CELEX: C2001/245/30
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-279/01: Action brought on 16 July 2001 by the Commission of the European Communities against the Kingdom of Sweden

1.9.2001                EN                     Official Journal of the European Communities                                        C 245/17
Action brought on 16 July 2001 by the Commission                          Article 6(2) provides that the Member States are to take
of the European Communities against the Kingdom of                        appropriate steps to avoid, in the special areas of conservation,
                             Sweden                                       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
                         (Case C-279/01)                                  significant in relation to the objectives of the Directive. The
                                                                          article presupposes that the Member States have measures at
                                                                          their disposal by which their authorities can stop an operation
                         (2001/C 245/30)                                  which may damage natural habitats and habitats of species or
                                                                          disturb the species for which the sites were designated. The
                                                                          Swedish rules notified contain no provisions which allow the
An action against the Kingdom of Sweden was brought before                authorities to stop an operation which may damage natural
the Court of Justice of the European Communities on 16 July               habitats and habitats of species or disturb the species for which
2001 by the Commission of the European Communities,                       the site was designated.
represented by Lena Ström, acting as Agent, with an address
for service in Luxembourg.
The Commission claims that the Court should:
                                                                          Article 6(3) lays down the procedure for the management of
—     declare that by failing to implement correctly in national          plans and projects which may affect the special areas of
      law Articles 4(5), 5(4), 6(2) to (4), 12, 15 and 16 of              conservation significantly. Those rules require complete and
      Council Directive 92/43/EEC (1) of 21 May 1992 on the               meticulous transposition into national legislation. The system
      conservation of natural habitats and of wild fauna and              of rules intended to incorporate Article 6(3) does not cover all
      flora as amended by Directive 97/62/EC (2) the Kingdom              the projects or plans outside the area which might be
      of Sweden has failed to fulfil its obligations under that           considered to have a significant effect on the area of conser-
      directive;                                                          vation. Nor does the Swedish legislation provide that all plans
                                                                          are to be assessed in accordance with Article 6(3).
—     order the Kingdom of Sweden to bear the costs.
Pleas in law and main arguments
                                                                          Article 6(4) provides for certain exceptions to the rules on
                                                                          protection of special conservation areas. If, in spite of a
                                                                          negative assessment of the implications for the site and in the
Article 4(5) provides that as soon as a site is placed on the list        absence of alternative solutions, a plan or project must
referred to in the third subparagraph of paragraph 2 it is to be          nevertheless be carried out for imperative reasons, the Member
subject to the rules in Article 6(2), (3) and (4). According to           States are to take all compensatory measures necessary to
the Swedish rules notified, the government or the authority               ensure that the overall coherence of Natura 2000 is protected.
which the government appoints is to keep a permanent register             For reasons of legal certainty, Article 6(4), since it is in the
of the natural sites which should be given protection in                  nature of an exception, must be reproduced verbatim in legally
accordance with international undertakings or national objec-             binding national rules. The Swedish legislation incorporating
tives for the protection of such sites. A site which is placed on         Article 6(4) does not meet that requirement of legal certainty
the register is to be given priority in future work on protection.        since the exceptions in the directive are not clearly reproduced
The National Environment Protection Board has been appoint-               in the Swedish legislation.
ed to hold the register. The fact that the National Environment
Protection Board keeps a register of natural sites which should
be protected does not in itself have the legal effect required by
Article 6(2), (3) and (4).
Article 5(4) provides that a site is to be covered by the                 Under Article 12(1) the Member States are to take the requisite
protection provided for by Article 6(2) during the bilateral              measures to establish a system of strict protection for the
consultation period initiated between a Member State and the              animal species listed in Annex IV(a) by introducing the
Commission under Article 5(1) and pending a Council decision              prohibitions listed in Article 12(1)(a) to (d). The Swedish
pursuant to Article 5(3). Under the Swedish rules the legal               legislation and the amendments introduced and included in it
protection under Article 6(2) does not take effect before a               do not cover all the species listed in Annex IV(a).
decision is taken to place the site on a special register. Nor is         Article 12(1)(b) to (d) lists certain activities which the Member
the protection which then takes effect sufficient to fulfil the           states are to prohibit. The Swedish legislation contains no
requirements of Article 6(2).                                             provisions which implement Article 12(1)(b) to (d) adequately.
