Opinion of Mr Advocate General Léger delivered on 7 March 2002. - Commission of the European Communities v Ireland. - Failure by a Member State to fulfil its obligations - Directives 79/409/EEC and 92/43/EEC - Conservation of wild birds - Special protection areas. - Case C-117/00.



European Court reports 2002 Page I-05335



Opinion of the Advocate-General

1. In the present action, the Commission of the European Communities seeks a declaration that Ireland has failed to fulfil its obligations under Article 3 and the first sentence of Article 4(4) of Directive 79/409/EEC and under Article 6(2) of Directive 92/43/EEC. The Commission complains that Ireland failed to adopt, within the prescribed period, the measures necessary to ensure the protection of a naturally occurring species in the wild state, namely the Red Grouse (Lagopus lagopus) and failed to ensure, in accordance with the Birds Directive and the Habitats Directive, the conservation of a special protection area, the Owenduff-Nephin Beg Complex, which shelters several species of wild bird and contains certain types of natural habitat of Community importance.

I - Law

A - The Birds Directive

2. The first sentence of Article 1(1) of the Birds Directive provides that that 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 Treaty applies.

3. According to Article 2 of the Birds Directive Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.

4. Article 3 of the Birds Directive provides:

1. In the light of the requirements referred to in Article 2, the Member States shall take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1.

2. The preservation, maintenance and re-establishment of biotopes and habitats shall include primarily the following measures:

(a) creation of protected areas;

(b) upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones;

(c) re-establishment of destroyed biotopes;

(d) creation of biotopes.

5. Article 4 of the Birds Directive concerns special protection measures which specifically apply to all the species mentioned in Annex I and to migratory species not listed in that annex.

6. Article 4 provides as follows:

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 [SPAs] 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.

3. Member States shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 above form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this Directive applies.

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.

7. Article 18(1) of the Birds Directive provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification. The directive was notified in April 1979 and thus the two-year period expired in April 1981.

B - The Habitats Directive

8. The purpose of the Habitats Directive is to contribute to ensuring biodiversity by means of the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States where the Treaty is applicable.

9. Article 1 of the Habitats Directive defines the principal terms used.

10. According to Article 1(b) natural habitats are terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features, whether entirely natural or semi-natural.

11. Article 1(d) of the Habitats Directive defines priority natural habitats as natural habitat types in danger of disappearance, which are present on the territory referred to in Article 2 and for the conservation of which the Community has particular responsibility in view of the proportion of their natural range which falls within the territory referred to in Article 2; they are indicated by an asterisk in Annex I.

12. Under Article 1(l) of the Habitats Directive special area of conservation means a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated.

13. Article 2(2) of the Habitats Directive stipulates that measures taken pursuant to the directive are to be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.

14. Article 3 of the Habitats Directive provides that a coherent European ecological network of SACs is to be set up to that end, called Natura 2000. The Natura 2000 network must include, inter alia, the SPAs classified by the Member States pursuant to the Birds Directive.

15. Article 6(2) of the Habitats Directive reads as follows:

2. Member States shall take appropriate steps to avoid, in the [SACs], 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.

16. Article 7 of the Habitats Directive provides:

Obligations arising under Article 6(2), (3) and (4) of this 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.

17. Under Article 23(1) of the Habitats Directive, Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification. The directive was notified in June 1992 and thus the two-year period expired in June 1994.

II - Procedure

A - The pre-litigation phase

18. On 9 October 1997, pointing out that Ireland had failed to fulfil its obligations under Articles 3 and 4(4) of the Birds Directive and under Article 6(2) of the Habitats Directive, the Commission gave Ireland formal notice to submit its observations in that regard. In its letter the Commission emphasised the adverse effects of overgrazing on Ireland's largest SPA, the Owenduff-Nephin Beg Complex, and on the habitats of the Red Grouse, a resident wild bird covered by Article 3 of the Birds Directive.

