OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 11 January 2007 1( )

Case C‑508/04

Commission of the European Communities

v

Republic of Austria

(Conservation of natural habitats and of wild fauna and flora – Transposition of Directive 92/43)

I – Introduction

1. In these Treaty infringement proceedings, the Commission criticises the transposition of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna ( ) (‘the Habitats Directive’) in various Austrian provinces.

2. The procedure was commenced by means of a letter of formal notice of 13 April 2000 and continued by means of a reasoned opinion of 15 October 2003. Finally, on 8 December 2004, the Commission brought the present proceedings.

3. Following several amendments to Austrian law in the course of the case, the Commission now claims that the Court should:

(1) declare that, by not transposing Articles 1, 6(1) and (2), 12, 13, 16(1) and 22(b) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora correctly and completely into Austrian law, the Republic of Austria has failed to fulfil its obligation to transpose that directive correctly and completely;

(2) order the Republic of Austria to bear the costs.

4. The Republic of Austria contends that the Court should:

(1) dismiss the present action as unfounded, and in any event do so in so far as in the intervening period amendments have been made to Austrian law;

(2) order the Commission to pay the costs.

II – Appraisal

5. The action must be assessed according to the legal position existing on expiry of the period laid down by the Commission in its reasoned opinion. Since the reasoned opinion was received by Austria’s permanent representation on 17 October 2003, the relevant date is 17 December 2003.

6. Austria does not contest the Commission’s contention that Austria has failed to transpose Articles 12 and 13 of the Habitats Directive or that it has not done so completely, but holds out the promise of legislative amendments. The same applies as regards the complaint concerning the incorrect transposition of Article 16(1) with respect to the Provinces of Styria ( ) and Tyrol. Since no legislative amendment was effected prior to the expiry of the period laid down in the reasoned opinion, the Treaty infringement must be regarded to that extent as admitted.

7. For the remainder, it is clear from the 4th and 11th recitals in the preamble to the directive that threatened habitats and species form part of the Community’s natural heritage and that the threats to them are often of a transboundary nature, so that the adoption of conservation measures is a common responsibility of all Member States. Accordingly, faithful transposition becomes particularly important in an instance such as the present one, where management of the common heritage is entrusted to the Member States in their respective territories. ( )

A – Article 1 of the Habitats Directive

8. The Commission’s allegation against Austria is that the Province of Salzburg has failed to transpose several definitions set out in Article 1 of the Habitats Directive: ‘conservation status of a natural habitat’ (Article 1(e)), ‘species of Community interest’ (Article 1(g)), ‘conservation status of a species’ (Article 1(i)) and ‘special area of conservation’ (Article 1(l)). The Court has already held that the definitions set out in Article 1 of the Habitats Directive must be transposed. ( )

9. Austria counters by arguing that through the interplay of the concept of ‘interference’ together with the conservation objectives those definitions are adequately covered.

1. Article 1(e) and (i) of the Habitats Directive

10. These two definitions are concerned with the conservation status of natural habitats and species and the conditions under which that conservation status is described as favourable. The wording of the provisions is as follows:

‘(e) conservation status of a natural habitat means the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species within the territory referred to in Article 2.

The conservation status of a natural habitat will be taken as “favourable” when:

– its natural range and areas it covers within that range are stable or increasing, and

– the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and

– the conservation status of its typical species is favourable as defined in (i);

…

(i) conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article 2;

The conservation status will be taken as “favourable” when:

– population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and

– the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and

– there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis’.

11. Austria takes the view that those definitions are adequately covered by Paragraphs 5(8) and (9) and 22a(3) and (4) of the Naturschutzgesetz (Law on Nature Protection) of Salzburg.

12. Those provisions define the concepts of ‘interference’ and ‘conservation objectives’ (Paragraph 5(8) and (9)), the content of regulations governing protected areas, and the conditions for authorisation of a dispensation from the prohibitions set out therein, in particular conditions concerning the assessment of the implications (Paragraph 22a(3) and (4)). The term ‘favourable conservation status’ is employed, but not defined.

13. Accordingly, the definitions in Article 1(e) and (i) of the Habitats Directive have not been transposed, rather their existence is presupposed by the relevant provisions. That regulatory technique does not ensure, however, that all elements of the definitions are actually taken into account when applying the relevant provisions. Those elements are decisive for the scope of the protection afforded to habitats and species.

