Case C-82/09

Dimos Agiou Nikolaou Kritis

v

Ipourgos Agrotikis Anaptixis kai Trofimon

(Reference for a preliminary ruling from the Simvoulio tis Epikratias)

(Regulation (EC) No 2152/2003 – Monitoring of forests and environmental interactions in the European Union – Definitions – Terms ‘forest’ and ‘other wooded land’ – Field of application)

Summary of the Judgment

Environment – Protection of forests – Monitoring of forests and environmental interactions – Regulation No 2152/2003

(European Parliament and Council Regulation No 2152/2003, Art. 3(a) and (b))

Article 3(a) and (b) of Regulation No 2152/2003 concerning monitoring of forests and environmental interactions in the Community (Forest Focus), which define, for the purposes of that regulation, the terms ‘forest’ and ‘wooded land’, must be interpreted as not precluding national provisions which contain different definitions of those terms as regards actions which are not governed by the regulation.

While, in order to implement the forest monitoring scheme, the Community legislature sought to define the areas covered by that scheme, none of the provisions of Regulation No 2152/2003 indicates that the regulation was designed to establish common rules for governing other actions. Thus, Article 3 of the regulation did not have the aim and cannot have the effect of precluding any other definition of what constitutes the forests and wooded areas that the Member States would seek to make subject to any action programmes other than those governed by the regulation.

(see paras 25-26, 28, operative part)

JUDGMENT OF THE COURT (Fourth Chamber)

22 April 2010 ( )

(Regulation (EC) No 2152/2003 – Monitoring of forests and environmental interactions in the European Union – Definitions – Terms ‘forest’ and ‘other wooded land’ – Field of application)

In Case C‑82/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Simvoulio tis Epikratias (Greece), made by decision of 3 December 2008, received at the Court on 25 February 2009, in the proceedings

Dimos Agiou Nikolaou Kritis

v

Ipourgos Agrotikis Anaptixis kai Trofimon,

THE COURT (Fourth Chamber),

composed of J.-C. Bonichot (Rapporteur), President of the Chamber, C. Toader, K. Schiemann, P. Kūris and L. Bay Larsen, Judges,

Advocate General: N. Jääskinen,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 25 February 2010,

after considering the observations submitted on behalf of:

– the Greek Government, by A. Vasilopoulou, G. Karipsiadis, V. Kontolaimos and I. Khalkias, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and L. Ventrella, avvocato dello Stato,

– the European Commission, by A. Alcover San Pedro and M. Konstantinidis, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling relates to the interpretation of Regulation (EC) No 2152/2003 of the European Parliament and of the Council of 17 November 2003 concerning monitoring of forests and environmental interactions in the Community (Forest Focus) (OJ 2003 L 324, p. 1).

2 The reference has been made in proceedings between Dimos Agiou Nikolaou Kritis (Municipality of Agios Nikolaos, Crete) and Ipourgos Agrotikis Anaptixis kai Trofimon (Minister for Rural Development and Food) concerning a decision requiring the municipality to reforest a plot of land 217.64 m2 in area owned by it.

Legal context

European Union law

3 Article 1 of Regulation No 2152/2003 provides:

‘1. A Community scheme for broad-based, harmonised and comprehensive, long-term monitoring of the condition of forests (hereinafter referred to as “the scheme”) is hereby established to:

(a) continue and further develop:

– monitoring of air pollution and air pollution effects and of other agents and factors that have an impact on forests, such as biotic and abiotic factors and factors of anthropogenic origin,

– monitoring of forest fires and their causes and effects,

– forest fire prevention;

(b) assess the requirements for and develop the monitoring of soils, carbon sequestration, climate change effects and biodiversity, as well as protective functions of forests;

(c) continuously evaluate the efficiency of the monitoring activities in the assessment of the condition of forests and the further development of monitoring activity.

The scheme shall provide reliable and comparable data and information on the condition of and harmful influences on forests at Community level. It shall also help to evaluate ongoing measures to promote conservation and protection of forests for the benefit of sustainable development, with particular emphasis on actions taken to reduce impacts negatively affecting forests. The scheme will take account of, and where appropriate link to, existing and planned national, European and global monitoring mechanisms and will be in line with relevant international agreements.’

