Commission of the European Communities v Republic of Austria.
Date: 2007-05-10
50. It is 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 that Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes in primary or secondary legislation (see, inter alia, Case C-323/01 Commission  v Italy  [2002] ECR I-4711, paragraph 8, and Case C-23/05 Commission  v Luxembourg  [2005] ECR I-9535, paragraph 9).
58. With regard to the field under consideration, the Court has pointed out that faithful transposition is particularly important in an instance such as the present one, where management of the common heritage is entrusted to the Member States in their respective territories (see Case C-6/04 Commission  v United Kingdom  [2005] ECR I‑9017, paragraph 25, and Case C-98/03 Commission  v Germany  [2006] ECR I‑53, paragraph 59).
59. The Court has held with regard to the definitions set out in Article 1 of the Directive that the terms concerned must be transposed into the Member States’ national law (see Case C-72/02 Commission  v Portugal  [2003] ECR I‑6597, paragraph 17).
73. It should be noted first of all that the Directive lays down complex and technical rules in the field of environmental law and that, accordingly, the Member States are under a particular duty to ensure that their legislation intended to transpose the Directive is clear and precise (see Commission  v United Kingdom , paragraph 26).
76. Thus, the Directive requires the adoption of necessary conservation measures, a fact which excludes any discretion in this regard on the part of the Member States and restricts any latitude of the national authorities when laying down rules or taking decisions to the means to be applied and the technical choices to be made in connection with those measures.
79. Such interpretation of provisions of domestic law in a manner consistent with a directive cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see, to this effect, Case C-236/95 Commission  v Greece  [1996] ECR I‑4459, paragraph 13, and Case C-144/99 Commission  v Netherlands  [2001] ECR I‑3541, paragraph 21).
80. Moreover, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting fulfilment of the obligations owed by the Member States in the context of transposition of a directive (see Case C-197/96 Commission  v France  [1997] ECR I‑1489, paragraph 14; Case C-145/99 Commission  v Italy  [2002] ECR I‑2235, paragraph 30; and Case C-33/03 Commission  v United Kingdom  [2005] ECR I‑1865, paragraph 25).
101. Protection of the species for which special areas of conservation have been designated must be complete (see Case C-75/01 Commission  v Luxembourg  [2003] ECR I‑1585, paragraph 43).
109. Articles 12 to 14 and 15(a) and (b) of the Directive form a coherent body of provisions which require the Member States to establish strict regimes of protection for the animal and plant species concerned (see, to this effect, Commission  v United Kingdom , paragraph 112).
110. Also, Article 16 of the Directive, which defines in a precise manner the criteria on the basis of which the Member States may provide for derogations from the prohibitions set out in Articles 12 to 15, is a provision constituting an exception to the system of protection which the Directive imposes. Consequently, Article 16 must be interpreted restrictively (see Commission  v United Kingdom , paragraph 111).
111. It should be added in this regard that under Article 16(1) of the Directive any measure adopted at national level which derogates from the prohibitions laid down by the Directive must be conditional on there being no satisfactory alternative.
112. It follows that national provisions under which the grant of derogations from the prohibitions established by Articles 12 to 14 and 15(a) and (b) of the Directive is subject not to all the criteria and conditions set out in Article 16 of the Directive but, incompletely, to certain elements of them, cannot constitute a regime consistent with Article 16.
115. However, Article 16(1) of the Directive makes the favourable conservation status of those populations in their natural range a necessary precondition in order for the derogations for which it provides to be granted.
116. Accordingly, the ambiguity which characterises the wording of Paragraph 20(4) of the Nö NSchG is incompatible with the requirement for a precise and clear transposition of Article 16(1) of the Directive (see, by analogy, Case C-365/93 Commission  v Greece  [1995] ECR I‑499, paragraph 9).
128. As regards Paragraph 34(1) of the Sbg NSchG, the grounds of justification relating to, respectively, the production of beverages and the construction of installations do not fall within any of the grounds exhaustively listed in Article 16(1) of the Directive.