19. Having received no response from the Irish authorities, on 8 April 1998 the Commission issued a reasoned opinion in which it reiterated the observations set out in its letter of formal notice and called upon the Irish authorities to comply therewith within a period of two months.

20. On 1 September 1998 the Irish authorities replied to the reasoned opinion, providing information on new measures to curb overgrazing both in general and with specific reference to the Owenduff-Nephin Beg Complex SPA.

21. Taking the view that that reply did not enable it to reach the conclusion that Ireland had complied with its obligations under the provisions at issue of the Birds and Habitats Directives, the Commission decided to bring the present action.

B - Forms of order sought by the parties

22. The Commission's application was registered at the Registry of the Court of Justice on 27 March 2000.

23. The Commission claims that the Court should:

- declare that, by failing to take all the measures necessary to comply with Article 3 of the Birds Directive in respect of the Red Grouse, and with the first sentence of Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive in respect of the Owenduff-Nephin Beg Complex SPA, Ireland has failed to comply with those directives and with its obligations under the EC Treaty;

- order Ireland to pay the costs.

24. Ireland contends that the Court should:

- declare that the Commission has failed to substantiate its claims that Ireland has failed to comply with Article 3 and the first sentence of Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive;

- dismiss the application and order the Commission to pay the costs.

III - Pleas in law put forward by the Commission and Ireland's arguments

A - First plea: the lack of measures to preserve, maintain and re-establish habitats of sufficient diversity and area for the Red Grouse (infringement of Article 3 of the Birds Directive)

25. According to the Commission, the Red Grouse does not enjoy the protection provided for by Article 4 of the Birds Directive as it is not included in Annex I nor is it a migrant bird, being instead a resident species. Nevertheless, it takes the view that the species is covered by Article 3 of the Birds Directive, which applies to all species of naturally occurring birds in the wild state in Member States' territory, of which the Red Grouse is one.

26. On the basis of various scientific sources the Commission argues that areas of hill land, bog and moorland are essential to the survival of that species.

27. It observes that the species' habitat has been degraded and that there has been a clear and severe reduction in the extent of its mating grounds. It attributes that situation to intensive grazing since the entry into force of the Birds and Habitats Directives.

28. The Commission relies on a report drawn up in 1993 by the Irish Wildbird Conservancy, according to which the Red Grouse is one of the country's 12 most endangered breeding birds.

29. That report is confirmed by an inventory drawn up by the Joint Nature Conservation Committee at the request of the competent Irish authorities. That inventory identifies intensive sheep grazing as one of the principal causes of the threat to the Red Grouse's habitat and the contraction of its mating grounds. The Committee proposes a number of specific measures to remedy the situation, such as tight controls on overgrazing.

30. According to the Commission, geographical maps shown in the only two atlases of breeding birds prepared to date indicate that the Red Grouse's present breeding grounds have diminished by 66% when compared with the breeding grounds recorded in the first atlas and by 82% when compared with those identified in the second atlas.

Similarly, a comparison of the map of designated degraded areas with maps of the present breeding range of the species reveals that the breeding range still lies to a significant extent within the designated degraded areas and that much of the breeding range contraction has occurred within those degraded areas.

31. The Commission states that the Irish authorities acknowledged in their reply to the reasoned opinion that Red Grouse breeding populations have been affected by overgrazing and that the extent of the species' breeding grounds has diminished. The authorities say that that situation is explained by the fact that the number of sheep in Ireland has doubled since the entry into force of the Birds Directive.

32. The statistical information on which the Commission relies supports the view that the contraction in the species' breeding range is a cause for concern in that it has been particularly marked and rapid. Consequently, the Commission submits that Ireland must adopt measures to limit overgrazing as soon as possible. Only a draconian plan for managing breeding grounds is capable of preserving, maintaining or re-establishing a sufficient diversity and area of habitats for the Red Grouse.

