Case C-388/05

Commission of the European Communities

v

Italian Republic

(Failure of a Member State to fulfil obligations – Conservation of natural habitats – Wild fauna and flora – Special Protection Area ‘Valloni e steppe pedegarganiche’)

Opinion of Advocate General Sharpston delivered on 3 May 2007

Judgment of the Court (Second Chamber), 20 September 2007

Summary of the Judgment

1. Environment – Conservation of wild birds – Directive 79/409

(Council Directive 79/409, Art. 4(4))

2. Environment – Conservation of wild birds – Directive 79/409

(Council Directive 79/409, Art. 4)

3. Environment – Conservation of wild birds – Directive 79/409

(Council Directives 79/409, Art. 4(4), and 92/43, Arts 6(2) and 7)

1. Article 4(4) of Directive 79/409 on the conservation of wild birds requires Member States to take, in respect of special protection areas, appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of that article.

Member States must comply with the obligations arising inter alia under that provision, even where the area in question has not been classified as a special protection area, provided that it should have been so classified.

(see paras 17-18)

2. The Inventory of Important Bird Areas, although not legally binding on the Member States concerned, contains scientific evidence making it possible to assess whether a Member State has complied with its obligation to classify as special protection areas the most suitable territories in number and size for conservation of the protected species.

(see para. 19)

3. Since the ‘Valloni e steppe pedegarganiche’ area was classified as a special protection area on 28 December 1998, the provision applicable to that area since that date is Article 6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, and not the first sentence of Article 4(4) of Directive 79/409 on the conservation of wild birds.

So far as concerns areas classified as special protection areas, Article 7 of Directive 92/43 provides that the obligations arising under Article 4(4) of Directive 79/409 are replaced, inter alia, by the obligations arising under Article 6(2) of Directive 92/43 as from the date of implementation of the latter directive or the date of classification under Directive 79/409, where the latter date is later.

(see paras 24-25)

JUDGMENT OF THE COURT (Second Chamber)

20 September 2007 ( )

(Failure of a Member State to fulfil obligations – Conservation of natural habitats – Wild fauna and flora – Special Protection Area ‘Valloni e steppe pedegarganiche’)

In Case C‑388/05,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 24 October 2005,

Commission of the European Communities, represented by A. Aresu and D. Recchia, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by I.M. Braguglia, acting as Agent, and G. Fiengo, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, K. Schiemann, J. Makarczyk, L. Bay Larsen (Rapporteur) and C. Toader, Judges,

Advocate General: E. Sharpston,

Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 3 May 2007,

gives the following

Judgment

1 In its application the Commission of the European Communities requests that the Court declare that:

– prior to 28 December 1998, the date of designation of the Special Protection Area (SPA) ‘Valloni e steppe pedegarganiche’, the Italian Republic failed to fulfil its obligations under Article 4(4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) (‘the Birds Directive’) inasmuch as it failed to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting wild birds in so far as these would be significant, as regards the plan called the ‘zonal agreement’ and the projects envisaged therein, which were liable to have an impact on the habitats and species within IBA (Important Bird Area) No 94 (in IBA Inventory 89) ‘Promontorio del Gargano’ or No 129 (in IBA Inventory 98) ‘Promontorio del Gargano’, and which have in fact brought about a deterioration of habitats and resulted in disturbances affecting wild birds present within that area;

– after 28 December 1998, the date of designation of the SPA ‘Valloni e steppe pedegarganiche’, the Italian Republic has failed to fulfil its obligations under Articles 6(2) to (4) and 7 of 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’) in so far as:

– contrary to Article 6(2) of that directive, it has not taken appropriate steps to avoid, in the SPA ‘Valloni e steppe pedegarganiche’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the SPA was designated, as regards the projects envisaged in the ‘zonal agreement’ which have already been carried out and which are the cause of deterioration of the natural habitats and the habitats of species and disturbance of the species within that area;

