CELEX: 62003CC0117
Language: en
Date: 2004-07-08
Title: Opinion of Advocate General Kokott delivered on 8 July 2004. # Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma Friuli Venezia Giulia. # Reference for a preliminary ruling: Consiglio di Stato - Italy. # Directive 92/43/EEC - Conservation of natural habitats - Wild fauna and flora - National list of sites eligible for identification as sites of Community importance - Conservation measures. # Case C-117/03.

OPINION OF ADVOCATE GENERALKOKOTTdelivered on 8 July 2004(1)
         Case C-117/03Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli-Venezia Giulia (Reference for a preliminary ruling from the Consiglio di Stato (Italy))
            (Directive 92/43/EEC  –  Conservation of natural habitats  –  Wild fauna and flora  –  Proposed sites of Community importance)
            
      
         
      I –   Introduction 
      
        1.        In this case, the Court of Justice is called upon to give a ruling on the applicability of Article 6 of Council Directive
      92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora 
         			(2)
         		 (hereinafter ‘the Habitats Directive’). Italian authorities annulled a procedure for the award of a public contract to carry
      out dredging work in a port because the site intended for depositing the dredged material was situated in an area that Italy
      had proposed to the Commission as an area of conservation in accordance with the Habitats Directive. The matter in dispute
      is whether the Italian authorities could, in that context, rely on the protective provisions under Article 6 of the Habitats
      Directive, even though the procedure for designating the area concerned, as laid down in the directive, was not yet complete.
      
      
      II –   Relevant legislation 
      
       A –  Community law 
      
        2.        The Habitats Directive entered into force pursuant to Article 191(2) of the EEC Treaty on 10 June 1992, 
         			(3)
         		 the date on which it was notified to the Member States. Article 3(1) of the Habitats Directive provides that a coherent European
      ecological network of special areas of conservation is to be set up under the title ‘Natura 2000’. Natura 2000 comprises,
      first, special protection areas under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds 
         			(4)
         		 (hereinafter ‘the Wild Birds Directive’) and, second, sites of Community importance which are identified in accordance with
      Article 4 of the Habitats Directive and Annex III thereto.
      
      
        3.        Sites of Community importance host certain natural habitat types and species which are listed in Annexes I and II respectively
      to the Habitats Directive. Some of those habitat types and species are considered to be priority types and species because
      the Community has particular responsibility for their conservation in view of the proportion of their natural range which
      falls within the European territory of the Community.
      
      
        4.        In the procedure under Article 4 of the Habitats Directive, Member States were first to propose to the Commission, on the
      basis of the scientific criteria set out in Annex III (Stage 1), within three years – that is to say, by 10 May 1995 at the
      latest – all sites which could form part of Natura 2000 by virtue of the natural habitat types and species listed in Annexes
      I and II that they hosted. On the basis of those proposals, the Commission was subsequently to draw up, in accordance with
      the criteria laid down in Annex III (Stage 2), within a further three years – that is to say, by 10 May 1998 at the latest
      – a Community list of the sites of Community importance which are included in Natura 2000.
      
      
        5.        The relevant passages of Article 4 of the Habitats Directive read as follows:
      ‘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. …
       2.       On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the five biogeographical
      regions referred to in Article 1(c)(iii) and of the whole of the territory referred to in Article 2(1), the Commission shall
      establish, in agreement with each Member State, a draft list of sites of Community importance drawn from the Member States’
      lists identifying those which host one or more priority natural habitat types or priority species.
       Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of
      their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be
      applied more flexibly in selecting all the sites of Community importance in their territory.
       The list of sites selected as sites of Community importance, 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.       The list referred to in paragraph 2 shall be established within six years of the notification of this Directive.
       4.      …
       5.       As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article
      6(2), (3) and (4).’
      
