CELEX: 62004CC0334
Language: en
Date: 2006-09-14
Title: Opinion of Advocate General Kokott delivered on 14 September 2006. # Commission of the European Communities v Hellenic Republic. # Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Annex I - Conservation of wild birds - Special protection areas - IBA 2000 - Value - Quality of the data - Criteria - Margin of discretion - Manifestly insufficient classification - Wetlands. # Case C-334/04.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 14 September 2006 1(1)
      
      Case C-334/04
      Commission of the European Communities
      v
      Hellenic Republic
      (Conservation of wild birds – Special protection areas – IBA 2000)I –  Introduction
      1.     By these proceedings the Commission is bringing an action against a further Member State on account of the inadequacy of areas
         classified as special protection areas for birds (‘SPAs’) in accordance with Council Directive 79/409/EEC of 2 April 1979
         on the conservation of wild birds (2) (‘the Birds Directive’). The Court has already delivered judgment against the Netherlands, (3) France, (4) Finland (5) and Italy (6) for similar infringements. Proceedings are also pending against Spain (7) and Ireland. (8) The Commission is preparing another case against Portugal. (9)
      
      2.      The central issue in each of these cases is the evidence that the relevant Member State has not yet classified as special
         protection areas all areas requiring classification as such. In the present case the Commission bases its claim on the data
         on Greece contained in a list of important bird areas in Europe which was published in the year 2000 by the non-governmental
         organisation BirdLife International, an international umbrella organisation for national organisations for the protection
         of birds (‘IBA 2000’; IBA stands for Important Bird Area or Important Bird Areas). (10) Greece replies, in essence, that this list must be examined and that more time is required to do so.
      
      II –  Legal background
      3.      Article 4(1) and (2) of the Birds Directive determines which areas the Member States are to classify as SPAs, while Article
         4(3) governs the information on classification to be sent to the Commission:
      
      ‘(1)      The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to
         ensure their survival and reproduction in their area of distribution.
      
      In this connection, account shall be taken of:
      (a)       species in danger of extinction; 
      (b)       species vulnerable to specific changes in their habitat;
      (c)       species considered rare because of small populations or restricted local distribution;
      (d)      other species requiring particular attention for reasons of the specific nature of their habitat. 
      Trends and variations in population levels shall be taken into account as a background for evaluations.
      Member States shall classify in particular the most suitable territories in number and size as special protection areas for
         the conservation of these species, taking into account their protection requirements in the geographical sea and land area
         where this Directive applies.
      
      (2)       Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind
         their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting
         and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention
         to the protection of wetlands and particularly to wetlands of international importance.
      
      (3)      Member States shall send the Commission all relevant information so that it may take appropriate initiatives with a view to
         the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 above form a coherent whole which meets
         the protection requirements of these species in the geographical sea and land area where this Directive applies.’
      
      4.     The ninth recital in the preamble to the Birds Directive explains this rule:
      ‘… the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation
         of all species of birds; … certain species of birds should be the subject of special conservation measures concerning their
         habitats in order to ensure their survival and reproduction in their area of distribution; … such measures must also take
         account of migratory species and be coordinated with a view to setting up a coherent whole.’
      
      5.     Under the second subparagraph of Article 3(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural
         habitats and of wild fauna and flora (11) (‘the Habitats Directive’), the ‘Natura 2000’ network set up by this directive is also to include the SPAs classified by
         the Member States pursuant to the Birds Directive.
      
      III –  Pre-litigation procedure and forms of order sought
      6.     On 21 December 2001 the Commission invited the Greek Government to submit observations pursuant to Article 226 EC (letter
         of formal notice). The Commission complained that Greece had classified too few areas as SPAs in accordance with Article 4
         of the Birds Directive. The Commission relied on IBA 2000 as evidence of the inadequacy of areas classified as SPAs. In relation
         to Greece this list contains 186 areas which were to be classified as SPAs, covering an area of some 33 200 square kilometres,
         or 25.2% of Greece’s land area.
      
