CELEX: 62004CJ0418
Language: en
Date: 2007-12-13
Title: Judgment of the Court (Second Chamber) of 13 December 2007. # Commission of the European Communities v Ireland. # Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Conservation of wild birds - Articles 4 and 10 - Transposition and application - IBA 2000 - Value - Quality of the data - Criteria - Margin of discretion - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Article 6 - Transposition and application. # Case C-418/04.

Case C-418/04
      Commission of the European Communities
      v
      Ireland
      (Failure of a Member State to fulfil obligations – Directive 79/409/EEC – Conservation of wild birds – Articles 4 and 10 – Transposition and application – IBA 2000 – Value – Quality of the data – Criteria – Margin of discretion – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 6 – Transposition and application)
      Opinion of Advocate General Kokott delivered on 14 September 2006 
      Judgment of the Court (Second Chamber), 13 December 2007 
      Summary of the Judgment
      1.     Environment – Conservation of wild birds – Directive 79/409 – Selection and delimitation of special protection areas
      (Council Directive 79/409, as amended by Directive 97/49, Art. 4(1) and (2))
      2.     Environment – Conservation of wild birds – Directive 79/409 – Classification as a special protection area
      (Council Directive 79/409, as amended by Directive 97/49, Art. 4)
      3.     Environment – Conservation of wild birds – Directive 79/409 – Special conservation measures
      (Council Directive 79/409, as amended by Directive 97/49, Art. 4(1) and (2))
      4.     Environment – Conservation of wild birds – Directive 79/409 – Failure to classify as a special protection area
      (Council Directives 79/409, as amended by Directive 97/49, Art. 4(4), and 92/43, Arts 6(2) to (4), and 7)
      5.     Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas
      (Council Directive 92/43, Art. 6(3))
      1.     In choosing the areas most appropriate for classification as special protection areas (SPAs) in accordance with Article 4(1)
         and (2) of Directive 79/409 on the conservation of wild birds, as amended by Directive 97/49, Member States have a certain
         margin of discretion, which is limited by the fact that the classification of those areas is subject exclusively to the ornithological
         criteria determined by that directive. The economic requirements mentioned in Article 2 of that directive may therefore not
         be taken into account when selecting an SPA and defining its boundaries. 
      
      It follows, first, that SPA classification cannot be the result of an isolated study of the ornithological value of each of
         the areas in question but must be carried out in the light of the natural boundaries of the wetland ecosystem and, second,
         that the ornithological criteria which form the foundation of the classification must have a scientific basis. The use of
         flawed, allegedly ornithological criteria might lead to an incorrect demarcation of the boundaries of SPAs.
      
      (see paras 39, 141-142)
      2.     Article 4 of Directive 79/409 on the conservation of wild birds, as amended by Directive 97/49, lays down a protection regime
         which is specifically targeted and reinforced both for the species listed in Annex I and for migratory species, an approach
         justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage
         of the Community. Furthermore, it is clear from the ninth recital in the preamble to that directive that the preservation,
         maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species
         of birds. The Member States are therefore required to adopt the measures necessary for the conservation of those species.
      
      For that purpose, the updating of scientific data is necessary to determine the situation of the most endangered species and
         the species constituting the common heritage of the Community in order to classify the most suitable areas as SPAs. In order
         to assess whether there has been a failure to fulfil obligations under the directive, it is therefore necessary to use the
         most up-to-date scientific data available at the end of the period laid down in the reasoned opinion. In that regard, in the
         absence of scientific studies capable of rebutting the results of the Inventory of Important Bird Areas in the European Community
         (‘IBA 2000’), that inventory is the most up-to-date and accurate reference for identifying the most suitable sites in number
         and in size for the conservation of the regularly occurring migratory species not listed in Annex I.
      
      (see paras 46-47, 66-67)
      3.     Article 4(1) and (2) of Directive 79/409 on the conservation of wild birds, as amended by Directive 97/49, requires the Member
         States to provide SPAs with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction
         of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species not listed
         in Annex I which are, nevertheless, regular visitors. The protection of SPAs may not be limited to avoiding harmful human
         effects but must also include positive measures to preserve or improve the state of the area, as the case may be.
      
      (see paras 153-154)
      4.     The protective aims formulated by of Directive 79/409 on the conservation of wild birds, as amended by Directive 97/49, as
         expressed in the ninth recital in the preamble thereto, could not be achieved if Member States were obliged to comply with
         the obligations under Article 4(4) of that directive only in cases where a special protection area (SPA) had previously been
         designated. The text of Article 7 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora states
         that Article 6(2) to (4) of that directive replaces the first sentence of Article 4(4) of Directive 79/409 as from the date
         of implementation of Directive 92/43 or the date of classification by a Member State under Directive 79/409, where the latter
         date is later. Areas which have not been classified as SPAs but which should have been so classified continue to fall under
         the regime governed by the first sentence of Article 4(4) of Directive 79/409.
      
      (see paras 84, 120, 172-173)
      
      5.     Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora makes the requirement
         for an appropriate assessment of the implications of a plan or project not directly connected with or necessary to the management
         of a site in a special conservation area conditional on there being a probability or a risk that that plan or project will
         have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk
         exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect
         on the site concerned. It follows that that directive requires that any plan or project undergo an appropriate assessment
         of its implications if it cannot be excluded on the basis of objective information that that plan or project will have a significant
         effect on the site concerned. Such an assessment implies that, prior to its approval, all aspects of the plan or project which
         can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified
         in the light of the best scientific knowledge in the field.
      
      The competent national authorities are to authorise an activity on the protected site only if they have made certain that
         it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as
         to the absence of such effects.
      
      (see paras 226-227, 243)
JUDGMENT OF THE COURT (Second Chamber)
      13 December 2007 (*)
      
      
      Table of contents
      
      Legal framework
      Community legislation
      The Birds Directive
      The Habitats Directive
      National legislation
      The European Communities Act
      The Wildlife Act
      The Birds Regulations
      The Habitats Regulations
      Pre-litigation procedure and written procedure before the Court
      The action
      Preliminary observations
      The first complaint: inadequate number and size of areas classified as SPAs, contrary to Article 4(1) and (2) of the Birds
         Directive
      
      Preliminary observations
      IBA 2000
      The first part of the first complaint
      – Arguments of the parties
      – Findings of the Court
      A –  The sites identified in IBA 2000
      1.  The Cross Lough area
      a)  Arguments of the parties
      b)  Findings of the Court
      2.  The three suitable areas for conservation of the corncrake
      a)  Arguments of the parties
      b)  Findings of the Court
      B –  The birds to be protected in other sites
      1.  Suitable sites for conservation of the kingfisher
      2.  Suitable sites for conservation of the corncrake
      The second part of the first complaint
      – Arguments of the parties
      – Findings of the Court
      The second complaint: failure to establish the necessary legal protection regime in accordance with Article 4(1) and (2) of
         the Birds Directive
      
      Arguments of the parties
      Findings of the Court
      The third complaint: failure to apply the first sentence of Article 4(4) of the Birds Directive to the areas which should
         have been classified as SPAs
      
      Arguments of the parties
      Findings of the Court
      The fourth complaint: failure to transpose and apply the second sentence of Article 4(4) of the Birds Directive
      Arguments of the parties
      Findings of the Court
      The fifth complaint: inadequate transposition and application of Article 6(2) to (4) of the Habitats Directive
      Preliminary observations
      Inadequate transposition and application of Article 6(2) of the Habitats Directive
      – Arguments of the parties
      – Findings of the Court
      Inadequate transposition of Article 6(2) of the Habitats Directive in the field of recreational activities
      – Arguments of the parties
      – Findings of the Court
      Inadequate transposition and application of Article 6(3) and (4) of the Habitats Directive
      – Arguments of the parties
      – Findings of the Court
      The sixth complaint: failure to transpose Article 10 of the Birds Directive
      Arguments of the parties
      Findings of the Court
      Costs
      (Failure of a Member State to fulfil obligations – Directive 79/409/EEC – Conservation of wild birds – Articles 4 and 10 – Transposition and application – IBA 2000 – Value – Quality of the data – Criteria – Margin of discretion – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 6 – Transposition and application)
      In Case C-418/04,
      ACTION under Article 226 EC for failure to fulfil obligations, brought on 29 September 2004,
      Commission of the European Communities, represented by B. Doherty and M. van Beek, acting as Agents, with an address for service in Luxembourg,
      
      applicant,
      v
      Ireland, represented by D. O’Hagan, acting as Agent, assisted by E. Cogan, Barrister, and G. Hogan SC,
      
      defendant,
      supported by:
      Hellenic Republic, represented by E. Skandalou, acting as Agent, with an address for service in Luxembourg,
      
      and
      Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,
      
      interveners,
      THE COURT (Second Chamber),
      composed of C.W.A. Timmermans, President of the Chamber, L. Bay Larsen, R. Schintgen, R. Silva de Lapuerta and P. Kūris (Rapporteur),
         Judges,
      
      Advocate General: J. Kokott,
      Registrar: L. Hewlett, Principal Administrator,
      having regard to the written procedure and further to the hearing on 6 July 2006,
      after hearing the Opinion of the Advocate General at the sitting on 14 September 2006,
      gives the following
      Judgment
      1       By its application the Commission of the European Communities is seeking a declaration from the Court that, by failing:
      –       to classify, since 1981, in accordance with Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation
         of wild birds (OJ 1979 L 103, p. 1), as amended by Commission Directive 97/49/EC of 29 July 1997 (OJ 1997 L 223, p. 9) (‘the
         Birds Directive’), all the most suitable territories in number and size for the species in Annex I to that directive (‘Annex
         I’), as well as regularly occurring migratory species;
      
      –       to establish, since 1981, in accordance with Article 4(1) and (2) of the Birds Directive, the necessary legal protection regime
         for those territories;
      
      –       to ensure that, since 1981, the provisions of the first sentence of Article 4(4) of the Birds Directive are applied to areas
         requiring classification as special protection areas (‘SPAs’) under that directive;
      
      –       to transpose and apply the requirements of the second sentence of Article 4(4) of the Birds Directive fully and correctly;
      –       in respect of classified SPAs under the Birds Directive, to take all the measures necessary to comply with the provisions
         of Article 6(2) to (4) 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) (‘the Habitats Directive’), and, in respect of recreational use of all sites intended to be
         subject to Article 6(2) of that directive, to take all the necessary measures to comply with the provisions of the said Article
         6(2); and
      
      –       to take all the measures necessary to comply with Article 10 of the Birds Directive;
      Ireland has failed to fulfil its obligations under those articles of the said directives.
      2       By order of the President of the Court of 17 March 2005, the Hellenic Republic and the Kingdom of Spain were granted leave
         to intervene in support of the form of order sought by Ireland, which has asked the Court to dismiss the action or, in the
         alternative, to limit the scope of any order made to the specific issues upon which it finds that Ireland has failed to comply
         with its obligations under the relevant directives.
      
       Legal framework
       Community legislation
       The Birds Directive 
      3       The ninth recital in the preamble to the Birds Directive states that ‘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’.
      
      4       According to Article 4 of the Birds Directive:
      ‘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.
      
      …
      4.      In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to
         avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant
         having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid
         pollution or deterioration of habitats.’
      
      5       Article 10 of the Birds Directive provides:
      ‘1.      Member States shall encourage research and any work required as a basis for the protection, management and use of the population
         of all species of bird referred to in Article 1.
      
      2.      Particular attention shall be paid to research and work on the subjects listed in Annex V. Member States shall send the Commission
         any information required to enable it to take appropriate measures for the coordination of the research and work referred
         to in this Article.’
      
      6       The topics of research and work listed in Annex V to the Birds Directive are as follows:
      ‘(a)      National lists of species in danger of extinction or particularly endangered species, taking into account their geographical
         distribution.
      
      (b)      Listing and ecological description of areas particularly important to migratory species on their migratory routes and as wintering
         and nesting grounds.
      
      (c)      Listing of data on the population levels of migratory species as shown by ringing.
      (d)      Assessing the influence of methods of taking wild birds on population levels.
      (e)      Developing or refining ecological methods for preventing the type of damage caused by birds.
      (f)      Determining the role of certain species as indicators of pollution.
      (g)      Studying the adverse effect of chemical pollution on population levels of bird species.’
       The Habitats Directive 
      7       Article 6 of the Habitats Directive is worded as follows:
      ‘…
      2.      Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats
         and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such
         disturbance could be significant in relation to the objectives of this Directive.
      
      3.      Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant
         effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment
         of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment
         of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree
         to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned
         and, if appropriate, after having obtained the opinion of the general public.
      
      4.      If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan
         or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social
         or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of
         Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
      
      Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may
         be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment
         or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’
      
       National legislation
       The European Communities Act
      8       The European Communities Act 1972 empowers ministers to legislate independently of the national Parliament where obligations
         under Community law so require.
      
       The Wildlife Act
      9       Section 11(1) and (3) of the Wildlife Act 1976, as amended by the Wildlife (Amendment) Act 2000 (‘the Wildlife Act’), provides:
      ‘1.      It shall be a function of the Minister to secure the conservation of wildlife and to promote the conservation of biological
         diversity.
      
      …
      3.      The Minister may, either directly or in association with or through the agency of another person:
      (a)      carry out or cause to be carried out research which he considers desirable for the performance of his functions under this
         Act;
      
      …’
      10     Sections 15 to 17 of the Wildlife Act give the competent minister the power to create nature reserves on State-owned land
         by means of establishment orders. It also gives the minister a power to recognise nature reserves on other land and to designate
         areas of land as refuges for fauna.
      
       The Birds Regulations
      11     The European Communities (Conservation of Wild Birds) Regulations 1985 (‘the Birds Regulations’) prohibit the deposit of food,
         waste and deleterious matter in the SPAs concerned.
      
       The Habitats Regulations
      12     The preamble to the European Communities (Natural Habitats) Regulations 1997, as amended by the Wildlife (Amendment) Act 2000
         (‘the Habitats Regulations’), states that the regulations were enacted with a view to giving effect to the Habitats Directive
         in domestic law.
      
      13     Regulation 2 of the Habitats Regulations defines ‘European site’ as: (a) a site notified for the purposes of Regulation 4;
         (b) a site adopted by the Commission as a site of Community importance for the purposes of Article 4(2) of the Habitats Directive,
         in accordance with the procedure laid down in Article 21 of that directive; (c) a special area of conservation; (d) an area
         classified pursuant to Article 4(1) and (2) of the Birds Directive.
      
