EN Official Journal of the European Union C 158/8

Action brought on 11 March 2008 — Commission of the European Communities v Republic of Austria

(Case C-110/08)

(2008/C 158/13)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: T. Scharf and D. Recchia, Agents)

Defendant: Republic of Austria

Form of order sought

The applicant asks the Court to:

— declare that, by still not having submitted to the Commission a complete list of proposed sites of Community importance or because the present list transmitted to the Commission is still incomplete with regard to six natural habitat types in the Alpine biogeographical region (3230, 6520, *7220, 8130, 9110 and 9180), and ten natural habitat types (*1530, 3240, *6110, *6230, 6520, 8150, 8220, 9150, 91F0 and *91I0) and twelve species (Vertigo moulinsiana, *Osmoderma eremita, Rutilus pigus, Triturus cristatus, Triturus carnifex, Rhinolophus hipposideros, Barbastella barastellus, Myotis emarginatus, Myotis myotis, Mannia triandra, Buxbaumia viridis, Drepanocladus vernicosus) in the Continental biogeographical region, the defendant has failed to fulfil its obligations under Article 4(1) 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).

— order the Republic of Austria to bear the costs.

Pleas in law and main arguments

In order to set up a coherent European ecological network of special areas of conservation according to a specified timetable, Article 4(1) of Directive 92/43/EEC requires the Member States to draw up, on the basis of the criteria set out in Annex III to the Directive and relevant scientific information, a list of sites hosting natural habitat types in Annex I and species in Annex II that are native to its territory. This national list is to include the sites which host the priority natural habitat types and species selected by the Member States on the basis of the criteria set out in Annex III. ‘Priority’ species and natural habitats are those which are in danger of disappearance and for the conservation of which the Community has particular responsibility in view of the proportion of their natural range which falls within the European territory of the Member States. This list was to be transmitted to the Commission within three years of the notification of the Directive, together with information on each site. The Directive entered into force for the Republic of Austria, as amended by the Treaty of Accession, upon its accession to the European Union on 1 January 1995, and the time-limit for transposition has in any case by now unquestionably expired.

As the Republic of Austria has still not submitted to the Commission a complete list of proposed sites of Community importance, it has infringed its obligations under Article 4(1) of Directive 92/43/EEC.

According to the Commission, the Republic of Austria relies on alleged procedural defects which make the Commission's action unlawful.

The defendant's first objection relates to the so-called ‘reserves lists’, that is the lists of natural habitat types and species in respect of which the Commission has determined the network to be incomplete in its decisions on the lists of the sites of Community importance for the Alpine and Continental biogeographical regions. The defendant argues that as the drawing up of reserves lists is not provided for under the Directive, the Commission is not entitled to rely on them in order to accuse the defendant of an incomplete notification of areas of conservation.

That argument cannot however be accepted. It is not at all relevant whether the directive regulates the drawing up of reserves lists or not; what matters is solely whether the national lists of suggested sites proposed to the Commission are complete. From the viewpoint of the Commission, the reserves lists represent merely stocktaking of the gaps in the process of drawing up a complete Natura 2000 network. While the Directive may not provide for such lists, it does not preclude them from being drawn up.

By virtue of the notification of additional subsequent nominations, the defendant's argument that it cannot defend itself, because it is not able to understand the scientific evidence relied upon by the Commission, lacks substance: the defendant was obviously in a position to see for itself that further nominations were required. Moreover, the defendant was indisputably involved in the biogeographical procedures.

The long period of time between the first reasoned opinion and the first and second supplementary reasoned opinions did not deny the defendant any procedural rights and cannot therefore be held against the Commission. The Commission refrained from bringing an action against the defendant immediately already in 1998 only because it had reason to believe that the defendant would soon comply with its obligation under the Directive. On a total of three occasions the defendant was given a time-limit within which to transmit the complete notification to the Commission. It therefore enjoyed an unusually long period of time within which it could both have commented on the Commission's allegations and dealt with the subject-matter of the action.

The argument that the Commission's demands for subsequent nominations were made pursuant to the procedure laid down in Article 4 of the Directive and therefore ‘could not at the same time be regarded as a continuation of the infringement procedure’ does not appear valid. Precisely because the demands for subsequent nominations took place according to Article 4 of the Directive, although the nomination phase should have long since been concluded, those demands for subsequent nominations provided clear indications of the fact that the defendant had still not complied with its obligation under Article 4. By virtue of the fact that the Commission accepted subsequent nominations over many years without bringing an action, the defendant obtained further opportunities to make the procedure devoid of purpose by fulfilling its obligations.

It must be stated in conclusion that, contrary to the defendant's argument, the consultation procedure provided for in Article 5 of the Directive is not applicable. That procedure is envisaged only in exceptional cases in which a dispute between the Commission and a Member State on scientific grounds is to be resolved, but not in cases which, like the present case, are concerned only with incomplete notification of sites generally.

The procedural objections put forward by the defendant are therefore not well founded.