CELEX: 62001CC0415
Language: en
Date: 2002-11-07 00:00:00
Title: Opinion of Mr Advocate General Léger delivered on 7 November 2002. # Commission of the European Communities v Kingdom of Belgium. # Failure by a Member State to fulfil its obligations - Conservation of wild birds - Special protection areas. # Case C-415/01.

OPINION OF ADVOCATE GENERALLÉGER delivered on 7 November 2002 (1)
         Case C-415/01 Commission of the European CommunitiesvKingdom of Belgium
            ((Failure by a Member State to fulfil its obligations – Directive 79/409/EEC – Conservation of wild birds))
            
      
         
      1.  In the present action the Commission of the European Communities seeks a declaration that the Kingdom of Belgium has failed
      to fulfil its obligations under Article 4(1), (2) and (4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation
      of wild birds. 
      
         			(2)
         		
      2.  The aim of the Directive is the conservation of all species of birds naturally occurring in the wild in the territory of the
      Member States. It introduces rules for the protection, management and control of those species.
      
      3.  Article 4 of the directive concerns measures of special protection and similar measures. Article 4(1) requires Member States
      to determine the most suitable territories for the conservation of the species listed in Annex I and to classify them as special
      protection areas (hereinafter  
      SPAs). Article 4(2) requires Member States to take similar measures for regularly occurring migratory species not listed in Annex I.
      Finally, Article 4(4) 
      
         			(3)
         		 requires inter alia that Member States take appropriate steps to avoid deterioration of natural habitats and the habitats
      of species as well as disturbance of the species for which the areas have been designated.
      
      4.  In the present action, the Commission makes three complaints against the Kingdom of Belgium. The complaints all concern the
      Région flamande (Flemish Region). 
      
         			(4)
         		
      5.  First, the Commission points out that the Région flamande has not adopted the measures necessary to ensure the complete transposition
      of Article 4(1) and (2) of the directive. The Kingdom of Belgium does not dispute this complaint. It admits that the provisions
      currently in force only ensure the  
      partial transposition of the provisions in question. 
      
         			(5)
         		
      6.  Second, the Commission notes that, in accordance with the case-law of the Court, 
      
         			(6)
         		 Article 4 of the directive requires Member States to provide SPAs with a legal status that is capable of ensuring both the
      survival and reproduction of the species listed in Annex I and the breeding, moulting and wintering of migratory species not
      listed in Annex I which are regular visitors. The Commission states that the Région flamande has failed to adopt any measure
      automatically linking the classification of a site as an SPA to the application of an adequate legal protection regime. The
      Kingdom of Belgium does not dispute this complaint. 
      
         			(7)
         		 It indicates that the Flemish Parliament is currently examining draft legislation to that effect.
      
      7.  Third, the Commission submits that the Flemish authorities have not adopted the measures necessary to ensure that the geographical
      maps demarcating the SPAs have binding force and are enforceable against third parties. The Kingdom of Belgium disputes this
      complaint.
      
      8.  It is clear from the foregoing that the only issue between the parties concerns the third complaint, namely that the maps
      demarcating the SPAs lack binding force. I will therefore confine my observations to the assessment of that complaint and
      propose that the Court upholds the action in respect of the other complaints. 
       Complaint that the maps demarcating the SPAs lack binding force 
      
      9.  The Commission submits that the Flemish authorities have failed to implement Article 4(1) and (2) of the directive correctly
      on the basis that the maps demarcating the SPAs in the Région flamande do not have binding force.
      
      10.  The Commission explains that, in Belgian law, 
      
         			(8)
         		 measures adopted by the regional authorities must be published in the  
       Moniteur belge  (official journal of the Kingdom of Belgium) in order to have binding force. Only such publication creates an irrebuttable
      presumption that citizens are aware of the measures and, thereby, ensures that they are enforceable against third parties.
      
      11.  The Commission points out however that the maps demarcating the SPAs on Flemish territory have not been published in the 
      
       Moniteur belge . To enable the population to become aware of them they were simply lodged in municipal offices. In the Commission's view,
      that is not sufficient to implement the legal protection regime required by Article 4 of the directive.
      
      12.  The Kingdom of Belgium contends that the question of the binding force of the maps demarcating the SPAs is a matter for the
      domestic law of the Member States. They enjoy considerable discretion in determining the manner in which they ensure the binding
      force of measures transposing directives. In any event, the Belgian Government submits that, according to the case-law of
      the Belgian Court of Cassation, the lodging of the maps at municipal offices gives them a force equivalent to that resulting
      from publication in the  
       Moniteur belge. 
      
      13.  In the light of the foregoing arguments, certain aspects of the obligations upon Member States when they transpose directives
      must be borne in mind.
      
      14.  It is settled case-law that the provisions of directives must be implemented with unquestionable binding force and the specificity,
      precision and clarity necessary to satisfy the requirements of legal certainty. 
      
         			(9)
         		 The principle of legal certainty requires appropriate publicity of the national measures adopted to transpose directives 
      
         			(10)
         		 in such a way as to enable individuals to be fully aware of their rights and, where appropriate, to rely on them before the
      national courts. 
      
         			(11)
         		 Nevertheless, the Court has made clear that the principle of legal certainty does not prescribe any specific form of publicity,
      such as the publication of the national measures in the Official Journal of the Member States. 
      
         			(12)
         		
      15.  As regards the directive it is common ground that the maps demarcating the SPAs must of necessity have binding force. If that
      were not the case, the geographical extent of the SPAs could be put in doubt at any time and the aims of the directive seriously
      jeopardised.
      
