OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 23 February 2006 1( )

Case C-191/05

Commission of the European Communities

v

Portuguese Republic

(Conservation of wild birds – Special protection area)

I – Introduction

1. These proceedings for failure to fulfil obligations concern the question whether and under what circumstances a Member State may reduce the extent of a special protection area within the meaning of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ( ) (‘the Birds Directive’). The Directive contains no provision on that question, which is of increasing practical importance in view of the large number of protection areas. ( )

II – Legal framework

2. Article 4 of the Birds Directive contains provisions regarding which areas the Member States should designate as a special protection area for birds (‘SPA’).

‘1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.

In this connection, account shall be taken of:

(a) species in danger of extinction;

(b) species vulnerable to specific changes in their habitat;

(c) species considered rare because of small populations or restricted local distribution;

(d) other species requiring particular attention for reasons of the specific nature of their habitat.

Trends and variations in population levels shall be taken into account as a background for evaluations.

Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this directive applies.’

III – Facts, pre-litigation procedure and forms of order sought

3. Portugal designated the ‘Moura, Mourão e Barrancos’ SPA by Decree-Law No 384-B/99 of 23 September 1999. The purpose of that area is the protection of steppe-land birds. Typical steppe-land birds are the great bustard (Otis tarda), little bustard (Tetrax tetrax) and the stone curlew (Burhinus oedicnimus). According to the standard data forms sent to the Commission by the Portuguese Government in December 1997, birds which, in the Commission’s submission, are not to be referred to as steppe-land birds are, however, also found in that SPA: 20-40 resident pairs of eagle owls (Bubo bubo), 1-5 breeding pairs of black vultures (Aegypius monachus) and 15-30 breeding pairs of booted eagles (Hieraaetus pennatus). Up to 10 000 cranes (Grus grus) winter in the SPA and griffon vultures (Gyps fulvus) also appear in the area.

4. The Commission complains that, by Decree-Law No 141/2002 of 20 May 2002, Portugal reduced the SPA by almost 3 000 hectares. That assertion has not been challenged. The reasons given for the Decree-Law indicate that areas were excluded which, by reason of their use, are not important habitats for steppe-land birds. A further document of the Portuguese authorities submitted by the Commission, namely the decision to commission a scientific study on the demarcation of the SPA, ( ) states, on the other hand, that no reasons for the reduction are known.

5. The Commission addressed a letter of formal notice to Portugal on 17 October 2003 calling upon that Member State to submit its observations. After receipt of the answer, a reasoned opinion ensued on 9 July 2004. In each case, Portugal informed the Commission that a scientific study on the demarcation of the SPA was being undertaken.

6. On 28 April 2005, the Commission therefore brought the present action, by which it claimed that the Court should:

‘declare that, by altering the demarcation of the Moura, Mourão e Barrancos Special Protection Area, excluding from it areas providing a habitat for species of wild birds for whose protection that area was designated, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

order the Portuguese Republic to pay the costs’.

7. The Portuguese Government merely contends that the Court of Justice should stay the proceedings until the end of September 2005 in order to give the Portuguese Government the opportunity to submit a new demarcation of the ‘Moura, Mourão e Barrancos’ SPA based on a scientific study.

IV – Assessment

8. Although the Portuguese Government does not make any plea to dismiss the action and does not contest the content of the application, the Commission can only be successful if it makes out a conclusive case for the alleged infringement.

9. The Commission pleads that the reduction in the extent of the SPA infringes Article 4(1) of the Birds Directive. Under that provision, the Member States are required to classify the areas most suitable for the protection of the birds in Annex I to the Directive as special protection areas. However, the reduction of an SPA is provided for neither in Article 4(1) nor elsewhere in the Directive. ( )

10. The Court of Justice has hitherto dealt with reductions in the extent of SPAs, mainly in connection with their deterioration through projects, as potentially infringing the first sentence of Article 4(4) of the Directive. ( ) That provision requires the Member States to avoid the deterioration of habitats of protected birds in SPAs. Today, the system of protection in Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (‘the Habitats Directive’) ( ) would apply to a designated SPA. ( ) In the present case the Commission does not, however, claim that there is a deterioration in the ‘Moura, Mourão e Barrancos’ SPA. Accordingly, a breach of Article 6(2) to (4) of the Habitats Directive cannot be established.

11. As submitted by the Commission, the reduction in the extent of the SPA could, however, infringe the designation obligation under Article 4(1) of the Birds Directive. That presupposes that the excluded areas belong to the areas most suitable for the protection of the species in Annex I to the Directive. They should then form part of an SPA.

12. Consequently, it must be determined whether the excluded areas must be designated. It is settled case-law that, although Member States have a certain margin of discretion with regard to the choice of SPAs, the classification and demarcation of those areas are nevertheless to be decided upon solely on the basis of the ornithological criteria laid down in the Directive.( ) In principle, it is the Commission which must prove that those criteria are met in proceedings for failure to fulfil obligations. ( ) In the present case, however, the Commission states nothing concerning the affected areas and thus does not establish that they must be classified as an SPA. ( )

13. However, that does not result in the dismissal of the case. By way of exception, the burden of proof is reversed in respect of the reduction of the extent of designated areas. Unless it can be proven that the Member State mistakenly classified the areas in question as an SPA, ( ) it acknowledged in its declaration that that area contains the most suitable environments for the species listed in Annex I to the Directive. ( ) If it wishes to derogate from that, it is incumbent on the Member State to make out a case why the area in question – in whole or in part – is not the most suitable.

14. With regard to that proof, it does not suffice to show merely that the areas in question are not (any longer) the most suitable at the time of the reduction. Instead it must be shown, in principle, that at the time of the designation – even, in the final analysis, at the time of the original obligation to designate – they were already not among the most suitable areas.( ) If that were not so, the Member States could with impunity escape their obligation to maintain the areas in a condition in which they continue to be the most suitable for the protection of birds. ( ) Only if the Member State can show that a deterioration in quality in the meantime is due to objective circumstances over which it has no influence, for example volcanic eruptions, may it justify the reduction in the extent of an SPA.

15. The Portuguese Government has adduced none of that proof. It merely announced on several occasions that it was still carrying out a study in order to be able again to revise the demarcation of the SPA on a scientific basis. Notification of a study does not, however, suffice as proof.

16. Accordingly, as Portugal has not proven that the reduction in the extent of the SPA was justified on scientific grounds, the Commission’s action is well founded.

V – Costs

17. Under 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. Since the Commission is successful, the Portuguese Republic must be ordered to pay the costs.

VI – Conclusion

18. I therefore propose that the Court:

(1) declares that, by reducing the extent of the ‘Moura, Mourão e Barrancos’ special protection area, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds.

(2) orders the Portuguese Republic to pay the costs.