Case C-418/04: Action brought on 29 September 2004 by the Commission of the European Communities against Ireland
Date: 2005-01-08
Institutions: Court of Justice
Subjects: European Commission, Ireland, action for failure to fulfil an obligation, bird, environmental protection, national implementing measure, protected area, protected species, protection of animal life

C 6/22

EN

Official Journal of the European Union

8.1.2005

ORDER OF THE COURT

ORDER OF THE COURT

(Sixth Chamber)

of 12 October 2004

(Fifth Chamber)

of 1 October 2004

in Case C-480/03 (reference for a preliminary ruling from
the Cour d'arbitrage): Hugo Clemens, b.v.b.a. Valkaniers-
gilde against the Walloon region, Council of Ministers (1)

in Case C-352/03 P: Pietro Del Vaglio against the Commis-
sion of the European Communities (1)

(Article 104(3) of
the Rules of Procedure — Directive
79/409/EEC — Conservation of wild birds — Species born
and reared in captivity)

(Appeal — Community officials — Pensions — Change of
country of residence — Applicable corrective coefficient —
Appeal partly manifestly inadmissible and partly manifestly
unfounded)

(2005/C 6/43)

(Languages of the case: French and Dutch)

(2005/C 6/42)

(Language of the case: French)

In Case C-352/03P: Pietro Del Vaglio, former official of the
Commission of the European Communities, residing in London
(United Kingdom) (lawyers: M. Famchon and B. Desrez), the
other party to the proceedings being the Commission of the
European Communities (Agent: J. Currall, assisted by D. Wael-
broeck) – appeal under Article 56 of the Statute of the Court of
(Sixth
Justice, brought on 11 August 2003 – the Court
Chamber), composed of A. Borg Barthet, President of
the
Chamber, J.-P. Puissochet and S. von Bahr (Rapporteur), Judges;
Advocate General: J. Kokott, Registrar: R. Grass, has given an
order on 12 October 2004, in which it:

1) Dismisses the action;

In Case C-480/03: Hugo Clemens, b.v.b.a. Valkaniersgilde v
Walloon region, Council of Ministers – reference for a preli-
minary ruling under Article 234 EC by the Cour d'arbitrage
(Belgium), by judgment of 29 October 2003, received at the
Court on 18 November 2003 – the Court (Fifth Chamber),
composed of C. Gulmann, President of the Chamber, R. Silva
de Lapuerta (Rapporteur) and J. Makarczyk, Judges; Advocate
General: J. Kokott, Registrar: R. Grass, has given an order on 1
October 2004 in which it:

Declares that Council Directive 79/409/EEC of 2 April on the
conservation of wild birds is to be interpreted as not being applicable
to species born and reared in captivity and, accordingly, Member
States remain competent, as Community law now stands, to regulate
the matter, subject to Articles 28 to 30 EC.

(1) OJ C 35 of 7.2.2004.

Action brought on 29 September 2004 by the Commission
of the European Communities against Ireland

(Case C-418/04)

(2005/C 6/44)

2) Orders Mr Del Vaglio to pay the costs.

(Language of procedure: English)

(1) OJ C 251 of 18.10.2003.

An action against Ireland was brought before the Court of
Justice of the European Communities on 29 September 2004
by the Commission of the European Communities, represented
by Barry Doherty and Michel van Beek, acting as agents, with
an address for service in Luxembourg.

8.1.2005

EN

Official Journal of the European Union

C 6/23

The Commission requests the Court to:

1. declare that Ireland, by failing

a) to classify, since 1981, in accordance with Article 4(1)
and (2) of Directive 79/409/EEC on the conservation of
wild birds, (1) all the most suitable territories in number
and size for
the species of Annex I of Directive
79/409/EEC as well as regularly occurring migratory
species;

b) to establish, since 1981, in accordance with Article 4(1)
the necessary legal

and (2) of Directive 79/409/EEC,
protection regime for these territories;

c) to ensure that, since 1981, the provisions of Article 4(4),
first sentence are applied to areas requiring classification
as special protection areas under Directive 79/409/EEC;

d) to fully and correctly transpose and apply the require-
ments of the second sentence of Article 4(4) of Directive
79/409/EEC;

e) in respect of classified special protection areas under
Directive 79/409/EEC, to take all the measures necessary
to comply with the provisions of Article 6(2), (3) and (4)
of Directive 92/43/EEC on the conservation of natural
habitats and of wild flora and fauna (2), and, in respect of
recreational use of all sites intended to be subject to
Article 6(2) of Directive 92/43/EEC, to take all the neces-
sary measures to comply with the provisions of the said
Article 6(2);

f) to take all the measures necessary to comply with Article

10 of Directive 79/409/EEC,

has failed to comply with its obligations under those Arti-
cles of the said Directives; and

2) order Ireland to pay the costs.

classification left Ireland with the second smallest SPA network
of any Member State before the accessions that took place on 1
May 2004.

Ireland has failed to establish the necessary legal protection
regime for SPAs in accordance with article 4(1) and (2) of the
birds directive. The scope of the relevant Irish legislation is
limited to what might be termed preventive measures,
i.e.
measures which seek to address threats to habitats and distur-
bances of wild birds arising from human interventions. Quite
apart from the inherent flaws in these preventive measures, the
Commission contends that the requisite legal protection regime
required by article 4(1) and (2)
is larger in scope and that
ensuring the survival and reproduction of bird species within
SPAs may require more than efforts to restrain negative human
interventions.

While there is Irish legislation of relevance to habitat protection
outside of classified SPAs, this lacks the specificity required by
the birds directive in respect of Article 4(4), first sentence. In
particular,
the Irish legislation fails to impose any specific
duties in respect of the habitats of the wild bird species which
should benefit from SPA protection in areas not covered by
Ireland's existing SPA network.

There is no specific set of provisions implementing the second
sentence of Article 4(4) which provides that Member States
shall
‘strive to avoid pollution or deterioration of habitats’
outside classified areas. Many activities which destroy habitats
are not subject to any meaningful form of statutory control.

Directive 92/43/EEC (‘the habitats directive’) was required to be
Ireland
implemented from 10 June 1994. This means that
should have transposed and applied the provisions of articles
6(2) to (4) to all SPAs classified under article 4(1) of the birds
directive or recognised under article 4(2) of the same directive
on or after that date.

Pleas in law and main arguments:

The Commission considers that Ireland has not transposed or
applied article 6(2) of the habitats directive.

This case concerns the failure by Ireland to comply with certain
obligations laid down in directive 79/409/EEC and directive
92/43/EEC. The Commission submits that:

Since 1981, Ireland has failed to classify in accordance with
article 4(1) and (2) of directive 79/409/EEC on the conserva-
tions of wild birds, (hereinafter ‘the birds directive’) all the most
suitable territories in number and size for the species of Annex
I of
the directive as well as regularly occurring migratory
species. This has two aspects. First of all, there has been an
omission to make any classification in respect of certain sites
(‘non-classification’). Secondly, there has been a failure to fully
classify other sites (‘partial classification’). In terms of territorial
coverage, the combined effect of non-classification and partial

The adoption of national measures to implement article 10 of
the birds directive is necessary to ensure that the directive is
fully effective. By not reflecting in the relevant statutory provi-
sions the obligation to encourage research, Ireland has failed to
implement article 10.

(1) OJ L 103, 25.04.1979, p. 1.
(2) OJ L 206, 22.07.1992, p. 7.