EN Official Journal of the European Union CE 78/864

(2004/C 78 E/0918)

WRITTEN QUESTION P-3860/03

by Reimer Böge (PPE-DE) to the Commission

(8 December 2003)

Subject: Designation of bird protection zones in Schleswig-Holstein

In a letter dated 2 April 2003 to the German Foreign Minister, Mr Joschka Fischer, Commissioner Wallström set out the Commission position with regard, ‘inter alia’, to the designation of bird protection zones in Schleswig-Holstein.

1. Does the Commission maintain its interpretation of the law whereby, in order to guarantee adequate and sustainable protection of bird protection zones, Special Protection Zones (SPZs) should be designated in which the attainment of the preservation objectives is to be ensured by the establishment of a total, individual and area-based protected status in law?

2. In the Commission's view, once a bird protection zone has been designated as an SPZ, is long-term contractual environmental protection required as a preservation measure, or might other measures suffice which guarantee the attainment of a specific protection objective but, in particular in the case of the larger SPZs, provide opportunities for more flexible management and, in so doing, may enable a balance to be struck between the preservation of the significant species and other interests?

3. Has the Commission received from Schleswig-Holstein any reports on individual instances where the possibility provided for in Section 33(4) of the Federal Law on the Protection of Nature of designating a protection area has not been used because an equivalent level of protection may be ensured by contractual agreements or legal or administrative provisions?

4. It is self-evident that not all of the categories to be protected pursuant to the German Law on the Protection of Nature necessarily correspond to those in the protection objectives set out in the Wild Birds Directive and/or the Habitats Directive. Might the requirements of the EU Directives be met more effectively if the protection categories ‘Special Protection Zone under the Wild Birds Directive’ and ‘Special Protection Zone under the Habitats Directive’ were to be incorporated into the German Law on the Protection of Nature as well as being given individual protected status in law?

Answer given by Mrs Wallström on behalf of the Commission

(21 January 2004)

According to Article 4(1) of Directive 79/409/EEC (1), Member States have to classify the most suitable territories in number and size as special protection areas (SPAs) for the conservation of the birds listed in Annex I of the Directive. According to Article 4(2) of the Directive, the same applies for regularly occurring migratory birds not listed in Annex I. According to Article 4(3) of the Directive, Member States shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the SPAs form a coherent whole which meets the protection requirements of the birds in question. According to Article 4(4) of the Directive, Member States have to take appropriate steps to avoid the pollution or deterioration of habitats or any other disturbances of the birds in the SPAs.

The Birds Directive does not set out precise criteria as to the legal protection regime for the SPAs. It is primarily up to the Member States to develop these regimes in accordance with the requirements and aims of the Directive. However, some criteria may be drawn from the jurisprudence of the Court of Justice.

According to the Court, Member States must provide SPAs with a protection regime that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the Birds Directive and the breeding, moulting, and wintering of migratory species not listed in Annex I, which are, nevertheless, regular visitors (2). In the same case, the defendant Member State could not rely on the fact that the area in question was state-owned to justify doing without a legal protection regime (3). On another occasion, the Court held that the general protection of wetlands under French water legislation was not sufficient to provide a legal protection regime for an SPA. The Court also found that agro-environmental measures, because voluntary and purely hortative in nature in relation to farmers, were insufficient (4). In a recent case, the Court held that conditional legislation was not sufficient to provide the required permanent protection regime (5).

In conclusion, the protection regime has to be permanent, unconditional, and specifically designed to meet the protection requirements of the Birds Directive. In order to ensure efficient protection of the SPA and the birds thereon, it must, moreover, be general, i.e. having effects for and against everyone. According to the Commission, this requirement excludes both short and long term contractual protection regimes as the only means to establish a protection regime. On the other hand, it may be useful to apply such contracts in combination with a general protection regime laying down specific protection requirements for the site in question, which have effect for and against everyone. The compatibility of such combined regimes with the requirements of the Birds Directive would have to be determined on a case-to-case basis.

The Commission has informally received two examples of ‘alternative’ protection regimes in Schleswig-Holstein. The first concerns the area ‘Lauenburgische Seen’, which shall be partly designated as an SPA. The protection regime shall consist of a combination of a nature protection area (‘Naturschutzgebiet’) and a landscape protection area (‘Landschaftsschutzgebiet’) under German law. The second example concerns the ‘Riesenwohld’ forest, which has been proposed as a Site of Community Interest (pSCI) according to Article 4(1) of Directive 92/43/EEC (6). Protection shall be provided by means of a contract between the owner of the forest and Schleswig-Holstein. Both examples are currently under investigation by the Commission.

As was mentioned above, it is for the Member States to decide how the requirements of the Directives shall be implemented. The Commission will only examine whether or not, on the basis of the method chosen, the requirements of the Directives are met.

(1) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ L 103, 25.4.1979.

(2) Judgement of 18 March 1999 in Case C-166/97, Commission/France (Seine Estuary), para. 21.

(3) Judgement of 18 March 1999, supra note 1, para. 24.

(4) Judgement of 25 November 1999 in Case C-96/98, Commission/France (Swamps of Poitou) paras 26 and 27.

(5) Judgement of 6 March 2003 in Case C-240/00, Commission/Finland, paras 19 and 30.

(6) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992.