CELEX: 62005CC0244
Language: en
Date: 2006-05-18 00:00:00
Title: Opinion of Mr Advocate General Geelhoed delivered on 18 May 2006. # Bund Naturschutz in Bayern eV and Others v Freistaat Bayern. # Reference for a preliminary ruling: Bayerischer Verwaltungsgerichtshof - Germany. # Conservation of natural habitats and of wild fauna and flora - Directive 92/43/EEC - Protection regime before the inclusion of a habitat in the list of sites of Community importance. # Case C-244/05.

OPINION OF ADVOCATE GENERAL
      GEELHOED
      delivered on 18 May 2006 (1)
      
      Case C-244/05
      Bund Naturschutz in Bayern eV and Others
      v
      Freistaat Bayern
      (Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany))
      (Interpretation of Article 3(1) of Directive 92/43/EEC and of the second paragraph of Article 10 EC – Adoption of protective measures in respect of sites which could be designated sites of Community importance which appear
         on the national list transmitted to the Commission but have not yet been placed on the list adopted by it – Possibility in national law of a temporary ban on changes to the state of such sites – Route of a motorway)
      I –    Introduction
      1.        In this case, the Court is being asked to interpret Article 3(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation
         of natural habitats and of wild fauna and flora (‘the Habitats Directive’ or ‘the Directive’) (2) read in conjunction with the sixth recital in the preamble thereto. In particular, the Bayerischer Verwaltungsgerichtshof
         (Higher Administrative Court, Bavaria) (Germany) asks which protective measures must be adopted in respect of sites with priority
         natural habitat types or priority species which have not yet been included in the list of sites of Community importance to
         be adopted by the Commission under Article 4(2) of the Directive.
      
      II – Legal framework
      A –    Community law
      2.        According to the sixth recital in the preamble to the Directive, in order to ensure the restoration or maintenance of natural
         habitats and species of Community interest at a favourable conservation status, it is necessary to designate special areas
         of conservation in order to create a coherent European ecological network according to a specified timetable.
      
      3.        Under Article 3(1) of the Habitats Directive, ‘a coherent European ecological network of special areas of conservation shall
         be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I
         and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned
         to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.’
      
      4.        Article 4 of the Habitats Directive provides for a procedure whereby sites containing species and habitats protected by the
         Directive are designated as special areas of conservation. Articles 4(1) to (5) are worded as follows:
      
      ‘1. On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall
         propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to
         its territory the sites host. … 
      
      The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information
         on each site. … 
      
      2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the five biogeographical
         regions referred to in Article 1(c)(iii) and of the whole of the territory referred to in Article 2(1), the Commission shall
         establish, in agreement with each Member State, a draft list of sites of Community importance drawn from the Member States’
         lists identifying those which lost one or more priority natural habitat types or priority species.
      
      Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of
         their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be
         applied more flexibly in selecting all the sites of Community importance in their territory.
      
      The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat
         types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.
      
      3. The list referred to in paragraph 2 shall be established within six years of the notification of this Directive.
      4. Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member
         State concerned shall designate that site as a special area of conservation as soon as possible and within six years at most
         … .
      
      5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article
         6(2), (3) and (4).’
      
      5.        For the purpose of assessing the Community importance of the sites included in the national lists, Annex III (Stage 2) provides:
      
      ‘1. All the sites identified by the Member States in Stage 1 which contain priority natural habitat types and/or species will
         be considered as sites of Community importance.
      
      2. The assessment of the Community importance of other sites on Member States’ lists, i.e. their contribution to maintaining
         or re-establishing, at a favourable conservation status, a natural habitat in Annex I or a species in Annex II and/or to the
         coherence of Natura 2000 will take account of the following criteria:
      
      …’
      6.        Article 6(2) of the Habitats Directive provides that ‘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 the Directive.
      