4 Article 3 of Regulation No 2152/2003 states:

‘For the purposes of this Regulation, the following definitions shall apply:

(a) “forest” means land with tree crown cover (or equivalent stocking level) of more than 10% and area of more than 0.5 ha. The trees should be able to reach a minimum height of 5 m at maturity in situ. It may consist either of closed forest formations where trees of various storeys and undergrowth cover a high proportion of the ground, or of open forest formations with a continuous vegetation cover in which tree crown cover exceeds 10%. Young natural stands and all plantations established for forestry purposes which have yet to reach a crown density of 10% or tree height of 5 m are included under forest, as are areas normally forming part of the forest area which are temporarily unstocked as a result of human intervention or natural causes but which are expected to revert to forest. The definition of “forest” includes: forest nurseries and seed orchards that constitute an integral part of the forest; forest roads, cleared tracts, firebreaks and other small open areas within the forest; forest in national parks, nature reserves and other protected areas such as those of special environmental, scientific, historical, cultural or spiritual interest; windbreaks and shelterbelts of trees with an area of more than 0.5 ha and a width of more than 20 m. Rubberwood plantations and cork oak stands are included. However, the definition of “forest” excludes: land predominantly used for agricultural practices;

(b) “other wooded land” means land either with a tree crown cover (or equivalent stocking level) of 5 to 10% of trees able to reach a height of 5 m at maturity in situ, or a crown cover (or equivalent stocking level) of more than 10% of trees not able to reach a height of 5 m at maturity in situ (e.g. dwarf or stunted trees) and shrub or bush cover. The definition of “other wooded land” excludes: areas having the tree, shrub or bush cover specified above but of less than 0.5 ha and width of 20 m, which are classed under “other land”; land predominantly used for agricultural practices;

…’

5 Article 12(1) of Regulation No 2152/2003 provided that the scheme would cover a period of four years beginning on 1 January 2003 and ending on 31 December 2006.

6 Regulation (EC) No 614/2007 of the European Parliament and of the Council of 23 May 2007 concerning the Financial Instrument for the Environment (LIFE+) (OJ 2007 L 149, p. 1) repealed Regulation No 2152/2003.

National law

7 Greek legislation defines the terms ‘forest’ and ‘wooded land’ as follows in Article 3 of Law No 998/1979 on the protection of the country’s forest and its wooded land in general (FEK (Official Gazette) A 289), as replaced by Article 1(1) of Law No 3208/2003 (FEK A 303/24. 12. 2003):

‘1. “Forest” or “forest ecosystem” means the organic whole of wild plants with woody trunk on the necessary area of ground which, together with the flora and fauna coexisting there, constitute via their mutual interdependence and interaction a particular biocoenosis (forest biocoenosis) and a particular natural environment (forest-based).

2. Wooded land exists when in the abovementioned whole the wild woody vegetation, whether high or undergrowth, is sparse.

3. The forest biocoenosis for the purposes of paragraphs 1 and 2 exists and the forest-based environment is created in an area when:

I. wild woody plants grow in the said area which, when exploited, can produce forest products (forestry goods).

II. the surface area of the said area in which the above forest species grow thickly or sparsely must be at least 0.3 ha, with as rounded-off a geometric shape as possible or in a strip at least 30 metres wide. A forest biocoenosis can also exist and a forest-based environment be created on areas with a surface area of less than 0.3 ha when, because of their location, they are in a relationship of dependency and interaction with other neighbouring areas that constitute a forest or wooded land.

III. the crown of the forest species on a vertical projection cover at least 25% (0.25 canopy) of the land surface. Forest ecosystems are to be classified as forest or wooded land on the basis of the following criteria:

(a) if, in a biocoenosis as described above, the forest species have a clear vertical structure (layers) and the crowns cover more than 30% of the ground (canopy greater than 0.30), that land is to be regarded as forest, provided that the canopy of the upper layer is over 0.15 and, in the event that there is no lower layer, the canopy of the upper layer is over 0.25.

(b) if, in a biocoenosis as described above, the woody vegetation consists of evergreen or deciduous broad-leafed forestry species in the form of undergrowth, the land is to be classified as wooded land, provided that the crowns of those species cover over 25% of the land (canopy greater than 0.25).

