAs.
15.
It is true that the IBA Inventory 89 is not legally binding.
However, the Court has accepted that it
"draws up an inventory of areas which are of great importance for the conservation of wild birds in the Community"
.
(9)
16.
The Commission asserts that the IBA Inventory 89 also constitutes for the Italian Republic the work of reference which is best documented and most detailed concerning the designation of SPAs in its territory.
(10)
Thus, that inventory is reproduced, among others, in the study entitled
"Inventory of areas of importance for bird life"
carried out by the Italian league for the protection of birds in 1991.
17.
It is important to mention that the Italian Republic has never disputed the scientific value and the use of the IBA Inventory 89 by the Commission.
That is why I think that the latter has validly based its arguments on scientific criteria, those of that inventory, for the declaration of infringement, contrary to the submission of the Italian Republic.
18.
On the merits, the Commission alleges that, on the basis of the IBA Inventory 89, there are 164 important areas for bird life in Italy and that their total area is 3 609 070 hectares.
The Italian authorities have hitherto classified 336 sites as SPAs, that is a total area of 1 370 700 hectares.
The Commission adds that 194 of those SPAs do not coincide, even in part, with any of the 164 important areas for bird life cited in the said inventory.
Thus, numerous bird species listed in Annex I to the Directive and numerous migratory species are not yet adequately protected.
19.
The Italian Government asserts that new SPAs have been classified in Italy and that the total of those classifications covers entirely those listed in the IBA Inventory 89.
However, as the Commission points out, the Italian Republic forwarded no evidence to that effect within the period laid down by the reasoned opinion.
Therefore, it does not seem to me possible to accept the Italian Republic's assertion on that point.
20.
Finally, the Commission maintains that certain wetlands of international importance remain to be classified as SPAs by the Italian Republic in accordance with Article 4(2) of the Directive.
It relies, however, on the IBA Inventory 89 for the demarcation of the wetlands, since it sets out sites which are more extensive geographically than those of the Ramsar (Iran) Convention on Wetlands of International Importance especially as Waterfowl Habitat.
(11)
21.
The Italian Republic asserts that, contrary to the Commission's arguments, the SPAs which it has designated include all the wetlands of international interest, according to the Ramsar Convention.
22.
In its action for infringement, the Commission, in demarcating the wetlands of international importance took as its yardstick the important bird areas including certain sites under the Ramsar Convention, rather than only the sites defined by that convention, for the demarcation of wetlands.
Against that yardstick, in Italy, certain important sites have not been designated or have been designated only in part.
(12)
The Italian Republic does not dispute those arguments.
23.
In light of the foregoing, I suggest that the Court upholds the action for infringement in its entirety.
II ─ Conclusion
24.
I suggest therefore that the Court should:
(1)
declare that the Italian Republic has failed to fulfil its obligations under Article 4(1), (2) and (3) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds in that it:
─
has failed to classify as special protection areas a sufficient number and area of the most suitable territories for the conservation of the species listed in Annex I to that directive and of the other regularly occurring migratory species not listed in that annex, and
─
has not sent the Commission all the necessary information for the coordination of the areas covered by Article 4(1) and (2) of that directive into a coherent network meeting the need for the protection of the species.
(2)
order the Italian Republic to pay the costs.
(1) .
(2)
OJ 1979 L 103, p. 1.
(3)
Hereinafter
"SPAs"
.
(4)
Hereinafter
"the IBA Inventory 89"
.
(5)
See, in particular, Case C-3/96
Commission
v
Netherlands
[1998] ECR I-3031, paragraph 55.
(6)
See, in particular, Case C-57/89
Commission
v
Germany
[1991] ECR I-883, paragraph 20.
(7)
See
Commission
v
Netherlands
, cited above, paragraph 61.
See also Case C-355/90
Commission
v
Spain
[1993] ECR I-4221, paragraph 26.
(8)
See, also, on this point, N. Sadeleer,
"Balance-sheet of 10 years of legislative effort in Community law for the protection of nature"
,
Recent developments in Community environment law
, Actes du colloque of 11 mai 1994, edited by Story-Scienta, p. 200, particularly pp. 227 to 236, and W.P.J. Wils,
"Protection of natural habitats in Community law"
,
Cahiers de droit europèen
, 1994, p. 398, particularly pp. 405 to 407.
(9)
See
Commission
v
Netherlands
, cited above, paragraph 68.
(10)
At the hearing, the Commission's Agent emphasised that the Italian Republic participated in the drawing up of the IBA Inventory.
(11)
Convention concluded on 2 February 1971, UNTS, vol. 996, p. 245.
(12)
Reply (p. 4).