14. Thus, for example, when assessing effects on a habitat, account must be taken not only of its general appearance but also of its typical species as referred to in Article 1(e). Projects which, although neither reducing in size nor endangering the existence of a habitat type on a specific area of land, are nevertheless harmful for particular typical species are indeed significant, therefore, for the conservation status of that habitat type.

15. For that reason, Paragraphs 5(8) and (9) and 22a(3) and (4) of the Naturschutzgesetz of Salzburg cannot be considered an adequate transposition of Article 1(e) and (i) of the Habitats Directive.

2. Article 1(g) of the Habitats Directive

16. Article 1(g) of the Habitats Directive is worded as follows:

‘(g) species of Community interest means species which, within the territory referred to in Article 2, are

(i) endangered, except those species whose natural range is marginal in that territory and which are not endangered or vulnerable in the western palearctic region; or

(ii) vulnerable, i.e. believed likely to move into the endangered category in the near future if the causal factors continue operating; or

(iii) rare, i.e. with small populations that are not at present endangered or vulnerable, but are at risk. The species are located within restricted geographical areas or are thinly scattered over a more extensive range; or

(iv) endemic and requiring particular attention by reason of the specific nature of their habitat and/or the potential impact of their exploitation on their habitat and/or the potential impact of their exploitation on their conservation status.

Such species are listed or may be listed in Annex II and/or Annex IV or V’.

17. Transposition of that concept is necessary because of the use to which it is put in setting the objective in Article 2(2) of the Habitats Directive. According to that provision, 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. That objective is in turn significant for the scope of the surveillance obligation provided for by Article 11 of the Habitats Directive, an obligation which must be transposed into national law in a detailed, clear and precise manner. ( )

18. Austria argues that this definition is adequately covered by Paragraphs 3a, 22a, 22b and 29 et seq. of the Naturschutzgesetz of Salzburg.

19. Those provisions concern, however, only a weighing of interests and compensatory measures (Paragraph 3a), European areas of conservation (Paragraphs 22a and 22b) and protection of flora (Paragraph 29 et seq.). The concept of a species of Community interest is not even mentioned there. Transposition of Article 1(g) of the Habitats Directive by means of the provisions mentioned is thus precluded.

3. Article 1(l) of the Habitats Directive

20. Article 1(l) of the Habitats Directive is worded as follows:

‘(l) 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’.

21. In Austria’s view that definition is adequately transposed by means of Paragraphs 5(9) and 22a of the Naturschutzgesetz of Salzburg. Those provisions concern the conservation objectives of European areas of conservation (Paragraph 5(9)) and the protective regime to be established for those areas (Paragraph 22a). By way of supplement to the argument advanced by Austria, the definition of European areas of conservation set out in Paragraph 5(10) also must be taken into account.

22. The term ‘special area of conservation’ is not mentioned in the Naturschutzgesetz of Salzburg. Instead, the Law uses the term ‘European area of conservation’. Paragraph 5(10) does not thereby refer – unlike Article 1(l) of the Habitats Directive – to those sites which have been designated by the Member States through a statutory, administrative and/or contractual act, but to those sites which, in accordance with Article 4(2) of the Habitats Directive, the Commission has included in the list of sites of Community importance and those sites which, in accordance with Article 4(1) of the directive, the Province of Salzburg proposed to be included in that list. That formulation is not harmful, however, to an exact transposition of the definition, since it simply results in an – even desirable – situation of more extensive protection in temporal terms for ‘European areas of conservation’.

23. Admittedly, Paragraph 5(10) in addition contains merely a reference to the sites concerned, but not – as in Article 1(l) of the Habitats Directive – a reference to the measures to be applied to those sites. Paragraph 5(10) must be read in conjunction with Paragraph 5(9), however, which states the conservation objectives of a European area of conservation to be ‘maintenance or restoration at a favourable conservation status’ of, inter alia, the natural habitats referred to in Annex I to the directive and the species of fauna and flora listed in Annex II to the directive. Paragraph 22a(2) of the Naturschutzgesetz of Salzburg specifies the measures to be taken in pursuit of those objectives by means of regulations adopted by the Provincial Government.

