Case C-209/04: Action brought on 12 May 2004 by the Commission of the European Communities against the Republic of Austria
Date: 2004-07-10
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, environmental impact, environmental protection, motorway, project evaluation, protected area, protection of animal life

10.7.2004

EN

Official Journal of the European Union

C 179/7

Reference for a preliminary ruling by the Conseil d'Etat
(Belgium), XIIIth Chamber, by judgment of that court of 29
April 2004 in the case Inter-Environnement Wallonnie
against Région wallonne

(Case C-208/04)

(2004/C 179/14)

A reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Conseil d'Etat (Belgium),
XIIIth Chamber, of 29 April 2004, received at
the Court
Registry on 11 May 2004, for a preliminary ruling in the case
Inter-Environnement Wallonnie against Région wallonne on
the following question:

‘Is Article 1(a) of Directive 75/442/EEC of 15 July 1975 (1), as
amended by Directive 91/156/EEC of 18 March 1991 (2), to be
construed as allowing Member States to create, by means of a
legal rule, a category of materials which do not come either
under the category of waste or that of products but may none
the less either meet the definition of waste set out in Article
1(a) or contain substances or objects which meet that definition
of waste?’

(1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ L 194

of 25.07.1975, p. 39).

(2) Council Directive 91/156/EEC of 18 March 1991, amending Direc-

tive 75/442/EEC on waste (OJ L 78 of 26.03.1991, p. 32).

Action brought on 12 May 2004 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-209/04)

(2004/C 179/15)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 12 May
2004 by the Commission of the European Communities, repre-
sented by M. Van Beek and B. Schima, with an address for
service in Luxembourg.

The applicant claims that the Court should:

1. declare that, by failing to include in the designated special
area of conservation ‘Lauteracher Ried’ the sites ‘Soren’ and
‘Gleggen-Köblern’, which, together with that special protec-
tion area, are, according to scientific criteria, among the
most suitable territories in number and size within the
meaning of Article 4(1) and (2) of Council Directive
79/409/EEC of 2 April 1979 on the conservation of wild
birds (1) (‘the Birds Directive’), and

— by failing, when authorising the planned construction of
the S 18 Lake Constance dual carriageway, to comply

properly and fully with the requirements applicable by
virtue of Article 6(4) of Council Directive 92/43/EEC of
21 May 1992 on the conservation of natural habitats
and of wild fauna and flora (2) (‘the Habitats Directive’)
in the case of execution of a project where there has
been a negative assessment of the implications for the
site,

— the Republic of Austria has failed to fulfil its obligations
under Article 4(1) and (2) of the Birds Directive and
Article 6(4) in conjunction with Article 7 of the Habitats
Directive

2. order the Republic of Austria to pay the costs.

Pleas in law and main arguments:

The Republic of Austria informed the Commission of the desig-
nation of the area ‘Lauteracher Ried’ in Vorarlberg as a special
protection area (SPA). That area is an important breeding
ground for the bird species corncrake (Crex crex) mentioned in
Annex I to the Birds Directive and an important breeding
ground, habitat and/or stopping point for a variety of other
species of migratory birds in Vorarlberg.

The Commission takes the view that, from an ornithological
point of view, there is no logical explanation for the present
boundaries of the SPA Lauteracher Ried and that, as far as
specialists are concerned, if the ‘Soren’ and ‘Gleggen-Köblern’
sites are not encompassed, the area is not suitable to guarantee
the long-term conservation of the population of the endangered
species of birds. The Republic of Austria has therefore failed to
comply with the requirements laid down in Article 4(1) and (2)
of the Birds Directive.

Moreover, in connection with the planned construction of the
S 18 Lake Constance dual carriageway, there has been a failure
to comply with the obligations arising from Article 6(4)
in
conjunction with Article 7 of the Birds Directive as regards the
requirements for protection of
the Lauteracher Ried area.
Whilst the conservation assessment — which reached a nega-
tive conclusion as to the impact of the planned road construc-
tion on the aims of protection and conservation of the bird
species in the Lauteracher Ried area — seems, essentially, to
have satisfied the requirements of an assessment of the implica-
tions for the site under Article 6(3), there has been a failure to
comply with the further procedure to be followed under Article
6(4) in the event of a negative outcome of the assessment, that
is to say, alternative solutions were not properly examined and
compensatory measures were not properly implemented.

(1) OJ 1979 L 103, p. 3.
(2) OJ 1992 L 206, p. 7.