OPINION OF ADVOCATE GENERAL

VAN GERVEN

delivered on 9 June 1993 ( *1 )

Summary

The relevant provisions, facts and legal background to the proceedings The alleged infringement of Article 4(1 ) and (2) of the directive on wild birds The alleged infringement of Article 4(4) of the directive on wild birds Relationship between Article 4(1 ) and (2) and Article 4(4) Assessment of the acts complained of by the Commission Assessment of each of the acts specifically complained of by the Commission First complaint: the industrial estates at Laredo and Colindres Second complaint: the in-filling works at Escalante Third complaint: the tipping of material from the Montehano quarry Fourth complaint: the construction of the new Argoños-Santoña road Fifth complaint: the acquaculture projects Sixth complaint: the tipping of household refuse and the discharge of waste water The alleged infringement of Article 3 of the directive on wild birds Conclusion

Mr President,

Members of the Court,

1. The present case concerns an action brought by the Commission against the Kingdom of Spain on the basis of Article 169 of the EEC Treaty. The Commission seeks a declaration by the Court that, by failing to take upkeep and management measures, in accordance with the ecological needs of habitats, or measures to re-establish biotopes which have been destroyed in the Santoña marshes, by not classifying those marshes as a special protection area and by not taking appropriate steps to avoid pollution or deterioration of habitats in that area, contrary to the provisions of Articles 3 and 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ( 1 ) (hereinafter ‘directive on wild birds’ or ‘the directive’), Spain has failed to fulfil its obligations under Articles 5 and 189 of the EEC Treaty.

The relevant provisions, facts and legal background to the proceedings

2. The directive on wild birds was adopted by the Council in 1979 pursuant to the Community's first programme of action on the environment. ( 2 ) According to the preamble to the directive and Article 1 thereof, its purpose is to ensure the conservation of the species of naturally occurring birds in the wild state in Europe. In view of their importance for the purposes of the present case, I think it will be useful to reproduce here the full text of Article 1(1) and (2), Article 2, Article 3 and Article 4(1), (2) and (4) of the directive: ‘Article 1 1. This directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation. 2. It shall apply to birds, their eggs, nests and habitats. 3. (...) Article 2 Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level. Article 3 1. In the light of the requirements referred to in Article 2, Member States shall take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1. 2. The preservation, maintenance and re-cstablishment of biotopes and habitats shall include primarily the following measures: (a) creation of protected areas; (b) upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones; (c) re-esiablishmcnt of destroyed biotopes; (d) creation of biotopes. Article 4 1. 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. 2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance. 3. (...) 4. In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.’

3. The Santoña marshes are situated on the coast of Cantabria, in northern Spain, on land belonging to the municipalities of Santoña, Argoños, Escalante, Bárcena de Cícero, Laredo and Colindres. This is a funnel-shaped estuary, into which five rivers ( 3 ) flow to form a bay leading to the open sea. In this sheltered bay, the fresh water from the rivers mingles with the salt water from the sea. More than 3500 hectares of mud or salt meadowland are exposed at low tide. As in other funnel-shaped estuaries, the conditions favour the presence of invertebrate fauna which form the staple diet of a great many aquatic birds. The Santoña marshes are remarkable for the presence of a large colony of birds. Some of them are permanent inhabitants of the estuary, while others are seasonal visitors from various parts of Europe. In the course of the season, the population comprises between 15000 and 20000 birds belonging to a hundred or so different species. Those observed include birds belonging to 19 of the species listed in Annex I to the directive on wild birds, which are consequently of interest for the purposes of Article 4(1) and (4) of the directive, cited above. ( 4 ) As it will subsequently become clear, the present case is primarily (but not exclusively) concerned with one of those 19 species of birds, namely the spoonbill (Platalea leucorodia). The Santoña marshes are also regularly visited by at least 14 species of migratory birds that are of interest for the purposes of Article 4(2) and (4) of the directive on wild birds. ( 5 )

4. As a result of various complaints, the Commission became aware of a number of measures and acts which, it claims, are likely to cause pollution and deterioration in the Santoña marshes and consequently to affect the conservation of various species of birds. The six facts in question are: — the establishment of industrial estates at Laredo and Colindres on land that is part of the Santoña marshes; the plan by the municipality of Colindres to fill in the area adjoining the industrial estate; the construction and sealing of a dyke surrounding the industrial estate and the adjoining land; — the filling in of marshland by the municipality of Escalante with a view to laying out a park and sports grounds on the land; — the tipping, in the area of marsh in the vicinity of Montehano, of unused building material from the Montehano quarry; — the construction of a new road across the marshland, between Argoños and Santoña; — the concession of a section of marsh to a Santoña fishermen's association for clam-farming and plans for other acquaculture projects in the marshes; — the tipping of household refuse and the discharge of untreated waste water, into the Santoña marshes by the municipalities of Santoña, Cicero, Laredo, Colindres, Escalante and Argoños.

5. In the light of this information, the Commission gave the Spanish Government, on 18 July 1988, formal notice of the initiation of a procedure under Article 169 of the EEC Treaty for failure to fulfil Articles 3 and 4 of the directive on wild birds. ( 6 ) After the Spanish Government had submitted its observations, the Commission delivered a reasoned opinion on 27 June 1989, asking Spain to put an end to the said infringements within one month. As the Spanish Government continued to dispute the alleged infringements of the directive on wild birds, the Commission brought the matter before the Court by application of 30 November 1990. ( 7 )

6. According to the Commission, Spain has failed in three respects to fulfil its obligation to comply with the directive on wild birds: — first, it claims that the six contested facts (sec section 4 above) constitute an infringement of Article 3 of the directive on wild birds, particularly the provisions of paragraph 2(b) and (c) of that article; — secondly, it claims that by not classifying the Santoña marshes as a special protection area, Spain has infringed Article 4(1) and (2) of the directive; — lastly, it claims that the six contested facts also constitute an infringement of Article 4(4) of the directive. The Spanish Government disputes all these allegations. I propose to examine first the infringement of Article 4(1) and (2) (see sections 7 to 17 below) and Article 4(4) (sections 18 to 54), and then the infringement of Article 3 (sections 55 to 59). One of the questions at issue between the Commission and the Spanish Government is whether Article 3 applies to situations that are covered by the specific provisions of Article 4. I must therefore examine first of all whether Article 4 has in fact been infringed in this case.

The alleged infringement of Article 4(1) and (2) of the directive on wild birds

7. Paragraph (1) of Article 4 of the directive on wild birds (the full text of which is reproduced in section 2 above) concerns the species of birds mentioned in Annex I to the directive. These are species that are in danger of extinction or, in the judgement of the Community legislature, deserve special attention. Under the first subparagraph of Article 4(1), special conservation measures must be taken concerning the habitat of these species of birds. Under the fourth subparagraph of Article 4(1), Member States are required to ‘classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species’. Paragraph (2) of Article 4 (see again section 2 above) concerns migratory birds that are not listed in Annex I but regularly occur in the territory in question. Member States are required to take ‘similar measures’ for these species of birds. This means that the most suitable territories for the conservation of these species must also be classified as special protection areas. ( 8 ) In the present case, the Commission claims that Spain has failed to classify the Santoña marshes as a special protection area and consequently to comply with Article 4(1) and Article 4(2).

8. The Commission gives a number of reasons why the Santoña marshes are of interest for the purposes of some of the birds listed in Annex I to the directive and some other migratory birds, designed to show that the Santoña marshes are among ‘the most suitable territories’ within the meaning of Article 4(1) and (2). The marshes are visited by altogether 19 of the species listed in Annex I to the directive. It appears, on the basis of the internationally recognized numerical criteria, that the Santoña marshes are of international importance for the conservation and survival of one species, namely the spoonbill (Platalea leucorodia), and of national interest for two other species, the cormorant (Phalacrocorax carbo sinensis) and the little egret (Egretta garzetta). The marshes also provide a refuge for at least 14 other species of migratory birds. It is apparent, on the basis of the same scientific criteria, that the Santoña marshes are of international interest for three of those species. And they are also, it seems, of national interest for more than ten species.

9. Almost all the evidence produced by the Commission relates specifically to the spoon-bill. It claims that the Santoña marshes are of vital interest for the survival of that species of birds, providing an essential staging post (1. e. resting and feeding area) on their migration route between the Netherlands and North Africa. In support of its arguments, the Commission cites a number of specialized ornithological works and a study reporting observations made in the Santoña marshes in 1990. It appears that the spoonbill population in Western Europe comprises some 1100 pairs, most of them nesting in the Netherlands. According to the study, almost 600 of the 1100 birds of breeding age in the Netherlands had passed through northern Spain on their way to North Africa. The Santoña marshes are on the migration route of the spoonbill from the Netherlands and the area is essential in view of the gradual disappearance of other similar areas on the Cantabrian coast. The Spanish Government, for its part, has acknowledged to the Court that the Santoña marshes ought to be classified as a special protection area to provide protection for the spoonbill. ( 9 ) That recognition does not however extend to the other species of birds at issue, in particular the other migratory birds that are of interest for the purposes of Article 4(2).