24. A combined examination of the provisions set out in Paragraphs 5(9) and (10) and 22a of the Naturschutzgesetz of Salzburg results, therefore, in a definition of ‘European area of conservation’ which in fact takes into account all the elements of the definition of ‘special area of conservation’ in Article 1(l) of the Habitats Directive. Accordingly, the definition in Article 1(l) of the Habitats Directive has been adequately transposed in Salzburg.

B – Article 6 of the Habitats Directive

1. Article 6(1) of the Habitats Directive

25. Article 6(1) of the Habitats Directive requires Member States to establish the necessary conservation measures for special areas of conservation and is worded as follows:

‘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.’

a) Lower Austria

26. The Commission argues that conservation measures necessary in accordance with Article 6(1) of the Habitats Directive must be adopted in all cases and not only ‘if need be’ (‘gegebenenfalls’). That has not occurred in the case of Lower Austria. Paragraph 9(5) of the Naturschutzgesetz (Law on Nature Protection) of Lower Austria provides that ‘European areas of conservation shall, if need be, be the subject of appropriate maintenance, development and conservation measures of a governmental or contractual nature’.

27. On this point, Austria argues that Article 6(1) of the Habitats Directive refers only to the ‘necessary conservation measures’ and Paragraph 9(5) of the Naturschutzgesetz of Lower Austria is interpreted in such a way that whenever conservation measures are necessary, the situation is treated as one where the proviso ‘if need be’ (‘gegebenenfalls’) applies and thus conservation measures are adopted.

28. Both Article 6(1) of the Habitats Directive and Paragraph 9(5) of the Naturschutzgesetz of Lower Austria employ the expression ‘if need be’. In the legislative provision of Lower Austria that expression relates, however, to conservation measures in general, whereas in the directive it concerns the differing means of conservation.

29. According to Article 6(1) of the Habitats Directive, conservation measures must be adopted, therefore, where they are necessary. A discretion exists only as regards the choice of the methods to be adopted. According to the wording of Paragraph 9(5) of the Naturschutzgesetz of Lower Austria conservation measures are, on the contrary, not mandatory, but to be carried out only ‘if need be’. The circumstances in which adoption of conservation measures is required remain, however, unclear.

30. Thus, Paragraph 9(5) of the Naturschutzgesetz of Lower Austria cannot be regarded as adequately transposing the obligation to adopt in all cases the necessary conservation measures.

31. Austria’s objection that the interpretation placed on the national provision ensures that where conservation measures are necessary they are also adopted does not affect that conclusion. Interpretation of provisions of domestic law in a manner consistent with a directive cannot of itself achieve the clarity and precision needed to meet the requirement of legal certainty. ( ) Nor can mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, be regarded as constituting the proper fulfilment of obligations under Community law. ( ) That applies all the more in situations where – as with the Habitats Directive – particularly faithful transposition is required. ( )

b) Upper Austria

32. The Commission takes the view that the first sentence of Paragraph 15(2) of the Natur- und Landschaftsschutzgesetz (Law on Nature and Countryside Protection) of Upper Austria does not constitute an appropriate transposition of Article 6(1) of the Habitats Directive. The legislative provision of Upper Austria is worded as follows:

‘For countryside conservation areas (Paragraph 11), protected countryside zones (Paragraph 12), European areas of conservation (Paragraph 24) or nature reserves (Paragraph 25), the Provincial Government may prepare countryside maintenance plans defining those measures which in accordance with subparagraph 1 are necessary in the public interest and which do not significantly hamper the authorised economic use of the affected land.’

33. The Commission argues that the matter of adopting countryside maintenance plans, that is to say conservation measures, is placed at the authority’s discretion. However, according to Article 6(1) of the Habitats Directive, adoption of statutory, administrative or contractual measures – in contrast to the establishment of management plans – is mandatory.

34. In this connection, Austria argues that Member States have the choice as to the form of measures to be adopted, since the expression ‘if need be’ in Article 6(1) of the directive relates not only to the establishment of management plans but also to the ‘appropriate statutory, administrative or contractual measures’.