      
        6.        For assessment of the Community importance of the sites included on the national lists, Annex III (Stage 2) provides as follows:
      ‘1.     All the sites identified by the Member States in Stage 1 which contain priority natural habitat types and/or species will
      be considered as sites of Community importance.
       2.       The assessment of the Community importance of other sites on Member States’ lists, i.e. their contribution to maintaining
      or re-establishing, at a favourable conservation status, a natural habitat in Annex I or a species in Annex II and/or to the
      coherence of Natura 2000 will take account of the following criteria:
      (a)     relative value of the site at national level;
      
      (b)
         geographical situation of the site in relation to migration routes of species in Annex II and whether it belongs to a continuous
            ecosystem situated on both sides of one or more internal Community frontiers;
         
      
      
      (c)
         total area of the site;
      
      
      (d)
         number of natural habitat types in Annex I and species in Annex II present on the site;
      
      
      (e)
         global ecological value of the site for the biogeographical regions concerned and/or for the whole of the territory referred
            to in Article 2, as regards both the characteristic or unique aspect of its features and the way they are combined.’ 
         
      
      
      
        7.        Article 6(2), (3) and (4) of the Habitats Directive, referred to in Article 4(5), establishes the protective regime for sites
      of Community importance. Under Article 6(2), 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
      the directive. Article 6(3) and 4 lays down the rules governing the approval of plans and projects. If plans or projects are
      likely to have a significant effect on a site of Community importance, they are required to be subject to appropriate assessment
      of their implications for the site in view of the site’s conservation objectives. In the event of a negative assessment, approval
      may be granted only subject to the conditions set out in Article 6(4). Under that provision, a plan or project may be carried
      out for imperative reasons of overriding public interest, including those of a social or economic nature, in the absence of
      alternative solutions and if the Member State takes all compensatory measures necessary to ensure that the overall coherence
      of Natura 2000 is protected.
      
      
       B –  National law 
      
        8.        The Habitats Directive was transposed into Italian national law by Presidential Decree No 357 of 8 September 1997. According
      to the referring court, the implementing legislation is, in essence, a faithful transposition of the directive 
         			(5)
         		 to which it corresponds almost to the letter, its single distinguishing feature being that the procedure for assessment of
      implications under Article 5 of Presidential Decree No 357 is confined to assessing the projects subject to a national or
      regional environmental impact assessment that fall outside the thresholds determining application of the environmental impact
      assessment. Article 3(2) of Presidential Decree No 357 ties application of the protective regime to the establishment of the
      list of sites by the European Commission.
      
      
        9.        After the events which led to the main proceedings, Italy introduced the category of proposed sites of Community importance
      by Presidential Decree No 120 of 12 March 2003. Plans and projects concerning such sites must also be subject to an assessment
      of their implications.
      
      
      III –   Facts 
      
        10.      Italy proposed the ‘Foce del Timavo’ (Mouth of the Timavo) site to the Commission as a site of Community importance. The site
      hosts inter alia priority habitats listed in Annex I to the Habitats Directive. The Commission has not thus far decided whether
      that site will be included on the list of sites of Community importance under Article 4(2) of the Habitats Directive. Indeed,
      the Commission has thus far adopted only the lists concerning the Alpine 
         			(6)
         		 and Macaronesian 
         			(7)
         		 biogeographical regions. The site in question is located in the Continental biogeographical region.
      
      
        11.      The claimants in the main proceedings (hereinafter ‘Dragaggi’) had, in association with each other, tendered for the award
      of a contract to carry out dredging in the port of Monfalcone. The contract was awarded to them in an award notice. The sediment
      brought up was to be deposited on reclaimed land located inside the ‘Foce del Timavo’ site.
      
      
        12.      However, Italy’s Environment Ministry did not approve the award. The invitation to tender was subsequently annulled on the
      ground that the reclaimed land was to be regarded as a site of Community importance; it was stated that the depositing of
      dredged material therefore had to be subjected to an assessment of implications under Presidential Decree No 357 and that
      the project could not possibly be approved in that procedure.
      
      
        13.      Dragaggi considers that the annulment of the invitation to tender is unlawful since the protective regime for sites of Community
      importance is applicable only after the Commission has placed the relevant site on the list of sites of Community importance.
      