      7.     Subsequently, Greece sent the Commission further information on the areas which had already been classified as SPAs. Thus,
         the Commission had information on 100 areas classified as SPAs. The Greek authorities announced 40 further SPAs.
      
      8.     On 19 December 2002 the Commission sent the Greek Government a reasoned opinion setting out the same complaint.
      9.     On 20 February 2003 the Permanent Representation of the Hellenic Republic sent the Commission information on 40 further SPAs
         and changes to the boundaries of 10 existing SPAs. The now 151 SPAs cover an area of 13 703 square kilometres, of which 13 136
         square kilometres, or 10% of Greece’s land area, are land and 567 square kilometres are sea. (12)
      
      10.   However, the Commission was not satisfied with this progress and therefore brought an action on 2 August 2004.
      11.   The Commission claims that that Court should: 
      1.      declare that, 
      –       by classifying as special protection areas (SPAs) territories the number and overall size of which fall clearly short of the
         number and overall size of territories fulfilling the preconditions for classification as special protection areas within
         the meaning of Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds,
      
      –       by designating SPAs of a size clearly smaller than the corresponding IBA 2000 territories which fulfil the preconditions for
         classification as SPAs,
      
      –       by failing to designate SPAs for many species of birds included in Annex I to Directive 79/409 or by having classified as
         SPAs areas where the species in question are insufficiently represented,
      
      –       by failing to designate SPAs for many migratory species or by classifying as SPAs areas where the species at issue are insufficiently
         represented, 
      
      the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409;
      2.      order the Hellenic Republic to pay the costs.
      12.   The Hellenic Republic contends that the Court should:
      1.      dismiss the action brought by the Commission, and
      2.      order the Commission to pay the costs.
      13.   The Kingdom of Spain, the Portuguese Republic, the French Republic and the Republic of Finland have intervened in these proceedings
         in support of Greece.
      
      IV –  Assessment
      14.   The Commission complains that Greece has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive.
      A –    Extent of the examination
      15.   The application is made up of four pleas: Greece has clearly classified too few areas as SPAs, the areas classified as SPAs
         are of a smaller size than they should be, no or too few areas have classified as SPAs for many species of birds listed in
         Annex I, and the same is true of many regularly occurring migratory species. However, these pleas need not be fully examined
         in detail.
      
      16.   In any event, the forms of order sought be the Commission must be dismissed in so far as it seeks a declaration that Greece
         has classified no areas for many species of bird listed in Annex I and many migratory species not listed therein. The Commission names only one bird included
         in Annex I, namely Krueper’s nuthatch (Sitta krueperi), and no migratory birds in relation to which no area has been classified. (13) On the contrary, Greece has expressly accepted the Commission’s complaint in respect of this species. 
      
      17.   More extensive acceptance by the classification of new areas cannot – unlike in a number of similar cases (14) – be established. Such classification would have to be regarded as acceptance at most if it occurred after the period laid
         down in the reasoned opinion, since the infringement must exist at that time in order to provide grounds for the action. (15) On the assumption that the date on the covering letter attached to the reasoned opinion is the same as the date on which
         it was received by the Permanent Representation, the period laid down in the reasoned opinion ended two months after 19 December
         2002, that is to say on 19 February 2003. According to the uncontested information provided by Greece, the final areas were
         designated SPAs by a document of the Minister of the Environment numbered 125310/578 of 11 February 2003, that is to say within
         the period set by the Commission. 
      
      18.   However, in the proceedings before the Court Greece has expressly accepted that it did not classify sufficient areas as SPAs
         for other species mentioned in Annex I, namely the long-legged buzzard (Buteo rufinus), the lesser kestrel (Falco naumanni), and the cinereous bunting (Emberiza cineracea). It states that preparations are under way for the classification of 10 new areas for these species. Consequently, Greece
         has partially accepted the first plea – inadequacy of areas classified as SPAs – and the third plea – inadequacy of areas
         classified as SPAs for certain species listed in Annex I. 
      
      19.   However, the Commission clearly expects other areas to be classified and refers to a further eight species listed in Annex
         I in relation to which insufficient areas have been classified as SPAs. Therefore, these pleas must also be examined. This
         applies a fortiori to the second plea – the inadequate definition of the boundaries of SPAs within IBA territories – and the
         fourth plea – the insufficient coverage of migratory birds in the SPAs.
      