      14     Regulation 4 of those regulations provides:
      ‘1.      The Minister shall cause a copy of the candidate list of European sites or a modified list under Regulation 3(3) to be sent
         to the Minister for the Environment, the Minister for Agriculture, Food and Forestry, the Minister for the Marine, the Minister
         for Transport, Energy and Communications, the Commissioners of Public Works in Ireland, the Environmental Protection Agency
         and to any planning authority within whose functional area the land to which the list relates, or any part of such land, is
         situated and the Minister shall, where appropriate, consult with all or any of them.
      
      2.      (a)    The Minister by notice shall notify every owner and occupier of any land mentioned in the candidate list of European sites
         and any holder of a valid prospecting licence or exploration licence duly issued under any enactment which relates to such
         land of the proposal to include the land in such a list and to transmit the list to the Commission pursuant to the provisions
         of the Habitats Directive; 
      
      (b)      Where the address of any person to whom subparagraph (a) of this paragraph relates cannot be found after reasonable inquiry,
         notices and maps showing the site concerned shall be displayed in a conspicuous place:
      
      (i)      in one or more Garda Síochána stations, local authority offices, local offices of the Department of Social Welfare, local
         offices of the Department of Agriculture, Food and Forestry and offices of Teagasc which are located within or contiguous
         to the site concerned, or
      
      (ii)      where in any case there is no such station or office so located, in one or more of each such station or office within the
         vicinity or closest to such site, and
      
      advertisements shall be broadcast on at least one radio station duly broadcasting in the area of the site concerned and be
         placed in at least one newspaper circulating in that area and every such advertisement shall request any person affected by
         the candidate list of European sites to contact the Department of Arts, Culture and the Gaeltacht. 
      
      …
      3.      The candidate list of European sites sent by the Minister under paragraph (1) and the notification issued by the Minister
         under paragraph (2) shall, in respect of each site:
      
      (a)      be accompanied by an ordnance map of appropriate scale in the circumstances, upon which is marked the site, so as to identify
         the land comprising the site to which the notice relates and the boundaries thereof;
      
      (b)      indicate the operation or activity which the Minister considers would be likely to alter, damage, destroy or interfere with
         the integrity of the site;
      
      (c)      indicate the habitat type, or types, the site hosts or the species the site hosts and for which the site is proposed to be
         identified as a site of Community importance;
      
      (d)      indicate the procedures by which a person may object.
      …’
      15     Regulation 5 provides that any person to whom notice is given under Regulation 4(2) has the right to object to the inclusion
         of the site in the candidate list of European sites, and defines the procedure for deciding on objections.
      
      16     Regulation 7 of the Habitats Regulations provides that the minister may appoint ‘authorised officers’ to enter onto land and
         inspect it.
      
      17     Regulation 9 provides:
      ‘(1)      Not later than six years from the date a site is adopted by the Commission in accordance with the procedure laid down in paragraph
         2 of Article 4 of the Habitats Directive the Minister shall designate the site as a special area of conservation and the Minister
         shall publish, or cause to be published, in the Iris Oifigiúil a copy of every such designation.
      
      …’
      18     Regulation 13 is worded as follows:
      ‘1.      The Minister shall establish the conservation measures which the Minister considers appropriate in respect of special areas
         of conservation designated under Regulation 9 including, if necessary, management plans … either specifically designated for
         the sites or integrated into appropriate plans.
      
      2.      The Minister shall establish the administrative or contractual measures which correspond to the ecological requirements of
         the natural habitat types in Annex I to the Habitats Directive and the species in Annex II to that Directive present on the
         sites.
      
      3.      The Minister shall take the appropriate steps to avoid, in the special areas of conservation designated under Regulation 9,
         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 Habitats Directive.’
      
      19     According to Regulation 14 of the Habitats Regulations:
      ‘1.      A person shall not carry out, cause to be carried out or continue to carry out, on any land included in a special area of
         conservation or a site placed on a list in accordance with Chapter I of this Part an operation or activity mentioned in a
         notice issued under Regulation 4(2) unless the operation or activity is carried out, or caused or permitted to be carried
         out or continued to be carried out, by the owner, occupier or user of the land and:
      
      (a)      one of them has given the Minister written notice of a proposal to carry out the operation, or activity, specifying its nature
         and the land on which it is proposed to carry it out, and
      
      (b)       one of the conditions specified in paragraph (2) is fulfilled.
      2.      The conditions referred to in paragraph (1) are as follows:
      (a)      that the operation or activity is carried out with the written consent of the Minister, or
      (b)      that the operation or activity is carried out in accordance with the terms of a management agreement provided for under Regulation
         12.
      
      3.      A person who, without reasonable excuse, contravenes paragraph (1) shall be guilty of an offence.
      4.      The provisions of this Regulation shall not apply to an operation or activity to which Regulation 15(2) relates.’
      20     Regulation 15(1) provides that, where an application to the Irish authorities for consent under Regulation 14 relates to a
         proposed activity which is likely to have a significant effect on the site, those authorities are to assess the implications
         for the site in view of that site’s conservation objectives. Regulation 15(2) further provides that, where the proposed activity
         has already been authorised under other legislation, the competent minister under whose authority the authorisation was issued
         is to assess that activity and, where appropriate, modify or revoke the authorisation in question.
      
      21     Regulation 16 states that if, in the light of the assessment under Regulation 15, the proposed activity would harm the site,
         the activity must not be allowed. There is, however, an exception for ‘imperative reasons of overriding public interest’.
      
      22     Regulation 17 provides:
      ‘1.      Where the Minister considers that an operation or activity is being carried out or may be carried out on:
      (a)      a site placed on a list in accordance with Chapter I of this Part, or
      (b)      a site where consultation has been initiated in accordance with Article 5 of the Habitats Directive, or
      (c)      a European site,
      which is neither directly connected with nor necessary to the management of such sites but likely to have a significant effect
         thereon either individually or in combination with other operations or activities the Minister shall ensure that an appropriate
         assessment of the implications for the site in view of the site’s conservation objectives is undertaken.
      
      2.      An environmental impact assessment in respect of a proposed operation or activity shall be an appropriate assessment for the
         purposes of this Regulation.
      
      3.      If the Minister, having regard to the conclusions of the assessment undertaken under paragraph (1), is of the opinion that
         the operation or activity will adversely affect the integrity of the site concerned, the Minister shall make application to
         a court of competent jurisdiction to prohibit the continuance of the operation or activity.
      
      4.      An application to a court of competent jurisdiction for a prohibition under this Regulation shall be in a summary manner and
         the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate having
         regard to paragraph 4 of Article 6 of the Habitats Directive and to the overall requirement of safeguarding the integrity
         of the site concerned and ensuring that the overall coherence of Natura 2000 is protected.
      
      5.      For the purposes of this section “a court of competent jurisdiction” means either a Judge of the Circuit Court within whose
         Circuit the lands or part of the lands concerned are situated or the High Court.’
      
      23     Regulation 18 is worded as follows:
      ‘1.      Where an operation or activity is being carried out, or is proposed to be carried out, on any land that is not within:
      (a)      a site placed on a list in accordance with Chapter I of this Part, or
      (b)      a site where consultation has been initiated in accordance with Article 5 of the Habitats Directive, or
      (c)      a European site,
      and is liable to have an adverse effect on the integrity of the site concerned either alone or in combination with other operations
         or activities the Minister shall ensure that an appropriate assessment of the implications for the site in view of the site’s
         conservation objectives is undertaken.
      
      2.      Having regard to the conclusions of the assessment undertaken under paragraph (1) the provisions of paragraphs (2) to (5)
         of Regulation 17 shall apply.’
      
      24     Regulation 34 provides:
      ‘The provisions of Regulations 4, 5, 7, 13, 14, 15 and 16 shall, where appropriate, apply with any necessary modifications
         to areas classified pursuant to paragraph 1 and 2 of Article 4 of the Birds Directive.’
      
      25     Regulation 35 is worded as follows:
      ‘The Minister shall:
      (a)      promote education and general information on the need to protect species of wild flora and fauna and to conserve their habitats
         and natural habitats;
      
      (b)      encourage the necessary research and scientific work for the purpose of meeting the requirements of Article 11 of the Habitats
         Directive with particular attention to scientific work necessary for the implementation of Articles 4 and 10 of that Directive;
      
      (c)      supply information, where appropriate, for the purpose of proper co-ordination of research carried out at Member State and
         Community level to other Member States and the Commission.’
      
       Pre-litigation procedure and written procedure before the Court
      26     After receiving complaints, the Commission initiated two sets of infringement proceedings against Ireland and sent it, between
         11 November 1998 and 18 April 2002, four letters of formal notice relating, first, to a failure fully and correctly to transpose
         and apply the Birds and Habitats Directives and, secondly, to specific infringements concerning damage caused to habitats
         by recreational users.
      
      27     As the explanations provided by the Irish authorities in their replies were not considered to be satisfactory, and following
         bilateral meetings between Ireland and the Commission, the latter sent Ireland, on 24 October 2001, a reasoned opinion and,
         on 11 July 2003, an additional reasoned opinion and a reasoned opinion concerning recreational activities.
      
      28     As it took the view that the arguments put forward by Ireland in its replies to the reasoned opinions were not wholly satisfactory
         and, accordingly, that there was a continuing failure on Ireland’s part to comply with a number of its obligations under the
         Birds and Habitats Directives, the Commission decided to bring the present action.
      
      29     Given the close connection between the two cases, the Commission decided to join both infringements in a single set of proceedings
         before the Court.
      
       The action
      30     In support of its application, the Commission relies on six complaints concerning the failure of Ireland to comply with a
         number of obligations imposed on it by Articles 4(1), (2) and (4) and 10 of the Birds Directive and by Article 6(2) to (4)
         of the Habitats Directive.
      
       Preliminary observations 
      31     Under Article 18(1) of the Birds Directive the Member States were required to comply with that directive within two years
         of its notification. Accordingly, the period within which Ireland was required to transpose the Birds Directive into national
         law expired on 6 April 1981.
      
      32     Under Article 23(1) of the Habitats Directive the Member States were required to comply with that directive within two years
         of its notification. Accordingly, the period within which Ireland was required to transpose the Habitats Directive into national
         law expired on 10 June 1994.
      
      33     It is not disputed that, in the present case, the date of expiry of the period laid down in the reasoned opinions must be
         set at 11 September 2003.
      
       The first complaint: inadequate number and size of areas classified as SPAs, contrary to Article 4(1) and (2) of the Birds
            Directive
      34     The Commission claims that Ireland has failed, since 1981, to classify, in accordance with Article 4(1) and (2) of the Birds
         Directive, all the most suitable areas in number and size for the conservation of the species referred to in Annex I as well
         as regularly occurring migratory species not listed in that annex. There are two aspects to the first complaint. The Commission
         states, firstly, that there has been a failure to make any classification in respect of certain sites and, secondly, that
         there has been a failure to make a complete classification of other sites.
      
      35     Ireland denies the alleged failure to comply with its obligations. It states that when it informs the Commission of its intentions
         regarding SPA classification, it does so as part of the cooperation and consultation between the Member States, as provided
         for by the Birds and Habitats Directives. Moreover, when it informs the Commission that research is being carried out, it
         does not follow that the present SPA network is inadequate or that Ireland has failed to fulfil its obligations under the
         Birds Directive.
      
       Preliminary observations 
      36     The Court notes, as a preliminary point, that, according to its settled case-law, Article 4(1) and (2) of the Birds Directive
         requires the Member States to classify as SPAs the territories meeting the ornithological criteria specified by those provisions
         (Case C‑378/01 Commission v Italy [2003] ECR I‑2857, paragraph 14 and case-law cited).
      
      37     Secondly, Member States are obliged to classify as SPAs all the sites which, in accordance with the ornithological criteria,
         appear to be the most suitable for conservation of the species in question (Case C‑3/96 Commission v Netherlands [1998] ECR I‑3031, paragraph 62).
      
      38     Thirdly, the obligation imposed on Member States to classify sites as SPAs cannot be avoided by the adoption of other special
         conservation measures (see, to that effect, Commission v Netherlands, paragraph 55).
      
      39     Fourthly and lastly, although Member States do have a certain margin of discretion with regard to the choice of SPAs, the
         classification of those areas is nevertheless subject exclusively to the ornithological criteria determined by the Birds Directive
         (see, to that effect, Case C‑355/90 Commission v Spain [1993] ECR I‑4221, paragraph 26). The economic requirements mentioned in Article 2 of that directive may therefore not be
         taken into account when selecting an SPA and defining its boundaries (Commission v Netherlands, paragraph 59 and case-law cited).
      
       IBA 2000
      40     In support of its complaint the Commission refers, inter alia, to the judgment in Commission v Netherlands, in which the Court took account of the Inventory of Important Bird Areas in the European Community, published in 1989 (‘IBA 89’), finding that, although it was not legally binding on the Member States concerned, it could,
         by reason of its scientific value in that case, be used by the Court as a basis of reference for assessing the extent to which
         a Member State had complied with its obligation to classify SPAs. According to the Commission, a similar inventory is under
         consideration in the present case.
      
      41     Ireland disagrees with the Commission on certain aspects of the Review of Ireland’s Important Bird Areas, drawn up in 1999 in the context of a European census and published in 2000 (‘IBA 2000’). It argues that neither the existence
         of such a list alone nor the existence of such disagreement is evidence of a failure on Ireland’s part to comply with its
         obligations under the Birds Directive.
      
      42     The Hellenic Republic and the Kingdom of Spain take the view that IBA 2000 is deficient and therefore cannot be attributed
         the same value as IBA 1989.
      
      43     The Greek and Spanish Governments contend that IBA 2000 differs from IBA 89 on a number of points. In their view, IBA 2000
         contains scientific data which may well provide a reference attesting to the existence of species in each territory, but which
         are merely indicative and general in nature in terms of the size of the population of the various species and boundaries and,
         therefore, the size of the areas to be classified as SPAs. IBA 2000, by contrast, does not contain scientific information
         sufficient to enable a delimitation of areas important for bird conservation to be made with certainty, it includes areas
         which are too large and of limited ornithological interest and the list of areas should be updated in accordance with the
         most recent scientific analysis. Accordingly, the content of the list in question cannot be used in the present case to draw
         certain conclusions as to the populations and exact boundaries of the SPAs.
      