      
        14.      The Consiglio di Stato (Council of State, Italy) has therefore referred the following question to the Court of Justice for
      a preliminary ruling:
      ‘Is Article 4(5) of Directive 92/43 of 21 May 1992 to be interpreted as meaning that the measures under Article 6 and, in
      particular, under Article 6(3) of that directive are mandatory for the Member States only after final approval at Community
      level of the list of sites under Article 21 or, alternatively, in addition to determination of the ordinary commencement date
      of conservation measures, must a distinction be drawn between declaratory listing and determinative listing (including in
      the first category the listing of priority sites) with the result that, in order to ensure the effectiveness of the directive,
      where a Member State identifies a site of Community importance sustaining priority natural habitat types or species, there
      must be considered to be an obligation to carry out an assessment of plans and projects with a significant effect on the site
      even before the Commission draws up the draft list of sites or the adoption of the final version of that list pursuant to
      Article 21 of the directive and, in fact, with effect from the drawing‑up of the national list?’
      
      
      IV –   Legal assessment 
      
        15.      By its question, the Consiglio di Stato seeks, in essence, to ascertain whether and, if so, under what conditions Member States
      must protect potential sites of Community importance pursuant to the Habitats Directive before the Commission has adopted
      the list of sites of Community importance. Although Article 4(5) of the Habitats Directive provides that the protective provisions
      laid down in Article 6(2), (3) and (4) are to apply only after the Commission has placed a site on the Community list of sites
      of Community importance, the Regione Autonoma del Friuli‑Venezia Giulia (Autonomous Region of Friuli-Venezia Giulia; hereinafter
      ‘the Friuli-Venezia Giulia Region’) takes the view that Member States should, in fact, subject proposed sites with priority
      features to those protective provisions before that stage. The Swedish Government extends that requirement to all proposed
      sites. The Commission goes even further, seeking to apply the protective provisions to all sites which ought to be placed
      on the Community list by reason of their characteristics.
      
      
        16.      Relying on the wording of Article 4(5), Dragaggi, on the other hand, argues that there is no requirement to afford protection
      under the Habitats Directive so long as the Commission has not placed the relevant site on the Community list. The French
      Government concurs with Dragaggi as regards application of Article 6(2), (3) and 4 of the Habitats Directive to sites which
      are not as yet included on the Community list. It does, however, proceed on the basis that Member States are required to prevent
      the deterioration of sites so that the objectives of the directive are not seriously compromised.
      
      
       A –  Whether the provisions of Article 6(2), (3) and (4) of the Habitats Directive are directly applicable 
      
        17.      Italy would be required to protect the ‘Foce del Timavo’ site if the provisions of Article 6(2), (3) and (4) of the Habitats
      Directive were directly applicable to sites of Community importance before the Community list was adopted. In principle, provisions
      of a directive which have not been transposed or have been transposed only in part into national law are directly applicable
      after expiry of the period prescribed for their transposition, if, and in so far as, the obligations contained therein, so
      far as their subject-matter is concerned, are unconditional and sufficiently precise. 
         			(8)
         		 The Habitats Directive was to be implemented by 10 June 1994.
      
      
        18.      However, as Dragaggi and the French Government point out, under Article 4(5) of the Habitats Directive application of Article
      6(2), (3) and (4) of the directive to sites of Community importance is conditional upon the Commission’s having placed the
      site concerned on the Community list. That condition precludes the direct applicability of Article 6(2), (3) and (4) of the
      Habitats Directive. Direct applicability of those provisions would – unlawfully – anticipate the Commission’s selection decision.
      As Dragaggi submits, in accordance with Article 4(2) of the Habitats Directive, read in conjunction with Annex III (Stage
      2) thereto, only the Commission can, in principle, determine whether a site must be placed on the Community list since it
      alone has an overview of the entire European territory of the Member States to which the EC Treaty applies. 
         			(9)
         		 The Commission must, after all, subject the proposals of the Member States to a complex scientific assessment of the site
      concerned compared with other sites when it draws up the Community list. As far as sites which do not host priority natural
      habitat types or species are concerned, that is already clear from the criteria laid down in paragraph 2 of Annex III (Stage
      2).
      
      
        19.      Although proposed sites which contain priority features are automatically considered as sites of Community importance pursuant
      to paragraph 1 of Annex III (Stage 2) to the Habitats Directive, automatic consideration as such is no longer guaranteed if
      the conditions set out in the second subparagraph of Article 4(2) of the Habitats Directive are met. Under that provision,
      Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of
      their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be
      applied more flexibly in selecting all the sites of Community importance in their territory. That flexibility can reasonably
      be extended to sites comprising priority features since the criteria for selecting other sites in any event allow sufficient
      scope for flexibility.
      