      20.   All four pleas must be examined in this regard. This can be a joint examination. Although the pleas are based on two different
         provisions of the Birds Directive, that is to say Article 4(1) and (2), these provisions relate to the same obligation, that
         is to say to classify areas as SPAs. In substantive terms the Commission bases all four pleas on the Greek part of the IBA
         2000 inventory of areas and ultimately merely illustrates the extent to which the Greek classification of areas as SPAs falls
         short of this inventory.
      
      B –    Legal bases for the obligation to classify areas as SPAs
      21.   The legal bases for the obligation to classify areas as SPAs are not disputed between the parties.
      22.   Pursuant to the fourth subparagraph of Article 4(1) of the Birds Directive, Member States are to classify the most suitable
         territories in number and size as special protection areas (SPAs) for the conservation of the species mentioned in Annex I,
         taking into account their protection requirements in the geographical sea and land area where the directive applies. It is
         not possible to avoid this obligation by adopting other special conservation measures. (16)
      
      23.   Under Article 4(2) Member States are to take similar measures for regularly occurring migratory species not listed in Annex I
         as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member
         States are to pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
      
      24.   It is apparent, in particular, from Article 4(3) of the Birds Directive and the ninth recital in the preamble thereto, that
         the SPAs are intended to form a coherent whole which meets the protection requirements of these species in the geographical
         sea and land area where the directive applies.
      
      25.    It is settled case-law that although Member States do have a certain margin of discretion with regard to the choice of special
         protection areas, a decision on the classification and delimitation of those areas must nevertheless be made solely on the
         basis of the ornithological criteria determined by the directive. Other considerations, particularly those of an economic
         or social nature, may play no role in the classification of the area. (17)
      
      26.   Since, on accession, Greece had not agreed on a transitional period for the transposition of the Birds Directive, the directive
         applied to Greece as from the date of accession, namely 1 January 1981, in the same way as it did to the existing Member States.
         As the two-year transposition period was still running on that date, Greece was required to fulfil the obligation to classify
         areas as SPAs by the time the transposition period expired on 6 April 1981. (18)
      
      C –    Evidence of the inadequacy of the classification of areas as SPAs
      27.   The Commission bases its area-specific complaints on the fact that IBA 2000 refers to 186 areas in relation to Greece. Only
         141 of these areas have been classified fully or partially as SPAs. In total only 40% of the territories referred to in IBA
         2000 have been classified. In the case of 67 IBA territories more than 75% of the area has been classified and in the case
         of 90 IBA territories over 50% has been classified. 45 IBA territories are not covered by any classifications at all. Consequently,
         Greece has clearly not fulfilled its obligation to classify areas as SPAs.
      
      28.   This numerical assessment of the differences between IBA 2000 and the Greek classification is difficult to understand in part.
         If the Commission’s figures for coverage of 75% and 50% of the IBA territories are added to the number of territories in relation
         to which no area has been classified as an SPA, a figure of 202 territories is obtained, but IBA 2000 lists only 186 territories
         in relation to Greece.  Therefore, some territories would appear to have been counted twice. 
      
      29.   In spite of these ambiguities the Commission’s basic line of argument is clear. The Greek classification of areas as SPAs
         covers only part of the list of territories in IBA 2000. 45 IBAs are not covered by SPAs and overall the Greek SPAs cover
         40% of the area of the IBAs. In this regard, the majority of the IBA territories would appear to be less than 75% covered.
         Only in the case of the remaining 67 territories, which are over 75% covered, does the Commission appear to consider that
         the coverage is adequate.
      
      30.   The Commission also refers to 12 species of bird listed in Annex I in relation to which the important sites mentioned in IBA
         2000 have not been classified, or not classified in full, as SPAs. Many IBA territories are also very important for migratory
         birds not mentioned in Annex I but in relation to which areas must be classified as SPAs under Article 4(2) of the Birds Directive.
      
