CELEX: C2003/124/07
Language: en
Date: 2003-05-24 00:00:00
Title: Case C-98/03: Action brought on 28 February 2003 by the Commission of the European Communities against the Federal Republic of Germany

C 124/4               EN                         Official Journal of the European Union                                           24.5.2003
Action brought on 28 February 2003 by the Commission                     Pleas in law and main arguments
of the European Communities against the Federal Repub-
                         lic of Germany
                                                                         —     Provisions designed to transpose Article 6(3) of the
                                                                               directive are to be evaluated in terms of whether they
                         (Case C-98/03)                                        require an assessment of the implications in the case of
                                                                               all projects likely to have a significant effect on special
                                                                               areas of conservation. Whether a particular effect may be
                        (2003/C 124/07)                                        significant cannot be decided solely by reference to
                                                                               the project, but only by taking into consideration the
                                                                               conservation aims of each individual area of conservation
                                                                               which may be affected and the nature and extent of
                                                                               the habitats and species present in each individual
An action against the Federal Republic of Germany was                          area. However, the definition of ‘projects’ contained in
brought before the Court of Justice of the European Communi-                   Paragraph 10(1)(11)(b) and (c) of the Bundesnaturschutz-
ties on 28 February 2003 by the Commission of the European                     gesetz (Federal Law on Nature Conservation) does not
Communities, represented by Ulrich Wölker, Legal Adviser of                    take into account areas of conservation. Even if theoretical
the Commission of the European Communities, with an                            evidence is produced to show that, despite the restrictions
address for service in Luxembourg.                                             contained in the definition, all conceivable projects likely
                                                                               to have a significant effect on special areas of conservation
                                                                               are in fact covered, there would still be no guarantee that
                                                                               projects with atypical effects of, in principle, a less
The applicant claims that the Court should:
                                                                               apparent nature would be covered if they were likely to
                                                                               be significant in an actual individual case. In particular,
1.    Declare that                                                             small habitats containing unusual species may react much
                                                                               more sensitively to influences than may be anticipated
                                                                               by provisions concerning projects, which standardise
      —   by not providing for the duty to carry out an                        categories.
          assessment of the implications in the case of certain
          projects outside special areas of conservation, as
          referred to in Article 4(1) of Council Directive 92/
          43/EEC ( 1) of 21 May 1992 on the conservation of              —     It is contrary to Article 6(3) and (4) of the directive for
          natural habitats and of wild fauna and flora, which                  regard not to be had to pollution by noxious substances
          pursuant to Article 6(3) and (4) of the directive are                outside a (not clearly defined) area where the effects of a
          to be subject to such an assessment irrespective of                  project are felt, which is the position under Paragraph 36
          whether those projects are likely to have a significant              of the Bundesnaturschutzgesetz.
          effect on an area of special conservation;
      —   by authorising emissions in a special area of conser-          —     Restricting the protection of sites where animals nest,
          vation, irrespective of whether they are likely to                   breed, live or find refuge to cases where there are
          have a significant effect on that area;                              deliberate effects (Paragraph 43(4) of the Bundesnatur-
                                                                               schutzgesetz) is not consistent with Article 12(1)(d) of
                                                                               the directive, the clear wording of which indicates that
      —   by derogating from the scope of the provisions                       intention is not necessary in the context of the prohibition
          concerning the protection of species in the case of                  concerning deterioration or destruction of breeding sites
          certain non-deliberate effects on protected animals;                 or resting places.
      —   by failing to ensure compliance with the criteria for
          derogation set out in Article 16 of the directive in           —     Paragraph 43(4) of the Bundesnaturschutzgesetz also
          the case of certain activities which are supposed to                 provides for derogations from the provisions concerning
          be compatible with conservation of an area;                          the protection of species in favour of intervention or
                                                                               measures already authorised, without taking into account
                                                                               the fact that at the time of authorisation it may not yet
      —   by retaining provisions on the application of pesti-
                                                                               have been known that a protected species is affected.
          cides which do not take sufficient account of the
          protection of species;
      —   by failing to notify fishery catch legislation and/or
                                                                         (1 ) OJ L 206 of 22.7.1992, p. 7.
          to ensure that such legislation contains adequate
          bans on fishing, the Federal Republic of Germany
          has failed to fulfil its obligations under the directive.
2.    Order the Federal Republic of Germany to pay the costs.