      44     The Hellenic Republic and the Kingdom of Spain infer therefrom that IBA 2000 is not a sufficient or unique basis on which
         to establish that Ireland has failed to fulfil its obligations, as alleged by the Commission.
      
      45     Since the merits of the first complaint depend in large measure on whether the discrepancy between IBA 2000 and the SPAs actually
         classified by Ireland establishes that that Member State has not fulfilled its obligation to classify sites as SPAs to a sufficient
         degree, it is appropriate to consider whether IBA 2000 carries scientific value comparable to that of IBA 89 and whether it
         may thus be used as a reference to appraise the alleged failure to fulfil obligations.
      
      46     It must be borne in mind that Article 4 of the Birds Directive lays down a protection regime which is specifically targeted
         and reinforced both for the species listed in Annex I and for migratory species, an approach justified by the fact that they
         are, respectively, the most endangered species and the species constituting a common heritage of the Community (Case C‑191/05
         Commission v Portugal [2006] ECR I‑6853, paragraph 9 and case-law cited). Furthermore, it is clear from the ninth recital in the preamble to that
         directive that the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to
         the conservation of all species of birds. The Member States are therefore required to adopt the measures necessary for the
         conservation of those species (Case C‑235/04 Commission v Spain [2007] ECR I-0000, paragraph 23).
      
      47     For that purpose, the updating of scientific data is necessary to determine the situation of the most endangered species and
         the species constituting the common heritage of the Community in order to classify the most suitable areas as SPAs. It is
         therefore necessary to use the most up-to-date scientific data available at the end of the period laid down in the reasoned
         opinion (Case C-235/04 Commission v Spain, paragraph 24).
      
      48     In that regard, it should be borne in mind that the national inventories, including IBA 2000 prepared by BirdLife International,
         revised the initial Europe-wide study carried out in IBA 89 by presenting more specific and up-to-date scientific data. IBA
         2000 states that that inventory lists 48 new sites in Ireland in comparison with IBA 89.
      
      49     As noted by the Advocate General in point 20 of her Opinion, 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. It follows that the increase in the number and territory of the areas stems essentially from better knowledge of the presence
         of birds.
      
      50     Ireland maintains that the Commission is wrong to argue that IBA 2000 is not exhaustive. It adds that IBA 2000 is merely a
         reference for establishing correctly a network of areas of importance for the conservation of birds and that other ornithological
         studies may serve as a basis for the classification of the most suitable areas for the conservation of certain bird species.
      
      51     That lack of completeness, as pointed out by the Advocate General in point 25 of her Opinion, does not undermine the probative
         value of IBA 2000. The situation would be different if Ireland had adduced scientific evidence tending in particular to show
         that the obligations flowing from Article 4(1) and (2) of the Birds Directive could be satisfied by classifying as SPAs sites
         other than those appearing in that inventory and covering a smaller total area (see Commission v Italy, paragraph 18).
      
      52     In view of the scientific nature of IBA 89 and of the absence of any scientific evidence adduced by a Member State tending
         in particular to show that the obligations flowing from Article 4(1) and (2) of the Birds Directive could be satisfied by
         classifying as SPAs sites other than those appearing in that inventory and covering a smaller total area, the Court has held
         that that inventory, although not legally binding, could be used by the Court as a basis of reference for assessing whether
         a Member State has classified a sufficient number and size of areas as SPAs for the purposes of the abovementioned provisions
         of that directive (Case C‑235/04 Commission v Spain, paragraph 26 and case-law cited).
      
      53     In the present case, it is common ground that Ireland has not put forward any other ornithological criteria which are objectively
         verifiable, as compared with those used in IBA 2000, to serve as a basis for a different classification; nor has it presented
         a complete national inventory contradicting IBA 2000, established according to scientific methods and designating all the
         most suitable areas with a view to classification as SPAs.
      
      54     The Court accordingly finds that IBA 2000 provides an up-to-date inventory of the areas of importance for the conservation
         of birds in Ireland which, in the absence of scientific evidence to the contrary, provides a point of reference which makes
         it possible to assess whether that Member State has classified as SPAs sufficient areas of territory in terms of number and
         size to provide protection to all the species of birds listed in Annex I and also to migratory species not listed in that
         annex.
      
      55     This finding cannot be affected by the Spanish Government’s argument that the various non-governmental organisations involved
         in bird conservation chose to modify unilaterally the previous inventory concerning the various Member States, without any
         competent State environmental body having supervised that process or having guaranteed the accuracy and correctness of the
         data contained therein.
      
      56     The Court finds in that regard, firstly, that IBA 2000 was published by BirdLife International, an association of national
         organisations for the protection of birds which had already been involved in drawing up 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 that council. Consequently, BirdLife International provides continuity in respect
         of the work on the area inventories, as noted by the Advocate General in point 22 of her Opinion.
      
      57     Secondly, it is common ground that the IBA 2000 chapter on Ireland was drawn up in collaboration with Dúchas, the heritage
         service of the Department of Arts, Heritage, Gaeltacht and the Islands (now National Parks and Wildlife Service of the Department
         of the Environment, Heritage and Local Government) (‘National Parks and Wildlife’). That part of the inventory was drawn up
         with the help of high-level Irish ornithological experts and is based mostly on available data on numbers and distribution
         of birds and on studies carried out with the financial support of the competent authorities. The list of scientific references
         shows, moreover, that the experts relied largely on studies published and carried out with the participation of scientists
         from the competent conservation authorities.
      
      58     At the hearing, Ireland maintained its position that the nature of a Member State’s obligation in the light of Article 4(1)
         of the Birds Directive and the recitals in the preamble thereto must be assessed at European level and not in the light of
         the territory of the Member State concerned alone. It is thus possible that a specific area may be eligible but may not be
         the most suitable area for classification as an SPA.
      
      59     Yet even if, as Ireland correctly points out, the Member States’ obligation under Article 4(1) of that directive concerns
         only the classification of the most suitable areas for the conservation of birds and it is possible that areas which, in the
         light of species protection requirements, would in fact be suitable for such conservation never become classified as SPAs,
         it nevertheless follows from Article 4(1) of the Birds Directive, as interpreted by the Court, that, if species mentioned
         in Annex I occur on the territory of a Member State, it is obliged inter alia to define SPAs for them (see Commission v Netherlands, paragraph 56 and case-law cited).
      
      60     As noted by the Advocate General in point 32 of her Opinion, in the Member States in which these species occur relatively
         frequently, the SPAs ensure above all that large sections of the overall population are conserved. However, SPAs are also
         necessary where these species are rather rare. In that case the SPAs help the geographical distribution of the species.
      
      61     Indeed, if each Member State could escape the obligation to classify SPAs to ensure protection of the species listed in Annex
         I and present on its territory on the sole ground that there were numerous other sites in other Member States which were much
         more appropriate for the conservation of those same species, the objective of creating a coherent network of SPAs, as referred
         to in Article 4(3) of the Birds Directive, might not be achieved (see, by analogy, Commission v Netherlands, paragraph 58).
      
      62     The Greek Government submits that the obligation on Ireland, within the framework of cooperation with the competent Commission
         departments, and the timetable which Ireland set for delimiting new SPAs and extending existing SPAs must be taken into account,
         as that Member State must verify the content of IBA 2000 for the suppose of being able to determine areas of importance for
         the conservation of birds and classification as SPAs.
      
      63     The Court finds on this point that, although any classification presupposes that the competent authorities are convinced,
         based on the best scientific knowledge available, that the site in question is among the most suitable areas for the protection
         of birds (see, to that effect, Case C‑60/05 WWF Italia and Others [2006] ECR I‑5083, paragraph 27), that does not however mean that the obligation to classify does not, as a rule, arise so
         long as those authorities have not completed their evaluation and check of the new scientific knowledge.
      
      64     On the contrary, as the Court has held previously, faithful transposition becomes particularly important in the case of the
         Birds Directive, where management of the common heritage is entrusted to the Member States in their respective territories
         (see 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).
      
      65     In view of the fact that the obligation to classify the most suitable areas for species conservation as SPAs has been in place
         for Ireland since 6 April 1981, Ireland’s request for an additional period in which to assess the best scientific source available
         cannot succeed, as that request is not compatible with the objectives pursued by the Birds Directive or with the responsibility
         which that directive imposes on the Member States to manage the common heritage on their territory.
      
      66     Moreover, as has just been held in paragraph 47 of this judgment, it is necessary to use the most up-to-date scientific data
         available at the end of the period laid down in the reasoned opinion.
      
      67     It follows from all the foregoing that, in the absence of scientific studies capable of rebutting the results of IBA 2000,
         that inventory is the most up-to-date and accurate reference for identifying the most suitable sites in number and in size
         for the conservation of the species listed in Annex I and for the regularly occurring migratory species not listed in that
         annex.
      
       The first part of the first complaint
      –       Arguments of the parties
      68     The Commission acknowledged, during the pre-litigation procedure, that Ireland had classified a relatively high number of
         sites as SPAs. It takes the view, however, that other areas also should have been thus classified. After noting that IBA 2000
         listed a total of 140 areas of importance for the conservation of birds covering an area of 4 309 km², or approximately 6%
         of Ireland’s total land area (approximately 60% of those areas are coastal areas, in line with the fact that Ireland has 7 100
         km of coast; internal waters account for another 20%), the Commission maintains that 42 of those areas had not been classified
         as SPAs. It its view, even if all of those areas were to be classified as SPAs, Ireland’s SPA network would still suffer from
         shortcomings with regard to a number of bird species referred to in Annex I and regularly occurring migratory species because
         they are not entirely covered by the classification made in IBA 2000.
      
      69     It further observes that, in terms of territorial coverage, Ireland’s SPA network is the second smallest of the group of 15
         Member States prior to enlargement in 2004. The level of territorial coverage of Ireland’s SPA network has in fact already
         been surpassed by several of the 10 new Member States.
      
      70     Lastly, the Commission notes that, during the pre-litigation procedure, the Irish authorities proposed a timetable for the
         classification, re‑classification and extension of a certain number of sites. In reality that timetable has not been adhered
         to and Ireland has not made or notified any classification.
      
      71     After stating that it is well aware that its obligation to classify appropriate areas for species conservation follows from
         the Birds Directive and not from IBA 2000, Ireland replies that the overall research work for extending, if necessary, Ireland’s
         SPA network is currently being carried out and should be completed soon.
      
      72     Ireland adds, however, that the kingfisher (Alcedo athis) is the least appropriate species for an attempt at conservation using SPA classification and that there is good reason for
         not classifying other SPAs for the corncrake (Crex crex). Ireland adds that it may lawfully deem the Cross Lough area not to be one of the most suitable territories for classification
         on the basis of information available to it.
      
      –       Findings of the Court
      
      A –   The sites identified in IBA 2000
      73     The Court finds, as a preliminary point, that the Commission acknowledged, in its additional reasoned opinion, that there
         was en error in Table 1 in its reasoned opinion notified on 24 October 2001 concerning the Bull and Cow Rocks site, already
         classified as an SPA, and that, consequently, that site no longer forms part of the subject-matter of the present action.
      
      74     According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined
         by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion,
         and the Court cannot take account of any subsequent changes (see, inter alia, Case C‑282/02 Commission v Ireland [2005] ECR I‑4653, paragraph 40).
      
      75     In the present case, it is clear from the indications given as to the abovementioned grounds for failure to fulfil obligations
         that Ireland does not dispute the allegation that it had not classified 42 of the 140 sites identified in IBA 2000 as SPAs
         within the period laid down in the additional reasoned opinion notified on 11 July 2003.
      
      76     In the light of what has been stated in paragraph 67 of this judgment, the mere fact that Ireland has embarked upon an extensive
         SPA classification and re-classification programme cannot justify the failure to classify the sites identified in IBA 2000
         as SPAs.
      
      77     By contrast, the interest in classifying the Cross Lough area, as well as the three sites suitable for conservation of the
         corncrake, namely Falcarragh to Min an Chladaigh, Malin Head and the Fanad Head Peninsula, is the subject of a detailed challenge
         by Ireland.
      
      78     Accordingly, the Commission’s action must be upheld in respect of 38 of the 42 sites identified in IBA 2000 and it is appropriate
         to examine the merits of the action in respect of the four sites the ornithological interest of which is specifically challenged
         by Ireland.
      
      1.     The Cross Lough area
      a)     Arguments of the parties
      79     The Commission has referred to the Cross Lough area for two reasons. Firstly, Ireland has specifically challenged the need
         to classify that area as an SPA, even though it was, up to quite recently, an important breeding ground for the sandwich tern
         (Sterna sandvicensis). Secondly, the failure to classify the area in a timely manner was likely to have a negative impact on the protection of
         the species.
      
      80     The Commission states that, according to the information available to it, the disappearance of the sandwich tern colony, which,
         according to IBA 89, had been present in the area since 1937, can be traced to predatory activity on the part of the American
         mink (Mustela vison) and that no measures were ever put in place to protect the colony. According to the Commission, with appropriate restoration
         measures, the sandwich tern might resettle this important long-standing breeding ground. Ireland should not be allowed to
         benefit from the fact that it failed to ensure classification and protection of the Cross Lough area in a timely manner.
      
      81     Ireland states that the Commission has failed to provide scientific substantiation for its assertion that Ireland is required
         to classify as an SPA an area which is no longer of interest to the species in question and is no longer an important area
         for bird conservation but to which birds, after having bred and even though they have moved, might return. Although the Commission
         might be right in believing that, according to its information, the Cross Lough (or any other) area might be recolonised by
         the sandwich tern and enjoy the protection of classification as an SPA, it has not succeeded in establishing that that area
         would be one of the most suitable for the conservation of the species in question. Ireland adds that the Commission has not
         proven that the disappearance of the sandwich tern colony was caused by the predatory activity of the American mink in that
         area.
      
      b)     Findings of the Court
      82     It is common ground that the Cross Lough area was identified in both IBA 89 and IBA 2000 as being one of the most suitable
         areas for conservation of the sandwich tern, a species referred to in Annex I, according to the ornithological criteria drawn
         up in 1984 and 1995 respectively. It must accordingly be held that the area has featured among the most suitable areas for
         conservation of that species since 6 April 1981. Consequently, pursuant to the case-law resulting from the judgment in Commission v Netherlands, paragraph 62, Ireland should have classified that area as an SPA.
      