      7.        Under Article 6(3) of the Habitats Directive, ‘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.’
      
      8.        Article 6(4) of the Habitats Directive provides that ‘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.’
      
      B –    National law
      9.        Paragraph 48(2) of the Bavarian Naturschutzgesetz (Nature Conservancy Law) is worded as follows:
      
      ‘Until implementing regulations shall have been adopted … the bodies or authorities responsible for nature conservation …
         may, by general or individual order, prohibit changes … for a period of up to two years, in order to guarantee the provisional
         protection of the areas and objects to be protected, when there are grounds for fearing that those changes may jeopardise
         the aim of the protective measures envisaged; if special circumstances so require, that period may be extended for a maximum
         of a year. That measure may not be adopted unless the authorities responsible for nature conservation or the competent bodies
         apply the definitive protection procedure at the same time or immediately afterwards.’
      
      III – Facts and questions submitted
      10.      The applicants in the main proceedings are contesting the construction of a section of a new motorway, the A 94, which is
         intended to link Munich to the south-eastern region of Bavaria and also to provide a connection to Austria. In the development
         plans and motorway requirement assessments in Germany, this motorway was referred to as an ‘absolute priority’. The A 94 is
         also shown as a proposed road link in the trans-European transport network programme.
      
      11.      The controversial route crosses sites which the Federal Republic of Germany proposed to the Commission, by letter of 29 November 2004,
         as sites of Community importance for the purposes of the European Natura 2000 network. The ecological data attached to the
         notification show that they are of the priority habitat type listed in Annex I to the Habitats Directive, namely ‘alluvial
         forests with Alnus glutinosa and Fraxinus excelsior’. The sites concerned have not yet been included by the Commission in the list of sites of Community interest adopted by
         it pursuant to Article 4(2) of the Directive. 
      
      12.      The national court takes the view that any measures must be adopted in the light of the objectives of the Directive. Since
         at the present stage in the proceedings the possibility cannot be ruled out that the abovementioned plans may have serious
         consequences, particularly on the priority habitat type ‘alluvial forests’, intervention on that site could be contrary to
         the obligations under the Directive. 
      
      13.      The Verwaltungsgerichtshof stayed the proceedings in the case and referred three questions to the Court for a preliminary
         ruling:
      
      ‘(1)      What protection regime is required under Article 3(1) of Directive 92/43/EEC in conjunction with the sixth recital in the
         preamble to that Directive in the light of the prohibition of any measure that might jeopardise the attainment of the objectives
         of the Treaty laid down in the second paragraph of Article 10 EC [Treaty establishing the European Community of 25 March 1957,
         as most recently amended by the 2003 EU Treaty of Accession of 16 April 2003], as a result of the judgment of the Court of
         13 January 2005 in Case C-117/03 in respect of sites which could be designated sites of Community importance, particularly
         those with priority natural habitat types or priority species, before they appear on the list of sites of Community importance
         adopted by the Commission of the European Communities under the procedure provided for in Article 21 of the Directive?
      
      (2)       What is the effect on that protection regime if those sites already appear on the list of national recommendations submitted
         to the Commission under Article 4(1) of Directive 92/43?
      
      (3)       Is a national protection regime for those sites under [Paragraph] 48(2) of the Bavarian Naturschutzgesetz [Nature Conservancy
         Law] sufficient to satisfy the requirements of Community law under Article 3(1) of Directive 92/43 in conjunction with the
         sixth recital in the preamble to that Directive in the light of the prohibition of any measure that might jeopardise the attainment
         of the objectives of the Treaty laid down in the second paragraph of Article 10 EC?’
      
      14.      Bund Naturschutz in Bayern, Johann Märkl and Others, Friederike Nischwitz and Others (‘the applicants in the main proceedings’),
         Freistaat Bayern and the Commission have submitted written observations. They all presented oral argument at the hearing on
         6 April 2006.
      
      IV – Appraisal
      15.      By the first two questions, the national court seeks clarification on the level of protection to be afforded to sites which
         could be designated sites of Community importance, particularly those with priority natural habitat types and/or priority
         species, but which have not yet been included by the Commission in the list of sites of Community importance to be adopted
         by it pursuant to the third subparagraph of Article 4(2) of the Habitats Directive.
      