35. It is correct, as argued by Austria, that here the directive grants Member States a certain discretion as regards the form of action chosen. The formulation employed in Paragraph 15(2) of the Natur- und Landschaftsschutzgesetz of Upper Austria does not exclude the possibility, however, that the discretion enjoyed by the Provincial Government also concerns the question of whether conservation measures are to be adopted at all. As I have already observed, that matter does not lie within Member States’ discretion. ( ) Simply for that reason the contested provision does not constitute a correct transposition of Article 6(1) of the Habitats Directive.

36. In addition, the Commission finds fault with the fact that the envisaged measures cannot significantly hamper the authorised economic use of the affected land. That exception is not provided for in Article 6(1) of the Habitats Directive. On this point, Austria argues that only where an economic use accords with the conservation provisions applicable to the protected area is such use ever regarded as ‘authorised’.

37. First, the national provision does not specify what is to be understood by an ‘authorised’ economic use. Admittedly, the interpretation advanced by Austria appears to be possible, but it is similarly conceivable that the lawful exercise of rights to economic use inhibits necessary conservation measures. At the very least, therefore, the provision lacks clarity and does not transpose Article 6(1) of the Habitats Directive with the precision required.

38. Moreover, the provision’s formulation raises the question of the extent to which it is permissible to take economic criteria into account at all in establishing conservation measures in accordance with Article 6(1) of the Habitats Directive.

39. The Court has hitherto taken a view regarding the possibility of taking account of interests of a non-ecological nature only in connection with the selection of protection areas under Article 4 of the Birds Directive ( ) and areas of conservation under Article 4(1) of the Habitats Directive. On making such selection and on defining the boundaries of such an area, interests of a non-ecological nature mentioned elsewhere in the directives may not be taken into account. ( ) In certain quarters, that view has been generalised to mean that in those situations where the Habitats Directive does not expressly provide for non-ecological interests to be taken into account – for example, therefore, within the scope of Article 6(1) of the Habitats Directive – in principle no consideration may be given to such interests. ( )

40. On the other hand, Advocate General Fennelly evidently assumes that, when establishing the necessary conservation measures under Article 6(1) of the Habitats Directive, Member States must strike a balance between ecological requirements and ‘economic, social and cultural requirements and regional and local interests’ within the meaning of Article 2(3) of the Habitats Directive. ( )

41. That view is supported, inter alia, by the need, when establishing conservation measures, to be able to take account of the principle of proportionality, which according to the Court’s consistent case-law constitutes one of the general principles of Community law. ( ) The criteria under Article 6(4) of the Habitats Directive are thus to be applied in the context of Article 6(1) and of Article 6(2), ( ) where appropriate. Therefore, when establishing the necessary conservation measures, economic requirements and the other interests set out in Article 2(3) of the Habitats Directive, that is to say social and cultural requirements and regional and local characteristics, could also be taken into account.

42. It does not follow from that conclusion, however, that as a matter of course lawful economic usage would outweigh the protective objectives, which is the interpretation which could be put on the first sentence of Paragraph 15(2) of the Natur- und Landschaftsschutzgesetz of Upper Austria. Instead, an examination of the alternatives and the striking of a balance in an individual case are always required, and if necessary further measures to ensure the coherence of Natura 2000 must be adopted. For that reason, too, the provision does not constitute an adequate transposition of Article 6(1) of the Habitats Directive.

2. Article 6(2) of the Habitats Directive

43. The wording of Article 6(2) of the Habitats Directive is as follows:

‘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.’

44. The Commission argues that transposition of this provision of the directive cannot be inferred from any of the provisions contained within the Naturschutzgesetz (Law on Nature Protection) of Tyrol. It contends that Paragraph 14(1) of the Naturschutzgesetz of Tyrol, as inserted by the Law at LGBl 50/2004, simply sets out a general objective, the contents of which are comparable with the recitals in the preamble to the Habitats Directive.

45. Austria concedes that the Naturschutzgesetz of Tyrol contains no provision making a firm reference to the prohibition on deterioration. However, Paragraph 14(1) of the Naturschutzgesetz of Tyrol in particular, which was inserted in respect of Natura 2000 sites, is intended to take account of the prohibition on deterioration.