(c) the definition of forest ecosystems includes land which has for any reason lost its forest vegetation and has not, before the entry into force of this Law, been assigned to other uses by administrative order. Such areas are governed by Article 117(3) of the Constitution, are to be declared to be required to be reforested, and retain the character they had before their destruction.

4. “Wooded land” also means any type of open land areas (brushwood or grass-pasture lands, rocky prominences and open areas in general) that are surrounded by forests or wooded land, as well as mountain peaks or alpine zones above the forests or wooded land. Apart from interventions allowed in those areas pursuant to Article 13(2) of Law No 1734/1987 (FEK A 189) and Articles 45 to 61 of this Law, no other intervention is permissible. The areas specified in paragraph 6(a), (d) and (e) of the present article are not subject to the provisions of the present paragraph, even if they are surrounded by forests or wooded land.

5. Parks and small woods in towns or residential areas are also subject to the provisions of this Law, as is land that is declared or has been declared by an order of the competent authority to be required to be afforested or reforested.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 By decision of 3 June 2004, the Genikos Grammateas Periferias Kritis (Secretary-General for the Region of Crete) resolved that a plot of land 217.64 m2 in area owned by Dimos Agiou Nikolaou had to be reforested on the ground that it formed part of a wider area which constituted a forest and whose vegetation had been partially destroyed as a result of land clearance.

9 Dimos Agiou Nikolaou contested that decision before the Simvoulio tis Epikratias (Council of State), contending that the conditions laid down by national legislation for classification of that plot as ‘forest’ were not met, in particular in light of the criteria concerning minimum area and canopy percentage.

10 The Simvoulio tis Epikratias found that the definitions of ‘forest’ and ‘wooded land’ in the national legislation in force on the date as at which the legality of the contested decision had to be determined did not coincide with the definitions that had been adopted in Regulation No 2152/2003. It drew the conclusion that the national legislation could therefore be incompatible with Community law, a circumstance which should lead it to refrain from applying that legislation in the case in point and to apply the legislation previously in force. However, it expressed doubts as to the correctness of that assessment.

11 In those circumstances the Simvoulio tis Epikratias decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Do the definitions of forest and wooded land in Article 3(a) and (b) of Regulation … No 2152/2003 also apply to matters of protection and management in general of forest and wooded land as defined above, which matters are not expressly governed by the regulation but for which provision is made in the national legal order?

(2) If the answer to question 1 is in the affirmative, may the national legal order also define as forest or wooded land land that is not forest or wooded land under the definitions given in Article 3(a) and (b) of Regulation … No 2152/2003?

(3) If the answer to question 2 is in the affirmative, can the definition that may be given by the national legal order of forest and wooded land so as to include land that does not constitute forest or wooded land under the definitions in Article 3(a) and (b) of Regulation … No 2152/2003 differ from the definition in the above regulation both as to the constituent elements included in the definition of forest or wooded land by the regulation and as to the numerical determination of the dimensions of those elements that may be in common with the regulation? Alternatively, can that definition under the national legal order include constituent elements of the definition of forest or wooded land that are different from those included in the regulation’s definition, while in the case of elements that it has in common with the regulation it is permitted not to determine them numerically and, if it does determine them numerically, it is precluded from deviating from the numerical determination under the regulation?’

Consideration of the questions referred

Admissibility

12 The European Commission disputes the admissibility of the reference for a preliminary ruling on the ground that it is not clear that the answer would be of use for resolving the dispute in the main proceedings. According to the Commission, it is clear from the order for reference that the national court considers it established that the plot of land at issue in the main proceedings may be classified as ‘forest’ under both national law and Regulation No 2152/2003. The questions are therefore theoretical in nature, seeking only to test the soundness of the definitions adopted by national law.

13 However, that argument cannot be upheld.

14 It is settled case-law that, in the context of the cooperation between the Court of Justice of the European Union and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted by national courts concern the interpretation of Community law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38, and Case C-103/88 Gottwald [2009] ECR I-0000, paragraph 16).

15 It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, in particular where it is quite obvious that the interpretation which is sought of the provisions of Community law referred to in the questions bears no relation to the actual facts of the main action or to its purpose (Gottwald, paragraph 17 and the case-law cited).