      16.      Furthermore, it is clear from the order for reference that the national court is asking whether the sites which have not yet
         been included in the list of sites of Community importance drawn up by the Commission must be protected by means of a Community
         protection regime or whether the Member States must ensure that protection for sites is provided by appropriate measures within
         the scope of a national protection regime alone. Depending on the answer, the national court will be able to determine in
         the light of which rules and conditions of application the alleged adverse affects associated with the plans fall to be assessed.
         
      
      17.      As a preliminary point, it should be observed that, according to established case-law, the Member States’ obligation arising
         from a directive to achieve the result envisaged by the directive and their duty under Article 10 EC to take all appropriate
         measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of
         Member States including, for matters within their jurisdiction, the courts. (3)
      
      18.      It follows that, in applying national law, the national court called upon to interpret it is required to do so, as far as
         possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result pursued by
         the latter and thereby comply with the third paragraph of Article 249 EC. (4)
      
      19.      The question which arises is what protection must be afforded under the Habitats Directive to sites which could be designated
         sites of Community importance, but which have not yet been included by the Commission in the list of sites of Community interest
         to be drawn up by it.
      
      20.      The Directive seeks to create a coherent European ecological network in order to promote the maintenance or even the restoration
         of natural habitats and of wild flora and fauna in the territory of the Member States at a favourable conservation status.
         (5) In order to attain this objective, provision has been made for the designation of special areas of conservation (6) in accordance with a procedure laid down in Article 4 of the Habitats Directive.
      
      21.      The procedure laid down in Article 4 for the designation of special areas of conservation has four stages. First, each Member
         State proposes a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native
         to its territory the sites host (Article 4(1)). Second, the Commission establishes, in agreement with each Member State, a
         draft list of sites of Community importance drawn from the Member States’ lists (first and second subparagraphs of Article
         4(2)). Then, the Commission adopts the list of sites of Community importance in accordance with the procedure laid down in
         Article 21 (third subparagraph of Article 4(2) and Article 4(3)). Lastly, the Member States designate the sites of Community
         importance as special areas of conservation (Article 4(4)). 
      
      22.      In accordance with the timetable as laid down by the Habitats Directive, the Member States must first, within three years
         – therefore by 10 June 1995 – propose to the Commission all sites which are eligible to form part of Natura 2000. Next, the
         Commission must, within six years of notification of the Directive – therefore by 10 June 1998 – establish on the basis of
         those proposals a Community list of sites of Community importance included in Natura 2000. Lastly, the Member States must,
         within six years – therefore by 10 June 2004 – designate the sites of Community importance as special areas of conservation.
         
      
      23.      In the present case, the German Government, inter alia, on 29 November 2004 provided a list of habitat sites to the Commission
         pursuant to Article 4(1) of the Habitats Directive. Those sites have not yet been placed on the Community list by the Commission.
      
      24.      In its judgment in Dragaggi and Others, (7) in which the Court was asked to rule on the application of Article 6 of the Habitats Directive, an authority in Italy had
         annulled a tendering procedure relating to dredging works in a port on the ground that the land on which the sediment resulting
         from the works was intended to be dumped lay within a site which Italy had proposed to the Commission as a special site of
         conservation under the Habitats Directive. In that case, the question arose as to whether the protective measures provided
         for by Article 6 of the Habitats Directive were already applicable, even though the designation procedure for the area, as
         provided for in Article 4 of the Directive, had not yet been completed. In its judgment, the Court held that:
      
      ‘… on a proper construction of Article 4(5) of the Habitats Directive, the protective measures prescribed in Article 6(2),
         (3) and (4) of the Habitats Directive are required only as regards sites which, in accordance with the third subparagraph
         of Article 4(2) of the Habitats Directive, are on the list of sites selected as sites of Community importance adopted by the
         Commission in accordance with the procedure laid down in Article 21 of the Habitats Directive.
      
