CELEX: 62004TO0136
Language: en
Date: 2006-06-22 00:00:00
Title: Order of the Court of First Instance (First Chamber) of 22 June 2006. # Rasso Freiherr von Cramer-Klett and Rechtlerverband Pfronten v Commission of the European Communities. # Council Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Commission Decision 2004/69/EC - List of sites of Community importance for the Alpine biogeographical region - Action for annulment - Inadmissible. # Case T-136/04.

Case T-136/04
      Rasso Freiherr von Cramer-Klett and Rechtlerverband Pfronten
      v
      Commission of the European Communities
      (Council Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora − Commission Decision 2004/69/EC − List of sites of Community
         importance for the Alpine biogeographical region − Action for annulment − Inadmissible)
      
      Summary of the Order
      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them 
      (Art. 230, fourth para., EC)
      Direct concern to the applicant, as a condition of the admissibility of an action for annulment under the fourth paragraph
         of Article 230 EC, requires that the impugned Community measure must directly affect the applicant’s legal situation and leave
         no discretion to the addressees entrusted with the task of implementing it, such implementation being purely automatic and
         resulting from Community rules without the application of other intermediate rules. This means that, where a Community measure
         is addressed to a Member State by an institution, if the action to be taken by the Member State to implement that measure
         is automatic or a foregone conclusion, it is of direct concern to any person affected by that action. If, on the other hand,
         the measure leaves it to the Member State whether or not to act, or does not require it to act in a definite way, it is the
         Member State’s action or inaction which directly concerns the person affected, and not the measure itself. 
      
      In that regard, Decision 2004/69 adopting, pursuant to Directive 92/43 on the conservation of natural habitats, the list of
         sites of Community importance for the Alpine biogeographical region, which designates areas of Germany as sites of Community
         importance, affects neither the rights or obligations of the land owners nor the exercise of those rights since it imposes
         no obligation whatsoever on economic operators or private persons and contains no provision as regards the system of protection
         of sites of Community importance, such as conservation measures or authorisation procedures. 
      
      Likewise, the obligations arising from Directive 92/43, and particularly from Articles 4 and 6 thereof, which bind the Member
         States once sites of Community importance have been designated by the contested decision, are not directly applicable to those
         operators since they necessitate a measure on the part of the Member State concerned, in order to specify how it intends to
         implement them.
      
      (see paras 45-47, 52)
ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)
      22 June 2006 (*)
      
      (Council Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora − Commission Decision 2004/69/EC − List of sites of Community
         importance for the Alpine biogeographical region − Action for annulment − Inadmissible)
      
      In Case T–136/04,
      Rasso Freiherr von Cramer-Klett, residing in Aschau im Chiemgau (Germany), 
      
      Rechtlerverband Pfronten, established in Pfronten (Germany), 
      
      represented by T. Schönfeld and L. Thum, lawyers,
      applicants,
      v
      Commission of the European Communities, represented by M. van Beek and B. Schima, acting as Agents,
      
      defendant,
      supported by
      Republic of Finland, represented by T. Pynnä and A. Guimaraes-Purokoski, acting as Agents,
      
      intervener,
      ACTION for annulment of Commission Decision 2004/69/EC of 22 December 2003 adopting, pursuant to Council Directive 92/43/EEC,
         the list of sites of Community importance for the Alpine biogeographical region (OJ 2004 L 14, p. 21),
      
      THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),
      
      composed of R. García-Valdecasas, President, I. Labucka and V. Trstenjak, Judges,
      Registrar: E. Coulon,
      makes the following
      Order
       Legal and factual background 
      1        On 21 May 1992, the Council adopted Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora
         (OJ 1992 L 206, p. 7; ‘the habitats directive’).
      
      2        The aim of the habitats directive is, according to Article 2(1) thereof, to contribute towards ensuring biodiversity through
         the conservation of natural habitats and of wild fauna and flora in the territory of the Member States to which the EC Treaty
         applies.
      
      3        Article 2(2) of the habitats directive provides that the measures taken for its implementation are to be designed to maintain
         or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.
      
      4        According to the sixth recital in the preamble to the habitats directive, it is necessary, in order to ensure the restoration
         or maintenance of natural habitats and species of Community interest at a favourable conservation status, to designate special
         areas of conservation in order to create a coherent European ecological network in accordance with a specified timetable.
         