      31.   In this respect too the Commission’s submission is not free of contradictions and ambiguities. As Greece correctly emphasises,
         in relation to Bonelli’s eagle (Hieraaetus fasciatus) the Commission refers to two of the IBA territories, that are most important but not covered adequately by SPAs, which according
         to IBA 2000 were not included in the inventory in relation to this species in accordance with the criteria relating to areas
         eligible for classification. Although the possibility cannot be excluded that there are now more recent findings showing that
         these areas are particularly important for this species and must therefore be classified, (19) the Commission provides no information in this respect.
      
      32.   However, in this regard too these deficiencies do not undermine the basis of the application. Essentially, the Commission’s
         arguments in relation to these species too are based on the differences between IBA 2000 and the Greek classifications.
      
      33.   Consequently, the success of the application turns on whether the difference between IBA 2000 and the Greek classifications
         demonstrates that Greece has failed adequately to meet its obligation to classify areas as SPAs.
      
      34.    An inventory of areas such as IBA 2000 can provide substantial evidence that a Member State has failed adequately to meet
         its obligation to classify areas as SPAs. The Court held that in view of the scientific value of IBA 89, and of the absence
         of any scientific evidence to show that the obligations flowing from Article 4(1) and (2) of the Directive could be satisfied
         by classifying as SPAs sites other than those appearing in that inventory and covering a smaller total area, that inventory,
         although not legally binding on the Member State concerned, can be used by the Court as a basis of reference for assessing
         whether that Member State has classified a sufficient number and area of territories as SPAs for the purposes of the abovementioned
         provisions of the Directive. (20)
      
      35.   IBA 89 is an inventory, submitted in 1989, of areas which are of great importance for the conservation of wild birds in the
         Community. That inventory was prepared for the competent Directorate-General of the Commission by the Eurogroup for the Conservation
         of Birds and Habitats in conjunction with the International Council of Bird Preservation and in cooperation with Commission
         experts. (21)
      
      36.   IBA 2000 is a more recent inventory. In relation to Greece it lists substantially more IBAs in terms of number and territories
         than IBA 89. Whether the new inventory is suitable as evidence in the abovementioned sense depends on whether or not it is
         of a scientific quality comparable to that of its predecessor.
      
      37.   The areas listed in both inventories result from the application of specific criteria to information on the presence of birds.
         The criteria of IBA 2000 are largely the same as those of IBA 89. The increase in the number and territory of the areas stems
         essentially from better knowledge of the presence of birds.
      
      38.    The Commission’s involvement in IBA 89 consisted almost exclusively in monitoring the ornithologists’ work on the criteria.
         Since for the most part the criteria continue to be applied, the Commission is, at least indirectly, responsible in this respect
         also for IBA 2000. On the other hand, the Commission was hardly able to monitor the collection of data in the case of IBA
         89 since it could not verify the existence and extent of each individual bird presence indicated. The Commission is obviously
         satisfied of the scientific value of this inventory since it is pursing, on the basis thereof, several cases on account of
         the inadequacy of areas classified as SPAs. Consequently, in this regard too there is no significant difference between IBA
         89 and IBA 2000.
      
      39.   The Kingdom of Spain, which is intervening in support of Greece, objects to the fact that IBA 2000 was drawn up by non‑governmental
         organisations. This is true, but it does not undermine the scientific quality of it. (22) It was published by BirdLife International, an association of national organisations for the protection of birds, which was
         involved in IBA 89 under the designation of the International Council for Bird Preservation. The Eurogroup for the Conservation
         of Birds, which was also involved at that time, was an ad hoc group of experts of this Council. The collection of data for
         the Greek part of IBA 2000 is based on contributions from a large number of ornithologists. Many of them are members of the
         EOE, the Greek society for the protection of birds, which supports the Greek Government in the identification and delimitation
         of potential SPAs. The recognition that the authors of the Greek part enjoy is demonstrated in particular by the fact that
         the Greek State, through the Ministry of the Environment, promoted the drawing up of the inventory. (23) In addition, the Netherlands, via its embassy in Greece, and the Royal Society for the Protection of Birds, a British organisation
         for the protection of birds, also supported the work.
      