      This does not mean that the Member States are not to protect sites as soon as they propose them, under Article 4(1) of the
         Directive, as sites eligible for identification as sites of Community importance on the national list transmitted to the Commission.
      
      If those sites are not appropriately protected from that moment, achievement of the objectives seeking the conservation of
         natural habitats and wild fauna and flora, as set out in particular in the sixth recital in the preamble to the Directive
         and Article 3(1) thereof, could well be jeopardised. …’ (8)
      
      25.      According to that judgment, protective measures such as those provided for in Article 6(2) to (4) of the Directive are required
         only in relation to sites which the Commission has included in the list of sites of Community importance. 
      
      26.      As the applicants in the main proceedings and the Commission note, during the gradual implementation of Natura 2000 the Member
         States may nevertheless not prejudice or otherwise affect the quality of those sites. Although the Member States are not obliged
         to adopt the measures to implement a directive before the end of the relevant prescribed period, it follows from the second
         paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC and from the Directive itself that during
         that period they must refrain from taking any measures liable seriously to compromise the result prescribed. (9) This is so even if the procedure for designating sites of Community importance, as laid down in Article 4 of the Habitats
         Directive, is still under way, as is the case here.
      
      27.      Member States must comply strictly with the obligation to refrain from any activities liable seriously to compromise the result
         prescribed by the Habitats Directive, since the timetable as laid down by the Habitats Directive has not been adhered to.
         According to that timetable, the European ecological network should have been created by 10 June 2004. If that timetable had
         been followed, the sites concerned would have already benefited from the protection afforded by Article 6 of the Habitats
         Directive. In its written observations, the Commission stated that the timetable had not been adhered to because there had
         been a considerable delay in the Member States proposing sites. (10)
      
      28.      The longer a Member State delays in drawing up a list of sites of Community importance and designating special areas of conservation,
         the more such sites require extensive protection. In this respect, it is irrelevant whether or not the sites are sites which
         have already been included in the national list provided to the Commission pursuant to Article 4(1) of the Habitats Directive
         or sites which, on account of their characteristics, should be included in the Community list but which have not yet been
         proposed by the Member State to the Commission as sites of Community importance for the purposes of the European Natura 2000
         network. In both cases, a Member State must ensure that the relevant ecological interest which the site represents at national
         level is maintained until the Commission has adopted the list of sites of Community importance.
      
      29.      The applicants in the main proceedings have stated that an absolute ban on changes follows from the obligation on Member States
         to refrain from any activities liable seriously to compromise the result prescribed by the Habitats Directive. 
      
      30.      Bund Naturschutz in Bayern, Johann Märkl and Others and Friederike  Nischwitz and Others argue that the Member States are
         obliged to maintain the sites in favourable condition until the Commission is able to state whether or not the sites must
         be placed on the Community list as sites of Community importance. Therefore, a prohibition on deterioration must apply to
         such sites. That implies that the Member State must make no changes to the sites which could affect their value. In the view
         of the applicants in the main proceedings, a less severe means than an absolute ban on changes would not provide an adequate
         safeguard for the ecological interest of the sites.
      
      31.      Freistaat Bayern takes the contrasting view that, although the objective of the Habitats Directive may not be compromised
         or otherwise undermined, that fact does not give rise to an absolute ban on changes to a site. The prohibition on allowing
         deterioration of sites which appear on the national list provided to the Commission does not imply that any change is prohibited.
      
      32.      Article 6 of the Directive lays down the protective measures which must be adopted in respect of sites included in the list
         of sites of Community importance established by the Commission. Article 6(4) provides: ‘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.’
      
      33.      It appears from the wording of Article 6(4) of the Habitats Directive that it does not lay down any absolute ban on changes.
         However, the implementation of plans and projects is subject to strict conditions. Only where there are imperative reasons
         of overriding public interest may specific plans and projects be implemented. Moreover, even stricter criteria are laid down
         in relation to special sites which contain priority natural habitat types or priority species.
      