      
      5        By virtue of Article 3(1) of the habitats directive, such network, under the title ‘Natura 2000’, is to include special areas
         of conservation as well as special protection areas classified by the Member States pursuant to Council Directive 79/409/EEC
         of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1).
      
      6        Under Article 1(l) of the habitats directive, ‘special area of conservation’ means ‘a site of Community importance designated
         by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures
         are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations
         of the species for which the site is designated’.
      
      7        Article 4 of the habitats directive lays down a three-stage procedure for the designation of special areas of conservation.
         Under Article 4(1), each Member State is to propose a list of sites indicating which natural habitat types in Annex I and
         which species in Annex II that are native to its territory the sites host. Within three years of the notification of the habitats
         directive, that list is to be transmitted to the Commission, together with information on each site. 
      
      8        Under Article 4(2) of the habitats directive, the Commission is to establish, from those lists and on the basis of the criteria
         set out in Annex III to the directive and in agreement with each Member State, a draft list of sites of Community importance.
         The list of sites of Community importance is to be adopted by the Commission in accordance with the procedure laid down in
         Article 21 of the habitats directive. In accordance with Article 4(3), that list is to be established within six years of
         the notification of the habitats directive.
      
      9        Article 4(4) of the habitats directive provides that, once a site of Community importance has been adopted in accordance with
         the procedure laid down in Article 4(2), the Member State concerned is to designate that site as a special area of conservation
         as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for
         the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in
         Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those
         sites are exposed.
      
      10      Article 4(5) of the habitats directive states that as soon as a site is placed on the list of sites of Community importance
         established by the Commission it is to be subject to Article 6(2) to (4) of the habitats directive. 
      
      11      Under the terms of Article 6 of the habitats directive:
      
      ‘1.      For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be,
         appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate
         statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types
         in Annex I and the species in Annex II present on the sites.
      
      2.      Member States shall 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 this Directive.
      
      3.      Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant
         effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment
         of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment
         of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree
         to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned
         and, if appropriate, after having obtained the opinion of the general public. 
      
      4.      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 of overriding public interest, including those of a social
         or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of
         Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. 
      
      Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may
         be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment
         or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’
      
      12      Commission Decision 2004/69/EC of 22 December 2003 adopting, pursuant to the habitats directive, the list of sites of Community
         importance for the Alpine biogeographical region (OJ 2004 L 14, p. 21; ‘the contested decision’) was adopted on the basis
         of the third subparagraph of Article 4(2) of that directive. Among the sites of Community importance included in the list
         are the following sites: 
      
      –        DE 8239304 Hochries-Laubensteingebiet und Spitzstein;
      –        DE 8429303 Kienberg mit Magerrasen im Tal der Steinacher Ach.
      13      The first applicant is the owner of land in the site of Community importance with reference DE 8239304. The second applicant
         is a corporation formed of the owners of lands in the site of Community importance with reference DE 8429303. The applicants
         exploit their forested lands by means of undertakings created for that purpose.
      
       Procedure
      14      The applicants brought this action by application lodged at the Registry of the Court of First Instance on 8 April 2004.
      
      15      By document lodged at the Court Registry on 2 September 2004, the Republic of Finland (‘the intervener’) applied for leave
         to intervene in these proceedings in support of the Commission. By order of 14 October 2004, the President of the First Chamber
         of the Court of First Instance granted leave to intervene. The intervener lodged a statement confining itself to the action’s
         admissibility. The applicants and the Commission lodged no observations on that statement. 
      
      16      By document lodged at the Court Registry on 28 September 2004, the Commission raised an objection of inadmissibility under
         Article 114(1) of the Rules of Procedure of the Court of First Instance. The applicants lodged their observations on that
         objection on 17 November 2004. 
      
       Forms of order sought by the parties
      17      In its objection of inadmissibility, the Commission contends that the Court should:
      
      –        dismiss the action as inadmissible;
      –        order the applicants to pay the costs.
      18      In its statement in intervention, the intervener contends that the Court should dismiss the action as inadmissible.
      
