Commission of the European Communities v Kingdom of Spain.
Date: 2006-05-18
22. It must be borne in mind that it follows from the express terms of the second paragraph of Article 226 EC that the Commission may bring an action for failure to fulfil obligations before the Court only if the Member State concerned has failed to comply with the reasoned opinion within the period laid down by the Commission for that purpose (see, inter alia, Case C-362/90  Commission  v Italy [1992] ECR I-2353, paragraph 9, and Case C-525/03 Commission  v Italy  [2005] I-9405, paragraph 13).
23. It is, furthermore, settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-362/90 Commission  v Italy , paragraph 10; Case C-173/01 Commission  v Greece  [2002] ECR I-6129, paragraph 7; Case C-114/02 Commission  v France  [2003] ECR I-3783, paragraph 9; and Case C-525/03 Commission  v Italy , paragraph 14).
25. It has not been shown that that permit continued to produce legal effects after the expiry of the period laid down in the reasoned opinion.
28. In that regard, it must be borne in mind that, according to the settled case-law of the Court, the subject-matter of a dispute may be extended to events which took place after the reasoned opinion was delivered in so far as they are of the same kind and constitute the same conduct as the events to which the opinion referred (see to that effect Case 42/82 Commission  v France  [1983] ECR 1013, paragraph 20, and Case 113/86 Commission  v Italy  [1988] ECR 607, paragraph 11).
33. It must be borne in mind that, as the Commission rightly observes, the Court has already found that it is possible to limit the subject-matter of the proceedings at the stage of the proceedings before the Court (see to that effect Case C-279/94 Commission  v Italy  [1997] ECR I-4743, paragraphs 24 and 25; Case C-52/00 Commission  v France  [2002] ECR I-3827, paragraph 44; Case C-139/00 Commission  v Spain  [2002] ECR I-6407, paragraphs 18 and 19; and Case C-433/03 Commission  v Germany  [2005] ECR I-6985, paragraph 28). Accordingly, the Commission could limit the subject-matter of the failure to fulfil obligations alleged in its application to one of the species and one of the hunting methods mentioned during the pre-litigation procedure.
36. In this connection, such factors do not however appear capable of affecting the admissibility of the action. First, the Commission was permitted to limit the subject-matter of the proceedings at the stage of the proceedings before the Court, as observed in paragraph 33 of this judgment. Secondly, according to the case-law of the Court the purpose of the pre-litigation procedure is to give the State concerned the opportunity, on the one hand, to comply with its obligations under Community law and, on the other hand, to avail itself of its right to defend itself against the complaints formulated by the Commission (Case C-117/02 Commission  v Portugal [2004] ECR I-5517, paragraph 53). Furthermore, the formal notice cannot be subject to such strict requirements of precision as is the reasoned opinion, since the formal notice cannot, of necessity, contain anything more than an initial brief summary of the complaints (see to that effect Case C‑279/94 Commission  v Italy , paragraph 15).
37. As the Advocate General observed at point 24 of her Opinion, whilst it is true that the aim of the letter of formal notice is to delimit the subject-matter of the dispute, the Commission is obliged to specify precisely in the reasoned opinion the grounds of complaint which it has already raised more generally in the letter of formal notice. However, that does not prevent it from restricting the subject-matter of the dispute or expanding it to cover subsequent measures that are essentially the same as the measures challenged in the formal notice.
The plea of inadmissibility alleging an insufficient statement of grounds in the application
59. It must be borne in mind that, according to the settled case-law of the Court, in an action for failure to fulfil obligations brought under Article 226 EC it is for the Commission to prove that the obligation has not been fulfilled without being able to rely on any presumption (see to that effect, inter alia, Case 96/81 Commission  v Netherlands  [1982] ECR 1791, paragraph 6; Case C-194/01 Commission  v Austria  [2004] ECR I-4579, paragraph 34; and Case C‑6/04 Commission  v United Kingdom  [2005] ECR I-9017, paragraph 75).
70.  It must also be borne in mind that the Court has categorised as deliberate disturbance within the meaning of Article 12(1)(b) of the directive matters such as the use of mopeds on a beach notwithstanding warnings as to the presence of protected sea turtles’ nests and the presence of pedalos and small boats in the sea area of the beaches concerned, and has held that a Member State fails to fulfil its obligations under Article 12(1)(b) and (d) of the directive where it does not take all the requisite specific measures to prevent the deliberate disturbance of the animal species concerned during its breeding period or the deterioration or destruction of its breeding sites (see Case C-103/00 Commission  v Greece  [2002] ECR I-1147, paragraphs 36 and 39, and the Opinion of Advocate General Léger in that case, at point 57).
71. For the condition as to ‘deliberate’ action in Article 12(1)(a) of the directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing.