CELEX: 62011CJ0416
Language: en
Date: 2012-11-29 00:00:00
Title: Judgment of the Court (Third Chamber) of 29 November 2012. # United Kingdom of Great Britain and Northern Ireland v European Commission. # Appeal - Directive 92/43/EEC - Conservation of natural habitats - List of sites of Community importance for the Mediterranean biogeographical region - Inclusion in the list of a site proposed by the Kingdom of Spain - Site allegedly covering an area of British Gibraltar territorial waters and an area of the high seas - Action for annulment - Measure merely confirmatory. # Case C-416/11 P.

JUDGMENT OF THE COURT (Third Chamber)
      29 November 2012 (*)
      
      (Appeal – Directive 92/43/EEC – Conservation of natural habitats – List of sites of Community importance for the Mediterranean biogeographical region – Inclusion in the list of a site proposed by the Kingdom of Spain – Site allegedly covering an area of British Gibraltar territorial waters and an area of the high seas – Action for annulment – Measure merely confirmatory)
      In Case C‑416/11 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 August 2011,
      United Kingdom of Great Britain and Northern Ireland, represented by S. Ossowski, acting as Agent, D. Wyatt QC and V. Wakefield, Barrister,
      
      appellant,
      the other parties to the proceedings being:
      European Commission, represented by D. Recchia and K. Mifsud‑Bonnici, acting as Agents, with an address for service in Luxembourg,
      
      defendant at first instance,
      supported by:
      Kingdom of Spain, represented by N. Díaz Abad and A. Rubio González, acting as Agents,
      
      THE COURT (Third Chamber),
      composed of R. Silva de Lapuerta, acting for the President of the Third Chamber, K. Lenaerts, G. Arestis, J. Malenovský and
         T. von Danwitz (Rapporteur), Judges,
      
      Advocate General: J. Mazák,
      Registrar: A. Calot Escobar,
      having regard to the written procedure,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        By its appeal, the United Kingdom of Great Britain and Northern Ireland seeks to have set aside the order of the General Court
         of the European Union of 24 May 2011 in Case T-115/10 United Kingdom v Commission (‘the order under appeal’), by which that court dismissed as inadmissible its action for partial annulment of Commission
         Decision 2010/45/EU of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of
         Community importance for the Mediterranean biogeographical region (OJ 2010 L 30, p. 322; ‘the contested decision’) to the
         extent that that decision lists the site called ‘Estrecho oriental’ (‘Site ES6120032’) as a site of Community importance (‘SCI’)
         for the Mediterranean biogeographical region. 
      
       Legal context
      2        Article 4(1) and (2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna
         and flora (OJ 1992 L 206, p. 7), as amended by Regulation (EC) No 1882/2003 of the European Parliament and the Council of
         29 September 2003 (OJ 2003 L 284, p. 1) (‘the Habitats Directive’), provides: 
      
      ‘1.      On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall 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. ...
      
      The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information
         on each site. That information shall include a map of the site, its name, location, extent and the data resulting from application
         of the criteria specified in Annex III (Stage 1) provided in a format established by the Commission in accordance with the
         procedure laid down in Article 21.
      
      2.      On the basis of the criteria set out in Annex III (Stage 2) …, the Commission shall establish, in agreement with each Member
         State, a draft list of [SCIs] drawn from the Member States’ lists identifying those which [host] one or more priority natural
         habitat types or priority species.  
      
      ...
      The list of sites selected as [SCIs], identifying those which host one or more priority natural habitat types or priority
         species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.’  
      
      3        According to Article 20 of the Habitats Directive, the Commission is to be assisted by a committee (‘the Habitats Committee’).
         
      
      4        Article 21 of that directive refers to Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures
         for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), as amended by Council Decision
         2006/512/EC of 17 July 2006 (OJ 2006 L 200, p. 11), which provides: 
      
      ‘1.      The Commission shall be assisted by a regulatory committee composed of the representatives of the Member States and chaired
         by the representative of the Commission. 
      