– contrary to Article 6(3) of the directive, it did not carry out an assessment of the prospective implications in accordance with the conditions set out in that article, concerning the projects envisaged by the ‘zonal agreement’ which have already been carried out and which were likely to affect the SPA ‘Valloni e steppe pedegarganiche’ significantly;

– contrary to Article 6(4) of the directive, it did not apply the procedure which allows a project to be carried out, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, for imperative reasons of overriding public interest, including those of a social or economic nature, or on the basis of considerations 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, and did not inform the Commission of all compensatory measures adopted to ensure that the overall coherence of Natura 2000 is protected, as regards the projects included in the ‘zonal agreement’ which were approved – despite their impact on the SPA ‘Valloni e steppe pedegarganiche’ – to combat the socio-economic crisis and unemployment that affect the Manfredonia region.

Legal context

Community legislation

2 Article 4 of the Birds Directive provides:

‘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.

…

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.

2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.

…

4. In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.’

3 Article 6(2) of the Habitats Directive provides:

‘Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.’

4 Article 6(3) of the Habitats Directive sets up a procedure for assessing the impact on the protected areas of plans or projects likely to affect those areas, while Article 6(4) provides for the adoption, under certain conditions, of compensatory measures when a plan or project must be carried out in spite of a negative assessment of the impact on the relevant site.

5 Article 7 of the Habitats Directive provides that the obligations arising under Article 6(2) to (4) of that directive ‘shall replace any obligations arising under the first sentence of Article 4(4) of [the Birds Directive] in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under [the Birds Directive], where the latter date is later’.

The facts of the dispute and the pre-litigation procedure

6 In February 2001 the Lega Italiana Protezione Uccelli (Italian League for the Protection of Birds) lodged with the Commission a complaint that in the geographical area called ‘Valloni e steppe pedegarganiche’, classified as an SPA on 28 December 1998, numerous industrial and property-development projects had already been completed or were in progress, compromising the natural habitat and the conservation of numerous species of wild birds living in or passing through this area.

7 By letter of 22 August 2001 the Commission requested the Italian Republic for information regarding works having been, or intended to be, carried out within this area, in particular those in the ‘zonal agreement’ for the industrial development of Manfredonia, agreed between the Region of Apulia and the Commune of Manfredonia.

8 The Italian authorities replied by letters of 6 December 2001 and 15 February 2002 from the Permanent Representation of the Italian Republic to the European Union and also by way of a letter of 13 February 2003 from the Region of Apulia.

9 By letter of 19 December 2003 the Commission gave the Italian Republic formal notice to submit its observations within a period of two months from notification of the letter.

10 The Italian Republic did not reply to that letter and so the Commission issued a reasoned opinion to it on 9 July 2004.

11 The Italian Republic replied to this opinion by letter of 9 November 2004 in which it indicated that it would shortly respond to the Commission’s complaints.

12 In the absence of further correspondence the Commission decided to bring the present action.

13 As the Commission has, however, withdrawn the heads of claim alleging infringement of Article 6(3) and (4) of the Habitats Directive, there is no longer any need to examine them.

The action

Arguments of the parties

14 The Commission claims that the ‘zonal agreement’ for industrial development of the Manfredonia region was approved in March 1998 and that the projects which it contains were undertaken immediately, prejudicing the conservation of numerous species of protected birds living in or passing through the geographical area called ‘Valloni e steppe pedegarganiche’, which was classified as an SPA on 28 December 1998. Moreover, those projects are still being carried out.

15 That ‘zonal agreement’ was approved without the adoption of measures designed to prevent pollution, the deterioration of habitats and disturbance affecting birds inside the ‘Valloni e steppe pedegarganiche’ area, and without prior assessment of the implications for that area.

16 The Italian Republic accepts that the ‘zonal agreement’ was approved in March 1998 without any prior procedure to assess its impact on the ‘Valloni e steppe pedegarganiche’ area. It admits that the industrial development has had a direct effect on the disappearance of a natural habitat of Community interest in that area.

Findings of the Court

Situation prior to the classification of the geographical area called ‘Valloni e steppe pedegarganiche’ as an SPA

17 Article 4(4) of the Birds Directive requires Member States to take, in respect of SPAs, appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of that article.