 ---pagebreak--- C 245/18              EN                      Official Journal of the European Communities                                          1.9.2001
Under Article 12(4) the Member States are to establish a                 The applicant claims that the Court should:
system to monitor the incidental capture and killing of the
animal species listed in Annex IV(a). The Swedish legislation            —     Declare that, by failing to adopt and bring into force
does not cover all the species listed in Annex IV(a).                          within the prescribed period the laws, regulations and
                                                                               administrative provisions necessary to comply with
                                                                               Council Directive 98/18/EC (1) of 17 March 1998 on
Under Article 15 Member States are required to prohibit the                    safety rules and standards for passenger ships, the Portu-
use of methods and forms of capture etc listed in Annex VI of                  guese Republic has failed to fulfil its obligations under
the species listed in Annex Va, and in cases where, in                         the third paragraph of Article 249 of the EC Treaty and
accordance with Article 16, derogations are applied, of the                    Article 14 of Directive 98/18/EC;
species listed in Annex IVa. The right to derogate from the
prohibition in Article 15 is limited to the situations listed in         —     in the alternative, declare that, by failing to communicate
Article 16. Under Swedish law, however, the government and                     such measures to the Commission, the Portuguese Repub-
authorities have a right to investigate freely in certain cases                lic failed to fulfil its obligations under the same provisions;
where derogations are to be granted from the rules on                          and
prohibition laid down by Article 15.
                                                                         —     Order the Portuguese Republic to pay the costs.
Article 16(1) lists the situations in which it is possible to
derogate from the rules in Articles 12 to 14 and 15(a) and (b).          Pleas in law and main arguments
A general condition for allowing a derogation is that there is
no satisfactory alternative and that the derogation is not
detrimental to the maintenance of the populations of the                 The mandatory nature of the provisions of the third paragraph
species concerned at a favourable conservation status in their           of Article 249 requires Member States to adopt the measures
natural range. In addition, one of the reasons in Article 12(1)(a)       necessary to transpose directives addressed to them into their
to (e) must obtain. For reasons of legal certainty it is necessary       domestic law. Despite the expiry of that period, which is laid
that the situations and requirements set out in a rule on                down in Article 14(1) of Directive 98/18/EC, and despite the
derogation such as Article 16 be transposed verbatim into                specific notification requirement provided for in Article 4(2)
national rules or that there be a direct reference to the directive.     of the directive, the Portuguese Republic has not brought into
Under the Swedish legislation the government can allow                   force the necessary provisions and, in any event, has not
derogations on the basis of various considerations. The                  communicated them to the Commission.
Swedish rules on derogation therefore do not conform to
Article 16 and nor do they refer to those provisions in the
directive.                                                               (1) OJ 1998 L 144, p. 1.
(1) OJ L 206, 22.7.1992, p. 7.
(2) OJ L 305, 8.11.1997, p. 42.
                                                                         Action brought on 19 July 2001 by the Commission of
                                                                          the European Communities against the French Republic
                                                                                                      (Case C-286/01)
                                                                                                      (2001/C 245/32)
Action brought on 17 July 2001 by the Commission
of the European Communities against the Portuguese                       An action against the French Republic was brought before the
                             Republic                                    Court of Justice of the European Communities on 19 July
                                                                         2001 by the Commission of the European Communities,
                                                                         represented by P. Nemitz and B. Mongin, acting as Agents.
                         (Case C-282/01)
                                                                         The applicant claims that the Court should:
                        (2001/C 245/31)
                                                                         —     Declare that, by failing to adopt and bring into force
                                                                               within the prescribed period the laws, regulations and
An action against the Portuguese Republic was brought before                   administrative provisions necessary to comply with
the Court of Justice of the European Communities on 17 July                    Directive 98/10/EC (1), and in particular Article 6(3) and
2001 by the Commission of the European Communities,                            (4) and Articles 10, 21 and 26, the French Republic has
represented by Bernard Mongin and Francisco de Sousa Fialho,                   failed to fulfil its obligations under Article 32 of that
acting as Agents.                                                              directive and Article 249 of the EC Treaty; and