      2.      The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall
         deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter.
         The opinion shall be delivered by the majority laid down in Article 205(2) and (4) of the Treaty in the case of decisions
         which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States
         within the Committee shall be weighted in the manner set out in that Article. The chairman shall not vote.
      
      3.      The Commission shall ... adopt the measures envisaged if they are in accordance with the opinion of the committee.
      …’
       Background to the dispute and the contested decision
      5        On 19 July 2006 the Commission adopted, on the basis of the third subparagraph of Article 4(2) of the Habitats Directive,
         Decision 2006/613/EC adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the
         Mediterranean biogeographical region (OJ 2006 L 259, p. 1). That list, set out in Annex 1 to the decision, included, inter
         alia, Site UKGIB0002, called ‘Southern Waters of Gibraltar’ (‘Site UKGIB0002’), as proposed by the United Kingdom.   
      
      6        The adoption of that decision was preceded by an exchange of declarations between the United Kingdom and the Kingdom of Spain,
         initiated by the Commission, in which the Kingdom of Spain declared, inter alia, that any action by the United Kingdom in
         respect of Gibraltar in relation to the Natura 2000 network is done, and must be understood to be done, without prejudice
         to the position of the Kingdom of Spain on her sovereignty over Gibraltar, including its waters.
      
      7        On 12 December 2008, the Commission adopted Decision 2009/95/EC adopting, pursuant to Council Directive 92/43/EEC, a second
         updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2009 L 43, p. 393), still including
         Site UKGIB0002, and, for the first time, Site ES6120032, proposed by the Kingdom of Spain. That decision states the name,
         surface area and geographical coordinates (longitude and latitude of the centre of the site) of the sites in question. The
         decision was notified to the United Kingdom on 16 December 2008.
      
      8        At the meeting of the Habitats Committee on 15 October 2009, the subject of which was, inter alia, the draft of the contested
         decision, concerning a third updated list of SCIs for the Mediterranean biogeographical region, which included, in the annex
         thereto, as previously, Sites UKGIB0002 and ES6120032, the United Kingdom objected to the inclusion of that latter site in
         the list in question on account of its overlapping with Site UKGIB0002 and with what were allegedly United Kingdom territorial
         waters, and requested the Commission to reconsider the designation of Site ES6120032. 
      
      9        The Kingdom of Spain then argued that it had sovereignty over Gibraltar’s marine waters and declared that it was in favour
         of retaining Site ES6120032 on the list. The Commission stated, inter alia, that its role was not to check whether proposed
         sites were concerned by territorial disputes. Nor did it have the task of ascertaining, in respect of each site proposed by
         a Member State, whether the site covered the same area as other proposals from other Member States. Furthermore, overlapping
         of sites had already occurred, even if it concerned a smaller surface area than in the present case.   
      
      10      All the Member States present at that meeting of the Habitats Committee except the United Kingdom then voted in favour of
         the draft of the contested decision. Subsequently, the Commission adopted the contested decision. 
      
       Procedure before the General Court and the order under appeal
      11      By application lodged at the Registry of the General Court on 4 March 2010, the United Kingdom brought an action for annulment
         of the contested decision to the extent that it lists Site ES6120032 as a SCI for the Mediterranean biogeographical region.
         
      
      12      By separate document, the Commission raised a plea of inadmissibility pursuant to Article 114 of the Rules of Procedure of
         the General Court, submitting that, as regards the listing of Site ES6120032, the contested decision was a measure which was
         merely confirmatory of Decision 2009/95, which had not been challenged by the United Kingdom within the prescribed period.
         
      
      13      By the order under appeal, made pursuant to Article 114 of the Rules of Procedure, the General Court, without initiating the
         oral procedure, dismissed the action as inadmissible. 
      
      14      It firstly held that the disputed provision of the contested decision had already appeared in the earlier Decision 2009/95
         so that, as regards the designation of Site ES6120032 as a SCI, the contested decision contained no new factor. 
      