      83     As noted by the Advocate General in point 58 of her Opinion, that classification obligation does not necessarily cease to
         apply if the area is no longer most suitable.
      
      84     According to settled case-law, areas which have not been classified as SPAs but should have been so classified continue to
         fall under the regime governed by the first sentence of Article 4(4) of the Birds Directive, since otherwise the protection
         objectives of that directive, as expressed in the ninth recital in the preamble thereto, could not be achieved (see Case C-355/90
         Commission v Spain, paragraph 22, and Case C‑374/98 Commission v France [2000] ECR I‑10799, paragraphs 47 and 57).
      
      85     It follows that Ireland ought, at the very least, to have adopted appropriate measures pursuant to the first sentence of Article
         4(4) of the Birds Directive in order to avoid pollution or deterioration of the habitats in the Cross Lough area or any disturbances
         affecting the sandwich tern, in so far as those disturbances may have been significant with regard to the objectives of that
         article.
      
      86     In the present case, having failed to take such measures for that area, Ireland has not provided proof that the area would
         no longer be suitable even if protection measures had been taken (see, to that effect, Case C‑191/05 Commission v Portugal, paragraphs 13 and 14).
      
      87     Moreover, according to the results of scientific studies and observations submitted by the Commission during the proceedings,
         which have not been disputed by Ireland, protection measures were possible. Relying on two articles written by an Irish naturalist,
         the Commission explained the predatory effect of the American mink on the nests of ground-breeding sandwich terns and, referring
         to recent observations carried out in an area of County Donegal, showed that management (trapping of minks) reduced the problems
         of predators and that most of the local population of sandwich terns always nest in the same area.
      
      88     Relying on the aforementioned observations, not disputed by Ireland, which confirm the potential for recolonisation of areas
         by the sandwich tern, the Commission adds that there is a genuine chance that the sandwich tern may resettle in the area.
         It adds that the species must have a number of nesting sites within one area, not all of which are necessarily used in a given
         breeding season.
      
      89     In those circumstances, the Court finds that the action is well-founded in respect of the Cross Lough area.
      2.     The three suitable areas for conservation of the corncrake
      a)     Arguments of the parties
      90     The Commission states that the corncrake is the only bird species endangered at world level which is present in Ireland. Its
         population has declined sharply in recent years and it is now to be found only in limited pockets. Only a much reduced population
         now survives in Ireland, a fact which justifies a high level of site protection.
      
      91     In its view, a Member State may not validly rely on the low number and vulnerability of a corncrake population to justify
         a failure to classify the most suitable areas for the conservation of that species. In its reply, the Commission adds that
         the successful conservation and management of core areas are essential for the corncrake to recover and expand from its current,
         precarious population.
      
      92     Ireland, for its part, contends that any further designation of SPAs must be considered in the context of available species
         information (which is extensive) and the positive species conservation steps taken by the National Parks and Wildlife Service.
         The application of the term ‘globally endangered’ to the corncrake is no longer valid in the light of available species information
         and it is therefore misleading to describe it as such. The use of the relevant land is changing substantially. The insistence
         by the Commission that other areas suitable for conversation of the corncrake must be classified as SPAs is misguided and
         is in any event not supported by adequate evidence.
      
      93     After observing that there is indeed a small and unpredictable distribution of corncrakes outside current SPAs, Ireland goes
         on to state that it is the unpredictability, not the precariousness, of a site’s occupation by corncrakes which presents the
         difficulty. In other words, sound ornithological criteria, and not speculation, should form the basis for classification.
      
      b)     Findings of the Court
      94     Although new studies on the presence of the corncrake in Europe have changed its classification category, the fact remains
         that the ‘near threatened’ category in which it is currently classified, as much as the ‘vulnerable’ category in which it
         was classified previously, meets the conditions for identification of areas of importance for the conservation of birds according
         to the C.1 criterion used in IBA 2000. This also does not affect the application of the C.6 criterion used in that same inventory.
         The sites identified in IBA 2000 accordingly cannot be called into question.
      
      95     This finding cannot be rebutted by Ireland’s argument that the requirements of the Birds Directive are met with regard to
         the needs of the corncrake by designating as SPAs the lands used by a significant proportion of the corncrake population through
         the State funding of the Corncrake Grant Scheme, which involves funding for three fieldworkers, administration costs and payments
         to farmers, funding and facilitating research and the inclusion of a corncrake tier in the latest Rural Environment Protection
         Scheme.
      
      96     As evidenced by the case-law referred to in paragraphs 37 to 39 of this judgment, such conservation measures cannot be considered
         to be sufficient.
      
      97     Ireland’s argument that the distribution of corncrakes outside current SPAs is small and unpredictable must also be rejected.
      98     The Commission submitted, without being contradicted by Ireland on the point, ornithological publications indicating that,
         between 1999 and 2001, an average of 39% of the corncrake population present on Irish territory was outside SPAs and that,
         between 2002 and 2004, that figure was closer to 50%.
      
      99     Ireland’s argument that major changes have affected the distribution of the species over short periods (less than 10 years),
         and that it would be premature to recommend classification of other areas as SPAs as long as the situation has not stabilised,
         must also be rejected.
      
      100   It is clear in this regard that there has been a sufficiently stable presence of the corncrake in the sites in question over
         brief periods. Ireland has not disputed that, according to the results of a study carried out by BirdWatch Ireland and submitted
         by the Commission, in the period from 1993 to 2001, the reduced presence of the corncrake in the area of Falcarragh to Min
         an Chladaigh accounted for 8% of its population in Ireland, in Malin Head 4% of the population in Ireland, and on the Fanad
         Head Peninsula 3% of the population in Ireland. According to the same source, the figures are similar for the period 2002
         to 2004.
      
      101   As to Ireland’s argument that the goodwill and cooperation of landowners is conducive to the success of future conservation
         schemes and the application of protective instruments, the Court observes that, even if that were the case, that fact does
         not release a Member State from its obligations under Article 4 of the Birds Directive.
      
      102   In those circumstances, the Court finds that the action is also well-founded in respect of the sites of Falcarragh to Min
         an Chladaigh, Malin Head and the Fanad Head Peninsula.
      
      B –  The birds to be protected in other sites
      103   The Commission submits that for the red-throated diver (Gavia stellata), the hen harrier (Circus cyaneus), the merlin (Falco columbarius), the peregrine falcon (Falco peregrinus), the golden plover (Pluvialis apricaria), the corncrake, the kingfisher, the white-fronted goose (Greenland race) (Anser albifrons flavirostris) and the short-eared owl (Asio flammeus), protected species referred to in Annex I, and also for the lapwing (Vanellus vanellus), the redshank (Tringa totanus), the snipe (Gallinago gallinago), the curlew (Numenius arquata) and the dunlin (Calidris alpina), regularly occurring migratory species, the areas of importance for the conservation of birds identified in IBA 2000 clearly
         do not offer a sufficient set of sites in number and in size to satisfy the conservation needs of those species.
      
      104   Ireland states that studies have been carried out on six of the nine abovementioned species included in Annex I as well as
         on the dunlin, a regularly occurring migratory species. The completion of that work henceforth allows for the identification
         of sites which may be classified as SPAs for the conservation of the red-throated diver, the hen harrier, the merlin, the
         golden plover and the dunlin. During the pre-litigation procedure, Ireland stated that the SPAs which will be proposed for
         the conservation of the hen harrier would also allow for conservation of the short-eared owl. Moreover, at the current time,
         the golden plover is already a ‘qualifying interest’ in three classified SPAs and the merlin is a ‘qualifying interest’ at
         four sites with a multi-species interest. The peregrine falcon is likely to be a qualifying species in most of the SPAs concerning
         the red-billed chough (Pyrrhocorax pyrrhocorax).
      
      105   Although Ireland provides evidence of a number of partial initiatives, these had not been completed at the end of the period
         laid down in the additional reasoned opinion notified on 11 July 2003. Since the question whether there has been a failure
         to fulfil obligations must be examined solely on the basis of the position in which the Member State found itself at the end
         of the period laid down in the reasoned opinion, the Court finds that, in the light of the information referred to in the
         preceding paragraph of this judgment, Ireland has failed to fulfil its obligations in respect of the designation of SPAs to
         ensure the conservation of the red-throated diver, the hen harrier, the merlin, the peregrine falcon, the golden plover and
         the short-eared owl, species referred to in Annex I, and the protection of the dunlin, a regularly occurring migratory species
         not listed in Annex I. The complaint is also well-founded on this point.
      
      106   Furthermore, it does not appear that the Commission, which has the burden of proof in proceedings for failure to fulfil obligations
         (Case C‑288/02 Commission v Greece [2004] ECR I-10071, paragraph 35 and case-law cited), has succeeded in demonstrating to the requisite legal standard that
         Ireland has failed to fulfil its obligations in respect of the designation of SPAs to ensure the conservation of the white-fronted
         goose (Greenland race), a species referred to in Annex I, and the protection of the lapwing, the redshank, the snipe and the
         curlew, regularly occurring migratory species not listed in Annex I. Consequently, the complaint is not well-founded on this
         point.
      
      107   As regards the kingfisher and the corncrake, Ireland disputes the need to classify other sites as SPAs for their conservation.
      1.     Suitable sites for conservation of the kingfisher
      108   The Commission takes the view that the Irish SPA network should include a representative set of river corridors that could
         be used by the kingfisher. Ireland, however, has taken no steps towards classifying the most suitable territories for the
         conservation of the kingfisher and does not even know the current population of the species.
      
      109   Ireland considers that a species as widely dispersed as the kingfisher is the least appropriate of the dispersed species to
         attempt to conserve through SPA classification. This conclusion is based on available information including two ‘breeding
         atlases’ compiled between 1988 and 1991. Although the current population of the kingfisher is not known, it is understood
         that BirdWatch Ireland intends to carry out a survey. In the event that the survey shows a more significant kingfisher population,
         the Irish authorities would reconsider the matter of the creation of SPAs for the purpose of kingfisher conservation in the
         future.
      
      110   As has just been pointed out in paragraph 59 of this judgment, it is clear from Article 4(1) of the Birds Directive, as interpreted
         by the Court, that if species listed in Annex I occur on the territory of a Member State, it is obliged to define SPAs for
         them. It follows that Ireland ought to have identified the most suitable territories for conservation of the kingfisher and
         classified them as SPAs.
      
      111   It follows that Ireland, which acknowledges that the kingfisher is present in its territory, had failed to comply with that
         obligation at the end of the period laid down in the additional reasoned opinion notified on 11 July 2003. The action is therefore
         also well-founded as regards the suitable sites for conservation of the kingfisher.
      
      2.     Suitable sites for conservation of the corncrake
      112   The Commission observes that the current SPA network for protection of the corncrake is weak. It states that IBA 2000 identifies
         five additional areas: Falcarragh to Min an Chladaigh, Malin Head, the Fanad Head Peninsula, the Mullet Peninsula and the
         Moy Valley.
      
      113   As regards the five additional areas referred to in the preceding paragraph, the Court finds, first, that they are areas of
         importance for the conservation of birds and, second, that for three of them – Falcarragh to Min an Chladaigh, Malin Head
         and the Fanad Head Peninsula – the failure to fulfil obligations has already been declared in paragraph 102 of this judgment.
      
      114   With regard to the Mullet Peninsula, the Commission states, in its reply, that part of this area is subject to SPA classification
         for other purposes. It is clear, therefore, that the Mullet Peninsula is an example of part classification.
      
      115   Next, the C.6 criterion is applicable to the Mullet Peninsula. That criterion designates an area which is one of the five
         most important areas in each European region for a species or subspecies listed in Annex I. Therefore, under the criteria
         used in IBA 2000, it is sufficient that the area in question hosts a significant number of individuals of such a species or
         subspecies (at least 1% of the national breeding population of a species referred to in Annex I or 0.1% of the biogeographical
         population) in order for it to have to be classified as an SPA.
      
      116   Thus, in the present case, in its reply, the Commission submitted results – which were not challenged by Ireland – of a study
         by BirdWatch Ireland, according to which, in the period from 1993 to 2001, the reduced presence of the corncrake on the Mullet
         Peninsula accounted for 4% of the national population. According to the same source, similar figures can be shown for the
         years 2002 to 2004.
      
      117   Accordingly, the Commission’s action must be upheld in respect of the Mullet Peninsula.
      118   With regard to the Moy Valley, the Commission acknowledges that the census data show an absence of corncrakes for several
         years. However, the BirdWatch figures indicate that the Moy Valley had important numbers of corncrakes in the 1980s and up
         to the mid-1990s. In particular, up to 1993, the area held the second largest concentration of corncrakes in the country after
         the Shannon Callows and therefore would have unreservedly qualified for classification on any reasonable application of ornithological
         criteria. Thus there was evidence to justify classification of the Moy Valley as an SPA for a long period after the Birds
         Directive came into force. The loss of corncrakes in the Moy Valley was the result of changes in agricultural practices which
         Ireland took no steps to remedy. The Commission submits that Ireland ought not to derive any advantage from its failure to
         classify and protect this site. Ireland has not demonstrated the infeasibility of re-establishing a corncrake presence in
         that area.
      
      119   It is clear that the figures from BirdWatch Ireland, submitted by the Commission in its reply and showing that the Moy Valley
         area had numerous corncrakes in the 1980s until the mid-1990s, are not disputed by Ireland. It follows that that site was
         one of the most suitable areas for conservation of the corncrake and that, in line with the case-law cited in paragraph 37
         of this judgment, Ireland ought to have classified it as an SPA.
      
      120   According to the settled case-law referred to in paragraph 84 of this judgment, areas which have not been classified as SPAs
         but should have been so classified continue to fall under the regime governed by the first sentence of Article 4(4) of the
         Birds Directive, since otherwise the protection objectives of that directive, as expressed in the ninth recital in the preamble
         thereto, could not be achieved. It follows that Ireland ought at the very least to have adopted appropriate measures under
         the first sentence of Article 4(4) of the Birds Directive in order to prevent the deterioration of habitats in the Moy Valley
         and disturbances affecting the corncrake, in so far as they have significant effects in the light of the objectives of that
         article.
      