      34.      I take the view that the criteria laid down in Article 6(4) of the Habitats Directive must be applied by analogy until such
         time as the Commission has adopted the list. This means that in adopting plans and projects account can be taken of other
         interests. In the light of that provision, an absolute ban on changes goes beyond what is necessary to protect the sites.
         
      
      35.      The Member States must of course ensure that achievement of the objectives of conserving natural habitats and of wild fauna
         and flora, as set out inter alia in the sixth recital in the preamble to and in Article 3(1) of the Habitats Directive, is
         not seriously jeopardised. Therefore, plans and projects may be put into effect only if they do not affect the ecological
         interest which the site represents at national level. Moreover, the Member States must adopt provisions ensuring that the
         ultimate impact on the sites is minimal and adopt the least harmful measures which, overall, do not result in the site being
         stripped of its essential value.
      
      36.      In particular, the criteria laid down in Article 6(4) of the Habitats Directive in respect of specific sites housing priority
         natural habitat types or priority species must be applied strictly. Those sites must be protected from the threats to which
         they are exposed. The recitals in the preamble to the Directive state that in the European territory of the Member States,
         natural habitats are continuing to deteriorate, that an increasing number of wild species are seriously threatened and that,
         given that the threatened habitats and species form part of the Community’s natural heritage and the threats to them are often
         of a transboundary nature, it is necessary to take measures at Community level in order to conserve them. Early implementation
         of measures to conserve those habitats and species is therefore of great importance, as recommended in the fifth recital in
         the preamble to the Directive. (11)
      
      37.      It is for the national court to decide whether the quality of the site will deteriorate as a result of implementation of the
         A 94 motorway plan and whether the ecological interest which the site represents at national level will be prejudiced.
      
      38.      In the light of the foregoing, it is not necessary to provide an answer to Question 3.
      
      V –    Conclusion
      39.      I propose that the questions submitted should be answered as follows:
      
      Under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora in conjunction
         in particular with Article 10 EC and Article 249 EC, the Member States must ensure that the implementation of plans or projects
         does not prejudice the relevant ecological interest of sites proposed by them or of sites which, on account of their characteristics,
         should be included in the Community list, as a consequence of which the result prescribed by the Directive could be seriously
         compromised. It is for the national court to decide whether that is the case in respect of the plans in issue.
      
      1 –	Original language: Dutch.
      
      2 –	OJ 1992 L 206, p. 7.
      
      3 –	See, inter alia, Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26, and Case C‑106/89 Marleasing [1990] ECR I‑4135, paragraph 8.
      
      4 –	See, to that effect, Von Colson and Kamann, paragraph 26, and Marleasing, paragraph 8.
      
      5 –	First, third, fourth, fifth and sixth recitals in the preamble.
      
      6 –	Sixth and seventh recitals in the preamble.
      
      7 –	Case C-117/03 [2005] ECR I-167.
      
      8 –      Dragaggi and Others, paragraphs 25 to 27.
      
      9 –	Case C-129/96 Inter‑Environnement Wallonie [1997] ECR I‑7411, paragraph 45.
      
      10 –	The Court found that, by failing to transmit to the Commission, within the prescribed period, the list of sites referred
         to in the first subparagraph of Article 4(1) of the Habitats Directive, together with the information on those sites required
         by the second subparagraph of Article 4(1) thereof, the Federal Republic of Germany had failed to fulfil its obligations under
         the Habitats Directive: Case C‑71/99 Commission v Germany [2001] ECR I‑5811. See also Case C-67/99 Commission v Ireland [2001] ECR I‑5757, and Case C-220/99 Commission v France [2001] ECR I‑5831.
      
      11 –	Furthermore, early implementation of measures will not be possible, since there has been considerable delay in the Member
         States proposing sites. According to the timetable as laid down in the Habitats Directive, the European ecological network
         should have been created by 10 June 2004.