10. It is quite clear from the directive on wild birds that, in the words of an earlier judgment of the Court, ‘the Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas’ pursuant to paragraph (1) of Article 4 of the directive. ( 10 ) However, as the Commission rightly observes, that discretion is not absolute. The directive provides that ‘the most suitable territories in number and size’ are to be classified as special protection areas for the conservation of these species ‘in the geographical sea and land area where this directive applies’ (end of the fourth subparagraph of Article 4(1)). In my view, that means that a Member State faced with cogent, scientifically sound, evidence that a habitat is of unique or very particular interest for the conservation of one of the species of birds listed in Annex I to the directive or a regularly occurring migratory species, would be failing to fulfil its obligations if it did not classify that habitat as a special protection area.

11. In the present case, it seems to me that the Commission has shown sufficiently cogently by means of scientific evidence that the Santoña marshes are of unique, or at the least very particular interest for the conservation of the spoonbill, which is mentioned in Annex I to the directive. As I have already said, the Spanish Government itself has recognized that this is so, in the procedure before the Court. This does not apply to the other species of birds mentioned by the Commission, in particular the migratory birds that are of interest in the light of paragraph (2) of Article 4. With respect to those birds, the Commission has confined itself to referring to numerical criteria and has produced no evidence whatsoever as to why the marshes should be of unique or very particular interest for those birds. ( 11 ) For that reason, I consider that the Commission's application for a declaration that Spain has infringed Article 4(2) should be dismissed. ( 12 )

12. Although Spain has recognized that the Santoña marshes ought in principle to be classified as a special protection area because of their importance for the spoonbill, it nevertheless denies that it has failed to fulfil its obligation to comply with Article 4(1) of the directive on wild birds. Spain considers that it is acceptable to comply with that provision of the directive gradually, progressively and within a reasonable time. In the present case, it contends that the obligation has been fulfilled in that the Santoña marshes were classified as a game reserve in 1987, afforded provisional protection in 1991 in the course of a procedure to classify them as a nature reserve, and finally classified as a nature reserve under a Law passed in 1992. The Commission, on the other hand, claims that the relevant date for the purpose of determining Spain's obligations is 1 January 1986, when that country joined the Community, and furthermore that the measures subsequently taken by Spain afford only partial protection and are consequently inadequate.

13. The directive on wild birds was adopted in 1979, that is, before Spain's accession to the Community on 1 January 1986. Article 2 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic ( 13 ) provides that: ‘From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions of the Communities before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.’ Article 395 of that Act provides that: ‘The new Member States shall put into effect the measures necessary for them to comply, from the date of accession, with the provisions of directives and Decisions within the meaning of Article 189 of the EEC Treaty (...) unless a time-limit is provided for in the list of Annex XXXVI or in any other provisions of this Act.’ As neither the Act of Accession nor the annex mentioned contain any particular provision relating to the directive on wild birds, it must be taken that Spain ought to have put into effect on 1 January 1986 the measures necessary to implement the directive, and consequently also Article 4(1) thereof, from that date. In other words, Spain had entered into an obligation, in this connection, ( 14 ) to achieve a particular result with immediate effect.

14. For its part, the Spanish Government argues in its defence that the nature of the obligation set out in Article 4(1) is such that all that is required is gradual and progressive administrative action to achieve the desired result, in this case the conservation of the protected species of birds, within a reasonable time. It contends that Spain has demonstrably made a sustained administrative effort of this kind: it has already established 114 special protection areas in its territory, covering a greater area than in any other Member State, and, with respect to the Santoña marshes, has adopted successive protection measures in 1987 (game reserve), 1991 (provisional protection) and 1992 (definitive protection as a nature reserve). With the adoption of this last measure, it claims that Spain has complied fully with the provision contained in Article 4(1), save in the purely formal matter of the title ‘special protection area for birds’. In any event, it contends that the result sought by that provision has not been jeopardized, since it appears from the statistics on the subject that the number of spoonbill recorded in the marshes has not declined in the most recent years for which figures are available (namely, up to 1989).

15. I cannot agree with that argument. In the first place, the Spanish Government's case is based on a minimalist interpretation of the obligations imposed on Member States under the directive on wild birds. It is true that the principal objective of the directive on wild birds, as stated in Article 1, is ‘the conservation of all species of naturally occurring birds in the wild state’ and that one central underlying concern addressed is the fear that protected species of birds will become extinct. It is also true that, under Article 189 of the EEC Treaty, a directive is binding ‘as to the result to be achieved’but leaves to the Member States ‘the choice of form and methods’. The point is, however, that the directive on wild birds, in particular Article 4(1) thereof, lays down more specific obligations with respect to the ‘result to be achieved’ than the purely general objective of conserving endangered species. As I have already observed (in section 10 above), the fourth subparagraph of Article 4(1) imposes an obligation to classify as special protection areas the habitats that are most suitable for the species of birds mentioned in Annex I. There is no reference in Article 4 to any period of grace, once it is established that a given area is of unique or very particular interest for a bird listed in Annex I, bearing in mind the need for protection. Moreover, for the purposes of classifying such a special protection area, the fact that Spain has already established 114 other special protection areas ( 15 ) cannot be accepted as a justification. The obligations laid down in Article 4(1) of the directive on wild birds are applicable, distinctly, to each of the birds mentioned in Annex I and the fact that there are special protection areas for other birds in other regions therefore does not release Spain from the obligation in the present case with regard to the spoonbill in the Santoña marshes.

16. The above considerations do not mean that, in applying Article 169 of the EEC Treaty, the Commission may not show some understanding of the special circumstances a Member State may face in fulfilling an obligation under Community law. Indeed allowance is made for such a contingency in the discretion accorded to the Commission as to whether or not it brings an action for failure to fulfil obligations under Article 169 of the EEC Treaty and when it does so. ( 16 ) In the present case, the Commission put Spain on formal notice on 18 July 1988, delivered a reasoned opinion on 27 June 1989, giving Spain a further month to comply, and brought an action before the Court on 30 November 1990 (see point 5 above). It follows that the Commission gave Spain plenty of time to comply with the directive in question and in particular to classify the Santoña marshes as a special protection area in accordance with Article 4(1). According to its reply of 28 July 1989 to the reasoned opinion, the only measure Spain has so far taken ( 17 ) has been to classify the Santoña marshes as a game reserve by Decree No 30/1987 of 8 May 1987 of the Regional Government of Cantabria. ( 18 ) There can be little doubt that that measure, which is simply a ban on hunting, does not meet the requirements of Article 4(1) of the directive on wild birds. It is undeniably useful, even essential, but it is certainly not tantamount to establishing a special protection area for birds. Moreover, the Spanish Government does not claim that this ban on hunting in itself constitutes compliance with the fourth subpara graph of Article 4(1), but contends only that this measure is a step in the gradual and progressive compliance with that provision.

17. The other measures of protection to which Spain refers are the provisional protection of the Santoña marshes by Decree No 43/1991 of 12 April 1991 ( 19 ) and their definitive protection by Law No 6/1992 of 27 March 1992. ( 20 ) It must be borne in mind, in this connection, that — in determining whether a Member State has fulfilled its obligations in the context of an action under Article 169 — the Court cannot take account of measures which the Member State concerned has taken after the action was brought. ( 21 ) I therefore take the view that Spain has neglected to classify the Santoña marshes as a special protection area, contrary to Article 4(1) of the directive on wild birds.

The alleged infringement of Article 4(4) of the directive on wild birds

18. Article 4(4) of the directive on wild birds (reproduced in section 2 above) requires Member States, in respect of the protection areas referred to in Article 4(1) and (2), to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds. Outside these protection areas, Member States are also to strive to avoid pollution or deterioration of habitats.

19. The Commission considers that Spain has failed to fulfil its obligation to comply with that provision. The Commission's complaint is based on six facts (mentioned in section 4 above): the works in connection with the establishment of industrial estates at Laredo and Colindres, the filling in of marshland at Escalante, the tipping of material from the Montehano quarry, the construction of a road between Argoños and Santoña, the acquaculture projects and, lastly, the tipping of solid waste and the discharge of waste water. The Commission claims that those measures and acts arc likely to cause pollution and deterioration in the Santoña marshes and a reduction in their surface area. It also considers that the restoration measures the Spanish authorities have taken or said they will take arc insufficient to remedy the situation.