      121   The case-file shows that in the Moy Valley, which should have been classified as an SPA, the loss of corncrake was the result
         of changes in agricultural practices which Ireland took no steps to remedy.
      
      122   Nor has Ireland demonstrated that it would be impossible to re-establish the presence of the corncrake in that area. Accordingly,
         the Commission’s action must be upheld on this point.
      
      123   It follows that the action is also well-founded in respect of the Mullet Peninsula and the Moy Valley.
       The second part of the first complaint 
      –       Arguments of the parties
      124   The Commission argues that Ireland has failed to fulfil its obligation under Article 4(1) and (2) of the Birds Directive because
         it classified certain sites as SPAs only partially. In its view, the SPA boundaries were in many cases drawn so as to exclude
         equivalent adjacent areas of ornithological interest as identified in IBA 2000. These criticisms cover a total of 37 sites.
      
      125   After pointing out that SPA boundaries should be defined by ornithological considerations and not economic ones, the Commission
         notes that the Irish authorities, by contrast, have in many cases limited SPAs to sites in public ownership and have not classified
         sites seriously contested by economic interests.
      
      126   The Commission adds that, during the proceedings, the Irish authorities stated that they intended to extend and re-designate
         a large number of sites by the end of June 2004, but do not appear to have followed up on that intention in practice.
      
      127   Ireland states that the relevant survey work is in progress and that it is intended that fresh SPAs will be classified for
         the purpose of conservation of the species concerned. All reclassifications and new classifications will be carried out in
         accordance with the requirements of the Habitats Regulations. Nevertheless, it disputes the alleged failure to classify a
         sufficiently large area for the Sandymount Strand and Tolka Estuary SPA.
      
      –       Findings of the Court
      128   In acknowledging that certain SPAs must be extended, Ireland admits that it has failed to fulfil its obligations under Article
         4(1) and (2) of the Birds Directive. Accordingly, the Commission’s action must be upheld in respect of 36 of the 37 sites.
      
      129   Next, the situation of the Sandymount Strand and Tolka Estuary SPA must be examined.
      130   The Commission claims that the boundaries of the Sandymount Strand and Tolka Estuary SPA have not taken proper account of
         ornithological interests, contrary to Article 4(1) and (2) of the Birds Directive.
      
      131   In its view, evidence indicates that the approach taken by the Irish authorities for the demarcation of the boundaries of
         the Sandymount Strand and Tolka Estuary SPA, an internationally important wetland for waterfowl, situated in Dublin Bay and
         regularly supporting over 20 000 wintering birds, leads to the exclusion of two areas earmarked for development in connection
         with major public works; that exclusion was decided upon on the basis of an isolated consideration of the ornithological value
         of those areas, whereas the boundaries of the SPAs should have been drawn up in the light of the natural boundaries of the
         wetland ecosystem.
      
      132   According to the Commission, the first area of 4.5 hectares, the inclusion of which in the SPA had been proposed previously,
         was excluded from the initial extension project for the Sandymount Strand and Tolka Estuary SPA following representations
         by the Dublin Port Company, which wished to infill the area for a port extension.
      
      133   Ireland, for its part, contends that that area should not have been included in the proposed extended area in the first instance
         and that its inclusion has no scientific basis. The adjustment of the proposed extended SPA was subjected to close examination
         and it was concluded that the inclusion of the area was not scientifically justified on the ground that only a small part
         is exposed briefly at low spring tides.
      
      134   Ireland observes in particular that common adaptable wader species can use the area only when it is exposed at low tide. Those
         species find the bulk of their food elsewhere. Further, the area may not relate to significant habitats located nearby which
         provide better conditions for the species concerned. In Ireland’s view, no real attempt has been made by the Commission to
         dispute the underlying scientific basis for this view.
      
      135   As regards the first area, the Court finds, as a preliminary point, that the complaints expressed by the Commission in its
         reply regarding other sites in that area are inadmissible at the stage of proceedings before the Court on the ground that
         they were not the subject-matter of the action.
      
      136   In accordance with the Court’s settled case-law, the subject-matter of an action under Article 226 EC for failure to fulfil
         obligations is delimited by the pre-litigation procedure provided for by that provision, so that the application must be based
         on the same grounds and pleas as the reasoned opinion (see Case C‑456/03 Commission v Italy [2005] ECR I‑5335, paragraph 35 and case-law cited).
      
      137   Next, as evidenced by the case-file, the Commission produced an ornithological study carried out in November 2002 by Dublin
         Bay Watch, which, on the basis of an examination of the ornithological implications of the infilling project, called for the
         inclusion of those areas in the Sandymount Strand and Tolka Estuary SPA. That study, which has not been disputed by the Irish
         authorities, shows, as noted by the Advocate General in point 72 of her Opinion, that various species make above-average use
         of the land, which is exposed infrequently. Furthermore, at least parts of this land are exposed also on less extreme tides
         and can be used by birds. Lastly, the areas in question are used not only by wading birds but also by sandwich terns, for
         example, which do not rely on the land being exposed.
      
      138   Accordingly, the first area in question is an integral part of the wetland ecosystem and should have been classified as an
         SPA. It follows that the action is well-founded in respect of the first area excluded from the initial proposal to extend
         the Sandymount Strand and Tolka Estuary SPA.
      
      139   The second area comprised 2.2 hectares of inter-tidal mudflat at the entry to the estuary of the Tolka, destroyed, according
         to the Commission, in the construction of the Dublin Port Tunnel, the promoter of which is Dublin Corporation (now the Dublin
         City Council). The Commission argues that, although small, the excluded area had features similar to those of a complete ecosystem,
         namely mudflats, and had confirmed usage by birds that depend on the overall ecosystem, that is to say, the oystercatcher
         (Haematopus ostralegus) and the redshank. Such piecemeal exclusions of portions of an integrated wetland system undermine the objectives of the
         Birds Directive.
      
      140   Ireland contends that only very small numbers of oystercatcher and redshank occur in the 2.2 hectare inter-tidal mudflat area,
         which is exposed as a feeding area only for very short periods of time at low tide. The area is therefore not regarded as
         significant for the purposes of inclusion in the relevant SPA. The criteria applied in reaching that decision were scientifically
         sound ornithological criteria. Ireland submits that the Commission’s view that the loss of the 2.2 hectare area constitutes
         a significant deterioration of bird habitats and source of disturbance is not accepted and that the Commission has not identified
         any scientific or objectively verifiable evidence for its view.
      
      141   In respect of the second area, it should be borne in mind that, according to the case-law referred to in paragraph 39 of this
         judgment, the classification of areas as SPAs is subject solely to the ornithological criteria determined by the Birds Directive.
      
      142   The Commission is therefore correct in claiming, first, that SPA classification cannot be the result of an isolated study
         of the ornithological value of each of the areas in question but must be carried out in the light of the natural boundaries
         of the wetland ecosystem and, second, that the ornithological criteria which form the foundation of the classification must
         have a scientific basis. The use of flawed, allegedly ornithological criteria might lead to an incorrect demarcation of the
         boundaries of SPAs.
      
      143   In the present case, it is common ground that the area in question is separated from the rest of the classified estuary by
         a road which crosses the river and, being a mudflat, has the same characteristics as the Dublin Bay site as a whole.
      
      144   It is furthermore clear from the environmental impact assessment published in July 1998, on which both parties relied during
         the proceedings, that that area is used as a feeding ground by some of the wild birds present in the Sandymount Strand and
         Tolka Estuary SPA.
      
      145   The Court accordingly finds that the second area is used as a feeding ground by three of the nine bird species which are decisive
         for the classification of Dublin Bay as an area of ornithological importance. That area is used by those species within the
         average limits which could be expected, if not more. Consequently, it is an integral part of the entire wetland ecosystem
         and for that reason ought also to have been classified as an SPA.
      
      146   It follows that the action is also well-founded in respect of the second area not included in the Sandymount Strand and Tolka
         Estuary SPA.
      
      147   Consequently, the Court finds that the second part of the first complaint is well-founded.
      148   In the light of all the foregoing considerations, the Court finds that the first complaint is well-founded, except for the
         point relating to the classification of SPAs to ensure conservation of the Greenland white-fronted goose, a species referred
         to in Annex I, and protection of the lapwing, the redshank, the snipe and the curlew, regularly occurring migratory species
         not listed in Annex I. 
      
       The second complaint: failure to establish the necessary legal protection regime in accordance with Article 4(1) and (2) of
            the Birds Directive
       Arguments of the parties
      149   The Commission argues that, since 1981, Irish legislation has failed adequately to give effect to Article 4(1) and (2) of
         the Birds Directive and that, moreover, Ireland has not applied those provisions in practice by establishing a specific legal
         protection regime for SPAs such as to ensure survival and reproduction of the bird species concerned.
      
      150   In the Commission’s view, ensuring the survival and reproduction of bird species within SPAs may require not only preventive
         measures, but also active or positive measures, which, with one exception, have not been taken in Ireland. Secondly, there
         is a doubt as to whether the relevant Irish legislation actually provides a legal basis for taking such measures.
      
      151   Ireland disputes the alleged failure to fulfil obligations. Regarding the obligation to establish an effective legal protection
         regime for SPAs, whilst accepting that the preventive approach is not sufficient to protect birds in all situations, it contends
         that that view informed the creation of the voluntary Corncrake Grant Scheme. To that may be added a number of plans, at the
         draft stage, for bird management and conservation in a number of SPAs.
      
      152   As regards the scope of the Irish legislation transposing Article 4(1) and (2) of the Birds Directive, Ireland denies that
         the sole purpose of the Habitats Regulations is to implement the Habitats Directive and contends that those regulations provide
         an adequate legal basis in national law for the creation and implementation of SPA management plans. Ireland states that the
         Habitats Regulations clearly apply a number of key protective and enforcement measures to SPAs, including Regulation 13, which
         is expressly listed in Regulation 34 as a provision applying to areas classified pursuant to the Birds Directive.
      
       Findings of the Court
      153   According to the case-law of the Court, Article 4(1) and (2) of the Birds Directive requires the Member States to provide
         SPAs with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction of the
         bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species not listed in
         Annex I which are, nevertheless, regular visitors (Case C‑166/97 Commission v France [1999] ECR I‑1719, paragraph 21 and case-law cited).
      
      154   As observed by the Advocate General in point 77 of her Opinion, the protection of SPAs may not be limited to avoiding harmful
         human effects but must also include positive measures to preserve or improve the state of the area, as the case may be.
      
      155   It is common ground that Regulation 13 of the Habitats Regulations would have adequately transposed Article 4(1) and (2) of
         the Birds Directive if that provision had been applicable to SPAs. However, contrary to Ireland’s position that Regulation
         13 applies also to SPAs essentially by virtue of Regulation 34, the Commission takes the view that the Habitats Regulations
         are intended to implement only the Habitats Directive.
      
      156   Regulation 34 of the Habitats Regulations provides that ‘[t]he provisions of Regulations 4, 5, 7, 13, 14, 15 and 16 shall,
         where appropriate, apply with any necessary modifications to areas classified pursuant to paragraph 1 and 2 of Article 4 of
         the Birds Directive’.
      
      157   According to the wording of the third paragraph of Article 249 EC, a directive, in binding all addressee Member States as
         to the result to be achieved, leaves it to the national authorities to decide the form and methods. It follows that Ireland,
         just like any other Member State, may choose the form and methods for implementing the Birds Directive (see, to that effect,
         Case C‑296/01 Commission v France [2003] ECR I‑13909, paragraph 55). 
      
      158   However, according to the case-law of the Court, the transposition of a directive into domestic law must guarantee the full
         application of the directive in a sufficiently clear and precise manner (see, to that effect, Case C‑361/88 Commission v Germany [1991] ECR I‑2567, paragraph 15).
      
      159   The Court has also held, as mentioned in paragraph 64 of this judgment, that faithful transposition becomes particularly important
         in the case of the Birds Directive, where management of the common heritage is entrusted to the Member States in their respective
         territories.
      
      160   It is therefore appropriate to examine whether Regulation 34 of the Habitats Regulations does not guarantee the application
         of Regulation 13 of those regulations to the areas classified as SPAs under Article 4(1) and (2) of the Birds Directive, as
         claimed by the Commission.
      
      161   A literal reading of Regulation 34 shows that it does not, on the face of it, exclude from the scope of application of the
         Habitats Regulations the application of Regulation 13 to areas classified under Article 4(1) and (2) of the Birds Directive.
      
      162   Consequently, it is not possible to accept the Commission’s argument that, due to the lack of reference in the Habitats Regulations
         to a distinct objective of giving effect also to the Birds Directive and in the light of the limitations imposed by the European
         Communities Act, those regulations cannot provide a legal basis allowing the adoption of management plans for bird conservation
         in the SPAs.
      
      163   For the same reason, it is also not possible to accept the Commission’s argument that the Habitats Regulations do not allow
         for application to SPAs of the management measures provided for in Article 6(1) of the Habitats Directive, as the sole declared
         purpose of those regulations is to implement that directive. As observed by the Advocate General in point 82 of her Opinion,
         if measures similar to those provided for in Article 6(1) are to be applied to SPAs pursuant to Article 4(1) and (2) of the
         Birds Directive, the national legislature is not prevented from creating a single provision to transpose the rules of both
         directives.
      
      164   The Court also cannot accept the Commission’s argument relating to the limitations imposed by the European Communities Act.
         Ireland contends in its statement in defence, without being contradicted on the point by the Commission, that the Habitats
         Regulations are not a statute but are, in their entirety and undoubtedly, of full force and effect unless and until they are
         successfully challenged before a court of competent jurisdiction.
      
      165   Lastly, on the same ground as that referred to in paragraph 161 of this judgment, the Court cannot accept the Commission’s
         argument that the application to SPAs of Regulation 13 of the Habitats Regulations, which relates to conservation measures
         to be taken by the Minister in relation to Special Areas of Conservation, is not automatic since, according to the wording
         of Regulation 34 of those regulations, some provisions of those regulations apply ‘where appropriate’ and ‘with any necessary
         modifications’ to areas classified under Article 4(1) and (2) of the Birds Directive.
      