46. On this point, it must be observed, first, that Paragraph 14, to which reference is made, and, for example, Paragraph 22a of the Naturschutzgesetz of Tyrol were first inserted by means of the amending Law at LGBl 50/2004, that is to say, after expiry of the period laid down in the reasoned opinion. In determining the present Treaty infringement proceedings those provisions are, therefore, immaterial. The Commission’s submission in this regard is evidently intended to serve only as a supplementary argument, a fact which is to be deduced, in particular, from the reference in its application to the date on which the amended Paragraph 14 of the Naturschutzgesetz of Tyrol came into force. The form of order sought by it must be interpreted, therefore, as including an admissible request for a declaration that the provisions of the Naturschutzgesetz of Tyrol, as last amended by the Law at LGBl 89/2002, constitute an inadequate transposition of Article 6(2) of the Habitats Directive.

47. As regards the legal position prior to the insertion of Paragraph 14 of the Naturschutzgesetz of Tyrol, Austria does not contest the allegation of inadequate transposition of Article 6(2) of the Habitats Directive, and therefore the complaint must be upheld to that extent.

48. For the remainder, it must be observed that even the new version of the Naturschutzgesetz of Tyrol, as set out in the amending Law at LGBl 50/2004, does not constitute an adequate transposition of Article 6(2) of the Habitats Directive. The Court has held with regard to Article 6(2) of the directive that an express provision of domestic law is required obliging the competent authorities to avoid the deterioration of natural habitats and the habitats of species, since otherwise domestic law would involve an element of legal uncertainty as to the obligations with which those authorities must comply. ( ) The same applies to the prohibition on disturbance of species contained in Article 6(2).

49. Neither Paragraph 14 nor Paragraphs 22 to 24 of the Naturschutzgesetz of Tyrol meet that requirement. Paragraph 14(1) of the Naturschutzgesetz of Tyrol sets out merely the general objective ‘of ensuring the maintenance or where necessary the restoration, at a favourable conservation status, of natural habitat types and habitats of species in their natural range’. Leaving aside the fact that this provision does not contain the prohibition on disturbance of species, Article 6(2) of the Habitats Directive requires deterioration and disturbance to be avoided in each individual area. Nor does Paragraph 23 of the Naturschutzgesetz of Tyrol transpose the prohibition on disturbance of species since it does not concern species within areas of conservation, that is to say species set out in Annex II and typical species of natural habitat types, but the species to be protected in accordance with Article 12 as set out in Annex IV(a) to the Habitats Directive.

C – Article 16 of the Habitats Directive

50. Article 16(1) of the Habitats Directive contains the derogations from species protection. It provides as follows:

‘Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) and (b):

(a) in the interest of protecting wild fauna and flora and conserving natural habitats;

(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;

(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;

(d) for the purpose of research and education, of repopulating and re-introducing these species and for the [breeding] operations necessary for these purposes, including the artificial propagation of plants;

(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.’

1. Lower Austria

51. The Commission criticises the fact that Paragraphs 20(4) and 21 of the Naturschutzgesetz of Lower Austria not only omit the criterion concerning ‘maintenance at a favourable conservation status’ but also do not exhaustively list the conditions governing derogation from Articles 12 to 15 of the Habitats Directive.

52. Austria argues that the protection required by the Habitats Directive is ensured through the fact that national authorities have to act in conformity with the directive and, in the interests of a uniform implementation of the law, the criteria set out in hunting law are observed in addition. That leads to a situation where, in practice, derogations are authorised very restrictively. That result is ensured also by the case-law of the highest courts.

53. As I have already observed, administrative practices in conformity with a directive are inadequate to ensure its transposition. ( ) As the Court has held with regard both to Article 16 of the Habitats Directive ( ) and to the comparable Article 9 of the Birds Directive, ( ) the criteria on the basis of which Member States may derogate from the prohibitions imposed by the directive must be reproduced, instead, in unambiguous provisions of national law. In the context of such transposition, Article 16 of the Habitats Directive must be interpreted restrictively, since it defines in a precise manner the circumstances in which Member States may derogate from Articles 12 to 15 of the directive. ( )

54. The formulation employed by Paragraph 20(4) of the Naturschutzgesetz of Lower Austria permits derogations to be authorised ‘where there is no reason to fear a material risk to … flora … and … fauna’. Article 16 of the Habitats Directive requires, however, that a derogation must not be ‘detrimental to the maintenance of the populations of the species concerned at a favourable conservation status’. It is to be feared that, even in circumstances where the population concerned is not at a favourable conservation status, Paragraph 20(4) as formulated allows detriment which should be prohibited to be permitted on the basis that it is not ‘material’. Where the conservation status is unfavourable, such detriment is, however, incompatible with Article 16.