20. Spain puts forward various arguments, legal and factual, in its defence. According to the Spanish Government, it is legally impossible to claim simultaneously, as the Commission does in the present case, that a Member State is infringing Article 4(1) and Article 4(4). Spain also contends that the Commission's allegations are based either on plans that were never executed or on events that took place before Spain joined the Community in 1986; in any event, the Spanish authorities have since taken the necessary restorative measures. Lastly, it claims that the contested facts are isolated instances of limited importance. The claim that Article 4(4) has not been infringed is also borne out by the fact that the numbers of protected birds have not fallen in the most recent years for which figures are available.

Relationship between Article 4(1) and (2) and Article 4(4)

21. I propose to begin by examining the relationship between Article 4(1) and (2), on the one hand, and Article 4(4), on the other. According to the Spanish Government, these two provisions cannot be infringed simultaneously. Article 4(4) concerns obligations in respect of the special protection areas referred to in paragraphs 1 and 2. There can therefore be no question of an infringement of Article 4(4) until an area has been so classified. In the present case, this means that the Commission's claim with respect to Article 4(4) must be dismissed on the ground that the facts on which it is based predate the Law of 1992, which (according to the Spanish Government, at least) classified the Santoña marshes as a special protection area within the meaning of Article 4(1).

22. I cannot agree with the Spanish Government's arguments in this connection. In the first place, it must be pointed out that the appropriate steps to avoid pollution or deterioration of habitats, mentioned in the first sentence of Article 4(4), do not apply exclusively but only in particular to the habitats referred to in Article 4(1) and (2). According to the second sentence of paragraph 4, Member States must also ‘strive’ to avoid pollution or deterioration of habitats outside the protection areas. In the second place, under Article 4(1) — and this also applies to the ‘similar measures’ mentioned in Article 4(2) — Member States are required in general to take protection measures and in particular (thus, not exclusively) to classify as special protection areas the habitats of the species of birds mentioned in Annex I. It follows that the system of protection provided for in Article 4 does not consist exclusively of classifying areas as special protection areas and/or protecting habitats in special protection areas. Lastly and most importantly, if it were to be accepted that it is impossible for paragraph 4 to be infringed unless paragraph 1 or paragraph 2 has first been implemented by establishing special protection areas, it would be too easy to escape from the specific obligations imposed by Article 4. As paragraph 4 imposes obligations in a special protection area, those obligations must consequently also be fulfilled in cases where, contrary to paragraph 1 or paragraph 2, such an area has not (yet) been established. The obligation in the present case, in the words of the first sentence of paragraph 4, is to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant. ( 22 )

Assessment of the acts complained of by the Commission

23. It follows from the above examination of the relationship between Article 4(1) and (2) and Article 4(4) and from the finding, prior to that examination, that Spain has failed to classify the Santoña marshes as a special protection area, contrary to Article 4(1), that the six measures and acts at issue must be assessed on the basis of the standard laid down in the first sentence of Article 4(4). That provision, as I have already said, requires Member States to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, ‘in so far as these would be significant having regard to the objectives of this Article’.

24. I considered the interpretation of that provision in my Opinion in an earlier case, namely Case C-57/89 Commission ν Germany. ( 23 ) On the one hand, I rejected the minimalist interpretation that acts or facts are significant only if they endanger the survival and reproduction of the protected species of birds in the area. On the other hand, I also rejected the maximalist interpretation that every activity resulting in pollution or deterioration of habitats or disturbances affecting the birds is prohibited. It appears to me that the correct interpretation, consistent with the objective of Article 4, lies somewhere between the two: ‘In my view the Council intended, in the provision in question, to indicate that no pollution, deterioration or disturbance which significantly affects the quality of the living conditions of the birds may take place in the protection area concerned. It thus also covers negative aspects which, although they do not endanger the survival and reproduction of the birds, do significantly affect their survival and reproduction in the most suitable circumstances.’ ( 24 ) In my view, it follows from that interpretation that decisive importance cannot be attached to the figures produced in the present case, which indicate according to the Spanish Government that the numbers of the protected birds, in particular the spoonbill, recorded in the Santoña marshes did not fall between 1986 and 1989, i. e. in the period to which the Commission's action against Spain relates. ( 25 ) While Article 4(4) is likewise concerned with a significant impact on the quality of the living conditions of the birds, it does not follow that all is well simply because their numbers have not fallen. Moreover, even if activities do have a significant impact on the very survival and reproduction of the birds, this is not necessarily reflected in the results of counts immediately, since the impact of such activities may include long-term or cumulative effects.

25. An assessment of the acts complained of by the Commission on the basis of the standard discussed above also raises the question whether an activity prohibited on that basis may not be justified by invoking some other, superior, interest. In the present case, the Spanish Government defends various facts complained of, individually and as a whole, by referring to their social and economic interest. The Court examined this problem in its judgment in Case C-57/89 Commission ν Germany. ( 26 ) That case concerned dyke-building operations in the Leybucht, a nature reserve in Germany. The operations entailed a reduction in the size of a special protection area. The justification for the operation was based on two considerations, the need to protect the population living behind the dyke against flooding and the desire to ensure that fishing vessels from Greetsiel had access to the harbour. In its judgment, the Court held that such a reduction in size constituted an infringement of Article 4(4) ( 27 ) and stated, with regard to the possibility of justifying it, as follows: ‘Although the Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas pursuant to Article 4(1) of the directive, they do not have the same discretion under Article 4(4) of the directive in modifying or reducing the extent of the areas, since they have themselves acknowledged in their declarations that those areas contain the most suitable environments for the species listed in Annex I to the directive. If that were not so, the Member States could unilaterally escape from the obligations imposed on them by Article 4(4) of the directive with regard to special protection areas. That interpretation of Article 4(4) of the directive is borne out, moreover, by the ninth recital in the preamble, which underlines the special importance which the directive attaches to special conservation measures concerning the habitats of the birds listed in Annex I in order to ensure their survival and reproduction in their area of distribution. It follows that the power of the Member States to reduce the extent of a special protection area can be justified only on exceptional grounds. Those grounds must correspond to a general interest which is superior to the general interest represented by the ecological objective of the directive. In that context the interests referred to in Article 2 of the directive, namely economic and recreational requirements, do not enter into consideration. As the Court pointed out in its judgments in Case 247/85 (Commission v Belgium [1987] ECR 3029) and Case 262/85 (Commission ν Italy [1987] ECR 3073), that provision does not constitute an autonomous derogation from the general system of protection established by the directive.’ ( 28 )

26. In Case C-57/89, that meant specifically that the considerations relating to the protection of the coast were acceptable but, in principle, the social and economic concerns relating to the survival of the fishing port of Greetsiel were not. ( 29 ) However, that part of the project had at the same time specific positive consequences for the habitat of birds. It too could thus be taken into account in order to justify the decision ‘because there were the abovementioncd offsetting ecological benefits, and solely for that reason’. ( 30 ) It seems to me that the view taken by the Court in that case applies not only to a reduction in the size of a special protection area as a result of operations, a reduction which — as I take the judgment to mean — is to be regarded as ‘deterioration’ within the meaning of Article 4(4), but to any form of pollution or deterioration of habitats or disturbances affecting the birds which is covered by that paragraph.

27. I shall now examine the lawfulness or otherwise of the six acts at issue in this case. I must point out, in this connection, that the only facts that can be the subject of an action for failure to fulfil obligations under Article 169 of the EEC Treaty are either facts which had already been complained of in the reasoned opinions addressed to the Member State concerned and which were continued subsequently or are facts which occurred after the opinions had been given but were of the same kind as those to which the opinions referred and constituted the same conduct. ( 31 ) Also, in the case of Spain, the facts must have occurred after 1 January 1986, when Spain joined the Community (see section 13 above). Bearing these points in mind, I shall now examine with respect to each of the acts at issue whether they can be described as pollution or deterioration of habitats or disturbances affecting the birds within the meaning of Article 4(4) or whether they have a significant effect on the living conditions of the birds in the Santoña marshes, in particular the spoonbill. ( 32 ) If necessary, I shall also examine whether the acts can be justified on the ground of a superior general interest within the meaning of the judgment in Case C-57/89.