      166   Moreover, the Court has consistently held that the scope of national laws, regulations or administrative provisions must be
         assessed in the light of the interpretation given to them by national courts (Case C‑300/95 Commission v United Kingdom [1997] ECR I‑2649, paragraph 37 and case-law cited). In the present case, the Commission has not put forward in support of
         its action any decisions of national courts which interpreted the disputed national provision in a manner contrary to the
         Birds Directive.
      
      167   In those circumstances, it does not appear that the Commission, which has the burden of proof in proceedings for failure to
         fulfil obligations (Commission v Greece, paragraph 35 and case-law cited), has demonstrated to the requisite legal standard that, at the date of expiry of the period
         laid down in the additional reasoned opinion notified on 11 July 2003, the Habitats Regulations had the scope attributed to
         them by the Commission.
      
      168   The second complaint must accordingly be rejected.
       The third complaint: failure to apply the first sentence of Article 4(4) of the Birds Directive to the areas which should
            have been classified as SPAs
       Arguments of the parties
      169   The Commission argues that, since 1981, Ireland has failed to ensure the application of the first sentence of Article 4(4)
         of the Birds Directive as regards sites which should have been classified as SPAs under that directive, but have not been.
         It considers that, given the extent of the inadequacy of the classification of SPAs by the Irish authorities, that omission
         has potentially important implications for the conservation of the bird species concerned.
      
      170   In its view, although there is Irish legislation of relevance to the protection of habitats other than classified SPAs, that
         legislation lacks the ornithological specificity required by the first sentence of Article 4(4) of the Birds Directive. In
         particular, the Irish legislation fails to impose any specific duties in respect of the habitats of the wild bird species
         which should benefit from the protection conferred on SPAs in areas not covered by Ireland’s existing SPA network. The Commission
         cites the specific example of the difficulties faced by the hen harrier and adds that unclassified areas requiring classification
         do not enjoy in Ireland the protection required by the first sentence of Article 4(4) of the Birds Directive, even in respect
         of the actions of public authorities.
      
      171   Ireland replies, essentially, that important hen harrier survey work is nearing completion and that draft guidelines in relation
         to the development of wind energy are soon to be concluded.
      
       Findings of the Court
      172   As already noted in paragraph 84 of this judgment, the protection objectives of the Birds Directive, as expressed in the ninth
         recital in the preamble thereto, cannot be achieved if Member States are required to comply with their obligations under Article
         4(4) thereof only where an area has been previously classified as an SPA.
      
      173   As is also clear from the Court’s case-law, the text of Article 7 of the Habitats Directive states that Article 6(2) to (4)
         of that directive replaces the first sentence of Article 4(4) of the Birds Directive as from the date of implementation of
         the Habitats Directive or the date of classification by a Member State under the Birds Directive, where the latter date is
         later. It is clear, therefore, that areas which have not been classified as SPAs but which should have been so classified
         continue to fall under the regime governed by the first sentence of Article 4(4) of the Birds Directive (Case C‑374/98 Commission v France, paragraphs 46 and 47).
      
      174   In the present case, however, Ireland has not even asserted that it ensured the application of the first sentence of Article
         4(4) of the Birds Directive to areas requiring classification as SPAs under that directive.
      
      175   Consequently, and without its being necessary to consider the specific examples provided by the Commission, the Court finds
         that the third complaint is well-founded.
      
       The fourth complaint: failure to transpose and apply the second sentence of Article 4(4) of the Birds Directive
       Arguments of the parties
      176   The Commission complains that Ireland has failed to transpose and apply fully and correctly the second sentence of Article
         4(4) of the Birds Directive relating to appropriate steps to be taken by the Member States to avoid pollution or deterioration
         of habitats outside SPAs.
      
      177   In support of its complaint, the Commission states that the various domestic legal measures, in particular integrated pollution
         control licences, the Control of Farmyard Manure scheme, and provisions of planning legislation including environmental impact
         assessment requirements, which are deemed to transpose the second sentence of Article 4(4) of the Birds Directive, do not
         have any specifically ornithological content from that article. In the absence of any specific ornithological considerations,
         entities playing a role in the context of environmental measures cannot be expected to take account of ornithological interests.
         In the Commission’s view, several of the domestic measures transposing the second sentence of Article 4(4) are partial and
         numerous lacunae remain. The shortcomings of those measures are borne out by the deterioration of habitats and, despite denials
         by Ireland, it cannot validly be disputed in the present case that human intervention has led to a deterioration of the habitats.
      
      178   Ireland replies by stating that Article 4(4) of the Birds Directive is in practice transposed by a number of statutory schemes
         and measures. It adds that the second sentence of Article 4(4) of the Birds Directive is implemented by the Wildlife Act,
         which provides a sound legal basis for the protection of bird species in the wider countryside.
      
       Findings of the Court
      179   Although the second sentence of Article 4(4) of the Birds Directive does not require that certain results be achieved, the
         Member States must nevertheless make a serious attempt at protecting those habitats which lie outside the SPAs. It is thus
         clear, in the present case, that Ireland must endeavour to take suitable steps to avoid pollution or disturbances of the habitats
         (see, to that effect, Case C‑166/97 Commission v France, paragraph 48).
      
      180   First of all, it is appropriate to consider whether Ireland has transposed that provision fully and correctly by taking suitable
         steps to avoid pollution or deterioration of the habitats lying outside the SPAs.
      
      181   It is clear, in the light of all the evidence submitted, assessed as a whole, that that is not so in the present case.
      182   As regards the licences issued by the Environmental Protection Agency under the integrated pollution control scheme, it is
         not disputed, as pointed out by the Commission, that that scheme covers only a limited range of polluting activities and does
         not contain any specific reference to the ornithological considerations referred to in Article 4 of the Birds Directive. It
         would appear, moreover, that Ireland refers to the transposition of Council Directive 96/61/EC of 24 September 1996 concerning
         integrated pollution prevention and control (OJ 1996 L 257, p. 26), the objectives of which are different. Accordingly, the
         national rules relating to those licences cannot be regarded as being an adequate transposition of the second sentence of
         Article 4(4) of the Birds Directive.
      
      183   With regard to the cross-compliance aspect of the single payment under the common agricultural policy, Ireland states that
         the various statutory management requirements (SMRs), the first key element of cross-compliance, referred to in Article 4
         of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the
         common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93,
         (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000,
         (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1), the list of which is contained in Annex III to that regulation,
         are to be introduced progressively over three years, starting on 1 January 2005. Ireland adds that the list of those regulatory
         requirements includes a reference to the Birds Directive. However, for the same reasons as those referred to in paragraph
         74 of this judgment, the progressive introduction in national law of those requirements may not be taken into account.
      
      184   The same holds true for the second key element of cross-compliance of the single payment, relating to good agricultural and
         environmental condition referred to in Article 5 of Regulation No 1782/2003, the minimum requirements of which must be defined
         on the basis of the framework laid down in Annex IV to that regulation, with transposition measures for that article entering
         into force only as of 1 January 2005.
      
      185   Regarding the steps taken under the Rural Environment Protection Scheme, designed to reward farmers for carrying out their
         farming activities in an environmentally friendly manner and to bring about environmental improvements on existing farms,
         the Commission acknowledges that they have advantages for wild birds in that they make it possible to avoid pollution and
         deterioration of habitats. It is common ground, however, that that scheme does not apply generally to all farmlands or to
         territories not classified as SPAs. Accordingly, those steps also cannot be regarded as transposing the second sentence of
         Article 4(4) of the Birds Directive.
      
      186   The arguments concerning the Farm Waste Management Scheme and the planning legislation, including the provisions on environmental
         impact assessment, must also be rejected. In those texts, Ireland has not introduced any ornithological considerations in
         respect of the second sentence of Article 4(4) of the Birds Directive.
      
      187   Lastly, with regard to the Wildlife Act, it is clear that the only provision of that act relevant in this context and referred
         to by Ireland during the proceedings is section 11(1). However, that provision is not sufficiently specific to be regarded
         as guaranteeing the transposition of the second sentence of Article 4(4) of the Birds Directive.
      
      188   Secondly, it is appropriate to consider whether the Commission has established that Ireland has not made sufficient efforts
         in practice to avoid pollution or deterioration of habitats lying outside SPAs.
      
      189   The Commission puts forward in this regard, by way of example, the habitats of the cuckoo (Cuculus canorus), skylark (Alauda arvensis), swallow (Hirundo rustica) and sand martin (Riparia riparia), widespread bird species contained in the ‘orange list’ of the Birds of Conservation Concern in Ireland inventory published in 1999 by BirdWatch Ireland and the Royal Society for the Protection of Birds. That inventory states
         that those species suffer greatly from the changes in agricultural practices. In addition, the Commission refers to the report
         Ireland’s Environment 2004, drawn up by the Environmental Protection Agency, which attributes the general deterioration of habitats in Ireland to a
         number of developments.
      
      190   It is also clear that the mere fact that a number of programmes and regulatory measures may have been implemented and taken,
         as contended by Ireland, does not establish that Ireland has made sufficient efforts to avoid pollution or deterioration of
         habitats. As noted by the Advocate General in point 111 of her Opinion, serious endeavours, namely the taking of all reasonable
         measures to achieve the success being sought, require targeted action.
      
      191   The Court finds in the present case that the measures taken by Ireland are partial, isolated measures, only some of which
         promote conservation of the bird populations concerned, but which do not constitute a coherent whole.
      
      192   That finding is supported by the fact that Ireland has not contradicted the content of the inventory Birds of Conservation Concern in Ireland, published in 1999, or the report Ireland’s Environment 2004, two ornithological studies referred to above and submitted by the Commission.
      
      193   Accordingly, in the light of all the evidence adduced by the Commission, the Court finds that Ireland has not transposed or
         applied fully and correctly the second sentence of Article 4(4) of the Birds Directive. Consequently, the failure to fulfil
         obligations in regard to this complaint is well-founded.
      
       The fifth complaint: inadequate transposition and application of Article 6(2) to (4) of the Habitats Directive
      194   The fifth complaint concerns, in respect of the SPAs classified under the Birds Directive, the fact that Ireland has not adopted
         all the measures required to comply with Article 6(2) to (4) of the Habitats Directive. This complaint also concerns the inadequate
         transposition of Article 6(2) of that directive as regards the use of all the sites covered by that provision for recreational
         purposes.
      
       Preliminary observations
      195   Article 7 of the Habitats Directive provides that obligations arising under Article 6(2) to (4) of that directive are to replace
         any obligations arising under the first sentence of Article 4(4) of the Birds Directive in respect of areas classified pursuant
         to Article 4(1) of that directive or similarly recognised under Article 4(2) thereof, as from the date of implementation of
         the Habitats Directive or the date of classification or recognition by a Member State under the Birds Directive, where the
         latter date is later.
      
      196   It follows that Article 6(2) to (4) of the Habitats Directive has applied to SPAs in Ireland since 10 June 1994, the date
         on which the period for transposition of that directive in Ireland expired, or since the date of their classification or recognition
         under the Birds Directive, where the latter date is later.
      
       Inadequate transposition and application of Article 6(2) of the Habitats Directive
      –       Arguments of the parties
      197   The Commission submits that Ireland has not transposed or applied correctly, as at 10 June 1994 or after that date, Article
         6(2) of the Habitats Directive to all the areas classified under Article 4(1) of the Birds Directive or recognised under Article
         4(2) thereof.
      
      198   It submits that, according to the wording of the Habitats Regulations, which, Ireland asserts, implement Article 6(2) of the
         Habitats Directive, the ability to control potentially damaging activities on the part of landowners is to a significant extent
         dependent on notices being served on landowners at the time an area is proposed to become a site subject to Article 6(2) of
         the Habitats Directive. Regulation 14 of those regulations provides for ministerial power to issue notices and impose conditions
         concerning the use of land. That power is subject to two limitations, however.
      
      199   The first of those limitations is a limitation de jure in that Regulation 14 of the Habitats Regulations is worded in such
         a manner as to apply only to SPAs so classified after the entry into force of those regulations, so that it does not cover
         SPAs classified before that date. In the case of existing SPAs, there is no provision for issuing notices to landowners expressly
         informing them of the activities which require authorisation under the transposing legislation, so as to make the system of
         controls on damaging activities operational for these.
      
      200   The second is a limitation de facto in that that regulation has not been applied to all SPAs.
      201   According to the Commission, in the absence of any use of restrictive notices, Irish legislation does not contain any provision
         giving full effect to Article 6(2) of the Habitats Directive for State-owned land situated inside SPAs. It also takes the
         view that, in so far as those activities take place on State-owned land or State-controlled land, the national legislation
         does not provide for any explicit statutory obligation requiring the authorities responsible for regulating those activities
         to take enforcement action to ensure compliance with Article 6(2) of that directive.
      
      202   The Commission refers, by way of example of an activity which infringes Article 6(2) of the Habitats Directive, to unauthorised
         mechanical cockle harvesting in the Bannow Bay SPA and also refers to the damaging development of the Glen Lough SPA.
      
      203   Ireland rejects all of the Commission’s allegations. It contends that, in addition to Regulation 14 of the Habitats Regulations,
         Regulation 13(3) of those regulations, which applies to both Special Areas of Conservation and SPAs, transposes Article 6(2)
         of the Habitats Directive. Ireland also refers, for the same purposes, to Regulations 17 and 18 of the Habitats Regulations
         and maintains its position that the Foreshore Acts ensure protection of SPAs.
      
      –       Findings of the Court
      204   Article 6(2) of the Habitats Directive, like the first sentence of Article 4(4) of the Birds Directive, requires Member States
         to take appropriate steps to avoid, in the areas classified pursuant to Article 4(1) or recognised pursuant to Article 4(2),
         the deterioration of habitats and disturbances having a significant effect on the species for which the SPAs were classified
         or recognised (see, to that effect, Case C‑117/00 Commission v Ireland [2002] ECR I‑5335, paragraph 26).
      
      205   As regards Ireland’s argument that Regulation 13(3) of the Habitats Regulations transposes Article 6(2) of the Habitats Directive,
         it is clear that the sole purpose of Regulation 13(3) of those regulations is to require the competent minister to take appropriate
         steps to avoid the deterioration of natural habitats and the habitats of species as well as disturbance of the species for
         which the areas have been designated, with the result that that provision has effect only when that minister has direct responsibility
         over the SPAs concerned. Moreover, under the Habitats Regulations scheme, Regulation 13(3) thereof complements the provisions
         of Regulations 4 and 14, which provide for a notice-based scheme of landowner liability. In the present case, since it is
         common ground that notices were not issued for all the SPAs, Regulation 13(3) of the Habitats Regulations cannot be regarded
         as ensuring adequate transposition of Article 6(2) of the Habitats Directive.
      