      
        20.      The Commission’s argument that the Community list is not adopted in its entirety for the sole reason that the Member States
      have failed to send sufficient proposals militates in this context against, rather than in favour of, application of Article
      6(2), (3) and (4) of the Habitats Directive. The question whether the conditions for increased flexibility of application
      are met can be assessed, in the event of doubt, only once all the proposals of the Member State concerned have been submitted.
      
      
        21.      The analogy that the Friuli-Venezia Giulia Region, the Swedish Government and the Commission draw with the case-law on bird
      protection areas that have not been designated is not appropriate either. As far as such areas are concerned, the Court of
      Justice has held that areas which have not been classified as special protection areas, but should have been so classified,
      must be protected pursuant to Article 4(4) of the Wild Birds Directive. 
         			(10)
         		 Dragaggi and the French Government rightly object that bird protection areas are designated by the Member States alone whereas
      sites of Community importance are merely proposed by the Member States and are actually selected by the Commission.
      
      
        22.      Article 6(2), (3) and (4) of the Habitats Directive cannot, therefore, be directly applicable in this case.
      
      
       B –  Temporary prohibition of deterioration 
      
        23.      However, lapses on the part of the Member States and the Commission in transposing the directive must not result ultimately
      in a failure to meet the objective of protection pursued by it. If account is in addition taken of the general legal principle
      of  nemini licet  venire contra factum proprium  and the principle of cooperation in good faith, the result is at least a temporary prohibition of deterioration.
      
      
       1. The basis for a temporary prohibition of deterioration
      
        24.      As the Swedish Government and the Friuli-Venezia Giulia Region point out, it would be contradictory for the Member States
      first to propose sites for Natura 2000 and then to impair the very features that predetermine inclusion of the sites in that
      network. 
         			(11)
         		 Such conduct would be incompatible with the principle of  nemini licet  venire contra factum proprium .
      
      
        25.      The  nemini licet  venire contra factum proprium  principle takes on special significance in the procedure for establishing the Community list since impairment or deterioration
      of proposed sites would also undermine the proper decision-making process and would consequently breach the principle of cooperation
      in good faith. The Commission is capable of selecting the best sites only if the lists transmitted by the Member States accurately
      describe the condition of the sites concerned. However, if, in the meantime, certain sites were adversely affected or if they
      deteriorated in some other manner, the basis for the Commission’s decision would be distorted. The problem is even more acute
      in practice as Member States have proposed sites only after very considerable delay 
         			(12)
         		 and, according to the Commission, those proposals do not to this day meet the requirements of the directive. 
         			(13)
         		 Proceeding in association with the Member States, the Commission has therefore subjected proposals to an interim assessment 
         			(14)
         		 to identify possible shortcomings. The results of that interim assessment would – in turn – be undermined by a deterioration
      of sites that have already been proposed.
      
      
        26.      A duty of protection ensues, moreover, from the prohibition against frustrating the objectives of the Treaty. Under the second
      paragraph of Article 10 EC, to which the Friuli-Venezia Giulia Region, the Swedish Government and the Commission refer, Member
      States are to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. The concept
      of objectives of the Treaty includes the objectives of secondary law and, in particular, of directives. As the Commission
      and the French Government point out, the Court of Justice has concluded from the second paragraph of Article 10 EC in conjunction
      with the third paragraph of Article 249 EC that, during the period prescribed in a directive for its transposition into national
      law, Member States must refrain from taking any measures liable seriously to compromise achievement of the result prescribed
      in the directive. 
         			(15)
         		
      
        27.      The Habitats Directive is intended inter alia to create a network containing the sites of Community importance recognised
      by the Commission. In this context, the Commission is to take as its basis of assessment an exhaustive list of the sites which,
      at national level, have an ecological interest which is relevant from the point of view of the directive’s objective of conservation
      of natural habitats and wild fauna and flora. 
         			(16)
         		 In the absence of a duty of protection, it is to be feared that faits accomplis would be established and irreplaceable features
      of the common European natural heritage would be irretrievably lost before the Community lists are drawn up. Accordingly,
      the objective of the Habitats Directive, and its effectiveness – which is cited by the Friuli-Venezia Giulia Region, the Swedish
      Government and the Commission – would both be seriously jeopardised.
      