28. Before proceeding with this examination, however, I should like to explain what the consequences of the Court's judgment would be, should it decide that the facts at issue constitute a failure by Spain to fulfil its obligations. In proceedings under Articles 169 to 171 of the EEC Treaty, the Court's task is confined to determining whether a Member State has failed to fulfil its obligations under the Treaty. However, specific obligations for the Member State to make reparation may nevertheless arise, should the Court find that it has failed to fulfil its obligations under the Treaty. It is for the Commission in the first instance to ensure compliance, as witness the following paragraphs from an order of the Court of 28 March 1980: ‘Article 171 of the Treaty states that “If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice”. As provided for in Article 155 of the Treaty, it is for the Commission to “ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied”; the Commission is therefore under a duty to ensure also that Member States comply with the judgments delivered by the Court of Justice. The Commission in the exercise of this power may bring actions pursuant to Article 169 of the Treaty if it considers that a Member State has not taken the necessary steps to ensure compliance with a judgment or that any measures taken for this purpose do not comply with the obligations arising out of the latter’. ( 33 )

Assessment of each of the acts specifically complained of by the Commission

First complaint: the industrial estates at Laredo and Colindres

29. The first fact complained of concerns the establishment of industrial estates at Laredo and Colindres on land that is part of the Santoña marshes, the plan by the municipality of Colindres to fill in the area adjoining the industrial estate and the construction and sealing of a dyke surrounding the industrial estate and the adjoining land.

30. According to the Commission, the establishment of those industrial estates is leading to the disappearance of a substantial part of the marshland (approximately 80 hectares). The change affects two essential marsh habitats, namely the land crossed by the ebb and flow of the tide and the fringe of vegetation beyond. The contested establishment of the industrial estates has the effect of partitioning, isolating or cutting off certain parts of the marshland. The proposed industrial activities are likely to affect the whole movement of the tides in the marshes and to have a highly adverse effect on the physical and biological systems of the marshes as a whole. In view of the scale of the projects and the fact that they are located in the middle of the estuary, a significant change in the currents in the estuary is to be expected. Those currents, produced by the interaction of the tides and the waters from the rivers, are the principal geomorphological factor in the area. Attention must also be drawn to the danger that execution of the works will jeopardize, reduce and modify the physical and chemical factors that arc crucial to the life of the invertebrate fauna that are the sole source of food for the various wild birds.

31. It seems to me that the plans to establish these industrial estates contested by the Commission may in fact justify the conclusion that Article 4(4) has been infringed, if and in so far as those plans were executed after 1 January 1986, when Spain joined the Community. In my opinion, the Commission has made out a sufficient case for a deterioration of habitats having a significant impact on the quality of the living conditions of the birds in the Santoña marshes, in particular the spoonbill. However, Spain denies that it has failed to fulfil its obligations under Article 4(4), contending that the Commission's allegations relate to facts that occurred before 1986 or to plans that have not been executed.

32. The Spanish Government explains that the municipality of Laredo was granted a concession of 40 hectares of land for the construction of a road along the sea front and development of the remaining land under an administrative decision taken in 1973. The general plan for the development of Laredo provides for the establishment of an industrial area on the marshland covered by the concession. A dyke was consequently built at the beginning of the 1980s, enclosing the area. It is true that in 1988 an area comprising 23.5 hectares of public sea and land territory was transferred to the municipality and in May 1989 the municipality assigned that land to SEPES, a company incorporated under public law, so that it could start the necessary in-filling works and works in con nection with the industrial estate. I Iowcvcr, before those works started, the competent authorities decided to give up their plan to establish an industrial estate. This is clear from an agreement concluded in 1991 between the Minister for Public Works and Town Planning, the Regional Government of Cantabria, and the municipality of Laredo. Under that agreement, the parties decided not to execute the works in connection with the industrial estate, to suspend the concession granted to the commune of Laredo and move the site of the industrial estate onto dry land. The Spanish Government produced documents to the Court, from which it appears that a new site has been chosen for the industrial estate outside the boundaries of the Santoña marshes. The municipality of Colindres was granted a concession similar to that granted to Laredo. At Colindres too, a dyke was built at the beginning of the 1980s enclosing the area destined for an industrial estate. However, in May 1989 the competent central Spanish authority started proceedings to annul the concession granted to Colindres. The municipality of Colindres is willing to give up the concession in return for permission to build a sea-front road on dry land, linking its territory with that of Laredo. The original plan for the Colindres industrial estate will therefore not be implemented.

33. If the facts prove to be as stated by Spain, I do not think it could be found guilty, on this count, of infringing Article 4(4) of the directive on wild birds. As I have said (in section 13 above), the directive on wild birds has been binding on Spain since 1 January 1986. However, the contested plans to establish industrial estates and the construction of a dyke enclosing the land set aside for that purpose date from an earlier time. It is true that preparations to execute the plans, by assigning the land in question to SEPES, continued up to 1989. But in its reply to the reasoned opinion delivered by the Commission ( 34 ) the Spanish Government stated that the actual implementation of those plans had been given up and measures had been announced and subsequently adopted, making the decision not to proceed definitive. ( 35 ) In the context of that decision not to proceed, the Spanish Government undertook to remove all trace of the works already carried out and, in particular, to demolish the dykes built before Spain joined the Community and reclaim the areas at risk. It is for the Commission to ensure that the Spanish Government honours that undertaking. The Commission observes, however, that the dykes that were to have been demolished were re-sealed in the spring of 1986. That act does appear to me to be inconsistent with the undertaking given by Spain to avoid causing any significant deterioration of the habitats of the protected birds after the date of accession. I consider that the act of sealing the dykes is likely to complete the partitioning of the areas in question and permanently prevent the tide from entering that part of the marshes, and that no acceptable reason can be advanced to justify it.

34. The Commission also claims that Article 4(4) is still being infringed because of the damaging consequences for the environment arising from the relocation of the industrial estate. The Court has consistently held that ‘the subject-matter of an application under Article 169 of the Treaty is limited to that defined during the pre-litigation procedure provided for by that article’. ( 36 ) However, the subject of the present action for failure to fulfil obligations is the industrial estates that were originally to have been established within the marshes. The proposed new industrial estate to be established on dry land is not at issue in this case. That measure cannot be regarded, within the meaning of the case-law of the Court (see section 27 above), as a continuation of the facts which were the subject of the reasoned opinion or as a fact which occurred after the opinion was delivered but was of the same kind as those to which the opinion referred: in so far as the industrial estate, in its new location, may cause pollution or deterioration of habitats or any disturbances affecting the birds within the meaning of Article 4(4) of the directive on wild birds, its effects are in any case different from those on which the Commission based its arguments in the pre-litigation procedure. ( 37 )

35. I therefore take the view that the Commission's action against the establishment of industrial estates within the marshes should be upheld, but only in so far as the plans at issue were executed after 1 January 1986 or, to be more precise, only in so far as Spain sealed the dykes enclosing the proposed industrial estates after that date. I also consider that the Court should note Spain's undertaking to demolish the works already completed, in particular the dykes that have been built, and to reclaim the areas at risk.

Second complaint: the in-filling works at Escalante

36. The second complaint concerns the filling in of marshland by the municipality of Escalante with a view to laying out a park and football pitch in 1985. According to the Commission, the park was extended in 1988, making it half as big again, and a second football pilch was added, as well as handball, basketball and tennis courts. The Commission objects to these in-filling works because they are eliminating or reducing areas used as a refuge by aquatic birds.

37. The Spanish Government confirms that the municipality of Escalante has carried out unauthorized in-filling works in publicly-owned marshland since 1982. However, in 1985 the competent authority refused an application for a declaration that the in-filling works were lawful. The administrative appeal lodged by the municipality against that decision is still pending. According to the Spanish Government, there have been no more in-filling works since the additional sports grounds were laid out in 1986. It adds that it will take the necessary coercive measures, should any further illegal in-filling works take place.

38. It appears to me that the laying out of additional sports grounds in 1986, i. c. after Spain joined the Community, clearly constitutes ‘deterioration’ within the meaning of Article 4(4) of the directive on wild birds, because it reduces the space available for aquatic birds. However, I do not think the Commission has succeeded in making out a sufficient case for the living conditions of the birds in the Santoña marshes, in particular the spoonbill, having been significantly affected as a result. It is apparent from the maps produced to the Court ( 38 ) that the sports grounds occupy only a small area at the very edge of the marshland, which appears to be of no interest as a resting or feeding area for the spoonbill or other protected birds. I therefore take the view that the Commission's claim cannot be upheld in respect of this allegation.

Third complaint: the tipping of material from the Montehano quarry

39. The third complaint concerns the tipping, in the area of marsh in the vicinity of Montehano, of unused building material from the Montehano quarry. The Commission claims that the exploitation of the quarry and the tipping of unused material in the marshland have the effect of sealing it off, either directly (debris) or indirectly (erosion and sedimentation), with disastrous results for the fauna living on the bed of the Santoña marshes.

40. The Spanish Government contends that the Commission's objections relate to events that occurred before Spain joined the Community. The Montehano mining company has been in operation since the beginning of the century. Its activities are now controlled in accordance with the mining legislation currently in force and the tipping of unused material into the marshes has been definitively prohibited. The company holding the concession has been approached and asked to remove some of the material it deposited in the mouth of the Escalante river before 1976. Since that time, it is claimed that there has certainly been no increase in the area filled in and some of the tipped material has even been removed. According to the Spanish authorities, the company is in any event to restore the area to the state it was in in 1982.