      15      Next, the General Court observed that, nevertheless, the confirmatory or other nature of a measure cannot be determined solely
         with reference to its content as compared with that of the previous decision which it confirms. If the challenged measure
         constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested
         to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes
         a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision. Therefore,
         it was necessary to examine whether the overlapping of Sites UKGIB0002 and ES6120032 constituted a substantial new fact which
         led to the reconsideration of the designation of the latter site in Decision 2009/95. 
      
      16      In that regard, the General Court found that, since both sites were already listed in Decision 2009/95, their overlapping
         already existed in that decision and could not in itself be regarded as a new fact subsequent to the adoption of that decision.
      
      17      Furthermore, it could not be accepted that neither the United Kingdom nor the Commission could have had prior knowledge of
         the overlapping of the sites when Decision 2009/95 was adopted. The United Kingdom was involved in the procedure for the adoption
         of that decision and, in October 2008, was sent the list of SCIs for the Mediterranean biogeographical region including the
         sites proposed by all the Member States concerned and the information which was due to be included in that decision. The Commission,
         for its part, was in possession of information relating to the sites proposed by the Member States when the draft of that
         list was drawn up, information which included, inter alia, the most recent and definitive site map transmitted. 
      
      18      The General Court concluded that the overlapping of Sites UKGIB0002 and ES6120032 in the contested decision could not be regarded
         as a new fact and that, consequently, the designation of Site ES6120032 in the contested decision could not be regarded as
         the result of a reconsideration of Decision 2009/95 on the basis of new facts.
      
      19      In addition, the General Court held that, from the notification of Decision 2009/95 to the United Kingdom on 16 December 2008,
         that party could not claim to be unaware of the content of that decision or of the overlapping of the two sites in question.
         
      
      20      Having regard to the foregoing considerations, the General Court concluded that, as regards the designation of Site ES6120032
         in the list of SCIs, the contested decision had to be held to be merely confirmatory of Decision 2009/95, and that the action
         was therefore inadmissible. 
      
       Forms of order sought
      21      By its appeal, the United Kingdom requests the Court to: 
      
      –        set aside the order under appeal; 
      –        declare its action admissible and refer the case back to the General Court for a decision on the substance; 
      –        order the Commission to pay the costs of the present proceedings and those of the proceedings at first instance relating to
         the plea of inadmissibility; and  
      
      –        reserve the costs as to the remainder. 
      22      The Commission and the Kingdom of Spain contend that the Court should dismiss the appeal and order the United Kingdom to pay
         the costs. 
      
       The appeal
      23      The United Kingdom advances two grounds in support of its appeal. By those grounds it disputes only the General Court’s findings
         relating to the issue of whether the United Kingdom and the Commission could have known of the overlapping of the sites at
         issue, without calling into question other aspects of the General Court’s reasoning. 
      
      24      The first ground alleges an error of law in respect of the identity of the parties whose ‘constructive’ knowledge of the overlapping
         of Sites ES6120032 and UKGIB0002 was relevant. The second ground alleges an error of law, and manifest errors of appraisal
         of the facts, in respect of the issue of whether a party ‘could have had prior knowledge’ of the overlapping of those sites.
         
      
       Second ground of appeal
       Arguments of the parties
      25      By its second ground, which it is appropriate to examine first, the United Kingdom alleges that the General Court committed
         errors so far as concerns the test which enables the issue of whether a party ‘could have had prior knowledge’ of the overlapping
         of sites to be assessed. 
      
      26      First, the General Court’s reasoning shows that it did not identify the correct legal test. Knowledge cannot be imputed in
         cases where a prudent person could not have been expected to discover the fact in question. 
      
      27      Secondly, concerning the issue of what can be expected of a prudent person, the General Court incorrectly failed to take into
         consideration the fact that, in breach of the duty of sincere cooperation set out in Article 10 EC and of the Habitats Directive,
         the Kingdom of Spain did not fulfil its obligation to notify the United Kingdom and the Commission of the overlapping of the
         sites at issue. The United Kingdom could reasonably expect to be informed and had no reason to be particularly attentive.
         
