Case C‑66/23
Elliniki Ornithologiki Etaireia and Others
v
Ypourgos Esoterikon and Others
(Request for a preliminary ruling from the Symvoulio tis Epikrateias)
Judgment of the Court (First Chamber) of 12 September 2024
( Reference for a preliminary ruling – Environment – Directive 92/43/EEC – Directive 2009/147/EC – Conservation of wild birds – Conservation of natural habitats and of wild fauna and flora – Classification of a territory as a Special Protection Area – ‘Classification’ species – Temporary horizontal measures applied uniformly to all Special Protection Areas – Failure to adopt individualised management plans )
1.        Environment – Conservation of wild birds – Directive 2009/147 – Special conservation measures – Obligations of the Member States – Area which is, or ought to be, classified as a special protection area (SPA) – Obligation to establish for each SPA individual conservation objectives and conservation measures in relation to all the bird species listed in Annex I to the directive and the regularly occurring migratory species and their habitat – Obligation to define priorities regarding the protection of those species – Scope
(European Parliament and Council Directive 2009/147, Art. 4 and Annex I; Council Directive 92/43, Arts 6(2) to (4) and 7)
(see paragraphs 21-36, 38-54, 56-59, operative part 1)
2.        Environment – Conservation of wild birds – Directive 2009/147 – Special conservation measures – Obligations of the Member States – Area which is, or ought to be, classified as a special protection area (SPA) – Obligation to establish for each SPA individual conservation objectives and conservation measures in relation to all the bird species listed in Annex I to the directive and the regularly occurring migratory species and their habitat – Species already taken into account in assessments of the environmental effects of certain projects – Irrelevant
(European Parliament and Council Directives 2009/147, Art. 4(1) and (2) and Annex I, and 2011/92, as amended by Directive 2014/52; Council Directive 92/43, Art. 6(2) to (4))
(see paragraphs 63-65, operative part 2)
Résumé
The Court of Justice, hearing a request for a preliminary ruling from the Symvoulio tis Epikrateias (Council of State, Greece), specifies the scope of the obligations of the Member States relating to the adoption of special conservation measures in special protection areas (SPAs) under the Birds Directive, (1) read in conjunction with the Habitats Directive. (2)
Several associations and a large number of individuals brought two actions before the referring court for annulment of a ministerial decision adopted in 2012 to amend the measure transposing the Birds Directive into Greek law. By their actions, the applicants challenge the protection regime laid down in that decision in so far as, first, it does not cover all the bird species protected under Article 4 of the Birds Directive but only those which justified the designation of the zone concerned as an SPA and, second, it does not contain, for each SPA, individual conservation measures.
The referring court, uncertain as to the correct transposition of the Birds Directive into the Greek legal order, decided to make a reference to the Court.
Findings of the Court
The Court begins by recalling that the Birds Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the FEU Treaty applies. Under Article 4 of the directive, Member States must adopt special conservation measures relating to habitats that are capable, in particular, of ensuring the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species not listed in that annex which are, nevertheless, regular visitors (together, ‘the protected species’).
Article 4 of the Birds Directive thus establishes a regime which is specifically targeted and reinforced to protect those protected species, an approach justified by the fact that they are the most endangered species and the species constituting a common heritage of the European Union. In that context, the Member States must, in particular, classify as SPAs the most suitable territories in number and size for conservation of those protected species. Regarding protection requirements, Article 4 of the Birds Directive does not differentiate according to whether the SPA concerned was designated for the protected species pursuant to that provision, or whether such species are ‘present’ without that area having been deisgnated as an SPA for those other species.
Article 6(2) of the Habitats Directive, which applies to the SPAs designated pursuant to Article 4 of the Birds Directive, does, admittedly, require the Member States to take appropriate steps to avoid, in the special areas of conservation, (3) the deterioration of habitats and significant disturbance of the species ‘for which [those] areas have been designated’. However, read in its context, that article confirms that, first, the relevant criterion for establishing conservation measures is that of the presence of species on the site concerned and, second, the level of protection against the deterioration of habitats and the disturbance of species must, inter alia, be determined by reference to the conservation objectives of the site concerned.
The Court therefore considers that the Member States are required to establish, for each SPA, individual conservation objectives and conservation measures for all the protected species and their habitat. In establishing the conservation objectives of a site, account must be taken not only of the species listed in Annex I to the Birds Directive and for regularly occurring migratory species not listed in that annex, for both of which an SPA was designated, but also other species of birds which must be protected under Article 4 of the Birds Directive and which are present in a significant manner in the SPA concerned, without that site having been designated as an SPA for those other species. A contrary interpretation cannot confer on protected species the specifically targeted and reinforced protection regime required for all those species by Article 4 of the Birds Directive.
In that context, Member States are responsible for defining priorities according to the significance of measures that could be envisaged in order to achieve conservation objectives in respect of all those species. To that effect, although the species and habitats for which a site has been designated as an SPA enjoy, naturally, priority status regarding special conservation measures that must be adopted and implemented on that site, the adoption of such conservation measures in respect of other vulnerable species present, such as rare bird species and bird species living naturally in an isolated manner on the site concerned, may prove useful or necessary to attain the relevant conservation objectives.
1      Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7; ‘the Birds Directive’).
2      Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the Habitats Directive’).
3      The special conservation areas designated in accordance with the Habitats Directive are part of the network of protected sites Natura 2000, as are the SPAs provided for by the Birds Directive.