Opinion of Mr Advocate General Fennelly delivered on 16 September 1999. - Commission of the European Communities v French Republic. - Failure by a Member State to fulfil its obligations - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora. - Case C-256/98.



European Court reports 2000 Page I-02487



Opinion of the Advocate-General

1. In the present infringement proceedings, the Commission is seeking a declaration that the French Republic has failed properly to transpose into French law Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. France contests the claim, relying on both legislation which pre-existed the adoption of the Habitats Directive and other measures adopted since. None the less, France admits the inadequacy of its transposition in certain respects.

I - The relevant provisions of Community law

2. Article 1(l) of the Directive defines a special area of conservation (hereinafter, for convenience, SAC) as 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.

3. Article 4 of the Directive provides for a three-stage procedure for the designation of SACs. Member States first propose to the Commission a list of sites of Community importance (SCIs) on their territory for the protection of natural habitat types or animal or plant species. Acting under a regulatory committee procedure, the Commission adopts the definitive list of SCIs. Member States are then obliged to designate the SCIs on their territory as SACs; even before their designation as SACs, SCIs benefit from the protection obligations imposed on Member States by Article 6(2), (3) and (4).

4. Article 6 of the Directive reads as follows:

1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

2. 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 the Directive.

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 States shall take all compensatory measures 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 requirements 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.

5. Article 7 of the Habitats Directive varies in certain respects the obligations imposed on the Member States by virtue of Article 4 of the Birds Directive. It reads as follows:

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 Directive 79/409/EEC 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 Directive 79/409/EEC, where the latter date is later.

6. Article 23(1) required Member States to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within two years of its notification [and] forthwith [to] inform the Commission thereof.

II - Facts, procedure and arguments of the parties

7. The Commission has informed the Court in the present proceedings that the Directive was notified on 5 June 1992, and that the deadline for compliance with Article 23 expired on 5 June 1994. On 16 February 1995, France informed the Commission that the Directive had been transposed by two circulars adopted in January 1993 and January 1994, and that the transposition of Article 6(3) and (4) as regards the evaluation of projects was still under legal consideration. On 18 April 1995 France informed the Commission of the adoption of Law No 95-101 of 2 February 1995, and enclosed a table showing which provisions of the Habitats Directive and the Birds Directive were transposed by this Law; the table does not indicate that the Law transposed Article 6. The Commission issued a first reasoned opinion on 21 September 1995; as this omitted to take account of the letter of 18 April 1995, the Commission issued a complementary reasoned opinion on 31 October 1997 repeating its complaint regarding the failure properly to transpose Article 6 of the Directive. Meanwhile, on 30 October 1995, France had informed the Commission of the adoption of Decree No 95/631 on the drawing up of the list of French SCIs. In the absence of any response to its second reasoned opinion, the Commission commenced the present proceedings by an application registered at the Court on 15 July 1998.

8. In its application, the Commission alleges that none of the measures which have been notified to it has transposed into French law Article 6 of the Directive, which requires that a legal framework for the establishment of conservation measures be in force by the date for compliance with the Directive. France has not indicated which existing measures of French law correspond, in its view, with those of Article 6(1) and (2), nor has it informed the Commission of the results of its legal examination of the integration of Article 6(3) and (4) into French law.

9. For its part, France relies on the margin of discretion Member States enjoy in the implementation of directives. It provides a long list of measures under French law which, in its view, constitute an adequate legislative, regulatory and contractual arsenal for ensuring the achievement of the objectives of Article 6(1) and (2) of the Directive. It admits however that, though environmental impact assessment as required under Article 6(3) has been a requirement of French law since well before the Habitats Directive, the current provisions do not allow the authorities to refuse a request for authorisation for a plan or project, and it is this aspect of the Directive, along with the possibility to grant an authorisation in spite of a negative assessment of the implications for the site, which is the subject of the legal reflection.

10. In its reply, the Commission interprets Article 6(1) and (2) as obliging the Member States to define a protection status for SACs. In the light of the defence, it accepts that there are measures in France which are intended to allow the implementation of these provisions, but maintains its complaint in so far as French law contains no express provision obliging France to apply conservation and protection measures in SACs. The Commission claims that, at the very least, the Directive requires the adoption of a provision of general scope for the application of such measures which can then be invoked before the national courts.

