Case C-279/01: Action brought on 16 July 2001 by the Commission of the European Communities against the Kingdom of Sweden
Date: 2001-09-01
Institutions: Court of Justice
Subjects: European Commission, Sweden, action for failure to fulfil an obligation, protected area, protection of animal life, protection of plant life

1.9.2001

EN

Official Journal of the European Communities

C 245/17

Action brought on 16 July 2001 by the Commission
of the European Communities against the Kingdom of
Sweden

(Case C-279/01)

(2001/C 245/30)

An action against the Kingdom of Sweden was brought before
the Court of Justice of the European Communities on 16 July
2001 by the Commission of the European Communities,
represented by Lena Ström, acting as Agent, with an address
for service in Luxembourg.

The Commission claims that the Court should:

— declare that by failing to implement correctly in national
law Articles 4(5), 5(4), 6(2) to (4), 12, 15 and 16 of
Council Directive 92/43/EEC (1) of 21 May 1992 on the
conservation of natural habitats and of wild fauna and
flora as amended by Directive 97/62/EC (2) the Kingdom
of Sweden has failed to fulfil its obligations under that
directive;

— order the Kingdom of Sweden to bear the costs.

Pleas in law and main arguments

Article 4(5) provides that as soon as a site is placed on the list
referred to in the third subparagraph of paragraph 2 it is to be
subject to the rules in Article 6(2), (3) and (4). According to
the Swedish rules notified, the government or the authority
which the government appoints is to keep a permanent register
of the natural sites which should be given protection in
accordance with international undertakings or national objec-
tives for the protection of such sites. A site which is placed on
the register is to be given priority in future work on protection.
The National Environment Protection Board has been appoint-
ed to hold the register. The fact that the National Environment
Protection Board keeps a register of natural sites which should
be protected does not in itself have the legal effect required by
Article 6(2), (3) and (4).

Article 6(2) provides that the Member States are to take
appropriate steps to avoid, in the special areas of conservation,
the deterioration of natural habitats and the habitats of species
as well as disturbance of the species for which the areas have
been designated,
in so far as such disturbance could be
significant in relation to the objectives of the Directive. The
article presupposes that the Member States have measures at
their disposal by which their authorities can stop an operation
which may damage natural habitats and habitats of species or
disturb the species for which the sites were designated. The
Swedish rules notified contain no provisions which allow the
authorities to stop an operation which may damage natural
habitats and habitats of species or disturb the species for which
the site was designated.

Article 6(3) lays down the procedure for the management of
plans and projects which may affect the special areas of
conservation significantly. Those rules require complete and
meticulous transposition into national legislation. The system
of rules intended to incorporate Article 6(3) does not cover all
the projects or plans outside the area which might be
considered to have a significant effect on the area of conser-
vation. Nor does the Swedish legislation provide that all plans
are to be assessed in accordance with Article 6(3).

Article 6(4) provides for certain exceptions to the rules on
protection of special conservation areas. If,
in spite of a
negative assessment of the implications for the site and in the
absence of alternative solutions, a plan or project must
nevertheless be carried out for imperative reasons, the Member
States are to take all compensatory measures necessary to
ensure that the overall coherence of Natura 2000 is protected.
For reasons of legal certainty, Article 6(4), since it is in the
nature of an exception, must be reproduced verbatim in legally
binding national rules. The Swedish legislation incorporating
Article 6(4) does not meet that requirement of legal certainty
since the exceptions in the directive are not clearly reproduced
in the Swedish legislation.

Article 5(4) provides that a site is to be covered by the
protection provided for by Article 6(2) during the bilateral
consultation period initiated between a Member State and the
Commission under Article 5(1) and pending a Council decision
pursuant to Article 5(3). Under the Swedish rules the legal
protection under Article 6(2) does not take effect before a
decision is taken to place the site on a special register. Nor is
the protection which then takes effect sufficient to fulfil the
requirements of Article 6(2).