      40.   Therefore, the IBA 89 and IBA 2000 inventories are comparable in terms of their scientific quality. Since it is based on more
         up-to-date data, IBA 2000 constitutes the better scientific source and therefore deserves to be given preference.
      
      41.   As the Commission, Finland, France and Portugal in particular point out, the inventory is not binding per se and can be invalidated
         by better scientific knowledge. However, the Greek Government does not question the overall scientific quality of IBA 2000
         or provide any scientific evidence to show that the obligations flowing from Article 4(1) and (2) of the Birds Directive could
         be satisfied by classifying as SPAs fewer and/or smaller areas.
      
      42.   In support of Greece Finland submits that in order to invalidate a complaint alleging inadequacy of areas classified as SPAs
         the Member States are not required to prove in relation to each individual area not classified as an SPA that it is not among
         the most suitable areas. That would impose a disproportionate burden. Rather, the general scientific evidence that sufficient
         areas have been classified is sufficient. However, in the present case this submission is irrelevant since Greece does not
         furnish evidence of adequate classification either in general  or in relation to each individual area.
      
      43.   Therefore, in principle the Commission has proven the complaint.
      44.   However, the Greek Government submits that before the territories referred to in IBA 2000 can be classified as SPAs they have
         to be subject to a scientific examination. Although IBA is a useful reference, it does have its deficiencies, in particular
         as regards the delimitation of boundaries. This examination had been concluded in relation to 10 areas. In its rejoinder Greece
         stated that the conclusion had been reached that 62.96% of the corresponding IBA territories covering a total area of 305 146
         hectares had to be classified as SPAs (the percentage varies between 37% and 111.49%, depending on the site). In relation
         to 69 IBA territories the examination is still under way. In this connection, Greece has also begun to modify the criteria
         for identifying and delimiting potential SPAs.
      
      45.   It may easily be the case that these efforts will result in a list of areas classified as SPAs which, from a scientific point
         of view, is on a par with IBA 2000 or even of better ornithological quality. If this were the case, IBA would be undermined
         as evidence of the inadequacy of areas classified as SPAs. However, at present and on the basis of the Greek Government’s
         submission such a situation cannot be established since the scientific investigations have not been completed or submitted
         to the Court.
      
      46.   Nor can Greece use these figures to question the substantive quality of IBA 2000, in particular with regard to the definition
         of boundaries. For that purpose too, the submission would be insufficiently substantiated to enable the Court to carry out
         an examination. 
      
      47.   By this submission Greece principally seeks to demonstrate that where new scientific findings are published the Commission
         must give the Member States sufficient time to examine these findings and then draw the necessary conclusions. In respect
         of this submission it is supported by France, Portugal and Spain.
      
      48.   These arguments are based on a correct consideration, namely that the Member States bear sole responsibility for the classification
         of SPAs. They cannot relinquish their responsibility by simply adopting and implementing the findings of other bodies, including
         those of organisations for the protection of birds. Rather, for an area to be classified it must number among the most suitable
         areas for the protection of birds, as viewed by the competent authorities on the basis of the best available scientific facts. (24)
      
      49.   However, it does not follow that the obligation to classify does not apply in general where the competent authorities have
         failed fully to examine and verify new scientific findings. Rather, it should be recalled that the obligation to classify
         has existed since the expiry of the period for transposing the Birds Directive, that is to say, since 6 April 1981 in the
         case of Greece. (25) Moreover, the obligation to classify is not limited by the state of scientific knowledge at any given time. (26)
      
      50.    This obligation included a further requirement, namely to identify the most suitable areas. Therefore, Article 10 of the
         Birds Directive, in conjunction with Annex V thereto, calls on the Member States to support the necessary research and work.
         Consequently, by 1981 Greece ought itself to have carried out a comprehensive scientific survey of the presence of birds in
         its territory and classified the resulting areas as SPAs. Had it fulfilled this obligation in full, either IBA 2000 would
         contain only SPAs or Greece would easily be able to reject any further calls for the classification of areas as SPAs. Further
         requirements to classify can arise only if the presence of birds alters. In the present case no party has claimed that this
         has occurred.
      