41. The documents submitted to the Court are somewhat vague as to when the tipping took place. In its reply in 1989 to the reasoned opinion delivered by the Commission, the Spanish Government maintained that tipping had stopped definitively many years before. ( 39 ) The Commission, on the other hand, states in its application instituting the proceedings before the Court that the extraction works at the quarry — and the dumping of unused materials — increased in 1989 when the Argoños-Santoña road was being built (see section 43 below). According to the Commission, this was acknowledged to be so in an ecological guide published by the Regional Council of Cantabria. ( 40 ) The Spanish Government, in its defence, merely repeats its assertion that the tipping has been definitively ended. The Commission, in its reply, continues to maintain that tipping has been resumed and it appended an aerial photograph to prove the point. ( 41 ) The Spanish Government did not address the matter again in its rejoinder. At the hearing, the Commission repeated its allegations. The Spanish Government representative replied that tipping had been definitively prohibited and stopped since March 1993. On the basis of these exchanges between the parties and their statements at the hearing, I think it must be accepted as proven that the operation of the quarry and the tipping of unused material was in fact resumed or continued in the period beginning in 1989, that is to say not only after Spain joined the Community but even after the Commission delivered its reasoned opinion on 27 June 1989 and after the period of one month, set in that opinion, had expired.

42. It seems to me that, in view of its effects, whether direct (debris) or indirect (erosion and sedimentation), there can be no doubt that this tipping can be described as ‘pollution’ and ‘deterioration’ within the meaning of Article 4(4) of the directive on wild birds. However, I question whether the Commission has convincingly shown that the tipping — and I refer here specifically to the tipping that has taken place since Spain joined the Community — has significantly affected the quality of the living conditions of the birds in the Santoňa marshes, in particular the spoonbill. In this connection, the Commission merely stated, as already mentioned, that the direct and indirect sealing caused by the tipping had ‘disastrous results’ for the fauna living in the marshes. No further explanation or evidence has been provided on this point. Nor can I find any additional information in the other documents before the Court. Moreover, the extent of the recent tipping, that is to say the tipping that has taken place since Spain joined the Community, is not clear cither. Lastly, it is apparent from the maps produced to the Court that the quarry and the site of the tipping arc on the very edge of the marshland, in an area which appears to be of no interest as a resting or feeding area for the spoonbill or other birds. I therefore take the view that the Commission's claim that Article 4(4) of the directive on wild birds has been infringed in this respect must be dismissed as unproven.

Fourth complaint: the construction of the new Argoños-Santoña road

43. The fourth complaint concerns the construction of a new road between Santoña and Argoños. ( 42 ) According to the Commission, the net result of constructing that road, which crosses the marshland, will be a significant reduction in the area covered by the marshes, increased drying out, and the gradual disappearance of the species of birds present in the area. The road runs through a qualitatively important part of the Santoña marshes. Its construction causes fragmentation, in that a substantial part of the marsh is cut off. The Commission considers that this will bring about a radical change in the ecological character of the part that is cut off, which will develop in isolation from the rest of the system. In the course of that development, a suitable habitat for birds could be lost with the disappearance of the physical processes that maintain its inherent character. From a biological point of view, these changes will mean the loss of refuge, rest and nesting areas for birds, leading inevitably to a reduction in the populations of birds that have traditionally used these areas. The Commission does not dispute the need to improve the road link to and from Santoña but it considers that, instead of constructing this new road right across the marshes, the Spanish authorities could have improved the existing coast road through Berria, which bypasses them.

44. The Spanish Government, for its part, contends that it was necessary to improve the access roads to and from Santoña, a municipality which has a permanent population of 30000, with considerably more in the summer season. It was also necessary to have a safe road for the lorries serving the Santoña industrial estate, in the interest of the canning industry established there. The existing coast road via Berria, which runs through a highly built-up area, was not sufficiently safe. ( 43 ) The Spanish Government also claims that, in reaching their decision on the new road, the competent authorities thoroughly considered the various options open to them. The reasons governing the choice of the new route were road safety, time-saving, and ease of access to the industrial estate. The alternative, namely to restore the road through Berria, was rejected as the space available was extremely small and it would have been necessary to demolish a large number of buildings. Spain adds that full account was taken of the ecological aspects when building the new road. The original plan for the road was revised to include, among other improvements, the construction of openings in the banks and bridges to allow the water to reach the area of marshland cut off by the road. Consequently, it claims, the volume of water entering with each tide could flow freely and the construction of the road was unlikely to destroy the habitat in the part of the marsh cut off by the road. Moreover, the surface area of that part of the marsh is only 185 hectares or so, i. e. barely 0.5% of the total surface area of the estuary.

45. I do not find the arguments produced by the Spanish Government in its defence convincing. The construction of the new road, which — as the maps and photographs produced to the Court clearly show — cuts right across the marshes, must undoubtedly be described as ‘deterioration’within the meaning of Article 4(4) of the directive on wild birds. The deterioration in question lies in the fragmentation and isolation described by the Commission and in the loss of part of the surface area of the marshes. It is not only the space taken up by the road itself that is lost but also the area cut off by the road. Indeed, it became apparent during the proceedings before the Court that the building of the new road was accompanied and followed by other measures (in-filling and construction works), which entail the loss of a part of the marsh that lies between the new road and the old one. This is confirmed by the 1992 law, under which the Santoña marshes are afforded definitive protection as a nature reserve: ( 44 ) the in-filled land between the new road and the old one is no longer included in the protected area, whereas it was part of the area covered by the 1987 ban on hunting. Moreover, it also seems to me that the road is likely to constitute a ‘disturbance’ affecting the birds within the meaning of Article 4(4), because of the traffic on the road and the fact that ramblers using the road may possibly stray into the marshes. I think it can also be assumed that this deterioration of the habitat and disturbance affecting the birds will have a significant impact on the quality of the living conditions of the birds in the Santoña marshes, in particular the spoonbill. Spain contends that the part of the marshes through which the new road runs is of less interest for the spoonbill and the other birds of major ornithological importance, because these are wild birds and consequently do not visit the parts of the marshes that are close to human habitation, but this argument appears to me to be equivocal to say the least. The fact that the spoonbill and other birds avoid people seems to me rather to suggest that the construction of a road that takes people and traffic deeper into the marshland than ever before constitutes a significant disturbance to the birds and a deterioration of their habitat. Moreover, if the Spanish Government's line of reasoning were to be adopted, it would be possible gradually to reduce the protected territory, claiming on each occasion that the birds did not make much use of the peripheral zones, until eventually no space at all remained for them.

46. Lastly, assuming that the construction of the new road constitutes a deterioration of the habitat and a disturbance significantly affecting the birds, the question arises whether it can be justified on grounds of a general interest superior to the interest of the environment which is pursued by the directive and which docs not relate to the economic and recreational requirements referred to in Article 2 of the directive on wild birds. In my opinion, this is not the case. In so far as the construction of the new road was intended to encourage tourism in the region and industrial activity on the Santoña industrial estate, these arc economic and recreational interests within the meaning of Article 2 and they cannot be taken into account for the purpose of justifying an infringement of Article 4(4). According to the case-law of the Court, Article 2 docs not authorize an autonomous derogation from the general system of protection established by the directive. ( 45 ) Moreover, the advantage gained, namely a saving of 12 minutes in the journey-time, docs not offset the ecological interest that is protected. The sole remaining justification is road safety. One of the reasons for building the new road was the fact that the existing road through the built-up area of Berria was unsafe. However, the safety problem could have been resolved equally well by making adjustments to the existing road or moving the section of it that runs through the built-up part of Berria. This option was ultimately rejected because it would have been necessary to demolish a number of buildings. ( 46 ) In so far as this interest is not an economic one, which, as I have mentioned, does not constitute grounds for an autonomous derogation, it is certainly not superior to the ecological interest pursued by the directive on wild birds. I therefore take the view that the Commission's claim is well founded in this respect.

47. In the reply it submitted to the Court, the Commission also drew attention to another fact in connection with the construction of the Cantabrian motorway in the vicinity of Colindres. Clearly, the Court cannot rule on this point as it was not raised during the pre-litigation procedure or mentioned in the Commission's application instituting the proceedings before the Court. ( 47 )

Fifth complaint: the acquaculture projects

48. ******** The fifth complaint concerns the granting of authorization to a Santoña fishermen's association to farm clams in part of the marsh and plans for other acquaculture projects in the marshes. The Commission considers that those projects are incompatible with the directive for various reasons. The installation of acquaculture facilities not only involves changes that modify the hydrodynamic and sedimentation processes but also destroys the existing structure of the marsh bed, causing the disappearance of fauna from the sites in question. The marine farms result in significant changes in the invertebrate fauna, including the disappearance of the tube worms that provide food for a number of long-billed birds listed in Annex I to the directive, including the spoonbill. These facilities are also equipped with semi-submerged stakes and nets which, the Commission claims, prevent the spoonbill from moving freely in and out with the tides. The changes in the terrain associated with the facilities also prevent the formation, at low tide, of the little pools of water where the spoonbill seek their food. Consequently, so the Commission maintains, not only does the installation of these acquaculture projects result in a reduction in the surface area of the marshland that provides a habitat for aquatic birds; those projects are also likely to destroy the structure of the marsh bed, cutting it off from the influence of the tide and normal conditions of salinity and causing the disappearance of the fauna that provide the birds with food.