      
        28.      The prohibition against frustrating the objectives of the Treaty therefore also precludes any impairment or deterioration
      of proposed sites, in so far as the future realisation of the Natura 2000 network would be jeopardised as a result. This would
      be so if the sites concerned no longer qualified for inclusion in the Natura 2000 network or if their contribution to that
      network were reduced. In the case at issue, it can remain undecided whether the prohibition against frustrating the objectives
      of the Treaty – unlike the other reasons giving rise to a duty of protection set out above – also calls for the protection
      of sites which have not been proposed but which, on account of their characteristics, clearly ought to be included in the
      Natura 2000 network. It is recognised that Italy has proposed the ‘Foce del Timavo’ site, the only site at issue in these
      proceedings, as a site of Community importance.
      
      
        29.      Consequently, the Member States would be acting in breach of the Habitats Directive, the  nemini licet  venire contra factum proprium  principle in conjunction with the principle of cooperation in good faith between the Member States and the Commission – in
      particular with regard to the proper decision-making process – and the prohibition against frustrating the objectives of the
      Treaty if, prior to a decision by the Commission, their actions resulted in impairment or deterioration in some other manner
      of the sites proposed to the Commission.
      
      
       2. Scope of the temporary prohibition of deterioration
      
        30.      The temporal scope of the temporary prohibition of deterioration imposed on the Member States cannot be unlimited once a proposal
      has been submitted because the prohibition is intended to bridge the period up to establishment of the Community list. It
      is apparent from the schedule under Article 4(1) and (3) of the Habitats Directive that, once the Member States have submitted
      their proposals, the Commission has three years to make a decision on the establishment of the Community list. That period
      should not commence until the Member States have fully complied with their obligation to propose a list under Article 4(1)
      of the Habitats Directive as it is only on that basis that the Commission can decide, in full knowledge of the facts, which
      sites are to be placed on the Community list. Member States have complied with the obligation incumbent on them if they have
      forwarded to the Commission an exhaustive list of the sites which, at national level, have an ecological interest which is
      relevant from the point of view of the directive’s objective of conservation of natural habitats and wild fauna and flora. 
         			(17)
         		
      
        31.      The material scope of the duty of protection is clear from the objective of the directive, namely the conservation of the
      Natura 2000 network while having regard to other interests. 
         			(18)
         		 In order to achieve that objective, the substantive provisions of the protective regime must already be effective. Member
      States are accordingly required to avoid deterioration and significant disturbance for the purposes of Article 6(2) of the
      Habitats Directive. Furthermore, they may approve projects likely to affect adversely the integrity of a site only subject
      to the provisions of Article 6(4) of the Habitats Directive, that is to say, for imperative reasons of overriding public interest,
      in the absence of alternative solutions. 
         			(19)
         		 By including any measures which may be necessary to ensure the coherence of Natura 2000, the Commission’s basis of assessment
      is ultimately also preserved. Finally, the duty to inform provided for in that provision must apply so that the Commission
      is informed of changes made to the basis for its assessment. In contrast, it does not appear necessary to apply the other
      procedural rules laid down in Article 6(2), (3) and (4) of the Habitats Directive. 
         			(20)
         		
      
        32.      It should therefore be concluded in this case that the ‘Foce del Timavo’ site proposed by Italy must be protected from deterioration
      if the three-year period following Italy’s submission of sufficient proposals to the Commission has not as yet expired. 
         			(21)
         		 However, it would not necessarily follow from the prohibition of deterioration that performance of the contract subject to
      tender would be incompatible with that duty of protection. The national court would, in that regard, have to examine Dragaggi’s
      objections that the boundaries of the ‘Foce del Timavo’ site are illogical as regards the reclaimed land and that there are
      no priority natural habitat types or species in the vicinity of the reclaimed land that can be adversely affected. In that
      connection, however, it should be noted that deterioration of non-priority species and habitat types mentioned in the Habitats
      Directive, including deterioration of the typical species of those habitat types, 
         			(22)
         		 is to be avoided.
      