      51.    To grant Greece now a further period within which to examine the best available scientific source would be tantamount to
         attaching to the classification of areas as SPAs a condition which is not laid down in Article 4 of the Birds Directive, namely
         the furnishing of proof by third parties that there are still unprotected areas which should be classified. However, such
         a condition would run counter not only to the wording of the provisions but also to the objectives of the Birds Directive
         and the responsibility, laid down therein, of the Member States – and not third parties – for the common (natural) heritage
         in their territory. (27) Therefore, the need to examine IBA 2000 cannot justify the failure to classify areas as SPAs.
      
      52.   Greece further submits that the programme for examining the areas was agreed with the Commission. If it thereby intends to
         raise an objection to block the application, Greece should at least set out in detail which agreements were reached with the
         Commission and the extent to which they preclude the application. The mere fact that the Commission and a Member State discuss
         measures to put an end to a complaint alleging infringement of Community law cannot, in any event, prevent the Commission
         from making an application. Rather, the principle of cooperation in good faith requires that the Commission help the Member
         States at all times, that is to say before, during and after the proceedings before the Court, to ensure that the requirements
         of Community law are satisfied.
      
      53.   As a further illustration of the inadequacy of the areas classified as SPAs, the Commission refers to various unclassified
         wetlands which are eligible for designation as wetlands of international importance under the Ramsar Convention and which
         are also referred to in IBA 2000. (28) Greece announces an examination of some of these areas, but does not consequently invalidate the Commission’s complaint.
         However, in relation to five individual areas Greece raises objections.
      
      54.   In the case of IBA No 45 ‘Lake Vergoritis and Lake Petron’ only the section classified in relation to the pygmy cormorant
         (Phalacrocorax pygmeus) is of importance and therefore that area has to be classified. The same applies to IBA No 91 ‘Lakes Trichonida and Lysimachia’
         which involves protection of the ferruginous duck (Aythya nyroca). In response the Commission states that important wetlands are not protected in relation to specific species but rather
         in their entirety. However, the Commission thus fails to understand that both these areas were selected in accordance with
         Ramsar criterion 2, (29) that is to say precisely on account of their importance to the two species referred to. (30) Since the Commission does not contradict the ornithological grounds put forward – the lack of importance of the areas not
         covered in relation to the two species – this argument must be deemed to have been conceded and consequently must be accepted.
      
      55.   According to Greece, within IBA No 166 ‘Mount Dikios, Cape Louros, Lake Psalidi, and Alyki’ the two lakes have been classified.
         Furthermore, this IBA consists of mountains rather than wetlands. This objection is well founded. IBA 2000 describes the areas
         as forested mountain with two lakes. (31) However, the designation of the area is due not only to the presence of the wetland but in particular to its importance as
         a breeding area and staging post for birds of prey. Accordingly, – and contrary to the Commission’s submission – BirdLife
         furthermore does not designate this area a potential Ramsar area. (32) However, it does not therefore follow that this area did not have to be classified as an SPA.
      
      56.   In relation to two other areas Greece submits that the excluded areas have no importance to birds. The Commission contradicts
         this submission since no scientific grounds have been presented to it. Since Greece has also failed to present any relevant
         arguments in the proceedings before the Court, this objection must be dismissed as unsubstantiated. 
      
      57.   Since the objections raised by Greece are well founded in relation to only three of 11 areas and one of these areas is eligible
         for classification as a normal SPA in accordance with IBA 2000, they do not undermine this argument which the Commission puts
         forward by way of illustration.
      
      58.   The Commission also refers to a number of species of birds which are not sufficiently covered. The Greek Government contradicts
         this submission in terms of detail but states in relation to all species that the classification of further species is planned
         or under consideration as part of the examination of IBA 2000. Consequently, this line of argument too is accepted.
      
      59.   Finally, Greece, with the support of France, contests the complaint that the classification clearly falls short of IBA 2000.
         In Commission v Netherlands the Court based a similar finding on the fact that in that case less than half the IBAs had been classified. (33) By contrast, Greece has fully or partially classified 141 out of 186 IBAs.
      