55. Admittedly, there may be exceptional circumstances in which, despite the absence of a favourable conservation status, for overriding reasons in the general interest derogation from the prohibitions governing species protection is possible, ( ) but the criterion that there is no material risk to the flora or fauna does not require such circumstances to exist.

56. Furthermore, as regards the reasons justifying a derogation, Paragraph 20(4) of the Law is restricted to the giving of an example, in that it allows for derogations ‘in particular for scientific or pedagogical purposes’. There is thus no exhaustive list of the reasons which justify a derogation.

57. In addition, Austria relies on Article 16(1)(e) of the Habitats Directive. In accordance with that provision, Member States may – in a manner similar to that under Article 9(1)(c) of the Birds Directive – authorise derogations allowing, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities. Austria correctly observes that that provision does not require a reason for the derogation to exist.

58. However, even that derogation under Article 16 of the Habitats Directive may be invoked only if there is no satisfactory alternative and where application of the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. Those conditions are not included in Paragraph 20(4) of the Naturschutzgesetz of Lower Austria.

59. Moreover, Paragraph 20(4) of the Naturschutzgesetz of Lower Austria would need to require compliance with the specific criteria in Article 16(1)(e) of the Habitats Directive, that is to say, the taking or keeping must be under strictly supervised conditions and on a selective basis and its effect must be limited in extent. In particular, the ‘limited extent’ would need to be more closely defined by means of a benchmark. ( ) Paragraph 20(4) also fails to meet those requirements.

60. Austria cannot invalidate the complaints concerning Paragraph 20(4) of the Naturschutzgesetz of Lower Austria by reference to hunting legislation. Rules admittedly exist concerning methods and means of hunting, but those apply only to the field of hunting and in that regard the Commission does not contest them. Application of Paragraph 20(4) is liable, however, to infringe Articles 12 to 16 of the Habitats Directive outside the field of hunting.

61. Paragraph 21 of the Naturschutzgesetz of Lower Austria – also contested by the Commission – excludes commercial, agricultural and forestry use from the prohibitions relating to species protection. In the case of deliberate harm to protected flora and fauna, application of those derogations is, however, expressly excluded.

62. Article 16 of the Habitats Directive does not provide for derogations from the prohibitions relating to species protection in favour of commercial, agricultural and forestry use. Because of the exclusion applying to the derogations in Paragraph 21 of the Naturschutzgesetz of Lower Austria, however, those derogations do not apply in the event of deliberate harm to protected flora and fauna. The prohibitions laid down in Article 12(1)(a) to (c) and Articles 13 to 15 nevertheless expressly or implicitly presuppose the existence of a deliberate act. ( ) Therefore, the derogations in Paragraph 21, which are restricted to non-deliberate acts, cannot infringe those provisions. Accordingly, examination of the conditions governing derogations under Article 16 is to that extent redundant. ( )

63. The position is different in the case of Article 12(1)(d) of the Habitats Directive. The prohibition concerning the deterioration or destruction of breeding sites or resting places laid down therein does not presuppose the existence of a deliberate act. ( ) To that extent, the derogations under Paragraph 21 of the Naturschutzgesetz of Lower Austria from the prohibitions relating to species protection require justification in accordance with Article 16. Paragraph 21 does not meet those requirements, since it does not mention the absence of a satisfactory alternative, the maintenance of the population at a favourable conservation status and the specific derogations provided for in Article 16(1)(a) to (e).

64. Finally, in respect of Paragraph 21 of the Naturschutzgesetz of Lower Austria too, Austria makes reference to the hunting legislation which would have to be observed. Even if the national authorities also observe the criteria laid down in hunting law, this does not create a legal situation, however, which as regards the level of protection and legal certainty would be comparable with a legal rule exhaustively listing the permitted reasons justifying a derogation. Paragraph 95 of the Jagdgesetz (Law on Hunting), pleaded by Austria, does not include a corresponding list of reasons, but prohibits only specific hunting methods in relation to particular species of fauna. Thus, as regards Lower Austria, the complaint concerning the inadequate transposition of Article 16(1) of the Habitats Directive is as a whole well founded.