49. The Spanish Government replies to these arguments by pointing out that aquaculture in the Santoña marshes has been promoted for a number of years and that the intention was to alleviate the social and economic problems arising from the relative decline in the industrial and fishery sectors. Among the many projects submitted, the only ones to be approved are those that are completely compatible with maintaining the quality of the environment and are also of great social interest, the applicants being cooperatives or even bodies incorporated under public law. In any event, no more than two concessions have ever been actually exploited and they take up only 3.3% of the total surface area of the marsh. One was a project of a Santoña fishermen's association, which had moreover received some assistance from Community funds, and the other was a project in the vicinity of Barcena de Cícero. At the hearing, the Spanish Government representative reported that the first project had been abandoned, obviously because it was not viable.

50. It seems to me that, in principle, in view of the effects described by the Commission (see section 48 above) — and, incidentally, not disputed as a whole by the Spanish Government — such acquaculture projects within the marshes arc undoubtedly to be described as a factor making for the deterioration of habitats and disturbance affecting the birds within the meaning of Article 4(4) of the directive on wild birds. I also think the Commission has produced sufficient evidence that this deterioration of habitats and disturbance affecting the birds have a significant impact on the quality of the living conditions of the birds in the Santoña marshes, in particular the spoonbill. The only argument produced by the Spanish Government in its defence on this point is a reference to the limited scale of the projects that were actually executed. Clearly, Spain cannot be blamed for plans that were never executed, and certainly not for applications for authorization that were refused. However, this certainly does not apply to the two projects that were actually executed and that cover an area (3.3% of the total surface area of the marsh) that in my view is by no means negligible, especially as it is in the very middle of the marshland. This is an essential point of difference between these projects and the in-filling works at Escalante, which were considered above and which, according to Spain — and not disputed by the Commission —, cover only 0.005% of the total surface area of the marsh and arc taking place on the very edge of the marshland, in an area which is of limited interest for the protected birds (see section 38 above). Although one of the two acqualculture projects has since been abandoned, it too is still causing problems since it is clear from photographs submitted to the Court that the dykes or enclosures installed for the project are still there in the middle of the marsh, so that its damaging effects on the environment are still continuing (see section 27 above). Nor can the social and economic argument adduced by the Spanish Government in justification be accepted in the case of those two projects. As already mentioned (in section 25), the economic interests referred to in Article 2 of the directive cannot, according to the case-law of the Court, be invoked as an autonomous derogation from the general system of protection established by Article 4 of the directive on wild birds. The only exception is when the measures prompted by those interests are accompanied by offsetting ecological benefits or guarantees. ( 48 ) However, Spain has not shown that there arc any such offsetting benefits or guarantees. I therefore take the view that the Commission's claim must be upheld in respect of this point.

Sixth complaint: the tipping of household refuse and the discharge of waste water

51. The sixth and last fact at issue concerns the tipping of household refuse and the discharge of untreated waste water into the Santoña marshes by the municipalities of Santoña, Barcena de Cícero, Laredo, Colindrcs, Escalante and Argoños. With respect to the tipping of solid waste, the Commission points out that this affects the currents produced by the interaction of the tides and the waters from the rivers. The movement of those currents determines a series of physical parameters, such as the temperature, salinity, oxygen content and clarity of the waters, which together define the physical and chemical character of the biotope. If the currents are impeded, the values of the physical and chemical parameters of the water are altered and this in turn affects the structure and composition of the communities of benthon and plankton. With respect to the discharge of untreated waste water, the Commission stresses the damaging effects arising from the fact that such waste contains dangerous toxic substances, highly detrimental to the ecological conditions in the Santoña marshes. The animal and vegetable communities at the lowest productive and trophic levels are the first to suffer the consequences of such pollution. The full extent of the adverse effects on the species of birds inhabiting the marshes will become apparent only when all the changes in the plankton, algae and invertebrates that provide them with food have taken place.

52. The arguments produced by Spain in its defence are as follows. With respect to the solid waste, the Spanish Government does not deny that this presented a serious problem in the past but contends that it has been solved by measures taken under the plan for the management of municipal refuse in Santoña bay. Since 1988, the waste from 37 municipalities in the area has been treated at the controlled municipal dump at Meruelo. The Spanish Government does not deny that some tipping was still taking place in 1990, as the photographs produced to the Court by the Commission prove. However, that tipping was the subject of legal proceedings and the district authorities for the Cantabrian coast issued orders for it to cease. It seems that there has been no more tipping since. Moreover, the Spanish Government representative confirmed at the hearing, without challenge from the Commission on this point, that all the municipalities to which the Commission's complaints relate now send their solid waste to the controlled tip at Meruelo. In the light of all this evidence, it seems to me clear that Spain should not be found to have failed to fulfil its obligations in this respect. Since 1988, thus before the Commission delivered its reasoned opinion, the Spanish authorities have taken the necessary measures to put a stop to the tipping of waste which is the subject of the proceedings. It is true that some illegal tipping was still taking place in 1990 but I do not think Spain can be held to blame for that. The competent authorities instituted legal proceedings against that tipping and issued orders for it to cease and the gravity and effectiveness of these measures has not been questioned, even by the Commission. I therefore take the view that the facts complained of were not continued after the Commission's reasoned opinion was delivered and the time-limit set in that opinion had expired ( 49 ) and that the action for failure to fulfil obligations has consequently ceased to have any purpose in respect of this point.

53. With respect to the discharge of waste water, the Spanish Government does not deny that untreated liquid waste from the municipalities of Santoña, Cícero, Laredo, Colindres, Escalante and Argoños has been discharged into the marshes. However, it submits two arguments in its defence. In the first place, it contends that the Commission has not produced evidence that any Community measure on the quality of water has been infringed and there is no provision obliging municipalities to equip themselves with systems for treating waste. In the second place, it points out that, on the initiative of the Community of Cantabria, a programme for the thorough cleaning up of the Saja and Besaya basins, the bay of Santander, the Ásón basin and the Santoña marshes was submitted to the European Community. The whole programme would cost PTA 27000 million. However, the funding obtained from the Community was limited to PTA 1800 million and the Cantabrian authorities had therefore decided to give priority to cleaning up operations in the Saja and Besaya basins, an industrial area where economic activity is in decline (Objective II of the European Regional Development Fund).

54. I am not convinced by these two arguments. The fact that the discharge of waste water is not contrary to the Community rules on water quality — though the Commission claims that it is ( 50 ) — is not a sufficient reason for arguing that the discharge of untreated waste water from domestic and industrial sources (even if such waste did not contain dangerous substances within the meaning of the Community provisions in question) should not be described as ‘pollution of habitats’within the meaning of Article 4(4) of the directive on wild birds and that such discharges do not significantly affect the quality of the living conditions of the birds in the Santoña marshes, in particular the spoonbill. ( 51 ) Nor is it necessary to refer to any provision expressly providing that municipalities must equip themselves with systems for treating waste. The sole remaining question is whether, as the Spanish Government contends, Spain took ‘appropriate steps’within the meaning of Article 4(4) by producing a cleaning-up programme and submitting it to the Community with a view to obtaining funding. I do not think that it did. Article 4(4) of the directive on wild birds quite clearly requires each individual Member State to take the steps laid down in that provision in respect of special protection areas or areas to be classified as special protection areas (see section 22 above). The Community may or may not promise to provide funding for that purpose under its various programmes and initiatives, but that does not alter in any way the obligations incumbent on each Member State. In not taking (or not wishing to take) measures unless they are funded by the Community — for that is Spain's policy on the subject, as I understand it from the arguments produced by the Spanish Government in its defence — Spain is failing to fulfil its own obligations to comply with the directive on wild birds. I therefore take the view that the Commission's claim must be upheld in respect of this point.