      19      In their observations on the objection of inadmissibility, the applicants claim that the Court should: 
      
      –        reject the objection of inadmissibility;
      –        annul the contested decision;
      –      order the Commission to pay the costs.
       Law
      20      Under Article 114 of the Rules of Procedure, if a party applies to the Court of First Instance for a decision on admissibility
         without going into the substance of the case, the remainder of the proceedings on the objection of inadmissibility is to be
         oral, unless the Court decides otherwise. In the present case, the Court considers itself to be sufficiently informed by the
         documents in the Court file and decides that there is no need to open the oral proceedings. 
      
       Arguments of the parties
      21      The Commission submits, primarily, that the applicants have no legal interest in bringing proceedings.
      
      22      It maintains that the contested decision is merely a provisional measure within the meaning of the judgment of the Court of
         Justice in Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 10. The contested decision is not an actionable measure, since the establishment of the list of
         sites of Community importance did not conclude the procedure leading to the establishment of the Natura 2000 network.
      
      23      The Commission observes that the contested decision has no direct effect on the applicants’ legal position. It submits that
         possible legal effects will befall the applicants only if and when the national authorities adopt measures applying the habitats
         directive and the contested decision.
      
      24      The Commission submits, accordingly, that the contested decision has had no effect whatsoever on the legal rights of the applicants.
         Therefore, they are not entitled – lacking a legal interest in bringing proceedings – to institute an action for annulment
         against that decision under the fourth paragraph of Article 230 EC.
      
      25      The Commission submits, in the alternative, that the applicants are not directly and individually concerned. 
      
      26      As regards direct concern to the applicants, the Commission submits that the consequences of the establishment of the list
         of sites of Community importance, namely the Member States’ obligation to designate those sites as special areas of conservation
         and to establish conservation measures for them, do not arise automatically. Even though the list of sites establishes with
         binding effect the extent of the areas as well as the types of natural habitats and the species to be protected, the Member
         States retain a certain discretion concerning the conservation measures specified in Article 6(1) of the habitats directive.
         Those are the only measures that produce effects on the applicants’ legal position. It is therefore inconceivable that the
         applicants could be directly concerned by the contested decision.
      
      27      Nor, the Commission adds, does it follow from Article 4(5) of the habitats directive, which provides that a site is to be
         subject to the provisions of Article 6(2) to (4), as soon as it is entered on the list referred to in the third subparagraph
         of Article 4(2), that the applicants are directly concerned. In that regard, the Commission maintains that Article 6(2) of
         the habitats directive imposes the obligation to avoid deterioration or disturbance of the site. Article 6(3) and (4) of the
         directive lays down a procedure for authorising plans and projects likely to affect the site. In both cases, they are obligations
         on Member States and not on individuals. 
      
      28      The Commission concludes from this that, since the contested decision therefore has no direct effect on the applicants’ legal
         position, they are not directly concerned by that decision and, in consequence, are not entitled to bring an action for annulment.
      
      29      As regards being individually concerned, the Commission submits that the contested decision defines neither the rights nor
         the obligations of owners of the lands but simply establishes a list of the sites to which other provisions will apply subsequently,
         which, again, do not concern the property in the land. The aim of those provisions is to protect the sites against deterioration
         in their conservation status, whatever the conduct which causes such deterioration.
      
      30      The Commission submits that, as the contested decision imposes no obligations on land owners, the applicants cannot argue
         that it affects their specific rights, or that it has caused them exceptional damage, such as to differentiate them from all
         other economic operators. Even if it is accepted that the contested decision may impose obligations on the applicants, that
         results from objectively determined circumstances, namely the geographical situation of the sites referred to in the annex.
         
      
      31      Nor, according to the Commission, are the applicants differentiated on account of the fact that the Commission is obliged,
         by virtue of specific provisions, to take account of the effects on the applicants’ situation of the measure which it envisages
         adopting. It submits that only scientific criteria relating to the protection of nature apply to the procedure which led to
         the adoption of the contested decision. Moreover, no provision of Community law required the Commission, in order to adopt
         the contested decision, to follow a procedure during which the applicants would have been able to assert any rights, such
         as the right to be heard.
      
      32      The Commission submits that the applicants are therefore not individually concerned by the contested decision. It concludes,
         in the light of all the foregoing, that the action must be dismissed as inadmissible. 
      
      33      The intervener supports the Commission’s argument and claims, also, that the present action is inadmissible. 
      
      34      As regards direct concern to the applicants, the intervener adds that the contested decision clearly leaves the Member States
         free to adopt or not to adopt certain measures. Thus, the contested decision’s effects will depend on the manner in which
         the national authorities exercise their discretion.
      