      60.   However, Greece fails to appreciate the importance that the Court attaches to the word ‘clearly’ in this context. This is
         more obvious in the case against Italy in which the Court held that ‘a large number and area of the sites listed in the IBA
         Inventory 89’ had not been classified as SPAs. (34)
      
      61.   The need to describe the classification shortcomings as such is evident from the fact that the Commission does not merely
         object to individual cases, but complains about Greece’s administrative practice as a whole. The Court emphasises that for
         administrative practice to be inconsistent with Community law it must be, to some degree, of a consistent and general nature. (35) In exactly the same way, the finding that a Member State has failed to fulfil its obligation to classify areas as SPAs overall
         and not only in relation to specific areas cannot be based on particular isolated cases. 
      
      62.   In the present case the Commission submits that Greece has classified as SPAs only 40% of the areas to be protected. Greece
         has not undermined this complaint. Furthermore, although 151 of the 186 IBAs have been classified as SPAs, the Greek Government
         considers that it is necessary to examine 69 areas and to classify 10 as SPAs. Consequently, the classification shortfalls
         are not limited to particular isolated cases, but rather cover an adequate number of areas and a sufficient amount of territory
         to justify the declaration sought.
      
      63.   In this respect the application must consequently be granted.
      V –  Costs
      64.   Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied
         for by the successful party. Since the Commission has applied for costs and the Hellenic Republic is largely unsuccessful,
         it must be ordered to pay the costs.
      
      65.   Pursuant to Article 69(4) of the Rules of Procedure, the Kingdom of Spain, the Portuguese Republic, the French Republic and
         the Republic of Finland shall bear the costs resulting from their respective interventions.
      
      VI –  Conclusion
      66.   I therefore propose that the Court should declare that:
      (1)      The Hellenic Republic failed to fulfil its obligations under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April
         1979 on the conservation of wild birds, by failing 
      
      –       to classify as special protection areas (SPAs) territories the number and overall size of which fall clearly short of the
         number and overall size of territories fulfilling the preconditions for classification as special protection areas within
         the meaning of Article 4(1) of the Directive,
      
      –       to designate SPAs of a size clearly smaller than the corresponding IBA 2000 territories which fulfil the preconditions for
         classification as SPAs, 
      
      –       to designate SPAs in relation to the species Krueper’s nuthatch (Sitta krueperi); 
      
      –       in relation to the species European shag (Phalacrocorax aristotelis), Lammergeier (Gypaetus barbatus), cinereous vulture (Aegypius monachus), lesser spotted eagle (Aquila pomarina), imperial eagle (Aquila heliaca), long-legged buzzard (Buteo rufinus), Bonelli’s eagle (Hieraaetus fasciatus), lesser kestrel (Falco naumanni), Eleonora’s falcon (Falco eleonora), Lanner falcon (Falco biarmicus) and cinereous bunting (Emberiza cineracea), to classify as SPAs areas where the species concerned are insufficiently represented.
      
      (2)      The remainder of the application is dismissed. 
      (3)      The Hellenic Republic shall pay the costs.
      (4)      The Kingdom of Spain, the Portuguese Republic, the French Republic, and the Republic of Finland shall bear their own respective
         costs.
      
      1 –	Original language: German.
      
      2 –	OJ 1979 L 103, p. 1.
      
      3 –	Case C-3/96 [1998] ECR I-3031.
      
      4 –	Case C-202/01 [2002] ECR I-11019.
      
      5 –	Case C-240/00 [2003] ECR I-2187.
      
      6 –	Case C-378/01 [2003] ECR I-2857.
      
      7 –	See my Opinion delivered today in Case C-235/04.
      
      8 –	See my Opinion delivered today in Case C-418/04.
      
      9 –	Commission press release IP/05/45 of 14 January 2005.
      
      10 –	Heath, M.F. & M.I. Evans, Important Bird Areas in Europe. Priority sites for conservation. Volume 2: Southern Europe, BirdLife Conservation Series No 8, Volume II, Cambridge (2000), p. 261 et seq.
      