The alleged infringement of Article 3 of the directive on wild birds

55. The Commission claims that, on the basis of the complaints which I have already discussed, the Court should declare that Spain has infringed not only Article 4(4) but also Article 3 of the directive on wild birds. Article 3(2) (the text of which is set out in point 2 above) requires Member States to take the necessary measures to ensure ‘the preservation, maintenance and re-establishment of biotopes and habitats’ including, under indents (b) and (c) of that provision, ‘upkeep and management in accordance with the ecological needs of habitats’ and ‘re-establishment of destroyed biotopes’. The Commission's claim with respect to Article 3 is based on its complaints under Article 4(4), expounded and examined above, about the industrial estates at Laredo and Colindres, the in-filling works at Escalante, the tipping of material from the Montehano quarry, the construction of the new Argoños-Santoña road, the acquaculture projects and the tipping of household refuse and the discharge of waste water.

56. The Spanish Government's defence is based on both legal and factual arguments. The factual arguments are the same as those I have already examined with reference to Article 4(4). The legal arguments which I shall now examine relate specifically to Article 3 of the directive on wild birds. In the first place, the Spanish Government contends that the Commission is mistaken about the nature of the list in Article 3(2). In claiming that Spain has not taken the above-mentioned measures, listed in indents (b) and (c) of that provision, the Commission interprets the list as a set of autonomous obligations imposed on the Member States. The Spanish Government, on the other hand, considers that the list merely indicates possible measures, which Member States are required to take only if it is necessary to do so in order to achieve the aim of the directive on wild birds set out in Article 1(1), namely the conservation of all species of naturally occurring birds in the wild state. Secondly — and this follows logically from its first contention — the Spanish Government considers that, to substantiate a claim of infringement of Article 3, it will not do for the Commission merely to point to a hypothetical effect that could be produced by the facts at issue. On the contrary, in view of the directive's objective, which as I have said is the conservation of naturally occurring birds in the wild state, not the protection of biotopes and habitats as an end in itself — this being merely a means to achieve the aforesaid end — a threefold burden of proof rests on the Commission. It must show that the measures and acts complained of are sufficiently substantial to affect the habitat of naturally occurring birds in the wild state. It must also show that the habitat concerned is essential to the survival of the birds in question. And lastly, it must show that the effects of the measures and acts complained of on the habitats have in fact resulted in a significant reduction in the numbers of protected birds present. The Spanish Government's third argument concerns the relationship between Articles 3 and 4 of the directive on wild birds. It contends that those articles are mutually exclusive and that the Commission cannot therefore claim simultaneous infringement of both.

57. I shall begin by examining the last argument which, in my view, is unfounded. There is nothing in the wording of Articles 3 and 4 to suggest that their provisions relate to irreconcilable contingencies or that they arc mutually exclusive. On the contrary, it appears to me — and this is confirmed by the ninth recital in the preamble to the directive — that Article 3 imposes obligations with regard to all species of naturally occurring birds in the wild state and that Article 4 adds specific obligations with regard to the birds mentioned in Annex I and migratory birds not mentioned in that annex. It certainly does not follow, merely because addi tional rules are laid down with respect to those two categories of birds, that the more general provisions are not applicable.

58. The other two arguments adduced by the Spanish Government are, to my mind, more comprehensible. They maintain, essentially, that when the Commission claims that a Member State has infringed Article 3 of the directive on wild birds, it cannot confine itself to showing that the Member State has not taken one or more of the measures listed in paragraph 2 of that Article. On the contrary, it must show that the Member State has not taken the necessary measures for the conservation of species of wild birds. In my view, it is true that the specific measures listed in Article 3(2) are to be construed in the light of Article 3(1) of the directive, under which Member States must take the requisite measures ‘to preserve, maintain or re-establish a sufficient diversity and area of habitats’ for all naturally occurring birds in the wild state (for the full text, see point 2 above). However, that provision gives no indication as to what is to be understood by a ‘sufficient’ diversity and area of habitats. Nevertheless, it is quite clear that the terms refer to the prime objective mentioned in Article 1 of the directive, i. e. that the diversity and area must be ‘sufficient’ for the conservation of all species of naturally occurring birds in the wild state or, more precisely in the words of Article 2 of the directive, ‘sufficient’ to maintain the population of these species ‘at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements or to adapt the population of these species to that level’. It follows from the above considerations that, as the Spanish Government rightly maintains, the list of measures in Article 3(2) of the directive is not a set of autonomous obligations but merely indicates the means Member States are to employ ‘primarily’ (that is to say, ‘by preference’) in order to secure a sufficient diversity and area of habitats, provided that it is necessary to do so in order to conserve the species of wild birds, while taking account of the requirements mentioned in Article 2 of the directive. I would not, however, go as far as the Spanish Government does when it suggests that, to prove infringement of Article 3, it must be shown that there has in fact been a reduction in the numbers of protected birds. To impose such a condition would deprive Article 3 of all preventive effect; it would become impossible to prove that an infringement had occurred until it was too late to do anything about it. However, it is certainly difficult to maintain that Article 3 has been infringed when, as in the present case, the available figures show no reduction in the number of birds.

59. Applying the above considerations to the present case, I must conclude that the Commission has not proved any infringement of Article 3 of the directive. I can concur with the Commission's view that the facts complained of (or at least some of them) indicate a failure in respect of ‘upkeep and management in accordance with the ecological needs of habitats’ within the meaning of Article 3(2)(b). I am thinking primarily, in the present case, of the construction of the new road between Argoños and Santoña which cuts across a highly valuable part of the marsh instead of by-passing it (see points 43, 47 et seq. above). But, as I have already pointed out, the Commission must also show that — to maintain the population of species of wild birds at a level which corresponds to the requirements of Article 2 of the directive, or to adapt the population of these species to that level — a Member State has not provided a sufficient diversity and area of habitats. I do not think that, in the present case, the Commission has shown that the various facts it complains of have, jointly or separately, had the effect of reducing the habitats of any species of wild birds, in respect of diversity and area, to such an extent that they are no longer sufficient for the conservation of the species in question. It should also be observed in the present case that the Spanish authorities paid attention to a good many of the Commission's complaints, with the result that some of the contested plans were not executed or restorative measures were taken or, at the very least, certain damaging acts were stopped. ( 52 ) When the Commission claimed, with particular reference to the spoonbill, that the facts complained of were likely to threaten the survival of that bird, it did not take account of the action the Spanish authorities had taken on some of the points it had raised. I therefore take the view that the Commission's claim that Article 3 of the directive on wild birds has been infringed must be dismissed as unproven.

Conclusion

60. On the above grounds, I suggest that the Court should: Declare that: — by not classifying the Santoña marshes as a special protection area, contrary to Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the protection of wild birds, and — by not taking appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in particular by sealing dykes built round the sites of proposed industrial estates at Laredo and Colindres (while the Court should take formal note in this connection of the fact that the Kingdom of Spain has undertaken to demolish those dykes), by constructing a new road between Argoños and Santoña, by installing certain acquaculture projects in the marshlands and/or failing to demolish the dykes and enclosures surrounding the areas set aside for those projects and by discharging untreated waste water from the neighbouring municipalities into the marshes, contrary to Article 4(4) of that directive, the Kingdom of Spain has failed to fulfil its obligations; Dismiss the remainder of the Commission's application; Order the Kingdom of Spain to pay two-thirds and the Commission one-third of the costs.

( *1 ) Original language: Dutch

( 1 ) OJ 1979 L 103, p. 1.

( 2 ) Declaration of the Council of 22 November 1973 on the programme of action of the European Communities on the environment, OJ 1973 C 112, p. 40.

( 3 ) The Limpias, Rada, Escalante, Argoños and Ásón.

( 4 ) The species in question are: Gavia arctica, Gavia immer, Phalacrocorax carbo sinensis, Egretta garzetta, Ciconia nigra, Platalea leucorodia, Pandion haliactus, Circus aeruginosus, Porzana parva, Himantopus himamopus, Rccurvirostra avosetta, Pluvialis apricaria, Philomachus pugnax, Sterna caspia, Sterna sandvicensis, Sterna albifrons, Chlidonias niger, Alcedo atthis, Acroccphalus paludicola.

( 5 ) The 14 species in question are: Podiceps nigricollis, Ardea cinerea, Numenius phacopus, Numenius arquata, Charadrius hiaticula, Hacmatopus ostralegus, Calidris canuvus, Anas platyrhynchos, Anas penelope, Pluvialis squatarola, Calidris alpina, Tringa ncbularia, Limosa lapponica, Melanina nigra.

( 6 ) Cited in footnote 1.

( 7 ) Reference is made to paragraphs 2 to 8 of the Report for the I tearing for a fuller account of the pre litigation procedure.

( 8 ) For an interpretation of the terms ‘similar measures’, see point 27 of my Opinion in Case C-57/89 Commission ν Germany [1991] ECR 903. In the present case, both the Commission and the Spanish Government appear to agree with that interpretation.