      
      28      In addition, in assessing whether it was reasonable to expect the Commission to have known of the overlapping of the sites
         at issue, the General Court should have examined to what extent it was part of the Commission’s obligations to check whether
         proposed sites overlapped with other sites. 
      
      29      Lastly, it was not reasonable on the part of the General Court to expect Member States to check whether there was any overlapping
         of sites on the list of SCIs for the Mediterranean biogeographical region, since that list does not contain any map of the
         sites and contains thousands of sites, both new and existing. 
      
      30      The Commission submits that the General Court properly established the constructive knowledge of the United Kingdom, by relying
         on the notification of Decision 2009/95 to the latter. Application of the test of actual knowledge, as wished by the United
         Kingdom, would have the consequence of rendering the two-month period for bringing proceedings entirely subjective, defeating
         the objective of that time-limit of providing legal certainty, and would be unverifiable. Furthermore, the conduct of the
         Kingdom of Spain, specifically the issue of whether it infringed European Union law, is not relevant in an action for annulment.
         
      
      31      The Kingdom of Spain essentially endorses the Commission’s arguments. 
      
       Findings of the Court
      32      First of all, an action for annulment brought against a decision which is merely confirmatory of an earlier decision that
         was not challenged within the time-limit for bringing proceedings is inadmissible and it is common ground, in the present
         case, that the United Kingdom did not bring an action for annulment of Decision 2009/95 before the expiry of the time-limit
         for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. 
      
      33      So far as concerns assessment of whether the contested decision is merely confirmatory, it is also common ground that, as
         the General Court observes in paragraphs 26 and 27 of the order under appeal, Site ES6120032 was listed for the first time
         as a SCI in Decision 2009/95 and that site was then re-listed in an identical form in the list adopted in the contested decision.
         Thus, the contested provision of that decision was already included in the earlier decision, so that, in respect of the designation
         of Site ES6120032 as a SCI, the contested decision does not contain any new factor as such.  
      
      34      The only aspect of the General Court’s reasoning against which the appeal is directed consists of the examination of whether
         the contested decision might not have been confirmatory on the ground that, at the time of the adoption of Decision 2009/95,
         the United Kingdom and the Commission could not have known of the overlapping of Sites ES6120032 and UKGIB0002. 
      
      35      To reach the conclusion that the United Kingdom could have known of that overlapping, the General Court relied, in paragraphs
         34 to 36 of the order under appeal, on the United Kingdom’s participation, as a member of the Habitats Committee, in the procedure
         for the adoption of Decision 2009/95, taking into consideration the various items of information provided to the United Kingdom
         during that procedure and prior to the decision’s adoption, and the vote in favour of its adoption by the representative of
         the United Kingdom. 
      
      36      The United Kingdom merely claims that the General Court identified an incorrect legal test, in that knowledge cannot be imputed
         in cases where a prudent person cannot be expected to discover the fact in question. However, the appeal does not state what
         different, incorrect test the General Court allegedly applied. Subsequently, the United Kingdom submits only that the circumstances
         taken into consideration by the General Court were insufficient to enable the United Kingdom to know of the overlapping of
         the sites at issue at the time of the adoption of Decision 2009/95 and that other factual matters should have been taken into
         consideration. 
      
      37      By that argument, the United Kingdom is in actual fact seeking to call into question the assessment made by the General Court
         of all the factual matters submitted to it. Thus, the United Kingdom is, in essence, simply challenging the assessment of
         the facts made by the General Court without, moreover, pleading any distortion of the clear sense of the evidence in the file.
         