33. The Commission observes that the competent Irish authorities have thus far failed to adopt effective measures. It develops that point further in the context of its second plea and submits that, in any event, Ireland's failure to fulfil its obligations under Article 3 of the Birds Directive is amply demonstrated by the fact that the Red Grouse's range in Ireland has considerably diminished.

34. The Commission concludes that Ireland has failed to fulfil its obligation to preserve sufficient diversity and area of habitats for the species in question, in accordance with Article 3 of the Birds Directive.

35. The Irish Government acknowledges that the Red Grouse's habitat, which is made up of hill land, bog and heather, is under serious threat from overgrazing. Nevertheless, it maintains that the Commission has not shown that the area of the species' habitat has been reduced to such a degree that it is no longer sufficient for its conservation and submits that no infringement of Article 3 of the Birds Directive can be established unless that is proved. That provision cannot, therefore, provide a sound basis for successfully suing a Member State which is attempting to overcome the obstacles to the conservation of species and their habitats.

36. Ireland also points out that the implementation, with effect from 2001, of Commonage Framework Plans for the most degraded areas in the six western counties ought to ensure effective protection of the breeding grounds of the Red Grouse.

B - Second plea: the lack of appropriate measures for the protection of the Owenduff-Nephin Beg Complex SPA (infringement of Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive)

37. The Commission observes that the Owenduff-Nephin Beg Complex is a large area of blanket bog and mountains incorporating the rain catchment area of the Owenduff River and the Nephin Beg Mountain Range in County Mayo in the west of Ireland.

38. The Owenduff-Nephin Beg Complex is described by the Irish authorities as one of the best and largest examples of intact blanket bog in Ireland. Blanket bogs are one of the priority natural habitat types listed in Annex I to the Habitats Directive.

39. On 8 October 1996 Ireland classified the Complex as an SPA, with effect from 15 October 1996. The area covered by the classification extended to 25 622.2 hectares, making it the largest SPA in Ireland. Moreover, in 1986, under the Ramsar Convention, a substantial part of the Complex was declared a wetland of international importance.

40. The Complex provides shelter to three species of wild bird mentioned in Annex I to the Birds Directive, namely the Merlin (Falco columbaris), the Golden Plover (Pluvialis apricaria) and the Greenland White-fronted Goose (Anser albifrons flavirostris). Under Article 4(1) of the directive, those species must be the subject of special conservation measures concerning their habitat.

41. The Complex also attracts several species of migratory birds not mentioned in Annex I, but which depend on the Complex with its hill lands and bogs at various stages in their yearly cycle, such as the Dunlin (Calidris alpina), the Snipe (Galinago galinago) and the Curlew (Numenius arquata).

42. The Commission submits that, in view of the characteristics and importance of the Owenduff-Nephin Beg Complex, both for the species just mentioned which appear in Annex I and for migratory species not listed in Annex I but which are regularly found there, the Irish authorities are required, under the Birds and Habitats Directives, to adopt specific measures which, in this case, either have not been taken or are inappropriate or inadequate.

1. Failure to fulfil the obligations laid down by Article 4(4) of the Birds Directive and replaced by the provisions of Article 6(2) of the Habitats Directive

43. The Commission complains that the Irish authorities failed to adopt appropriate preventive measures to counteract the damage caused to the Owenduff-Nephin Beg Complex by overgrazing.

44. The Commission maintains that, given the characteristics of the Complex, the Irish authorities were tardy in implementing the measures provided for by Article 4(1) and (2) of the Birds Directive. In accordance with those provisions, the Complex should in fact have been classed as an SPA by the date laid down in Article 18 thereof, that is to say 6 April 1981. Furthermore, from 6 April 1981 onwards, the Complex ought to have benefited from the preventive measures provided for by the first sentence of Article 4(4) of the Birds Directive up until implementation of Article 6(2) of the Habitats Directive.

