Case C-191/05

Commission of the European Communities

v

Portuguese Republic

(Failure of a Member State to fulfil obligations – Directive 79/409/EEC – Conservation of wild birds – Special protection area – Alteration without scientific basis)

Opinion of Advocate General Kokott delivered on 23 February 2006

Judgment of the Court (Second Chamber), 13 July 2006

Summary of the Judgment

Environment – Conservation of wild birds – Directive 79/409 – Designation and definition of the boundaries of special protection areas

(Council Directive 79/409, Art. 4(1) and (2))

The ornithological criteria laid down in paragraphs (1) and (2) of Article 4 of Directive 79/409 on the conservation of wild birds are to guide the Member States in designating and defining the boundaries of Special Protection Areas (SPAs). Accordingly, although the areas of an SPA may not provide a habitat for steppe-land birds, but do provide a habitat for other species of wild birds listed in Annex I to the Directive for whose protection that SPA has been designated, a Member State may not reduce the surface area of an SPA or alter its boundaries unless the areas excluded from the SPA are no longer the most suitable territories for the conservation of species of wild birds within the meaning of Article 4(1) of the Directive.

(see paras 10, 12-13)

JUDGMENT OF THE COURT (Second Chamber)

13 July 2006 ( )

(Failure of a Member State to fulfil obligations – Directive 79/409/EEC – Conservation of wild birds – Special protection area – Alteration without scientific basis)

In Case C-191/05,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 28 April 2005,

Commission of the European Communities, represented by M. van Beek and A. Caeiros, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Portuguese Republic, represented by L. Fernandes, acting as Agent,

defendant,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, P. Kūris (Rapporteur), J. Klučka and L. Bay Larsen, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 23 February 2006,

gives the following

Judgment

1 By its application, the Commission of the European Communities asks the Court to declare that, by altering the demarcation of the ‘Moura, Mourão, Barrancos’ Special Protection Area (‘the SPA concerned’), thereby excluding from it areas providing a habitat for species of wild birds for whose protection that SPA was designated, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, ‘the Directive’).

2 Article 4(1) of the Directive provides:

‘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 special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this directive applies.’

3 Following a complaint stating that the SPA concerned had been altered without any scientific basis, on 17 October 2003, the Commission sent the Portuguese Government a letter of formal notice, to which the Portuguese authorities responded by letter of 19 December 2003.

4 On 9 July 2004, the Commission issued a reasoned opinion to the Portuguese Government, stating that, by altering the demarcation of the SPA concerned, thereby excluding from it areas providing a habitat for species of wild birds for whose protection that SPA was designated, the Portuguese Republic had failed to fulfil its obligations under Article 4(1) of the Directive, and calling on that Member State to take the measures necessary to comply with the opinion within two months of receipt thereof. After examining the Portuguese authorities’ response of 24 February 2005 and taking the view that the situation remained unsatisfactory, the Commission brought the present proceedings.

5 In its application, the Commission maintains that, in reducing, by Decree-Law No 141/2002 of 20 May 2002 (Diário da República I, Series A, No 116, of 20 May 2002), the extent of the SPA concerned as defined when it was created by Decree-Law No 384-B/99 of 23 September 1999 (Diário da República I, Series A, No 223, of 29 September 1999), the Portuguese Government excluded from protection several species of wild birds listed on the Natura 2000 Standard Data Form, which was used as a basis for creating that SPA, although those species were to be protected under the Directive.

6 The Commission further maintains that the alteration of the boundaries of the SPA concerned has no scientific basis, which is contrary to the requirements laid down in the Court’s case-law.

7 The Portuguese Government, for its part, recognises that, irrespective of the discretion enjoyed by the Member States, the boundaries for SPAs must be defined in accordance with the criteria laid down in the Directive, as emphasised in the case-law of the Court.

8 That government states that new, adequate boundaries are currently being drawn up for the SPA concerned. They will take into account, on the one hand, the requirements for adequate protection of the species on account of which that area was designated as an SPA, such as the crane (Grus grus), the eagle owl (Bubo bubo), the black vulture (Aegypius monachus), the booted eagle (Hieraaetus pennatus) and the griffon vulture (Gyps fulvus), and, on the other hand, the protection necessary for steppe-land birds in suitable areas.

Findings of the Court

9 It must be borne in mind that Article 4 of the Directive lays down a protection regime which is specifically targeted and reinforced both for the species listed in Annex I and for migratory species, an approach justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage of the Community (see to that effect, Case C‑169/89 Van den Burg [1990] ECR I-2143, paragraph 11, and Case C‑44/95 Royal Society for the Protection of Birds [1996] ECR I‑3805, paragraphs 23 and 26).

10 It is the ornithological criteria laid down in paragraphs (1) and (2) of Article 4 which are to guide the Member States in designating and defining the boundaries of SPAs (see, to that effect, Royal Society for the Protection of Birds, paragraph 26).

11 It follows from the provisions of Decree-Law No 141/2002 that the boundaries of the SPA concerned were altered on the ground that that SPA included areas which were not important habitats for steppe-land birds.

12 However, as rightly pointed out by the Commission, although the areas excluded from the SPA concerned by that Decree-Law do not provide a habitat for steppe-land birds, they did provide a habitat for other species of wild birds listed in Annex I to the Directive for whose protection that SPA had been designated, namely the crane (Grus grus), the eagle owl (Bubo bubo), the black vulture (Aegypius monachus), the booted eagle (Hieraaetus pennatus) and the griffon vulture (Gyps fulvus).

13 In those circumstances a Member State may not reduce the surface area of an SPA or alter its boundaries unless the areas excluded from the SPA are no longer the most suitable territories for the conservation of species of wild birds within the meaning of Article 4(1) of the Directive.

14 The Portuguese Government has not even sought to establish the existence of such a situation in this case.

15 The Commission’s action must therefore be held to be well founded.

16 In the light of the foregoing considerations, it must be held that, by altering the demarcation of the SPA concerned, thereby excluding from it areas providing a habitat for species of wild birds for whose protection that SPA was designated, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of the Directive.

Costs

17 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 asked that the Portuguese Republic be ordered to pay the costs and the latter has been unsuccessful in its defence, it must be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby:

1. Declares that, by altering the demarcation of the ‘Moura, Mourão, Barrancos’ Special Protection Area, thereby excluding from it areas providing a habitat for species of wild birds for whose protection that area was designated, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

2. Orders the Portuguese Republic to pay the costs.

[Signatures]