      35      As regards individual concern to the applicants, the intervener submits that the contested decision neither prevents them
         from exercising their exclusive rights nor deprives them of their rights. The contested decision does not regulate the applicants’
         rights and obligations, but only establishes the list of geographically defined areas. The possible negative effects relied
         upon in the action are only indirect effects of the contested decision. 
      
      36      The intervener submits that it must also be held that the contested decision does not concern the applicants as owners of
         exclusive rights. Even assuming that it does affect them, that could be only in their capacity as land owners, in the same
         way as it affects the legal position of all the owners of the lands listed in its annex. 
      
      37      The intervener also points out that, even if the contested decision enables the owners of the lands referred to in its Annex
         I to be identified in some cases, that by no means implies that the applicants must be regarded as individually concerned,
         since the fact remains that that decision is to apply by virtue of an objective factual situation defined by it, namely the
         natural value of the lands in question (see Case T-213/02 SNF v Commission [2004] ECR II-3047, paragraph 59, and the case-law cited therein). 
      
      38      The applicants claim that they are directly and individually concerned by the contested decision.
      
      39      As regards direct concern, the applicants refer to Article 4(5) of the habitats directive, which provides that, following
         the adoption of the contested decision, the sites referred to in that decision are to be subject to the prohibition of deterioration
         under Article 6(2) of the habitats directive and to the procedure of authorisation applicable to plans or projects for the
         purposes of Article 6(3) and (4). They submit that, even though those obligations apply to the Member States, they are nonetheless
         of direct concern to the applicants, since Article 6 creates in their regard direct obligations to act. According to the applicants,
         Article 6(2) to (4) of the habitats directive allows the Member States no discretion. 
      
      40      As regards individual concern, the applicants submit that it is unarguable that the legal disadvantages suffered by them are
         not fundamentally different from those suffered by the other owners of lands in the sites covered by the contested decision.
         Nonetheless, they submit, it is necessary to take account of all land owners in the Community, as a reference group.
      
      41      They add that the provisions of Article 6(2) to (4) of the habitats directive entail limitations on the use of their property.
         The geographical situation of the lands is a reference criterion for the contested decision, because the scheme of the directive
         refers to that sole criterion. It cannot be argued that the applicants have no cause of action against that directive because
         they are not directly or individually concerned by it. 
      
      42      The applicants submit, therefore, that the requirements of effective judicial protection would be rendered nugatory if the
         land owners were not regarded as individually concerned by the contested decision, since they are covered only because of
         the geographical situation of the lands which they own. 
      
       Findings of the Court
      43      The fourth paragraph of Article 230 EC provides that ‘[a]ny natural or legal person may institute proceedings against a decision
         addressed to that person or against a decision which, although in the form of a regulation or decision addressed to another
         person, is of direct and individual concern to the former’.
      
      44      Since it is common ground that the contested decision is not addressed to the applicants, it is appropriate to examine whether
         that decision is of direct or individual concern to them. 
      
      45      As regards direct concern to the applicants, it must be recalled that that condition requires in this case that the contested
         decision must directly affect their legal situation and leave no discretion to the addressees entrusted with the task of implementing
         it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate
         rules (see Case C-386/96 P Dreyfus v Commission [1998] ECR I-2309, paragraph 43, and the case-law cited therein, and Joined Cases T-172/98 and T-175/98 to T-177/98 Salamanderand Others v Parliamentand Council [2000] ECR II-2487, paragraph 52). 
      
      46      This means that, where a Community measure is addressed to a Member State by an institution, if the action to be taken by
         the Member State to implement that measure is automatic or is, in one way or another, a foregone conclusion, it is of direct
         concern to any person affected by that action. If, on the other hand, the measure leaves the Member State free to act or not
         to act, or does not require it to act in a certain way, it is the Member State’s action or inaction which is of direct concern
         to the person affected, and not the measure itself (see, to that effect, the order of the Court of First Instance in Case
         T-223/01 Japan TobaccoandJT International v Parliamentand Council [2002] ECR II-3259, paragraph 46). 
      
