OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 3 February 2005

Case C-441/03



Commission of the European Communities

v

Kingdom of the Netherlands





(Conservation of natural habitats and wild birds)

‘– declare that by failing to bring into force the laws, regulations and administrative provisions necessary:

– in order to fulfil its obligations under Article 4(1) and (2) of the Council Directive of 2 April 1979 on the conservation of wild birds (79/409/EEC) before 25 April 1981, or at any rate by failing to inform the Commission of such provisions, and

– in order to fulfil its obligations under Article 6(1), in conjunction with Article 2(2) and Article 1(a), (e) and (i), and under Articles 6(2), (3) and (4), 7, 11 and 15 of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora before 20 June 1994, or at any rate by failing to inform the Commission of such provisions,

the Kingdom of the Netherlands has failed to adopt the measures required by Article 18(1) of Directive 79/409/EEC to comply with that directive by 25 April 1981, or has failed to adopt the measures required by Article 23(1) of Directive 92/43/EEC to comply with that directive by 5 June 1994;

– declare that Article 13(4) of the Natuurbeschermingswet (Nature Conservancy Law) is contrary to Article 6(4) of Directive 92/43/EEC;

– order the Kingdom of the Netherlands to pay the costs.’

‘3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those 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.’

20. I therefore propose that the Court should decide as follows:

(1) The Kingdom of the Netherlands did not adopt the necessary measures required by Article 18(1) of Council Directive 74/409/EEC of 2 April 1979 on the conservation of wild birds, as it did not enact within the prescribed period the laws, regulations and administrative provisions necessary in order to comply with its obligations arising from Article 4(1) and (2) of Directive 79/409.

(2) The Kingdom of the Netherlands did not adopt the necessary measures required by Article 23(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora, as it did not enact within the prescribed period the laws, regulations and administrative provisions necessary in order to comply with its obligations arising from Article 6(1), in conjunction with Articles 2(2) and 1(a), (e) and (i), from Article 6(2) to (4), and from Articles 7, 11 and 15 of Directive 92/43.

(3) Article 13(4) of the Natuurbeschermingswet infringes Article 6(4) of Directive 92/43.

(4) The remainder of the application shall be dismissed.

(5) The Kingdom of the Netherlands shall bear the costs of the proceedings.

– Original language: German.

– OJ 1979 L 103, p. 1.

– OJ 1992 L 206, p. 7.

– With both directives it is difficult to determine the exact date on which the transposition period expired. According to Article 191(2) of the EEC Treaty which was then in force (now, after amendment, Article 254 EC), the expiry date is determined on the basis of the date on which the directive was communicated to the Member States. As far as the Wild Birds Directive is concerned, CELEX and the judgment in Case 236/85 Commission v Netherlands (!) [1987] ECR 3989, paragraph 2, would indicate 6 April 1981 to be the correct date. As regards the Habitats Directive, CELEX refers to 10 June 1994, whereas the Court in Case C-329/96 Commission v Greece [1997] ECR I‑3749, at paragraph 2, and Case C-83/97 Commission v Germany [1997] ECR I-7191, at paragraph 2, assumed 5 June 1994 to be the correct date.

– In coming to this conclusion the Commission also bases its argument on its manual Managing Natura 2000 Sites, the provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC, Luxembourg (2000), at point 5.3.1 (p. 43 of the English version), according to which alternative solutions ‘should normally already have been identified within the framework of the initial assessment carried out under Article 6(3)’.

– The Commission refers in this connection to point 4.4.1 of its manual (cited in footnote 5, p. 34 of the English version).

– This manual (cited in footnote 5, point 4.5.2, p. 37 of the English version) expressly states: ‘It is worth noting that, although, for purposes of Article 6(3), an assessment does not, strictly speaking, need to look beyond the plan or project proposed to address alternative solutions and mitigation measures, there may be a range of benefits from doing so.’

– Judgment in Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereinigung tot Bescherming van Vogels (‘the Waddenzee judgment’) [2004] ECR I-0000, paragraph 52.

– The German version of the directive seems to have been inaccurately translated as far as this point is concerned. Thus, the competent bodies should examine whether a rectification should be made.

– The Waddenzee judgment (cited in footnote 8, paragraph 54).

– See also the judgment in Case C-117/03 Dragaggi and Others [2005] ECR I-0000, paragraph 27.

– On this point see also the Waddenzee judgment (cited in footnote 8, paragraphs 57 and 60).