16 Here, the grounds of the order for reference do not disclose a settled view of the national court that the plot of land at issue is in any event a forest under both national law and Community law. It is apparent from paragraphs 13 and 14 of that order that the national court makes its determination of the main proceedings dependent upon the interpretation which it seeks from the Court.

17 Clearly, therefore, it is not obvious that the interpretation sought is irrelevant in light of the decision which the national court is called upon to give.

18 Consequently, the reference for a preliminary ruling must be declared admissible.

Substance

19 By its first question, the national court essentially asks whether Article 3(a) and (b) of Regulation No 2152/2003, which define, for the purposes of that regulation, the terms ‘forest’ and ‘wooded land’, must be interpreted as precluding national provisions which contain different definitions of those terms as regards actions which are not expressly governed by the regulation.

20 As is apparent from Article 1, Regulation No 2152/2003 had the objective of establishing a Community scheme for broad-based, harmonised and comprehensive, long-term monitoring of the condition of forests. That scheme was intended to continue and further develop monitoring of air pollution and of other agents that have an impact on forests, monitoring of forest fires and their causes and effects, and forest fire prevention. It also had the aim of assessing the requirements for, and developing, the monitoring of soils, carbon sequestration, climate change effects and biodiversity, as well as protective functions of forests, and of continuously evaluating the efficiency of the monitoring activities in the assessment of the condition of forests and the further development of monitoring activity.

21 It is thus clear from those provisions that the Community legislature, which in addition specified in Article 12(1) of Regulation No 2152/2003 that this Community scheme was to run for a period of four years from 1 January 2003 to 31 December 2006, sought to limit the scope of the scheme.

22 It is true that, within the scope of the scheme, Regulation No 2152/2003 had general application, was binding in its entirety and was directly applicable in all Member States, by virtue of the second paragraph of Article 249 EC.

23 While the objectives, as set out in paragraph 20 of the present judgment, thereby accorded to the scheme for a specified period were binding on the Member States for the purpose of establishing forest management programmes, it is not in dispute that the Community legislature did not, however, intend to harmonise completely all activities concerning the management of forest areas.

24 It is undisputed that Regulation No 2152/2003 was adopted on the basis of Article 175 EC which falls within Title XIX of the EC Treaty, devoted to Community policy on the environment. The Community rules in this area do not seek to effect complete harmonisation (Case C-6/03 Deponiezweckverband Eiterköpfe [2005] ECR I-2753, paragraph 27). Even though Article 174 EC refers to certain Community objectives to be attained, Article 176 EC allows the Member States to introduce more stringent protective measures (Case C-318/98 Fornasar and Others [2000] ECR I-4785, paragraph 46, and Deponiezweckverband Eiterköpfe, paragraph 27).

25 Accordingly, while, in order to implement the forest monitoring scheme, the Community legislature sought to define the areas covered by that scheme, none of the provisions of Regulation No 2152/2003 indicates that the regulation was designed to establish common rules for governing other actions.

26 In those circumstances, it is only for the purposes of Regulation No 2152/2003, as Article 3 expressly provides, that the latter defines the two terms. Consequently, it must be found that Article 3 did not have the aim and cannot have the effect of precluding any other definition of what constitutes the forests and wooded areas that the Member States would seek to make subject to any action programmes other than those governed by Regulation No 2152/2003.

27 It is for the national court to determine whether the action programme at issue in the main proceedings is governed by Regulation No 2152/2003.

28 In light of the foregoing, the answer to the first question is that Article 3(a) and (b) of Regulation No 2152/2003, which define, for the purposes of that regulation, the terms ‘forest’ and ‘wooded land’, must be interpreted as not precluding national provisions which contain different definitions of those terms as regards actions which are not governed by the regulation.

29 In view of this answer to the first question, there is no need to decide the other two questions asked by the national court.

Costs

30 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 3(a) and (b) of Regulation (EC) No 2152/2003 of the European Parliament and of the Council of 17 November 2003 concerning monitoring of forests and environmental interactions in the Community (Forest Focus), which define, for the purposes of that regulation, the terms ‘forest’ and ‘wooded land’, must be interpreted as not precluding national provisions which contain different definitions of those terms as regards actions which are not governed by the regulation.

[Signatures]