18 It is clear from the case-law of the Court that Member States must comply with the obligations arising inter alia under that provision, even where the area in question has not been classified as an SPA, provided that it should have been so classified (Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 38).

19 In that regard the Court has held that the inventory of IBAs, although not legally binding on the Member States concerned, contains scientific evidence making it possible to assess whether a Member State has complied with its obligation to classify as SPAs the most suitable territories in number and size for conservation of the protected species (see, inter alia, Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 25).

20 It is agreed that the geographical area called ‘Valloni e steppe pedegarganiche’, which is located in the Region of Apulia and, more specifically, in the Commune of Manfredonia, shelters rare species of wild birds, so that it was classified as an IBA in 1989, under the name ‘Promontorio del Gargano’, by BirdLife International. It was indeed also classified as an IBA in the IBA Inventory of 1998.

21 It therefore appears that that area should have been classified as an SPA before 28 December 1998.

22 Moreover, it is not disputed that the carrying out of industrial development within the context of the ‘zonal agreement’ involved the destruction of a part of the ‘Valloni e steppe pedegarganiche’ area, which was in a well-conserved state, prejudicing the conservation of several species of protected birds which used that area.

23 It is therefore necessary to find that, before 28 December 1998, the Italian Republic failed to fulfil its obligations under Article 4(4) of the Birds Directive and the Commission’s action must succeed in that respect.

Situation after classification of the geographical area called ‘Valloni e steppe pedegarganiche’ as an SPA

24 So far as concerns areas classified as SPAs, Article 7 of the Habitats Directive provides that the obligations arising under Article 4(4) of the Birds Directive are replaced, inter alia, by the obligations arising under Article 6(2) of the Habitats Directive as from the date of implementation of the Habitats Directive or the date of classification under the Birds Directive, where the latter date is later (see Case C-117/00 Commission v Ireland [2002] ECR I-5335, paragraph 25).

25 It follows that, in the present case, as the ‘Valloni e steppe pedegarganiche’ area was classified as an SPA on 28 December 1998, Article 6(2) of the Habitats Directive applied to that area from that date.

26 Article 6(2) of the Habitats Directive, like the first sentence of Article 4(4) of the Birds Directive, requires Member States to take appropriate steps to avoid, in SPAs classified in accordance with Article 4(1) of the Birds Directive, deterioration of habitats and disturbance significantly affecting the species for which the SPAs have been classified (see, to that effect, Commission v Ireland, paragraph 26).

27 It is clear from the documents before the Court that, after 28 December 1998, the situation described at paragraph 22 of the present judgment continued. In that regard, it should be noted that the Region of Apulia, in replying to the issues raised by the Commission in its official note of 7 July 2004, indicated that it was taking into account the need to adopt adequate compensatory measures providing for the extension of the SPA or for the designation of a new SPA containing fauna and vegetation comparable to those of the damaged habitat.

28 Consequently, the complaint that the Italian Republic has failed to fulfil its obligations under Article 6(2) of the Habitats Directive is well founded. Therefore, the Commission’s action must succeed in that respect also.

29 It is therefore necessary to find that, by failing to take appropriate steps to avoid, in the SPA ‘Valloni e steppe pedegarganiche’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which that area was established, the Italian Republic failed, in respect of the period before 28 December 1998, to fulfil its obligations under Article 4(4) of the Birds Directive and, in respect of the period after that date, has failed to fulfil its obligations under Article 6(2) of the Habitats Directive.

Costs

30 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 applied for the costs to be borne by the Italian Republic and the latter has been unsuccessful, it must be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby:

1. Declares that, by failing to take appropriate steps to avoid, in the special protection area ‘Valloni e steppe pedegarganiche’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which that area was established, the Italian Republic failed, in respect of the period before 28 December 1998, to fulfil its obligations under Article 4(4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and, in respect of the period after that date, has failed to fulfil its obligations under Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

2. Orders the Italian Republic to pay the costs.

[Signatures]