      206   With regard to the argument that Regulation 14 of the Habitats Regulations provides for the control of operations and activities
         listed in a notice issued by the competent minister pursuant to Regulation 4 and that listed activities may only be carried
         out with ministerial consent or pursuant to a management agreement provided for in Regulation 12 of those regulations, suffice
         it to hold that Regulation 14 is also dependent on the existence of a notice. Accordingly, and for the same reason as stated
         in the preceding paragraph of this judgment, the latter provision cannot be regarded as ensuring adequate transposition of
         Article 6(2) of the Habitats Directive.
      
      207   As to the argument that Regulation 17 of the Habitat Regulations empowers the competent minister to seek injunctive relief
         to stop operations or activities that appear on assessment to be damaging to a European site, including an SPA, and that Regulation
         18 of those regulations provides for similar ministerial powers in the event that an operation or activity damaging to an
         SPA is being carried out in an area outside the SPA, the Court finds that, as rightly pointed out by the Commission and the
         Advocate General in point 127 of her Opinion, those provisions do not make it possible to avoid the deterioration of natural
         habitats and the habitats of species as well as significant disturbance of the species for which the areas concerned have
         been designated.
      
      208   Although Ireland states, in its rejoinder, that the powers of the competent minister, as described in the preceding paragraph
         of this judgment, can be used to apply immediately for injunctive relief on an interim basis, it is clear that those provisions
         necessarily can come into play only after the activities in question have already commenced and thus only after any deterioration
         has already occurred. Moreover, the competent minister is not entitled to prohibit a harmful activity unilaterally and the
         abovementioned powers presuppose that an appropriate assessment of the environmental impact of that activity has been carried
         out before any judicial relief is sought. The reactive protection of SPAs may be delayed considerably by those procedural
         steps. Moreover, those provisions do not ensure protection of SPAs against the activities of individuals, as such protection
         requires that individuals be prevented in advance from engaging in potentially harmful activities.
      
      209   Accordingly, Regulations 17 and 18 of those regulations also cannot be regarded as constituting an adequate transposition
         of Article 6(2) of the Habitats Directive.
      
      210   Moreover, Ireland’s argument that the Foreshores Acts ensure protection of SPAs cannot be accepted either. Those statutes
         ensure protection of coastal areas only and therefore do not apply to SPAs situated outside such areas.
      
      211   Lastly, as regards the unauthorised mechanical harvesting of cockles in the Bannow Bay SPA, referred to by the Commission
         as an activity which infringes Article 6(2) of the Habitats Directive, the Court finds, as noted by the Advocate General in
         point 140 of her Opinion, that this is mere illustrative use which is not the subject-matter of the application. In any event,
         the Commission has not adduced any evidence such as to establish the failure to fulfil obligations on this point.
      
      212   It follows that, as at 10 June 1994 or after that date, Ireland had not correctly transposed Article 6(2) of the Habitats
         Directive in respect of all the areas classified under Article 4(1) of the Birds Directive or recognised under Article 4(2)
         of that directive.
      
      213   Consequently, the Court finds that the complaint is well-founded on this point.
       Inadequate transposition of Article 6(2) of the Habitats Directive in the field of recreational activities
      –       Arguments of the parties
      214   The Commission takes the view that Ireland has not adequately transposed Article 6(2) of the Habitats Directive in respect
         of the use for recreational purposes of all the sites covered by that provision. It considers that the Irish legislation covers
         only the activities of landowners and that the legislation suffers from a number of shortcomings in terms of prevention of
         damage to habitats caused by users of the land for recreational purposes. The application of Regulations 14 and 17 of the
         Habitats Regulations has not resulted in the compilation of exhaustive lists of prohibited activities. Moreover, the mechanisms
         provided for in Regulation 17 of those regulations are reactive in nature and no other legislative provision referred to by
         Ireland appears to protect the SPAs against recreational activities engaged in by users.
      
      215   Notwithstanding indications regarding proposals for appropriate legislative amendments, including the 2004 draft Maritime
         Safety Bill, Ireland denies that the current legislation is inadequate for implementing Article 6(2) of the Habitats Directive
         in the context of recreational use of land situated in the SPAs. Ireland explains that the national authorities have powers
         to control recreational and other activities in European sites by persons other than the landowner and to impose penalties.
         In that context, Ireland refers to Regulation 4(3)(b) of the Habitats Regulations and to Regulations 14, 17 and 18 of those
         regulations, to the Wildlife Act and to the Criminal Justice (Public Order) Act 1994.
      
      –       Findings of the Court
      216   With regard to Ireland’s argument that Regulation 14 of the Habitats Regulations, which places restrictions on operations
         and activities, does not cover only landowners, occupiers or licence-holders, but also applies to all persons provided that
         the operation or activity is referred to in a notice issued pursuant to Regulation 4(2) of those regulations, suffice it to
         hold that Regulation 14(3) of those regulations does not allow for proceedings to be brought against third parties who were
         not aware of that notice. The latter may, in fact, rely on the defence of ‘reasonable excuse’ contained in Regulation 14(3).
         Accordingly, the transposition of Article 6(2) of the Habitats Directive is, at the very least, not sufficiently precise.
      
      217   As to Ireland’s argument that the procedure provided for in Regulations 17 and 18 of the Habitats Regulations is a separate
         and distinct procedure which may be implemented in respect of anyone and does not depend on the content of any particular
         ‘notice’, it is clear that there is no guarantee that it may be applied to persons who have not received the notice provided
         for in Regulation 4 of those regulations. Moreover, as has just been found in paragraphs 208 and 209 of this judgment, that
         procedure is a merely reactive measure; consequently, Regulations 17 and 18 of the Habitats Regulations cannot be regarded
         as ensuring adequate transposition of Article 6(2) of the Habitats Directive.
      
      218   With respect to the argument that the Wildlife Act provides, in sections 22, 23 and 76, for a power to act where there is
         evident and wilful interference with the breeding place or the resting place of a protected wild animal, or where there is
         disturbance of protected birds as they nest, and under which the powers conferred by that statute include the power to seize
         equipment and vehicles used by the perpetrators, suffice it to hold that it is common ground that that statute does not cover
         all types of damage likely to be caused by recreational use.
      
      219   Lastly, regarding the argument that trespass on private property was reclassified as a crime under Irish law by section 19A
         of the Criminal Justice (Public Order) Act, 1994, and that penalties on conviction include fines and the seizure of vehicles
         and equipment, the Court notes that, in the context of the Habitats Directive, which lays down complex and technical rules
         in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended
         to transpose that directive is clear and precise (see Case C‑6/04 Commission v United Kingdom [2005] ECR I‑9017, paragraph 26).
      
      220   An examination of the criminal-law provisions on trespass on private property relied on by Ireland shows that those provisions
         are not specifically linked to the protection of natural habitats and of habitats of species against deterioration or against
         disturbances affecting species and that they are therefore not designed to avoid damage caused to habitats by the use of SPAs
         for recreational purposes. Consequently, they do not constitute a clear and precise implementation of the provisions of the
         Habitats Directive such as to satisfy in full the requirements of legal certainty.
      
      221   The complaint is, accordingly, also well-founded on this point.
       Inadequate transposition and application of Article 6(3) and (4) of the Habitats Directive
      –       Arguments of the parties
      222   The Commission states that Ireland has not correctly transposed or applied Article 6(3) and (4) of the Habitats Directive.
      223   In terms of transposition, the Commission argues that the national legislation does not contain any provisions designed to
         ensure that plans, as distinct from projects, are assessed in accordance with Article 6(3) and (4) of the Habitats Directive.
         The national legislation also fails to make proper provision for the application of those Community provisions to projects
         situated outside SPAs but having significant effects inside them.
      
      224   As regards application, the Commission takes the view that Ireland fails to ensure systematically that plans and projects
         likely to have significant effects on SPAs, either by themselves or in combination with other plans and projects, undergo
         appropriate prior assessment.
      
      225   Ireland maintains that no action or project under any plan can have any effect in law or substance without having been subjected
         to assessment. Although plans can stimulate certain activities, they do not override or obviate controls applying to sites
         under relevant regulatory regimes. They have no bearing on whether a project which can have an effect on a site is agreed
         or not. Before any plan or project can affect a site, it will have gone through a full assessment procedure either under the
         regulatory system provided by the Habitats Regulations, the planning system or under another regulatory system, in compliance
         with the provisions of the Habitats Directive. Therefore, no plan or project can affect a site without having been subject
         to assessment.
      
      –       Findings of the Court
      226   As regards the transposition of Article 6(3) and (4) of the Habitats Directive, it should be noted at the outset that the
         Court has already held that Article 6(3) of that directive makes the requirement for an appropriate assessment of the implications
         of a plan or project conditional on there being a probability or a risk that that plan or project will have a significant
         effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot
         be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned
         (Case C-6/04 Commission v United Kingdom, paragraph 54 and case-law cited).
      
      227   It follows that the Habitats Directive requires that any plan or project undergo an appropriate assessment of its implications
         if it cannot be excluded on the basis of objective information that that plan or project will have a significant effect on
         the site concerned.
      
      228   On this point, Ireland maintains that the plans are made subject to an appropriate assessment of their implications on a site
         under Regulations 27 to 33 of the Habitats Regulations, which provide for various development proposals. However, Ireland
         has not demonstrated that such projects are plans within the meaning of Article 6(3) of the Habitats Directive. 
      
      229   Next, Ireland contends that the Planning and Development Act 2000 introduced requirements in relation to the consideration
         of the likely significant effects on the environment of certain plans including regional planning guidelines, development
         plans and local area plans. Since 1 January 2001, each of those plans is required to include information on the likely significant
         effects on the environment of its implementation. Those requirements were included in anticipation of the terms of Directive
         2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans
         and programmes on the environment (OJ 2001 L 197, p. 30). Despite the existence of such legislation, however, it cannot be
         said that Ireland has satisfied its obligations under Article 6(3) of the Habitats Directive. The obligation provided for
         in the Planning and Development Act concerns only information relating to likely significant effects on the environment, whereas
         Article 6(3) of the Habitats Directive requires a prior assessment of the implications of development plans. 
      
      230   Ireland adds that it implements the assessments pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment
         of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) and to Directive 2001/42,
         also transposed by the European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 and
         by the Planning and Development Strategic Environmental Assessment Regulations 2004.
      
      231   Those two directives contain provisions relating to the deliberation procedure, without binding the Member States as to the
         decision, and relate to only certain projects and plans. By contrast, under the second sentence of Article 6(3) of the Habitats
         Directive, a plan or project can be authorised only after the national authorities have ascertained that it will not adversely
         affect the integrity of the site. Accordingly, assessments carried out pursuant to Directive 85/337 or Directive 2001/42 cannot
         replace the procedure provided for in Article 6(3) and (4) of the Habitats Directive.
      
      232   Lastly, regarding the Commission’s assertion that the Irish legislation does not make adequate provision for the application
         of Article 6(3) and (4) of the Habitats Directive to projects situated outside SPAs but having significant effects inside
         them, the Court finds that it is common ground that the environmental impact assessment report, which must be commissioned
         by the private persons concerned, who must bear the costs thereof, amounting to a minimum of EUR 15 000, is required only
         for plantations of over 50 hectares, whereas the average surface area of a plantation in Ireland is approximately 8 hectares.
      
      233   It therefore follows that, since the Irish legislation does not make plans subject to an appropriate assessment of their effects
         on SPAs, Article 6(3) and (4) of the Habitats Directive has not been adequately transposed in the Irish domestic legal order.
      
      234   Accordingly, the action is well-founded on this point.
      235   As to the application of Article 6(3) and (4) of the Habitats Directive, the Commission relies on examples of aquaculture
         programmes and drainage work inside the Glen Lough SPA. It is, accordingly, appropriate to consider them in turn.
      
      236   Firstly, regarding the aquaculture programmes, the Commission relies, essentially, on the Review of the Aquaculture Licensing System in Ireland carried out in 2000 by BirdWatch Ireland as the basis for its view that Ireland has systematically failed to carry out a
         proper assessment of those projects situated in SPAs or likely to have effects on SPAs, contrary to Article 6(3) and (4) of
         the Habitats Directive. In that context, it emphasises the importance of a prior assessment for the purpose of weighing the
         implications of a project with the conservation objectives fixed for the SPA concerned.
      
      237   The Court notes that that study covered 271 authorisations for aquaculture programmes issued by the Department of Communications,
         Marine and Natural Resources during the period from June 1998 to December 1999 and 46 applications yet to be decided on. Moreover,
         72 licences and nine pending applications concerned aquaculture programmes situated inside or near an SPA. The authorisations
         issued concern, in 84% of the activities authorised in SPAs, oyster and clam farms.
      
      238   It should also be borne in mind that, under the first sentence of Article 6(3) of the Habitats Directive, any plan or project
         not directly connected with or necessary to the management of the site is to be made subject to an appropriate assessment
         of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective
         information, that it will have a significant effect on that site, either individually or in combination with other plans or
         projects (Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraph 45).
      
      239   The study carried out by BirdWatch Ireland refers to a number of potential negative effects of shellfish farming, including
         the loss of feeding areas and disturbances caused by increased human activity and states that, even when an aquaculture programme
         is inside an SPA, very little protection is provided for bird habitats. Ireland, for its part, does not allege that no aquaculture
         programmes have any effects on SPAs.
      
      240   It follows that the authorisation procedure ought to have included an appropriate assessment of the implications of each specific
         project. It is clear that Ireland merely stated, without offering further explanation, that the Irish scheme for authorising
         mollusc farms, including the provisions on consultation, does in fact provide for detailed consideration of all aspects of
         an aquaculture development project before a decision is taken on authorisation.
      
      241   Accordingly, the Court finds that Ireland fails to ensure systematically that aquaculture programmes likely to have a significant
         effect on SPAs, either individually or in combination with other projects, are made subject to an appropriate prior assessment.
      