      16.  In the present action, the Kingdom of Belgium does not dispute that, as a matter of federal law (the Special Law of Institutional
      Reforms, cited above), the measures adopted by the regional authorities must be published in the  
       Moniteur belge  if they are to have binding force. It nevertheless relies on an exception to the rule. It states that, in a judgment of 7
      October 1983, 
      
         			(13)
         		 the Court of Cassation ruled that a draft area plan does not necessarily become binding solely by virtue of publication in
      the  
       Moniteur belge   but rather by being lodged at the municipal offices of each municipality to which the plan extends. The Belgian Government
      submits that this judgment, on town and country planning, is perfectly applicable to the maps demarcating SPAs.
      
      17.  We share the Commission's view that this argument cannot be accepted.
      
      18.  It is clear from the case-file 
      
         			(14)
         		 that the judgment which the Belgian Government relies on was given in particular circumstances. Thus the organic Law on Town
      and Country Planning of 29 March 1962 
      
         			(15)
         		 provides that a draft area plan must be the subject of a public enquiry, announced by way of notices in all municipal offices,
      by notices placed on three occasions in the  
       Moniteur belge , by notices published on three occasions in three newspapers of the capital and, if possible, in three newspapers of the
      region concerned and also by bulletins broadcast on three occasions by the National Institute of Radio Broadcasting.
      
      19.  Moreover, it is clear from the grounds of the judgment cited above that, in acknowledging the binding force of the draft area
      plans, the Court of Cassation relied on a number of specific factors such as the wording of the provision in question, the
      general scheme of the law and all the pronouncements made by the minister responsible during the passage of the law through
      parliament.
      
      20.  It should be borne in mind that, in the present case, the Kingdom of Belgium has not shown the existence of such factors.
      It is true that the Belgian Government submits that the decree of the Flemish executive of 17 October 1988 requires that the
      maps demarcating the SPAs be lodged at municipal offices. 
      
         			(16)
         		
      21.  Nevertheless, it cannot be established from the case-file that the maps in question are the subject of a public enquiry identical
      to that required by the law cited above. Equally, it is not certain that the lodging of the maps is preceded by publicity
      measures comparable to those prescribed by that law. It is also unclear whether, as in the case cited, the legislature in
      fact intends to give the maps binding force by their being lodged at municipal offices. Lastly, and in particular, it is unclear
      whether, in Belgian law, a measure adopted by a federal body (the decree of the Flemish executive) can validly derogate from
      the principle of publication laid down by the federal law (the Special Law of Institutional Reforms).
      
      22.  In the light of those factors and on the basis of the documents before the Court, I take the view that the Kingdom of Belgium
      has not adequately proved that the maps demarcating the SPAs in the Région flamande have  
      unquestionable binding force in accordance with the case-law of the Court. 
      
         			(17)
         		
      23.  As a consequence I propose that the Court uphold the third complaint brought by the Commission.
        Conclusion
      
      24.  In the light of the foregoing, I propose that the Court should:
      (1) declare that the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1), (2) and (4) of Council Directive
      79/409/EEC of 2 April 1979 on the conservation of wild birds, in that the Région flamande has failed to adopt: 
      
      
      ─
      within the period prescribed, all the laws, regulations and administrative provisions necessary fully to transpose Article 4(1)
      and (2) of that directive;  
      
      
      
      ─
      all the laws, regulations and administrative provisions necessary automatically to link the classification of a site as a
      special protection area with the application of a legal protection system in accordance with Article 4(1), (2) and (4) of
      that directive; and  
      
      
      
      ─
      the laws, regulations and administrative provisions necessary to give unquestionable binding force to the maps demarcating
      the special protection areas located on its territory.  
      
      
      
      (2) order the Kingdom of Belgium to pay the costs. 
      
      
      
       1 –
         
           Original language: French.
      
      2 –
         
         OJ 1979 L 103, p. 1 (hereinafter  
            the directive).
         
      
      3 –
         
         As amended by Article 7 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).
         
      
      4 –
         
         At the outset the Commission also brought a number of complaints against the Région wallonne. However, it expressly withdrew
            those complaints in its reply (paragraphs 9 to 12).
         
      
      5 –
         
         Defence (p. 3).
      
      6 –
         
         The Commission refers to Case C-355/90  
             Commission  v  
             Spain  [1993] ECR I-4221, paragraphs 28 to 32, and Case C-166/97  
             Commission  v  
             France  [1999] ECR I-1719, paragraph 21.
         
      
      7 –
         
         Rejoinder (pp. 2 and 3).
      
      8 –
         
         See the Law of 31 May 1961 on the use of languages in legislation, the presentation, publication and the coming into force
            of statutory texts and regulations (
             Moniteur belge  of 21 June 1961) and the Special Law of Institutional Reforms of 8 August 1980 (
             Moniteur belge   of 15 August 1980).
         
      
      9 –
         
         See, for example, Case C-159/99  
             Commission  v  
             Italy  [2001] ECR I-4007, paragraph 32.
         
      
      10 –
         
         See, to that effect, Case C-313/99  
             Mulligan and Others  [2002] ECR I-5719, paragraph 51.
         
      
      11 –
         
         See, for example, Case C-365/93  
             Commission  v  
             Greece  [1995] ECR I-499, paragraph 9, and Case C-144/99  
             Commission   v  
             Netherlands  [2001] ECR I-3541, paragraph 17.
         
      
      12 –
         
         See  
             Mulligan and Others , cited above, paragraph 51.
         
      
      13 –
         
         Pas., 1983, I, 142.
      
      14 –
         
         See application, paragraphs 34 and 35.
      
      15 –
         
         . Moniteur belg e, 12 April 1962.
         
      
      16 –
         
         See application, paragraph 32.
      
      17 –
         
         See, for example,  
             Commission   v  
             Italy , cited above, paragraph 32.