45. The fact that Ireland was slow to take proper account of the particular nature of the Complex meant that it was unable to adopt preventive measures to stave off the serious damage caused to the blanket bog there by overgrazing. The Commission makes a number of points in support of that assertion.

46. First of all, in their correspondence with the Commission, the Irish authorities provided a list of commonages designated as degraded. That land is made up in large part of hill land and bog and the Complex accounts for a significant proportion of the main block of areas classified as degraded. The Irish authorities say that approximately 75% to 80% of degraded areas coincide with proposed Irish Natural Heritage Areas (NHAs) and will benefit from conservation and protection measures that are shortly to be put into effect. They acknowledge that the damage caused to degraded areas is essentially due to overgrazing and recognise that certain species are under threat as a result of the damage caused by sheep on hill land and bog. They are aware that numbers of Greenland White-fronted Goose, Merlin and Golden Plover, which habitually feed and mate in these degraded areas, have declined.

47. A number of expert studies attest to this damage. These studies indicate that wintering sites of Greenland White-fronted Geese in County Mayo are increasingly under threat from afforestation and from degradation of vegetation cover caused by overgrazing and that the destruction of heather-moor has brought about a decline in the numbers of Merlin in the study area.

48. Lastly, the Commission cites more general information that corroborates the foregoing account of the devastating effects of overgrazing on blanket bog and other fragile habitats in terms of vegetation loss and erosion.

49. The Irish Government does not dispute that the Complex has been seriously damaged by overgrazing.

2. Inadequacy and inappropriateness of the measures adopted by Ireland to repair the damage caused to the Owenduff-Nephin Beg Complex SPA (infringement of Article 3 of the Birds Directive)

50. According to the Commission, measures aimed at remedying, repairing and stabilising the damage caused to the Complex by Ireland's failure to comply with the Birds Directive are insufficient to combat overgrazing effectively, both generally and within the SPA in question.

51. Two solutions are proposed by the Irish authorities to redress the damage. First, the Irish State envisages purchasing substantial tracts of land within the Complex. Secondly, the Rural Environmental Protection Scheme is expected in the short-term to help protect the blanket bog. Under that scheme, grants to farmers are made conditional upon environmentally-friendly management of bog and heathlands.

52. Whilst those solutions amount to a significant step forward, they are nevertheless inadequate to combat effectively the essential cause of degradation of the Complex, namely intensive grazing.

53. The Commission notes that, since much of the Complex is in fact open, unfenced terrain, State acquisition of land within the Complex will not in itself prevent sheep from entering onto and grazing State-acquired areas in excessive numbers.

54. As regards REPS, the Commission distinguishes between two periods of implementation of the scheme, the first from 1994 to 1998, the second from 1998 to the present. The Commission assesses the effectiveness of the scheme from 1994 onwards, taking account of the legal status of the land to which the scheme applies; that is to say, it distinguishes between commonages and non-commonage or private land. As regards land other than commonages, the scheme is voluntary, in the sense that it is applied only if the farmers concerned agree.

55. Forty per cent of the Owenduff-Nephin Beg Complex is made up of commonage land situated within designated degraded areas and there REPS is imposed on farmers. According to the Commission, the sole purpose of REPS between 1994 and 1998 was to introduce Irish farmers generally to the principles of countryside management and environmental protection. It was therefore unable, during those years, to prevent the deterioration of the natural habitats in question, as is confirmed in various reports of the Irish Heritage Council.

56. From 1998 onwards concrete measures designed to limit the density of grazing on heathland and bog, such as Framework Plans, were adopted. However, lacking any information on the impact of those measures in terms of environmental protection or repair of the damage caused to the Owenduff-Nephin Beg Complex and to Red Grouse habitats, the Commission doubts their effectiveness.