11. The scope of the Commission's complaint regarding the transposition of Article 6(3) and (4) is also narrowed. Contrary to Article 6(3) of the Directive, French law, in the Commission's view, does not include plans, covers only certain categories of project, and fails to ensure that the assessment is based on the impact of development activities on the site, rather than on the nature of the project. The substantive conditions for overriding a negative assessment which are set out in Article 6(4) are also missing from the French provisions.

12. In its rejoinder, France acknowledges its failure formally to communicate the measures transposing Article 6(1) and (2). It vigorously contests the existence of any obligation to lay down a provision of general scope, either under the terms of the Directive or in principle, and invites the Court in any case to hold that the absence of such a clause has not prevented proceedings before the national courts concerning the application of the Birds Directive. This is the principal issue in the case. France also disputes the Commission's interpretation of the term plan and the latter's view that French law does not adequately cover both plans and projects, and contends that the French provisions do indeed take account of their environmental impact.

III - Analysis

(a) Insufficiency of France's transposition of Article 6(1) and (2)

13. The Commission accepts that France has adopted legislative, regulatory and administrative measures which are intended to allow it to implement its obligations under Article 6(1) and (2). For its part, France expressly admits that it has not adopted a general provision which would require the application to SACs of conservation and protection measures (hereinafter the general provision), but contends that no such general provision is required either by the Directive or by the Court's case-law. This head of complaint is therefore reduced to that of whether, in the circumstances of the present case, France was obliged to adopt such a general provision.

14. In the first place, it is clear that the text of Article 6(1) and (2) does not expressly require such a general provision. Article 23(1) is similarly of little assistance; while it requires the adoption of the provisions necessary to comply with this Directive within a given deadline, the question here is whether a general provision is necessary.

15. The Commission has suggested that a general provision is required in order to deal with the situation in which a Member State has designated an SAC but failed to apply to it any of the legal measures required by Article 6(1). In such a case, however, the Member State would, in my view, be in breach of its substantive obligations under Article 6(1), rather than in breach of a formal obligation to transpose this provision. As the Commission was careful to emphasise, the present proceedings are limited to the question of transposition of the contested provisions.

16. In answer to this argument of the Commission, France suggested at the hearing that individuals could, by relying on the direct effect of Article 6(1) and (2), challenge the conformity of the measures adopted for a particular SAC before the courts. I do not accept this line of argument either, for two reasons. In accordance with a well-established line of case-law, the fact that a provision of a directive may be capable of having direct effect is at most a minimum guarantee arising from the binding nature of the obligation imposed on the Member States, which does not dispense the Member State from its duty to transpose that provision. Moreover, the terms of Article 6(1) and (2) are not, in my view, unconditional and sufficiently precise, and do not therefore meet the normal test for the direct effect of provisions of directives. The range and variety of possible conservation measures which could be taken deprives Article 6(1) of the level of precision required for direct effect, even if its terms could be said to create rights for individuals, a matter which is by no means clear.

17. In order to resolve this question, it is necessary to identify the objective the transposition requirement of directives seeks to attain. Interpreting the third paragraph of Article 189 of the EEC Treaty (now Article 249 EC) in Enka, the Court held that the choice left to the Member States as regards the form of the measures and the methods used in their adoption by the national authorities depends upon the result which the Council or the Commission wishes to see achieved. In the case of Article 6(1) and (2) of the Directive, the result the Council wished to achieve is set out in the sixth recital in the preamble: to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status and to create a coherent European ecological network according to a specified timetable. The measures upon which France relies as constituting a proper transposition of these provisions must therefore be judged on whether they ensure the achievement of these objectives.

18. Even in the case of directives designed to ensure the protection of the environment, the Court has usually emphasised the importance of the protection of individual rights. Thus in Commission v Germany, where the defendant Member State had claimed that the substantive provisions of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances were in fact respected, the Court held as follows:

the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.

19. In the present case, it is difficult to argue that Article 6(1) or (2) of the Habitats Directive were intended to create rights for individuals; as Advocate General Van Gerven noted in his Opinion in Commission v Germany, in the case of directives concerning the protection of the environment it may well be a question of obligations. That does not mean, in my view, that the transposition requirements are necessarily less stringent than in the case of directives which create individual rights; on the contrary, the effectiveness of directives which create obligations for the Member States not matched by rights under Community law for individuals demands even more urgently a complete regulatory framework. I agree with the remarks of Advocate General Van Gerven in the same Opinion on the relevance, in determining the scope of a Member State's transposition obligations under a directive, of the absence of economic stimuli for enforcing compliance. In such cases, [the] vigilance of individuals, which the Court has long recognised as an effective supervision in addition to the supervision entrusted by Articles 169 and 170 [now Articles 226 EC and 227 EC] to the diligence of the Commission and of the Member States, does not come into play.