( 9 ) In its reply of 28 July 1989 to the reasoned opinion deliv cred by the Commission (Annex 11 to the Commission's application instituting the proceedings). Spain still disputed lilis. I Iowevcr, in the defence it is stated that ‘Spain agrees with the principal points made by the Commission's argu ments’ (p. 17) and it is unambiguously stated in the rejoin der that ‘it agrees with the Commission on the need to clas siíy the Santoña marshes as a special protection area in order to provide satisfactory protection for spoonbill from the Netherlands that use the estuary as a staging post’. Moreover, the Spanish Government representative recog ni/cd that need again at the hearing.

( 10 ) Case C 57/89 Commission ν Germany [1991] ECU I 883, paragraph 20. The same considerations naturally apply to the similar provision contained in Article 4(2).

( 11 ) In footnote 19 to its application instituting the proceedings, the Commission refers only to the calculations of Grimmet and Jones, which suggest that the Santoña marshes arc one of five areas in the northwest of Spain most frequently visited by three species of birds (Anas penelope, Numenius arquata, Numcnius phaeopus). However, the fact that an area is visited by a large number of birds docs not necessarily mean that it is of unique or very particular interest. There may be other areas just as capable of providing a refuge for those birds as the area in which they have been observed.

( 12 ) The Court has consistently held in cases brought under Article 169 of the EEC Treaty that the burden of proof rests on the Commission: see, inter alia, judgments in Case 141/87 Commission ν Italy [1989] ECR 943 and Case C-249/88 Commission ν Belgium [1991] ECR I-1275, paragraph 6.

( 13 ) OJ 1985 L 302, p. 23.

( 14 ) Spain could not claim either — nor is il seeking to in lhe present case — that, for the purpose of implementing the directive on wild birds, the time limit laid down in Article 395 of the Act of Accession is unfair or inappropriate: see Case C-313/89 Commission ν Spain (1991) LCR I-5231 paragraphs 9 to 12.

( 15 ) Furthermore, these Spanish measures do not differ from the measures taken by other Member States as much as the Spanish Government would apparently have us believe. It appears from the figures given in Annex II to the Spanish Government's defence, that some Member States have more protection areas (Germany) or have placed more of their territory under special protection (Denmark and Belgium, for example), whilst bearing in mind the relative size of the two countries, the measures taken by Spain arc not significantly more extensive than those taken by Portugal, the other Member State where the directive on wild birds has been applicable since 1986.

( 16 ) ‘As the Court held in its judgment of 10 December 1968 in Case 7/68 Commission ν Italian Republic [1968] ECR 423, an action against a Member State for failure to fulfil its obligations, the bringing of which is a matter for the Commission in its entire discretion, is objective in nature’ (Case 415/85 Commission ν Ireland [1988] ECR 3097, paragraph 9); ‘under the system established by Article 169 of the Treaty, the Commission enjoys a discretionary power as to whether it will bring an action for failure to fulfil obligations and it is not for the Court to judge whether that discretion was wisely exercised’ (Case C-209/88 Commission ν Italy [1990] ECR I-4313, paragraph 16).

( 17 ) It is clear from the actual wording of the second paragraph of Article 169 that a Member State must comply at the latest by the end of the period laid down by the Commission, in the present case one month from 27 June 1989, when the reasoned opinion was communicated. Cf. Case 199/85 Commission ν Italy [1987] ECR 1039, paragraphs 7 to 9, and Case C-200/88 Commission ν Greece [1990] ECR I-4299, paragraph 13.

( 18 ) Cantabrian Official Gazette, 22 May 1987, p. 1449.

( 19 ) Cantabrian Official Gazette, 12 April 1991, p. 1262.

( 20 ) Spanish Official Gazette No 77, 30 March 1992, p. 10681.

( 21 ) See, i nter alta. Case 291/84 Commission ν Netherlands [1987] ECR 3483, point 1 of the operative part and cf. at 3498 and Case C 200/88 Commission ν Greece, cited in footnote 17, paragraph 13.

( 22 ) On the other hand, the obligation laid down in the last sen tence of Article 4(4), m respect of areas outside the special protection areas, is less extensive than the obligations within such areas. In the areas outside. Member States arc merely required to ‘strive’ to avoid ‘pollution’ or ‘deterjo ration’ (not ‘disturbances affecting the birds’).

( 23 ) [1991] ECR I TO.

( 24 ) Ibid., section 33.

( 25 ) In its application instituting the proceedings before the Court, the Commission claimed that the figures in question showed that the number of birds had decreased. The Spanish Government replied that, in its opinion, the figures showed on the contrary that there had been an increase. The Commission did not repeat its initial allegation in its reply. A cursory examination of the figures reveals no clear evidence either way. Thus, a count made in 1989 showed more spoonbill in the spring than in 1988, but not more than in 1987. In the autumn, there were fewer than in 1988, but not fewer than in 1987. Moreover, the figures for recent years appear to be more reliable than those for earlier years (partly because they are based on more frequent counts), so that any comparison is difficult.

( 26 ) Cited in footnote 10.

( 27 ) Ibid., paragraphs 18 and 20; the Court thus concurred with the Commission's view that reduction is a form of ‘deterioration’ within the meaning of Article 4(4), rather than the view I took at the time, that such a reduction should be assessed in the light of Article 4(1) and (2): sec section 25 of my Opinion, cited in footnote 8.

( 28 ) Case C-57/89, cited above, paragraphs 20, 21 and 22.

( 29 ) Ibid., paragraphs 23 and 24.

( 30 ) Ibid., paragraphs 25 and 26.

( 31 ) Case 42/82 Commission ν France [1983] ECR 1013, point 1 of the operative part; see also p. 1040.

( 32 ) It must be shown, in particular, that that species of birds is affected, since it is on their account that the Santoña marshes ought to have been classified as a special protection area (see sections 10 and 11 above), hence the applicability of Article 4(4) (see section 2 above).

( 33 ) Joined Cases 24 and 97/80 R Commission v France [1980] ECR 1319, paragraphs 10, 11 and 12. It should also be borne in mind that a judgment by the Court may be of interest ‘as establishing the basis of a responsibility that a Member State can incur as a result of its default, as regards other Member States, the Community or private parties’ (judgment in Case 39/72 Commission v Italy [1973] ECR 101, paragraph 11.

( 34 ) That reply, dated 28 July 1989, is reproduced in Annex 11 to the Commission's application instituting the proceedings. The relevant passages for present purposes arc to be found on pages 5 and 6.

( 35 ) If in its reply the Member State to which the reasoned opinion is addressed has undertaken to remedy the alleged failure, it is for the Commission to show that, despite that undertaking, the failure persists: see the judgment cited in the next footnote, paragraph 15, at 4367.

( 36 ) Judgment in Case 298/86 Commission ν Belgium [1988] ECR 4343, paragraph 10.

( 37 ) The Commission's claim was based mainly on the loss of part of the marshes and the cutting off of certain areas. It was concerned, in particular, with the establishment of industries within the marshland: see section 30.

( 38 ) I reter in particular 10 the maps m Annexes 2 and 3 to the reply, which show the routes followed and the rest and feeding, arcas used by the spoonbill and other birds, and also the location of the various works at issue.

( 39 ) Letter of 28 July 1989, cited in footnote 9, p. 7, paragraph 5.

( 40 ) Commission application, p. 18.

( 41 ) Annex 4 to the reply.

( 42 ) It is nol clear from the documents before the Court exactly when the works in connection with this road started. In any case, after a break — attributable, I assume, to the Commis sion's observations to the Spanish Government — they were resumed or continued definitively in February 1989. The new road was opened to traffic in July 1990.

( 43 ) Another road that already existed, from Santoña to Cícero, had been closed because it ran right across the marshes. The Spanish Government and the Commission arc both agreed that, in any case, re-opening that road is not an option.

( 44 ) Sec section 14 above.

( 45 ) Judgment in Case C S7/89 Commission ν Germany, para graph 22, quoted in section 25 above.

( 46 ) It was stated at the hearing and the Spanish Government representative was unable to refute the allegation that some oi these buildings had not been put up until after the road at issue had been completed.

( 47 ) See footnotes 31 and 36.

( 48 ) Sec judgment in Casc C 57/89 Commssion v Germany. quoted in the text of this Opinion at footnote 30.

( 49 ) See Case 42/82 Commission v France, cited in point 27.

( 50 ) The measure in question, according lo the Commission, is Council Directive 76/464/EKC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (OJ 1976 L 129, p. 23).

( 51 ) It is true that the evidence produced by the Commission as to the effects of such discharges is less detailed than its cvi dence on some of the other facts at issue. On the other hand, the Spanish Government has not in any way denied the existence, the gravity and the effects of the discharges in question

( 52 ) Sec point 32 above, on the industrial estates at Laredo and Colindres, point 37 on the in-filling works at Escalante, point 40 on the Montchano quarry and point 52 on the tipping of solid waste.