      
       3. Interim conclusion
      
        33.      It must be stated, in summary, that Member States are required under the Habitats Directive in conjunction, in particular,
      with the principle of cooperation in good faith to avoid deterioration of the sites proposed by them until three years have
      passed since the submission of an exhaustive list of the sites which, at national level, have an ecological interest that
      is relevant from the point of view of the directive’s objective of conservation of natural habitats and wild fauna and flora.
      
      
       C –  Effect on third parties 
      
        34.      In line with the foregoing considerations, the Italian authorities are temporarily required to protect the ‘Foce del Timavo’
      site against deterioration. It is open to question whether that requirement can be relied upon against private persons, such
      as Dragaggi in this case.
      
      
        35.      It has been consistently held that a directive cannot impose obligations on an individual and cannot therefore be relied upon
      as such against an individual. 
         			(23)
         		 That case-law has concerned, first, the application of directives in civil-law relations between individuals 
         			(24)
         		 and, second, obligations of individuals towards the State, in particular in the context of criminal law. 
         			(25)
         		 It can be inferred, moreover, from the  Busseni  judgment, 
         			(26)
         		 which concerned the rank of a Community claim in the list of creditors’ claims in insolvency proceedings, that directly applicable
      directives cannot undermine legal positions which are protected by Community law. Those principles must also apply to the
      prohibition of deterioration which has been developed here in relation to a conditional provision of the directive.
      
      
        36.      In this case, only a legal position protected by Community law that is enjoyed by Dragaggi as successful tenderer for the
      contested contract could preclude application of the prohibition of deterioration. There are elements in procurement law to
      suggest that the Italian authorities could comply with their duty of protection by annulling the award procedure. The Community
      rules on the award of public contracts, the applicability of which cannot be examined here in the absence of further details,
      do not require a contracting authority to carry an award procedure through to its conclusion. 
         			(27)
         		 Community law has not thus far even provided that the discontinuation of an award procedure is to be limited to exceptional
      cases or has necessarily to be based on serious grounds. 
         			(28)
         		
      
        37.      If Dragaggi were already in a position protected by Community law, the Italian authorities would at least be required to exhaust
      all other possibilities to avoid harm to the site. They could, conceivably, rely on any rights they might have to terminate
      the contract or try to reach an amicable solution, for example with a view to avoiding damage when the contract is performed.
      
       
      V –   Conclusion 
      
        38.      I therefore propose that the question referred for a preliminary ruling should be answered as follows:
       Member States are required under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of
      wild fauna and flora in conjunction, in particular, with the principle of cooperation in good faith to avoid deterioration
      of the sites proposed by them until three years have passed since the submission of an exhaustive list of the sites which,
      at national level, have an ecological interest that is relevant from the point of view of the directive’s objective of conservation
      of natural habitats and wild fauna and flora.
      
      
       1 –
         
         Original language: German.
      
      2 –
         
         OJ 1992 L 206, p. 7.
            
         
      
      3 –
         
         Date as specified in CELEX – in its judgments in Case C-329/96  Commission  v  Greece  [1997] ECR I-3749, paragraph 2, and Case C-83/97  Commission  v  Germany  [1997] ECR I-7191, paragraph 2, the Court of Justice, curiously, proceeded in its deliberations on the basis of notification
            effected on 5 June 1992.
            
         
      
      4 –
         
         OJ 1979 L 103, p. 1.
            
         
      
      5 –
         
         See, however, Case C-143/02  Commission  v  Italy  [2003] ECR I-2877 on the defective implementation of Articles 5, 6 and 7 of the Habitats Directive.
            
         
      
      6 –
         
         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). 
            
         
      
      7 –
         
         Commission Decision 2002/11/EC of 28 December 2001 adopting the list of sites of Community importance for the Macaronesian
            biogeographical region, pursuant to Council Directive 92/43/EEC (OJ 2002 L 5, p. 16).
            
         
      
      8 –
         
         See inter alia Case C-62/00  Marks & Spencer  [2002] ECR I-6325, paragraph 25, and the case-law cited therein.
            
         
      
      9 –
         
         Case C-371/98  First Corporate Shipping  [2000] ECR I-9235, paragraph 23; Case C-67/99  Commission  v  Ireland  [2001] ECR I-5757, paragraph 35; Case C-71/99  Commission  v  Germany  [2001] ECR I-5811, paragraph 28; and Case C-220/99  Commission  v  France  [2001] ECR I-5831, paragraph 32.
            