      11 –	OJ 1992 L 206, p. 7.
      
      12 –	Figures according to the Commission’s Natura Barometer, as of June 2006, europa.eu.int/comm/environment/nature/nature_conservation/useful_info/barometer/barometer.htm.
      
      13 –	Although at the hearing the Commission submitted that no area had been classified also in relation to the lesser kestrel,
         this species occurs ‘regularly’, for example in the ‘Dionisiades islands’ SPA which is 100% identical to the corresponding
         IBA 192 (see IBA 2000 Volume II, p. 329).
      
      14 –	See the judgments in Commission v France (cited in footnote 4, paragraph 19 et seq.), Commission v Finland (cited in footnote 5, paragraph 28 et seq.) and Commission v Italy (cited in footnote 6, paragraph 16) and my Opinion delivered today in Case C-235/04 Commission v Spain, paragraph 26 et seq.
      
      15 –	Case C‑173/01 Commission v Greece [2002] ECR I-6129, paragraph 7; Case C-114/02 Commission v France [2003] ECR I-3783, paragraph 9; and Case C-221/04 Commission v Spain [2004] ECR I-4515, paragraph 23.
      
      16 –	Commission v Netherlands (cited in footnote 3, paragraph 55 et seq.).
      
      17 –	Case C-355/90 Commission v Spain ‘Santoña Marshes’ [1993] ECR I-4221, paragraph 26; Case C-44/95 Royal Society for the Protection of Birds ‘Lappel Bank’ [1996] ECR I-3805, paragraph 26; and Commission v Netherlands (cited in footnote 3, paragraph 59 et seq.).
      
      18 –	Santoña Marshes (cited in footnote 17, paragraph 11).
      
      19 –	Case C-209/04 Commission v Austria ‘Lauteracher Ried’ [2006] ECR I-2755, paragraph 44.
      
      20 –	Commission v Netherlands (cited in footnote 3, paragraphs 68 to 70) and Commission v Italy (cited in footnote 6, paragraph 18).
      
      21 –	Commission v Netherlands (cited in footnote 3, paragraph 68).
      
      22 –	For further details in this respect, and in particular in respect of the Spanish part of IBA 2000, see my Opinion delivered
         today in Case C-235/04 Commission v Spain, paragraph 47 et seq.
      
      23 –	IBA 2000, Volume II, p. 274.
      
      24 –	See Case C-157/89 Commission v Italy ‘hunting periods’ [1991] ECR I-57, paragraph 15, and Case C-60/05 WWF Italia and Others [2006] ECR I-0000, paragraph 27.
      
      25 –	See paragraph 26 above.
      
      26 –	Lauteracher Ried (cited in footnote19, paragraph 44).
      
      27 –	Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9, and Case C-38/99 Commission v France [2000] ECR I­‑10941, paragraph 53.
      
      28 –	In this respect see BirdLife International (2001) Important Bird Areas and potential Ramsar Sites in Europe. BirdLife International,
         Wageningen, The Netherlands.
      
      29 –	BirdLife International (2001) (cited in footnote 28, p. 50).
      
      30 –	A wetland is internationally important if it supports vulnerable, endangered, or critically endangered species or threatened
         ecological communities. See BirdLife International (2001) (cited in footnote 28, p. 2).
      
      31 –	IBA 2000, Volume II, p. 323.
      
      32 –	BirdLife International (2001) (cited in footnote 28, p. 50).
      
      33 –	Commission v Netherlands (cited in footnote 3, paragraphs 63 and 72, in conjunction with paragraph 40 et seq.).
      
      34 –	Commission v Italy (cited in footnote 6, paragraph 18).
      
      35 –	Case C-387/99 Commission v Germany [2004] ECR I-3751, paragraph 42; Case C-494/01 Commission v Ireland [2005] ECR I-3331, paragraph 28; Case C-287/03 Commission v Belgium [2005] ECR I-3761, paragraph 29; and Case C-441/02 Commission v Germany [2006] ECR I‑3449, paragraph 50.