20. In Commission v Italy the Court adopted a slightly different, and stricter, formulation of the same idea as that expressed in Commission v Germany, where it held that the adoption of specific legislation or regulations ... cannot be regarded as superfluous unless the existing provisions of national law effectively guarantee that the directive will be applied fully. It falls particularly on the Commission in such cases to ensure the effective application of the directive in question. The Court's observation regarding the Birds Directive in Commission v Belgium that a faithful transposition becomes particularly important in a case such as this in which the management of the common heritage is entrusted to the Member States in their respective territories is also, in my view, relevant in the present case; the fourth recital in the preamble to the Habitats Directive declares that the threatened habitats and species form part of the Community's natural heritage.

21. While the Commission does not contest that France has adopted certain legal measures which could be employed in ensuring compliance with the substantive provisions of Article 6(1), it does not appear to me that this is sufficient to conclude that the general legal context ... does indeed guarantee the full application of the directive in a sufficiently clear and precise manner. In particular, France has not shown that the measures correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II on the sites, or, indeed, that any of its measures refer to these particular habitat types or species. Nor has it shown that these legal measures, in the absence of a general provision requiring the national authorities to apply them to SACs and specifying the conditions under which they apply, are such as to guarantee the achievement of the objectives of this provision referred to in the sixth recital in the preamble. As the Court noted in Commission v Netherlands apropos of the Birds Directive, proper transposition requires the full implementation of directives in law and not only in fact.

22. In the present case, it is clear from the Directive, and particularly Article 2(3), that in implementing it the Member States should take account of economic, social and cultural requirements and regional and local characteristics. Given, on the one hand, the delicate balance which must be struck in respect of each SAC between these considerations and, on the other, the environmental protection obligations of the Directive, I do not see how the French measures could be said to guarantee the necessary degree of legal certainty. In particular, France has not demonstrated how those who carry out the activities which Article 2(3) permits can ascertain precisely the obligations to which they are subject in accordance with Case C-361/88 Commission v Germany.

23. Equally, the Commission is not in a position to ensure that the national measures are appropriate in the sense that they will be effective in achieving the objectives of the Directive, or to ensure the coherence of Network 2000, as it is required under Article 3(1) of the Directive. Indeed, the very variety of measures upon which France can call argues in favour of a general legal obligation which would clarify the present uncertainty surrounding the protection of SACs on French territory. While these measures are impressive on their own terms, at no point do they make any reference to the SACs or to the Directive; this essential link in the regulatory chain is missing.

24. Furthermore, France has not shown that the measures it relies on as transposing Article 6(1) seek not merely to preserve, but also to restore, natural habitats and species of wild fauna and flora of Community interest, as required under Article 2(2) of the Directive, or that the objective of such measures is a favourable conservation status as defined in Article 1(e) of the Directive. There is also a certain contradiction in France's defence; despite its announced intention to favour a contractual approach, all the measures on which it relies appear to be either statutory or administrative in character, leaving the Commission in the dark as to its real intentions in this regard. In any case, none of these legal measures reflects the specific obligations which arise for the Member States under Article 6(1) of the Directive.

25. France's transposition of Article 6(2) is equally clearly insufficient. As noted above, this provision, in effect, contains a prohibition on activities which could lead to the deterioration of protected habitats or the disturbance of protected species. In the first place, France does not even claim that there exists in its law a provision which applies such a prohibition to SACs. While it does have rules prohibiting the destruction of the natural environment, these refer neither specifically to SACs nor generally to the objectives of the Directive. To take, by way of example, the national provision cited before the Court which appears to be most in point, Article L 211-1(3) of the Code Rural imposes a prohibition on the destruction, alteration or deterioration of the habitats of wild animal and plant species whenever this is justified by a particular scientific interest or the requirements of the conservation of the biological heritage. It does not refer to the specific habitat types or species listed in the Annexes to the Directive; in the absence of any specific reference to the Directive, the national authorities may be unaware of their duty to interpret the notions of a particular scientific interest and biological heritage as far as possible in conformity with the wording and purpose of Article 6(2) of the Directive. Furthermore, interministerial decrees are required in order to determine, for each species, which of the possible prohibitions should apply and for how long (Code Rural, Article R 211-3). In circumstances such as these, where the prohibitions are subject to material and procedural conditions, and may be limited ratione tempore, these provisions of the Code Rural do not appear to comprise a proper transposition of Article 6(2) of the Directive; nor has France shown that any other of the legal provisions on which it relies transpose Article 6(2) more completely.