         
      
      10 –
         
         Case C-355/90  Commission  v  Spain  ( Santoña marshes ) [1993] ECR I-4221, paragraph 22, and Case C-374/98  Commission  v  France  ( Basses Corbières ) [2000] ECR I-10799, paragraph 49.
            
         
      
      11 –
         
         To that effect, see also Case C-57/89  Commission  v  Germany  (Leybucht)  [1991] ECR I-883, paragraph 20.
            
         
      
      12 –
         
         Thus the judgments cited in footnote 9 have already been delivered in infringement proceedings against Ireland, Germany and
            France.
            
         
      
      13 –
         
         According to the Commission’s Natura Barometer as at 12 May 2004, at http://europa.eu.int/comm/environment/nature/nature_conservation/useful_info/barometer/barometer.htm
            (page visited on 4 July 2004), only the Netherlands has submitted a list of proposed sites which is described as ‘largely
            complete/largement complète’ whilst the result recorded for the other old Member States, including Italy, is ‘substantial
            but still incomplete/substantielle mais encore incomplète’.
            
         
      
      14 –
         
         For the Continental biogeographical region, see European Commission Directorate-General for the Environment and European Environment
            Agency/European Topic Centre on Nature Protection and Biodiversity, ‘Continental Region, Conclusions on representativity within
            pSCI of habitat types and species’, Doc. Cont./C/rev.3 of December 2002, at http://europa.eu.int/comm/environment/nature/nature_conservation/natura_2000_network/biogeographic_regions/continental/pdf/conclusions_continental.pdf
            (page visited on 4 July 2004).
            
         
      
      15 –
         
         Case C-129/96  Inter-Environnement Wallonie  [1997] ECR I-7411, paragraph 45; Case C-14/02  ATRAL  [2003] ECR I-4431, paragraph 58; and Case C-157/02  Rieser Internationale Transporte  [2004] ECR I-0000, paragraph 66.
            
         
      
      16 –
         
         See the judgments cited in footnote 9 in  First Corporate Shipping , at paragraph 22,  Commission  v  Ireland , at paragraph 34,  Commission  v  Germany , at paragraph 27, and  Commission  v  France , at paragraph 31.
            
         
      
      17 –
         
         See the references in footnote 16.
            
         
      
      18 –
         
         See Case C-44/95  Royal Society for the Protection of Birds  ( Lappel Bank ) [1996] ECR I-3805, paragraph 37 et seq.
            
         
      
      19 –
         
         As regards Article 6(2) of the Habitats Directive, see my Opinion in Case C-127/02  Landelijke Vereniging tot Behoud van de Waddenzee  [2004] ECR I-0000, point 116 et seq.
            
         
      
      20 –
         
         However, practical considerations militate in favour of applying the whole protective regime established for sites of Community
            importance to sites even at the proposal stage. Some Member States, including Italy in the meantime, have even adopted provisions
            to that effect.
            
         
      
      21 –
         
         In accordance with the Natura Barometer mentioned in footnote 13, the Commission concludes that the Italian proposals are
            substantial but still incomplete.
            
         
      
      22 –
         
         See Article 1(e) of the Habitats Directive.
            
         
      
      23 –
         
         Case 152/84  Marshall  [1986] ECR 723, paragraph 48; Case 14/86  Pretore di Salò  v  Persons unknown  [1987] ECR 2545, paragraph 19; and Case C-91/92  Faccini Dori  [1994] ECR I-3325, paragraph 20 et seq. 
            
         
      
      24 –
         
         Judgments in  Faccini Dori  and  Marshall , cited in footnote 23.
            
         
      
      25 –
         
         Case 80/86  Kolpinghuis Nijmegen  [1987] ECR 3969, paragraph 6 et seq., and  Pretore di Salò  v  Persons unknown , cited in footnote 23.
            
         
      
      26 –
         
         Case C-221/88 [1990] ECR I-495, paragraph 23 et seq.
            
         
      
      27 –
         
         Case C-92/00  HI  [2002] ECR I-5553, paragraph 41. 
            
         
      
      28 –
         
         Case C-27/98  Fracasso and Leitschutz  [1999] ECR I-5697, paragraph 23.