Case C-98/03: Action brought on 28 February 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2003-05-24
Institutions: Court of Justice
Subjects: Germany, action for failure to fulfil an obligation, environmental impact, fishing regulations, pollution, protected species, protection of animals

C 124/4

EN

Official Journal of the European Union

24.5.2003

Action brought on 28 February 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

Pleas in law and main arguments

(Case C-98/03)

(2003/C 124/07)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 28 February 2003 by the Commission of the European
Communities, represented by Ulrich Wölker, Legal Adviser of
the Commission of
the European Communities, with an
address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that

— by not providing for the duty to carry out an
assessment of the implications in the case of certain
projects outside special areas of conservation, as
referred to in Article 4(1) of Council Directive 92/
43/EEC (1) of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora, which
pursuant to Article 6(3) and (4) of the directive are
to be subject to such an assessment irrespective of
whether those projects are likely to have a significant
effect on an area of special conservation;

— by authorising emissions in a special area of conser-
irrespective of whether they are likely to

vation,
have a significant effect on that area;

— by derogating from the scope of the provisions
concerning the protection of species in the case of
certain non-deliberate effects on protected animals;

— by failing to ensure compliance with the criteria for
derogation set out in Article 16 of the directive in
the case of certain activities which are supposed to
be compatible with conservation of an area;

— by retaining provisions on the application of pesti-
cides which do not take sufficient account of the
protection of species;

— by failing to notify fishery catch legislation and/or
to ensure that such legislation contains adequate
bans on fishing, the Federal Republic of Germany
has failed to fulfil its obligations under the directive.

2. Order the Federal Republic of Germany to pay the costs.

— Provisions designed to transpose Article 6(3) of the
directive are to be evaluated in terms of whether they
require an assessment of the implications in the case of
all projects likely to have a significant effect on special
areas of conservation. Whether a particular effect may be
significant cannot be decided solely by reference to
the project, but only by taking into consideration the
conservation aims of each individual area of conservation
which may be affected and the nature and extent of
the habitats and species present
in each individual
area. However, the definition of ‘projects’ contained in
Paragraph 10(1)(11)(b) and (c) of the Bundesnaturschutz-
gesetz (Federal Law on Nature Conservation) does not
take into account areas of conservation. Even if theoretical
evidence is produced to show that, despite the restrictions
contained in the definition, all conceivable projects likely
to have a significant effect on special areas of conservation
are in fact covered, there would still be no guarantee that
projects with atypical effects of,
in principle, a less
apparent nature would be covered if they were likely to
be significant in an actual individual case. In particular,
small habitats containing unusual species may react much
more sensitively to influences than may be anticipated
by provisions concerning projects, which standardise
categories.

— It is contrary to Article 6(3) and (4) of the directive for
regard not to be had to pollution by noxious substances
outside a (not clearly defined) area where the effects of a
project are felt, which is the position under Paragraph 36
of the Bundesnaturschutzgesetz.

— Restricting the protection of sites where animals nest,
breed,
live or find refuge to cases where there are
deliberate effects (Paragraph 43(4) of the Bundesnatur-
schutzgesetz) is not consistent with Article 12(1)(d) of
the directive, the clear wording of which indicates that
intention is not necessary in the context of the prohibition
concerning deterioration or destruction of breeding sites
or resting places.

— Paragraph 43(4) of the Bundesnaturschutzgesetz also
provides for derogations from the provisions concerning
the protection of species in favour of intervention or
measures already authorised, without taking into account
the fact that at the time of authorisation it may not yet
have been known that a protected species is affected.

(1) OJ L 206 of 22.7.1992, p. 7.