Under Article 12(1) the Member States are to take the requisite
measures to establish a system of strict protection for the
animal species listed in Annex IV(a) by introducing the
prohibitions listed in Article 12(1)(a) to (d). The Swedish
legislation and the amendments introduced and included in it
do not cover all
listed in Annex IV(a).
species
Article 12(1)(b) to (d) lists certain activities which the Member
states are to prohibit. The Swedish legislation contains no
provisions which implement Article 12(1)(b) to (d) adequately.

the

C 245/18

EN

Official Journal of the European Communities

1.9.2001

Under Article 12(4) the Member States are to establish a
system to monitor the incidental capture and killing of the
animal species listed in Annex IV(a). The Swedish legislation
does not cover all the species listed in Annex IV(a).

Under Article 15 Member States are required to prohibit the
use of methods and forms of capture etc listed in Annex VI of
the species listed in Annex Va, and in cases where,
in
accordance with Article 16, derogations are applied, of the
species listed in Annex IVa. The right to derogate from the
prohibition in Article 15 is limited to the situations listed in
Article 16. Under Swedish law, however, the government and
authorities have a right to investigate freely in certain cases
where derogations are to be granted from the rules on
prohibition laid down by Article 15.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Council Directive 98/18/EC (1) of 17 March 1998 on
safety rules and standards for passenger ships, the Portu-
guese Republic has failed to fulfil its obligations under
the third paragraph of Article 249 of the EC Treaty and
Article 14 of Directive 98/18/EC;

— in the alternative, declare that, by failing to communicate
such measures to the Commission, the Portuguese Repub-
lic failed to fulfil its obligations under the same provisions;
and

— Order the Portuguese Republic to pay the costs.

Article 16(1) lists the situations in which it is possible to
derogate from the rules in Articles 12 to 14 and 15(a) and (b).
A general condition for allowing a derogation is that there is
no satisfactory alternative and that the derogation is not
detrimental to the maintenance of the populations of the
species concerned at a favourable conservation status in their
natural range. In addition, one of the reasons in Article 12(1)(a)
to (e) must obtain. For reasons of legal certainty it is necessary
that the situations and requirements set out in a rule on
derogation such as Article 16 be transposed verbatim into
national rules or that there be a direct reference to the directive.
Under the Swedish legislation the government can allow
derogations on the basis of various considerations. The
Swedish rules on derogation therefore do not conform to
Article 16 and nor do they refer to those provisions in the
directive.

Pleas in law and main arguments

The mandatory nature of the provisions of the third paragraph
of Article 249 requires Member States to adopt the measures
necessary to transpose directives addressed to them into their
domestic law. Despite the expiry of that period, which is laid
down in Article 14(1) of Directive 98/18/EC, and despite the
specific notification requirement provided for in Article 4(2)
of the directive, the Portuguese Republic has not brought into
in any event, has not
force the necessary provisions and,
communicated them to the Commission.

(1) OJ 1998 L 144, p. 1.

(1) OJ L 206, 22.7.1992, p. 7.
(2) OJ L 305, 8.11.1997, p. 42.

Action brought on 17 July 2001 by the Commission
of the European Communities against the Portuguese
Republic

(Case C-282/01)

(2001/C 245/31)

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 17 July
2001 by the Commission of the European Communities,
represented by Bernard Mongin and Francisco de Sousa Fialho,
acting as Agents.

Action brought on 19 July 2001 by the Commission of
the European Communities against the French Republic

(Case C-286/01)

(2001/C 245/32)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 19 July
2001 by the Commission of the European Communities,
represented by P. Nemitz and B. Mongin, acting as Agents.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Directive 98/10/EC (1), and in particular Article 6(3) and
(4) and Articles 10, 21 and 26, the French Republic has
failed to fulfil its obligations under Article 32 of that
directive and Article 249 of the EC Treaty; and