57. Furthermore, the Commission observes that the measure adopted in the winter of 1998/1999, introduced as an interim measure pending preparation of the Commonage Framework Plans and consisting in a general reduction of 30% in the mountain sheep quota, is manifestly inadequate. That measure was in fact adopted in the context of very significant increases in stocking since 1980 reflected in a doubling in sheep numbers at national level. It applies indiscriminately across all of the land to be protected, taking no account of the ecological factors specific to each commonage or agricultural holding. The sensitivity of the habitats and the severity of the consequences of intensive grazing, however, vary from place to place. Lastly, the reports issued by the Irish authorities themselves generally state that a 30% reduction in stock can neither stabilise nor remedy deterioration of habitats.

58. Non-commonage land in areas classified as degraded includes part of the Complex and approximately 250 000 hectares of heath, bog and upland which Ireland proposes to designate as SACs specifically to take account of the particular habitat needs of the Red Grouse. As regards application of REPS in these areas, the Commission stresses that the scheme is voluntary and has little impact. In those areas where farmers choose not to participate in REPS, there are no provisions limiting the intensity of sheep-rearing. In other words, the density of grazing in those areas is left to the discretion of farmers. However, even where farmers agree to participate in REPS, the question of animal stocking levels is left to farm planners who prepare individual farm plans which REPS participants must then submit to the authorities. Guidelines for planners are, however, too general and do not provide detailed ecological guidance on the plant and animal species that require protection in the habitats concerned.

59. In conclusion, the Commission submits that, whilst REPS and certain related measures have made a valuable contribution to stabilising and redressing the problem of sheep overgrazing both in the Owenduff-Nephin Beg Complex and - with reference to Red Grouse habitats - in other proposed SACs, they suffer from shortcomings both in terms of coverage of the areas to be protected and in the content of their prescriptions and conditions of implementation.

60. The Irish Government acknowledges that implementation of the Conservation Management Plan for the Owenduff-Nephin Beg Complex has been delayed by the need to engage in detailed consultations with the persons affected. However, it believes that that situation will shortly be rectified by the concurrent implementation of REPS, Conservation Management Plans for SACs and SPAs, Commonage Framework Plans, various other schemes for areas not falling under REPS and the joint implementation of the AHGI and REPS schemes.

61. As regards destocking, the Irish Government argues that any plan to impose immediately and brutally an even greater reduction in the numbers of sheep in those degraded areas would be rejected by farming communities and cause them to withdraw their cooperation from schemes to protect natural habitats.

62. In conclusion, Ireland maintains that it is taking concerted and ever more positive action in order to prevent further deterioration of the Complex and to ensure better protection of the animal and plant species living there. It submits that it has taken appropriate measures even if those measures have not had the desired effect, that is to say the protection of animal and plant species found in the Complex. Consequently, it draws the conclusion that a Member State who has shown goodwill but has not achieved the desired result cannot be criticised for having infringed Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive.

IV - Findings of the Court

A - First plea: the lack of measures to preserve, maintain and re-establish habitats of sufficient diversity and area for the Red Grouse (infringement of Article 3 of the Birds Directive)

63. According to settled case-law the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion. The Court cannot therefore take account of any subsequent changes.

64. Article 3 of the Birds Directive provides that the Member States must take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all species of wild birds.

65. The Red Grouse is a species of naturally occurring resident bird living in the wild state in European territory, particularly in Ireland. It is included in Annex II/1 to the Birds Directive under the name Lagopus lagopus hibernicus.

66. The Irish Government is, as a result, required to take the preventive or remedial measures needed to ensure sufficient diversity and area of habitats for its conservation.

67. The Irish Government does not dispute the fact that the Red Grouse falls within the scope of Article 3 of the Birds Directive. It also acknowledges that the hill land and bog where plant species such as common heather (Calluna vulgaris) may be found are necessary for the preservation of the bird. Similarly, it concedes that intensive grazing has been a major cause of the degradation of the habitat of this protected species in that it has a very harmful effect on the survival of heather.