      
      38      Such an appraisal of the facts does not, save where the clear sense of the evidence submitted to it has been distorted, constitute
         a point of law which is subject, as such, to review by the Court of Justice on appeal.  Under Article 256(1) TFEU and the
         first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law
         only. The General Court therefore has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of
         its findings is apparent from the documents submitted to it, and to appraise those facts (see, inter alia, Case C-53/92 P
         Hilti v Commission [1994] ECR I-667, paragraph 42; Case C-238/06 P Develey v OHIM [2007] ECR I-9375, paragraph 97, and Case C‑431/07 P Bouygues and Bouygues Télécom v Commission [2009] ECR I-2665, paragraph 137).   
      
      39      The second ground of appeal must therefore be rejected as inadmissible.  
      
       First ground of appeal
       Arguments of the parties
      40      By its first ground of appeal, the United Kingdom’s primary complaint is that the General Court committed an error of law
         in respect of the identity of the parties whose ‘constructive’ knowledge of the overlapping of Sites ES6120032 and UKGIB0002
         was legally relevant. The correct test was what the United Kingdom could have known. In its view, the issue of whether the
         Commission could have known of that overlapping is irrelevant. 
      
      41      In Case T-141/97 Yasse v EIB [1999] ECR‑SC I‑A-177 and II-929, paragraphs 126 to 128, which is the underlying authority for the purposes of examination
         of ‘constructive’ knowledge, the General Court examined only what the applicant could have known, without mentioning the knowledge
         either of the ‘administration’ or of any other party. 
      
      42      In the alternative, if it was relevant to ascertain the circumstances of which the author of the decision could have known,
         in the present case the author of the contested decision was both the Commission and the Habitats Committee, and not the Commission
         alone, since, in accordance with Articles 4 and 21 of the Habitats Directive, the Commission could adopt the contested decision
         only with the approval of that committee.
      
      43      According to the Commission, this ground of appeal must be rejected as ineffective. First, the General Court did not disregard
         the United Kingdom’s constructive knowledge, which it expressly evaluated in paragraphs 35 and 36 of the order under appeal.
         Secondly, the analysis of the constructive knowledge both of the United Kingdom and of the Commission was not decisive for
         the purposes of the order under appeal, and was set out by the General Court only in response to the arguments put forward.
         Moreover, the Commission alone adopted the contested decision, albeit subject to certain procedural requirements, inter alia
         an opinion of the competent committee. 
      
      44      The Kingdom of Spain essentially endorses the Commission’s arguments. 
      
       Findings of the Court
      45      It must be pointed out that, in accordance with settled case-law, where one of the grounds adopted by the General Court is
         sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment
         concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective
         and must be dismissed (see, inter alia, Case C-326/91 P de Compte v Parliament [1994] ECR I-2091, paragraph 94, and Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraph 68).
      
      46      As follows from paragraphs 32 to 36 above, the General Court determined that the United Kingdom could have known of the overlapping
         of the sites at the time of the adoption of Decision 2009/95, and that finding has not been properly called into question
         by the United Kingdom. 
      
      47      Accordingly, even if the General Court committed an error of law in examining, in addition, the issue of whether the Commission
         also could have known of that overlapping, such an error would have had no effect on the outcome of the action at first instance
         and thus would have had no bearing on the operative part of the order under appeal. 
      
      48      Therefore, even if the first ground of appeal, according to which the correct test was what the United Kingdom could have
         known, should prove well founded, it would not be such as to result in the order under appeal being set aside. 
      
      49      Consequently, this ground of appeal must be rejected as ineffective. 
      
      50      In the light of all the foregoing considerations, the appeal must be dismissed. 
      
       Costs
      51      Under Article 138(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article
         184 thereof, 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 Commission has applied for costs and the United Kingdom has been unsuccessful, the latter must be ordered
         to pay the costs. 
      
      52      In accordance with Article 138(3) of the Rules of Procedure, which is also applicable by virtue of Article 184 thereof, the
         Kingdom of Spain is to bear its own costs.
      
      On those grounds, the Court (Third Chamber) hereby:
      1.      Dismisses the appeal;
      2.      Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs;
      3.      Orders the Kingdom of Spain to bear its own costs.
      [Signatures] 
      * Language of the case: English.