26. Where a provision of a directive requires the Member States to prohibit a certain course of conduct, the Member States' margin of discretion in transposing that provision is in principle narrower than in the case of a positive obligation. The general legal context will only suffice where it renders such conduct illegal in a sufficiently clear and precise manner. The fact that the public authorities enjoy the power to prohibit the conduct in question is not in itself sufficient; as the Court noted in Commission v Netherlands, again in relation to the Birds Directive, [in] view of the principle of legal certainty, the relevant prohibitions must be reproduced in mandatory legal provisions. It is therefore in my view not a good defence to claim, as France has done, that its legal provisions are merely capable of ensuring compliance, if it fails to show that they will necessarily be applied to this end.

27. For the sake of completeness, I should add that the Court has already held on a number of occasions that the obligation to adopt a general provision such as that at issue in the present case may be inherent in the duty to transpose environmental directives. Article 2(1) of Council Directive 80/779/EEC of 15 July 1980 on air quality limit values and guide values for sulphur dioxide and suspended particulates, for example, provides for limit values of concentrations of these substances which must not be exceeded throughout the territory of the Member States during specified periods and under the conditions laid down in the following Articles. In Case C-361/88 Commission v Germany, where the defendant Member State relied on its existing provisions and an administrative circular as constituting proper transposition, the Court held that the fixing of limit values in a provision whose binding nature is undeniable is ... necessary in order that all those whose activities are liable to give rise to nuisances may ascertain precisely the obligations to which they are subject. In the absence of any general mandatory rule, the German provisions were found not to have transposed Directive 80/779/EEC with unquestionable legal force or with the specificity, precision and clarity required by the case-law of the Court in order to satisfy the requirement of legal certainty. Similarly, in Case C-131/88, also Commission v Germany, the Court held that [in] order to guarantee complete and efficient protection of groundwater, it is vital that the prohibitions set out in the directive be expressly embodied in national law, and found against the defendant Member State for failing to introduce a general prohibition. In neither of these cases did the directive expressly require the adoption of a general mandatory rule.

28. France has argued that a general provision would add nothing to the existing provisions, and that it would therefore serve no purpose. I do not agree. The achievement of the objectives of Article 6(1) and (2) of the Directive as set out in the sixth recital in the preamble (the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status) depends to a very large extent on the actions of national authorities at different levels of government. It seems to me to be imperative that these authorities take account of Article 6(1) and (2) in any decisions which they may take defining the protection regime for SACs under national law, and that a general provision establishing the Community character of SACs is necessary to this end. For its part, the Commission must be in a position to ascertain the adequacy of the national implementing measures; the transposition requirement serves this purpose too. Nor would the transposition of these provisions be legally superfluous either; in adopting such provisions, a Member State might be expected to exercise its discretion on different points, and hence clarify the scope of its own obligations. In any case, experience shows that national courts are more at ease applying provisions of national law than provisions of directives, particularly those which do not have direct effect, even where their wording is identical.

29. I might add that, even if the Court were to find that Article 6(1) and (2) does not require the adoption of a general provision, I do not consider that the various measures cited by France in this regard constitute a sufficiently specific or comprehensive transposition of these provisions of the Directive.

30. I am therefore of the opinion that the Commission should be granted the declaration it has sought in regard to the failure of the French Republic properly to transpose Article 6(1) and (2) of the Directive.

(b) Insufficient transposition of Article 6(3)

31. The first branch of the Commission's complaint in this regard concerns the alleged omission from French law of any obligation to carry out an assessment in accordance with Article 6(3) of the Directive (hereinafter, for convenience, a site assessment) for plans. France has argued that the term plan must be interpreted as meaning a set of planning projects (un ensemble de projet[s] d'aménagement), and that French law, and in particular Article 2 of Law No 76-629 of 10 July 1976, already requires an assessment for different plans, such as projets d'aménagement and documents d'urbanisme.