      242   This finding is supported by the fact that Ireland has not put forward any specific scientific studies showing that a prior,
         detailed ornithological study was carried out, in order to challenge the failure to fulfil obligations alleged by the Commission.
      
      243   Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the
         plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination
         with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific
         knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they
         have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific
         doubt remains as to the absence of such effects (see Waddenvereniging and Vogelbeschermingsvereniging, paragraph 61).
      
      244   As to Ireland’s argument that no environmental impact assessment had been required for shellfish farms because they are small
         in size and are of only limited impact on the environment, the Commission is correct in arguing that that is not an adequate
         reason not to assess the effects of such a plan or project. As just pointed out in paragraph 238 of this judgment, the first
         sentence of Article 6(3) of the Habitats Directive requires an appropriate assessment of any plan or project in combination
         with other plans and projects.
      
      245   It is also clear from the Court’s case-law that the failure to take account of the cumulative effect of projects in practice
         leads to a situation where all projects of a certain type may escape the obligation to carry out an assessment, whereas, taken
         together, they are likely to have significant effects on the environment (see, by analogy, Case C‑392/96 Commission v Ireland [1999] ECR I‑5901, paragraph 76).
      
      246   Lastly, regarding Ireland’s argument that maintenance authorisation for development projects carried out without prior authorisation
         is compatible with the Habitats Directive, the Court finds that the assessment of an already-completed development project
         cannot be regarded as being equivalent to the assessment of a plan or project within the meaning of the first sentence of
         Article 6(3) of the Habitats Directive.
      
      247   Accordingly, the complaint must be regarded as being well-founded on this point.
      248   Secondly, regarding the drainage work in the Glen Lough SPA, the Commission argues that in 1992 and 1997 Ireland carried out,
         contrary to Article 6(3) and (4) of the Habitats Directive, drainage work likely to have a significant effect on the Glen
         Lough SPA without having previously carried out an appropriate assessment of that project or employed an adequate decision-making
         procedure, which led to habitat deterioration, contrary to Article 6(2) of that directive. Moreover, Ireland has failed to
         demonstrate that this deterioration has been remedied.
      
      249   The Court notes, as a preliminary point, that at the time of the drainage works undertaken by the Office of Public Works in
         1992, the Habitats Directive was not yet applicable. Consequently, those works do not form part of the subject-matter of the
         present proceedings.
      
      250   It is, moreover, clear from the Court’s case-law that the fact that a plan or project has been authorised according to the
         procedure laid down in Article 6(3) of the Habitats Directive renders superfluous, as regards the action to be taken on the
         protected site under the plan or project, a concomitant application of the rule of general protection laid down in Article
         6(2) (Waddenvereniging and Vogelbeschermingsvereniging, paragraph 35).
      
      251   Accordingly, in so far as the complaint relating to the drainage works carried out in 1997 are concerned, it is appropriate
         to ascertain whether such activities may be contrary to Article 6(3) and (4) of the Habitats Directive.
      
      252   Infringement of Article 6(3) and (4) of that directive presupposes that the drainage works in question are a project not directly
         connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually
         or in combination with other plans or projects.
      
      253   In this regard, it is common ground that those works are a project and that they are not directly connected with or necessary
         to the management of the site. It follows that, in accordance with the case-law referred to in paragraph 226 of this judgment,
         they had to be made subject to an assessment of their effects on the conservation objectives fixed for the Glen Lough SPA
         if it could not be ruled out, on the basis of objective information, that they would have a significant effect thereon, either
         individually or in combination with other plans or projects.
      
      254   In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection
         pursued by Community policy on the environment, in accordance with the first subparagraph of Article 174(2) EC, and by reference
         to which the Habitats Directive must be interpreted, such an assessment must be carried out if there is doubt as to the absence
         of significant effects (see Waddenvereniging and Vogelbeschermingsvereniging, paragraph 44).
      
      255   The case-file shows that the Glen Lough SPA, which comprises approximately 80 hectares and was classified in 1995, is an important
         over-wintering site for migratory species of wild birds in the Irish midlands. In particular, it held internationally important
         numbers of whooper swan (Cygnus cygnus) and is especially valuable to birds because of its water.
      
      256   In the present case, however, Ireland, after stating that the works in question were merely maintenance work on existing drains,
         as part of a system of earlier drainage which preceded the classification of Glen Lough as an SPA, and did not have a significant
         impact on the wild bird habitats in that SPA, recognises, in its statement in defence, that the drain maintenance of the Silver
         River carried out by the Office of Public Works in 1997 seems to have reduced the hydrological response times and hence the
         usage of the site by whooper swans.
      
      257   Accordingly, the Court finds that Ireland, in failing to assess the impact of the drains maintenance works on the conservation
         objectives of the Glen Lough SPA before those works were carried out, infringed the first sentence of Article 6(3) of the
         Habitats Directive.
      
      258   Next, it follows from the second sentence of Article 6(3) of the Habitats Directive that, in a situation such as that in the
         present case, the competent national authorities, taking account of the conclusions of the appropriate assessment of the implications
         of those works for the site concerned in the light of the site’s conservation objectives, could have authorised such an activity
         only if they had made certain that it would not adversely affect the integrity of that site, which would have been the case
         if there had remained no reasonable scientific doubt as to the absence of such effects (see Waddenvereniging and Vogelbeschermingsvereniging, paragraph 67).
      
      259   As noted by the Advocate General in point 182 of her Opinion, in the absence solely of an assessment of the impact on the
         site of the drain maintenance works carried out in 1997, authorisation would have been unlawful under the second sentence
         of Article 6(3) of the Habitats Directive. Ireland’s submission shows, as just noted in paragraph 256 of this judgment, that
         authorisation was not possible also on account of the adverse effects that the works in question were likely to have on the
         Glen Lough SPA. Since conservation of the whooper swans’ wintering area is the principal conservation objective of the SPA,
         its integrity was adversely affected within the meaning of the second sentence of Article 6(3) of the Habitats Directive.
      
      260   It also follows that, in spite of a negative assessment of the implications for the site, an authorisation under Article 6(4)
         of the Habitats Directive would have been possible only if there had been no alternative solutions and if the project had
         had to be carried out for imperative reasons of overriding public interest, and on the condition that the Member State took
         all necessary compensatory measures to ensure that the overall coherence of Natura 2000 was protected.
      
      261   In that regard, and even if there was a public interest in the drainage, as noted by the Advocate General in point 183 of
         her Opinion, such an interest can justify a deterioration of the SPA within the meaning of Article 6(4) of the Habitats Directive
         only if there are no alternative solutions.
      
      262   However, Ireland itself states that the National Parks and Wildlife Service, after having installed a dyke in 1998 along the
         Silver River where it runs through the SPA and holds back the lake water while allowing that river to fulfil its arterial
         drainage role for the lands upstream, in early 2005 entered into a contract to have the dyke repaired and a sluice and weir
         installed as well as the overflow pipe. According to Ireland, this will enable the close regulation of the lake level and
         the hydrological regime will be designed to optimise the usage of the lake by whooper swans. Ireland has not, however, put
         forward any arguments showing that such alternatives could not have been implemented before the drain maintenance works were
         carried out in 1997.
      
      263   It follows that, contrary to Article 6(3) and (4) of the Habitats Directive, Ireland carried out a drain maintenance project
         in 1997 which was likely to have a significant effect on the Glen Lough SPA without having carried out beforehand an appropriate
         assessment of its implications on the site or employed an adequate decision-making procedure, which resulted in habitat deterioration,
         contrary to Article 6(2) of that directive.
      
      264   Accordingly, the complaint is also well-founded on this point.
      265   In those circumstances, the fifth complaint is well-founded.
       The sixth complaint: failure to transpose Article 10 of the Birds Directive
       Arguments of the parties
      266   The Commission submits that the use of the verb ‘shall’ in Article 10 of the Birds Directive imposes an obligation on Member
         States to encourage research and any work required as a basis for the protection, management and use of the population of
         all species of bird as referred to in Article 1 of that directive. The national regulatory provisions, however, do not reflect
         that obligation. In its view, the position under Irish law is ambiguous, to say the least.
      
      267   The Commission submits that the wording of the Wildlife Act makes the promotion of research an optional activity for the competent
         minister.
      
      268   Conversely, Ireland denies that it has failed to comply with its obligation to encourage research. It contends that its legislation
         is not flawed, and that section 11(3) of the Wildlife Act constitutes a satisfactory transposition into national law of Article
         10 of the Birds Directive and fully reflects, and arguably exceeds, the degree of obligation imposed by that Community provision.
      
       Findings of the Court
      269   As a preliminary point, section 11(3) of the Wildlife Act, read literally, clearly provides for the possibility for the competent
         minister to carry out or cause to be carried out research which he considers desirable for the performance of his functions
         under that statute. It does not, however, lay down any obligation for the competent minister to encourage such activities.
         
      
      270   As correctly pointed out by the Commission, however, Article 10 of the Birds Directive creates an obligation for Member States
         to encourage research and any work required as a basis for the protection, management and use of the population of all species
         of bird as referred to in Article 1 of that directive.
      
      271   It follows that Ireland cannot be deemed to have transposed Article 10 of the Birds Directive into its domestic legal order.
      272   This finding cannot be affected by Ireland’s argument that the competent minister’s role is further extended by section 11(1)
         of the Wildlife Act. That provision merely states that it is his function to secure the conservation of wildlife and to promote
         the conservation of biological diversity.
      
      273   Furthermore, the Court cannot accept Ireland’s argument that the use of the word ‘may’, for the purpose of interpreting the
         national legislation, does not necessarily mean that the competent minister may, at his discretion, decide to carry out, or
         not to carry out, research.
      
      274   The national case-law referred to by Ireland does not show that such an interpretation of Irish law is systematic, or refer
         specifically to the national provision in question.
      
      275   Consequently, the sixth complaint is well-founded.
      276   In the light of all the foregoing considerations, the Court finds that, by failing:
      –       to classify, since 6 April 1981, in accordance with Article 4(1) and (2) of the Birds Directive, all the most suitable territories
         in number and size for the species mentioned in Annex I, with the exception of those intended to ensure conservation of the
         Greenland white-fronted goose, as well as for regularly occurring migratory species not mentioned in Annex I, with the exception
         of those intended to ensure protection of the lapwing, the redshank, the snipe and the curlew;
      
      –       to ensure that, since 6 April 1981, the provisions of the first sentence of Article 4(4) of the Birds Directive are applied
         to areas requiring classification as SPAs under that directive;
      
      –       to transpose and apply the provisions of the second sentence of Article 4(4) of the Birds Directive fully and correctly;
      –       to take all the measures necessary to comply with Article 6(2) of the Habitats Directive in respect of all SPAs classified
         under Article 4(1) of the Birds Directive or recognised under Article 4(2) of that directive;
      
      –       to take all the measures necessary to comply with Article 6(2) of the Habitats Directive in respect of recreational use of
         all sites intended to be subject to that article;
      
      –       to take all the measures necessary to comply with Article 6(3) and (4) of the Habitats Directive in respect of plans;
      –       to take all the measures necessary to comply with Article 6(3) of the Habitats Directive in respect of authorisation of aquaculture
         projects;
      
      –       to take all the measures necessary to comply with Article 6(2) to (4) of the Habitats Directive in respect of the drain maintenance
         works in the Glen Lough SPA; and
      
      –       to take all the measures necessary to comply with Article 10 of the Birds Directive,
      Ireland has failed to fulfil its obligations under Articles 4(1), (2) and (4), and 10 of the Birds Directive and Article 6(2)
         to (4) of the Habitats Directive.
      
       Costs
      277   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 in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against Ireland
         and the latter has, in essence, been unsuccessful, Ireland must be ordered to pay the costs.
      
      278   Pursuant to the first subparagraph of Article 69(4) of the Rules of Procedure, the Member States which have intervened in
         the proceedings are to bear their own costs. The Hellenic Republic and the Kingdom of Spain must accordingly bear their own
         costs.
      
      On those grounds, the Court (Second Chamber) hereby:
      1.      Declares that, by failing: 
      –       to classify, since 6 April 1981, in accordance with Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on
            the conservation of wild birds, as amended by Commission Directive 97/49/EC of 29 July 1997, all the most suitable territories
            in number and size for the species mentioned in Annex I to that directive, with the exception of those intended to ensure
            conservation of the Greenland white-fronted goose (Anser albifrons flavirostris), as well as for regularly occurring migratory species not mentioned in Annex I, with the exception of those intended to
            ensure protection of the lapwing (Vanellus vanellus), the redshank (Tringa totanus), the snipe (Gallinago gallinago) and the curlew (Numenius arquata);
      –       to ensure that, since 6 April 1981, the provisions of the first sentence of Article 4(4) of Directive 79/409, as amended by
            Directive 97/49, are applied to areas requiring classification as special protection areas under that directive;
      –       to transpose and apply the provisions of the second sentence of Article 4(4) of Directive 79/409, as amended by Directive
            97/49, fully and correctly;
      –       to take all the measures necessary to comply with Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation
            of natural habitats and of wild fauna and flora in respect of all special protection areas classified under Article 4(1) of
            Directive 79/409, as amended by Directive 97/49, or recognised under Article 4(2) of that directive;
      –       to take all the measures necessary to comply with Article 6(2) of Directive 92/43 in respect of recreational use of all sites
            intended to be subject to that article;
      –       to take all the measures necessary to comply with Article 6(3) and (4) of Directive 92/43 in respect of plans;
      –       to take all the measures necessary to comply with Article 6(3) of Directive 92/43 in respect of authorisation of aquaculture
            programmes;
      –       to take all the measures necessary to comply with of Article 6(2) to (4) of Directive 92/43 in respect of the drain maintenance
            works in the Glen Lough special protection area; and
      –       to take all the measures necessary to comply with Article 10 of Directive 79/409, as amended by Directive 97/49,
      Ireland has failed to fulfil its obligations under Articles 4(1), (2) and (4), and 10 of Directive 79/409, as amended by Directive
            97/49, and Article 6(2) to (4) of Directive 92/43.
      2.      Dismisses the remainder of the action.
      3.      Orders Ireland to pay the costs.
      4.      Orders the Hellenic Republic and the Kingdom of Spain to bear their own costs.
      [Signatures]
      * Language of the case: English.