68. Nevertheless, the Irish Government maintains that there is no infringement of Article 3 of the Birds Directive unless the habitat of the species concerned is damaged to such a degree as to be insufficient for the conservation of that species. It argues that no convincing statistical information has been provided on the admittedly significant decrease in the number of Red Grouse.

69. The interpretation suggested by Ireland cannot be accepted. The Court has in fact held that the obligations arising under Article 3 of the Birds Directive require the Member States to adopt specific measures before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialised. The lack of information on the numbers of Red Grouse still remaining in those of its habitats that are regarded as degraded does not therefore enable Ireland to escape those obligations.

70. Since what is required of Member States in order to comply with their obligations under Article 3 of the Birds Directive is preventive action, the undisputed finding that there has been a considerable reduction in the range of the species and a clear and severe deterioration of its habitat is ample proof that Ireland has failed to fulfil its obligations under Article 3.

71. It follows from the foregoing that, by failing to ensure sufficient diversity and area of habitats for the Red Grouse, Ireland has failed to fulfil its obligations under Article 3 of the Birds Directive.

B - Second plea: the lack of appropriate measures for the protection of the Owenduff-Nephin Beg Complex SPA (infringement of Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive)

72. As already noted, the Court has consistently held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion. The Court cannot therefore take account of any subsequent changes.

73. Article 4(1) of the Birds Directive requires the Member States to classify the most suitable territories in number and size as special protection areas for the conservation of the species mentioned in Annex I to that directive. Article 4(2) lays down similar obligations with regard to regularly occurring migratory species not listed in Annex I. To that end, Article 4(2) provides that the Member States must pay particular attention to the protection of wetlands and particularly to wetlands of international importance.

74. The first sentence of Article 4(4) of the Birds Directive provides that, in respect of the SPAs referred to in Article 4(1) and (2), Member States must 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 Article 4.

75. In similar fashion, as regards SACs, Article 6(2) of the Habitats Directive states that Member States must take appropriate steps to avoid, in the SACs, 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 the Habitats Directive.

76. Article 7 of the Habitats Directive provides that obligations arising under Article 6(2) are to 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 the Habitats Directive or the date of classification or recognition by a Member State under the Birds Directive, where the latter date is later.

77. It has been shown and has not been disputed that:

- blanket bogs are one of the priority natural habitat types listed in Annex I to the Habitats Directive and that the Owenduff-Nephin Beg Complex has been classified by Ireland as an SPA since 1996;

- moreover, under the Ramsar Convention, the Owenduff-Nephin Beg Complex is declared a wetland of international importance.

- the natural habitats in question provide shelter to certain species of wild bird mentioned in Annex I to the Birds Directive and several species of migratory birds which, although not mentioned in Annex I, depend on those habitats at various stages in their yearly cycle;

- the habitats in question have been seriously damaged by overgrazing;

- the numbers of Greenland White-fronted Goose, Merlin and Golden Plover have diminished;

- Ireland had not, by 8 June 1998, the date on which the period laid down by the Commission in its reasoned opinion expired, adopted adequate measures to prevent deterioration of the natural habitats and habitats of species and disturbance of the species for which the Owenduff-Nephin Beg Complex SPA was designated, nor had it implemented measures likely to remedy the damage thus caused.

78. It follows from the foregoing that Ireland has failed to fulfil its obligations under the first sentence of Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive.

V - Costs

79. 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 has asked that Ireland be ordered to pay the costs and Ireland has been unsuccessful, it must be ordered to pay the costs.

Conclusion

80. In view of the foregoing I propose that the Court should:

- declare that, by failing to take, within the prescribed period, all the measures necessary to comply with Article 3 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, in respect of the Red Grouse, and with the first sentence of Article 4(4) of that directive and Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna, in respect of the Owenduff-Nephin Beg Complex special protection area, Ireland has failed to fulfil its obligations under those directives;

- order Ireland to pay the costs.