Commission of the European Communities v Kingdom of Spain.
Date: 1993-08-02
15 The Commission' s view must be upheld on this point. Articles 3 and 4 of the directive require Member States to preserve, maintain and re-establish habitats as such, because of their ecological value. Moreover, it follows from the ninth recital in the preamble to the 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 obligations on Member States under Articles 3 and 4 of the directive therefore exist before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialized.
19 With respect more specifically to Article 4 of the directive, the Court held in that judgment that, in order to be acceptable, such grounds must correspond to a general interest which is superior to the general interest represented by the ecological objective of the directive. In particular, the interests referred to in Article 2 of the directive, namely economic and recreational requirements, do not enter into consideration. In this connection, the Court held in Case 247/85 Commission v Belgium [1987] ECR 3029 and Case 262/85 Commission v Italy [1987] ECR 3073 that that provision does not constitute an autonomous derogation from the general system of protection established by the directive.
22 That line of reasoning must be rejected. The objectives of protection set out in the directive, as expressed in the ninth recital in its preamble, could not be achieved if Member States had to comply with the obligations arising under Article 4(4) only in cases where a special protection area had previously been established.
23 Lastly, with respect to the relationship between Articles 3 and 4 of the directive, it must be borne in mind that the first of those provisions imposes obligations of a general nature, namely the obligation to ensure a sufficient diversity and area of habitats for all the birds referred to in the directive, while the second contains specific obligations with regard to the species of birds listed in Annex I and migratory species not listed in that annex. As it is undisputed that both categories of birds are found in the Santoña marshes, it will be sufficient to consider the Commission' s complaints in the light of the provisions of Article 4 of the directive.
II ° The obligation to classify the Santoña marshes as a special protection area pursuant to Article 4(1) and (2) of the directive
26 That argument cannot be accepted. Although Member States do have a certain margin of discretion with regard to the choice of special protection areas, the classification of those areas is nevertheless subject to certain ornithological criteria determined by the directive, such as the presence of birds listed in Annex I, on the one hand, and the designation of a habitat as a wetland area, on the other.
27 In this connection, it is common ground that the Santoña marshes are one of the most important ecosystems in the Iberian peninsula for many aquatic birds. The marshes serve as a wintering area or staging post for many birds on their migrations from European countries to the southern latitudes of Africa and the Iberian peninsula itself. The birds observed in the area include various species that are becoming extinct, in particular the spoonbill, which feeds and rests in the Santoña marshes in the course of its migrations. Moreover, it emerged from the case file and at the hearing before the Court that the area in question is regularly visited by 19 of the species listed in Annex I to the directive and at least 14 species of migratory birds.
28 As to the classification of the Santoña marshes as a nature reserve by Law No 6 of 27 March 1992, this cannot be regarded as satisfying the requirements laid down in the directive, either in respect of the territorial extent of the area or as regards its legal status as a protected area.
29 In this connection, it must be observed first of all that the nature reserve does not cover the whole of the marshes, since an area of 40 000 square metres is excluded. Yet that land is of particular importance for aquatic birds in danger of extinction within the meaning of Article 4(1)(a) of the directive, since a steady reduction in the space available for nesting has been observed in the other marshland areas close to the coast.
30 Next the necessary protection measures have not been defined even for the marshes within the classified area. Indeed, it appears from the case file that the plan for the management of nature reserves provided for in Article 4 of the Law has not been approved by the competent authorities. Yet that plan is of the utmost importance for the protection of wild birds because it intended to identify activities which will give rise to a change in the ecosystems of the area.
31 Since measures as essential as those determining the management of the area or governing the use of the marshes and the activities carried out there have not been adopted, the requirements of the directive cannot be held to have been satisfied.
32 It must therefore be held that the Kingdom of Spain has failed to fulfil its obligations under Article 4(1) and (2) of the directive by not classifying the Santoña marshes as a special protection area.
III ° The obligation to protect the Santoña marshes pursuant to Article 4(4) of the directive
A ° The second section of the road between Argoños and Santoña