32. The parties agree that neither the Directive nor any other provision of Community law provides a definition of the term plan which is applicable in all circumstances. France has referred to the proposal for a Directive on the assessment of the effects of certain plans and programmes on the environment, which provides a definition of project for the purposes of the proposed measure, though not of either plan or programme. Though its entry into force postdates the adoption of the Directive, Article 130s(2) of the EC Treaty, as amended by the EU Treaty with effect from 1 November 1993, uses the expression town and country planning in the context of environmental policy, which could be taken as one indication of the scope of this term in the Directive.

33. In the context of Article 6(3), the term plan must in my view be interpreted extensively. The sites likely to be affected by such plans are, by definition, sites of Community importance, which benefit from the protection regime established in accordance with Article 6(1) and (2); the adoption of a narrow interpretation of the term plan would be contrary to both the wording of Article 6(3) ([any] plan or project), and the conservation objectives which the designation of SACs seeks to pursue. As the possible future development of a site depends primarily on the assessment, it seems to me that the obligation ratione materiae to carry out a site assessment must therefore cover all development activities with the exception of those which are unlikely to have any significant effect, either individually or in combination with other development activities, on the site's conservation objectives. This is consistent with the principle of Community law that exceptions to the general rule (here, development activities which do not require a site assessment) are to be interpreted restrictively.

34. I do not consider that the absence of the term plan from the relevant French provisions is determinative, as it is clear that French law requires a site assessment in respect of certain plans, and in particular projets d'aménagement and documents d'urbanisme. As I am unable on the basis of the information supplied to the Court to determine with any certainty whether or not these terms are sufficiently broad to include the definition of plan I suggest above, I have no choice but to conclude that the Commission has failed to prove its allegations under this head of complaint.

35. The second point at issue concerns the fact, not disputed by France, that French law excludes certain categories of project from the necessity for a site assessment. The Commission claims this is inconsistent with Article 6(3) of the Directive. At the hearing, the Commission pointed out, without being contradicted on this point by France, that projects of which the total cost is less than FRF 12 million and those which concern the electricity, gas and telecommunications networks are not subject to a site assessment requirement. France has argued that the words likely to have a significant effect reflect a discretion for the Member States to set thresholds.

36. The Commission is clearly correct on this point. I have already emphasised the broad scope of the assessment obligation established by Article 6(3); it is only where a project is not likely to have a significant effect on the achievement of the conservation objectives of the site that it need not be subject to an assessment. Furthermore, whether or not the Directive would allow the Member States to fix thresholds, it clearly does not allow projects to be excluded from this requirement on the basis of the cost of the work or the type of plant on which the work is to be carried out.

37. The Commission's third complaint under this head is that no provision of French law links the requirement of an environmental impact assessment to the conservation objectives of the site. The Commission is in my view correct on this point too. Article 2 of Law No 76-629 of 10 July 1976, on which France relies in its defence, bases the requirement to carry out an assessment on the type of activity, to wit, those carried out by a public authority or those which require an authorisation or approval, and urban planning documents; in accordance with this provision, the assessment refers generally to the impact of the development activities on the natural environment (le milieu naturel). France has cited Article 2 of implementing Decree No 77-1141, which stipulates that the content of the impact assessment must have regard to the foreseeable impact of the activities on the environment. Neither of these provisions requires that the assessment indicate the implication of the activities on the conservation objectives of the individual site, and they do not therefore constitute a proper transposition of Article 6(3).

38. As well as these disputed points, France has admitted that its transposition of Article 6(3) is incomplete in so far as its existing provisions do not permit the competent authorities to refuse a request for authorisation to proceed with a plan or project where the site assessment indicates that it will adversely affect the integrity of the site.

39. The Commission also complains that France has not transposed the substantive conditions laid down by Article 6(4) for the carrying out of development activities, notwithstanding a negative site assessment. France has offered no substantive defence to this complaint, merely noting its intention to take over the contents of this paragraph in national law. I do not see the pertinence in this regard of France's plea that decisions in this area must, in accordance with Law No 79-587 of 11 July 1979, be properly reasoned, and I would therefore recommend that the Court find against France on this point too.

IV - Conclusion

40. In the light of the foregoing, I recommend to the Court that it:

(1) Declare that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the French Republic has failed to fulfil its obligations under Article 23(1) of this Directive and Article 189 of the EC Treaty (now Article 249 EC);

(2) Order the French Republic to pay the costs.