      47      The Court considers that it cannot be held that the contested decision – which designates, as sites of Community importance,
         areas of Germany in which the applicants own land – produces, by itself, effects on the applicants’ legal situation. The contested
         decision contains no provision as regards the system of protection of sites of Community importance, such as conservation
         measures or authorisation procedures. Thus, it affects neither the rights or obligations of the land owners nor the exercise
         of those rights. Contrary to the applicants’ argument, the inclusion of those sites in the list of sites of Community importance
         imposes no obligation whatsoever on economic operators or private persons. 
      
      48      Article 4(4) of the habitats directive states that once a site of Community importance has been adopted by the Commission,
         the Member State concerned is to designate that site as a ‘special area of conservation’ within six years at most. In that
         regard, Article 6(1) of the habitats directive states that the Member States are to establish the necessary conservation measures
         for special areas of conservation, the aim being to meet the ecological requirements of the natural habitat types and species
         present on the sites. 
      
      49      Article 4(5) of the habitats directive states also that, as soon as a site is placed on the list of sites of Community importance,
         it is to be subject to the provisions of Article 6(2) to (4).
      
      50      Thus, Article 6(2) of the habitats directive 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 that directive.
      
      51      Likewise, Article 6(3) of the habitats directive provides that any plan or project not directly connected with or necessary
         for the management of the site but likely to have a significant effect thereon is to undergo an appropriate assessment of
         its implications for the site on the basis of the site’s conservation objectives. In the light of the conclusions of the assessment
         of those implications for the site, the competent national authorities are to agree to the plan or project only after ascertaining
         that it would not adversely affect the integrity of the site concerned. In that regard, Article 6(4) of the habitats directive
         provides that, if such a plan or project must nevertheless be carried out for imperative reasons of overriding public interest,
         the Member State is to take all compensatory measures necessary to ensure the overall coherence of the Natura 2000 network.
      
      52      On perusal of those obligations, which bind the Member States concerned once sites of Community importance have been designated
         by the contested decision, it must be held that none of those obligations applies directly to the applicants. All those obligations
         necessitate a measure on the part of the Member State concerned, in order to specify how it intends to implement the obligation
         in question, whether it relates to necessary conservation measures (Article 6(1) of the habitats directive), steps appropriate
         to avoid deterioration of the site (Article 6(2) of the habitats directive), or the agreement to be given by the competent
         national authorities to a project likely to have a significant effect on it (Article 6(3) and (4) of the habitats directive).
         
      
      53      It follows therefore from the habitats directive, on the basis of which the contested decision was adopted, that it is binding
         on the Member State as to the result to be achieved, whilst the choice of the conservation measures to be undertaken and the
         authorisation procedures to be followed is left to the competent national authorities. That conclusion cannot be undermined
         by the fact that the discretion thus conferred on the Member States must be exercised in accordance with the aims of the habitats
         directive. 
      
      54      It follows from all the foregoing that the applicants are not directly concerned by the contested decision, within the meaning
         of the fourth paragraph of Article 230 EC and, therefore, that the action must be dismissed as inadmissible, without the necessity
         of broaching the question whether the applicants are individually concerned by the contested decision. 
      
      55      However, whilst they cannot apply for the annulment of the contested decision, the applicants may still challenge the measures
         adopted in implementation of Article 6 of the habitats directive which affect them and, in that context, they retain the possibility
         of relying on its illegality before the national courts, adjudicating in accordance with Article 234 EC (Case C-70/97 P Kruidvat v Commission [1998] ECR I-7183, paragraphs 48 and 49, and the order of the Court of First Instance in Case T-45/00 Conseil national des professions de l’automobile and Others v Commission [2000] ECR II-2927, paragraph 26).
      
       Costs
      56      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, and the Commission has applied
         for costs, the applicants must be ordered to pay the Commission’s costs.
      
      57      Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which intervene must bear their own
         costs. In the present case, the Republic of Finland must therefore be ordered to bear its own costs.
      
      On those grounds,
      THE COURT OF FIRST INSTANCE (First Chamber)
      hereby orders:
      1.      The action is dismissed as inadmissible.
      2.      The applicants shall bear their own costs and pay those incurred by the Commission.
      3.      The Republic of Finland shall bear its own costs.
      Luxembourg, 22 June 2006.
      
               E. Coulon
            
             
            
                     R. García-Valdecasas
            
         
               Registrar
            
             
            
                     President 
            
         * Language of the case: German.