2. Salzburg

65. The Commission finds fault with Paragraph 34 of the Naturschutzgesetz of Salzburg and Paragraph 104(4) of the Jagdgesetz of Salzburg, in that the derogations do not presuppose the maintenance of the populations at a favourable conservation status, but instead the relevant population of the animal or plant species, or species of game, in question must not suffer deterioration. The Commission takes the view that this wording contradicts the obligation set out in Article 2(2) of the Habitats Directive to restore a favourable conservation status where necessary.

66. Austria counters by arguing that by use of the word ‘verweilen’ in Article 16(1) of the Habitats Directive (‘maintenance’ is used in the English version), reference is made only to maintenance, and not restoration, of a favourable conservation status. To impose an obligation to restore a favourable conservation status, when authorising a derogation, is contrary to the system or incapable of implementation.

67. The word ‘verweilen’ does indeed suggest first of all that the provision refers to the maintenance of a status. The status which is to be maintained is a favourable conservation status within the meaning of Article 1(i) of the Habitats Directive. It follows that – in so far as a favourable conservation status in that sense has not yet been achieved – derogations under Article 16(1) of the Habitats Directive are, as a rule, inadmissible, subject to the existence of exceptional circumstances.

68. The national provisions fails to take adequate account of that fact where it allows derogations subject simply to the condition that ‘the relevant population of the animal or plant species in question … does not suffer deterioration’, without making a link to the absolute objective of maintaining the populations at a favourable conservation status.

69. For the remainder, the Commission finds fault with the fact that under Paragraph 34 of the Naturschutzgesetz of Salzburg derogations may be authorised for the purposes of the production of beverages (point 2 of Paragraph 34(1)) and the construction of installations (point 9 of Paragraph 34(1)). Austria does not contest that argument, rather it gives notice of amending legislation.

70. This complaint must, therefore, be upheld in its entirety.

D – Article 22 of the Habitats Directive

71. Article 22 of the Habitats Directive provides inter alia:

‘In implementing the provisions of this Directive, Member States shall:

(a) …

(b) ensure that the deliberate introduction into the wild of any species which is not native to their territory is regulated so as not to prejudice natural habitats within their natural range or the wild native fauna and flora and, if they consider it necessary, prohibit such introduction. The results of the assessment undertaken shall be forwarded to the committee for information;

(c) …’

72. The Commission argues that Paragraph 17(5) of the Naturschutzgesetz of Lower Austria permits derogation from the basic prohibition on planting or promoting non-native plants or animals where the natural (genetic) characteristics of native species of fauna and flora or the beauty and characteristics of a landscape area will not ‘suffer lasting harm’. Thus, an additional criterion is introduced which is not included in the directive.

73. I concur with that argument. Unlike the directive, national law contains no absolute prohibition on all prejudice, but prohibits only lasting harm to natural habitats and native wild fauna and flora caused by the deliberate introduction of non-native species. That rule does not constitute a proper transposition of the directive’s provision.

III – Costs

74. 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. To the extent that the action is still before the Court, the Commission is for the most part successful in its claims and Austria should therefore be ordered to pay the costs. In accordance with Article 69(5) of the Rules of Procedure, the same applies as regards the pleas which the Commission has withdrawn. In that regard, Austria caused the action to be brought, because national law was brought into line with the requirements of Community law only belatedly. Accordingly, the Republic of Austria should be ordered to pay the costs of the proceedings as a whole.

IV – Conclusion

75. I propose, therefore, that the Court:

(1) Declare that, by failing to transpose correctly the following provisions of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora:

– Article 1(e), (g) and (i) with regard to Salzburg,

– Article 6(1) with regard to Lower Austria and Upper Austria,

– Article 6(2) with regard to Tyrol,

– Article 12 with regard to Styria and Tyrol,

– Article 13 with regard to Carinthia, Styria and Tyrol,

– Article 16(1) with regard to Lower Austria, Salzburg, Styria and Tyrol, and

– Article 22(b) with regard to Lower Austria,

the Republic of Austria has failed to fulfil its obligations under Article 23 of that directive and under Articles 10 and 249 of the Treaty;

(2) Dismiss the remainder of the application;

(3) Order the Republic of Austria to pay the costs.