European Commission v Republic of Bulgaria.
Date: 2018-04-26
18


As regards the complaint alleging an alteration to the subject matter of the dispute, it should be recalled that, according to the Court’s settled case-law, the purpose of the letter of formal notice is, firstly, to delimit the subject matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence and, secondly, to enable the Member State to comply before proceedings are brought before the Court (judgments of 28 March 1985, Commission v Italy, 274/83, EU:C:1985:148, paragraph 19, and of 7 April 2011, Commission v Portugal, C‑20/09, EU:C:2011:214, paragraph 19 and the case-law cited). The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the FEU Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations (judgment of 14 April 2011, Commission v Romania, C‑522/09, EU:C:2011:251, paragraph 16).
19


Nonetheless, although the reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaty, the letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain anything more than an initial brief summary of the complaints. There is therefore nothing to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in the letter of formal notice (see, to that effect, judgments of 8 April 2008, Commission v Italy, C‑337/05, EU:C:2008:203, paragraph 23, and of 13 February 2014, Commission v United Kingdom, C‑530/11, EU:C:2014:67, paragraph 40).
23


With regard to the complaint alleging an insufficient statement of the subject-matter of the proceedings in the application, it must be noted that, by virtue of Article 120(c) of the Rules of Procedure of the Court of Justice and the case-law relating thereto, an application initiating proceedings must state the subject matter of the dispute and include a brief statement of the pleas in law. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita or fail to rule on a claim (see, to that effect, judgments of 14 January 2010, Commission v Czech Republic, C‑343/08, EU:C:2010:14, paragraph 26; of 15 June 2010, Commission v Spain, C‑211/08
EU:C:2010:340, paragraph 32; and of 15 November 2012, Commission v Portugal, C‑34/11, EU:C:2012:712, paragraph 44).
24


It is, moreover, settled case-law that the Court must examine whether the reasoned opinion and the action set out the complaints coherently and precisely in order that the Court may appreciate exactly the extent of the alleged infringement of EU law, a condition which is necessary in order to enable the Court to determine whether there has been a breach of obligations as alleged (judgment of 15 November 2012, Commission v Portugal, C‑34/11, EU:C:2012:712, paragraph 43 and the case-law cited).
49


It also recalls that, in accordance with the case-law, Member States may demonstrate by scientific evidence that the obligations flowing from Article 4(1) of the Birds Directive could be satisfied by classifying as SPAs sites other than those appearing in the IBA inventory and covering a smaller total area, (judgment of 20 March 2003, Commission v Italy, C‑378/01, EU:C:2003:176, paragraph 18). It adds that, on the basis of the discretion enjoyed by the Member States in the application of the ornithological criteria for identifying the most suitable sites for conservation of the species listed in Annex I to the Birds Directive, it drew a distinction between, on the one hand, the most important territories for the conservation of targeted bird species, referred to in Article 4(1) of that directive, and, on the other, those sites which are smaller and are subject to severe anthropogenic pressure.
50


The Republic of Bulgaria disputes the Commission’s reasoning that the IBAs necessarily constitute the most suitable territories in number and size, within the meaning of Article 4(1) of the Birds Directive. According to that Member State, although the IBA inventory constitutes, in the absence of scientific proof to the contrary, a basis of reference for assessing whether that Member State has classified as SPAs sufficient territories in number and size to provide protection for all the bird species listed in Annex I to the Birds Directive, such an inventory is not legally binding (judgment of 7 December 2000, Commission v France, C‑374/98, EU:C:2000:670, paragraph 25). Accordingly, Member States may be able to fulfil the obligations arising under Article 4(1) of the Birds Directive by classifying as SPAs sites other than those listed in the IBA inventory.
60


It should be noted, firstly, that, according to the settled case-law of the Court, Article 4(1) of the Birds Directive requires the Member States to classify as SPAs the territories meeting the ornithological criteria specified by that provision (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 27 and the case-law cited).
61


Secondly, Member States are obliged to classify as SPAs all the sites which, in accordance with the ornithological criteria, appear to be the most suitable for conservation of the species in question (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 28 and the case-law cited).
62


Thirdly, as regards the partial classification of certain regions, the Court has previously held, on the one hand, that classification as an SPA cannot be the result of an isolated study of the ornithological value of each of the areas in question but must be carried out in the light of the natural boundaries of the ecosystem in question and, on the other, that the ornithological criteria which alone form the foundation of the classification must have a scientific basis (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 30 and the case-law cited).
64


In that regard, the Court has held that the Member States’ margin of discretion in choosing the most suitable territories for classification as SPAs concerns not the appropriateness of classifying as SPAs the territories which appear most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species listed in Annex I to the Birds Directive (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 29 and the case-law cited).
66


On the other hand, since, by virtue of Article 4(1) of the Birds Directive, the Member States are to classify in particular the most suitable territories in number and size as SPAs for the conservation of these species, a Member State cannot, on the ground that it has discretion as regards the choice of SPAs, classify as SPAs sites the number and total area of which are manifestly less than the number and total area of the sites considered to be the most suitable (see, to that effect, judgment of 19 May 1998, Commission v Netherlands, C‑3/96, EU:C:1998:238, paragraph 63).
69


In that regard, it must be recalled that, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is incumbent upon the Commission to prove the alleged failure. It must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (judgment of 21 July 2016, Commission v Romania, C‑104/15, EU:C:2016:581, paragraph 83 and the case-law cited).
70


However, the Commission, which does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants, private or public bodies active in the territory of the Member State concerned and that Member State itself. Similarly, any official document issued by the authorities of the Member State concerned can be regarded as a valid source of information for the purposes of the initiation, by the Commission, of the procedure referred to in Article 258 TFEU (judgment of 16 July 2015, Commission v Slovenia, C‑140/14, not published, EU:C:2015:501, paragraph 40 and the case-law cited).
76


In this respect, it must be recalled that, although any classification presupposes that the competent authorities are convinced, based on the best scientific knowledge available, that the site in question is among the most suitable areas for the protection of birds, that does not, however, mean that the obligation to classify does not, as a rule, arise so long as those authorities have not completed their evaluation and check of the new scientific knowledge (judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 63 and the case-law cited).
78


Nonetheless, since it is common ground that the Republic of Bulgaria has not put forward any other ornithological criteria which are objectively verifiable, as compared with those used by BirdLife International, that threshold provides, in the absence of scientific evidence to the contrary, a point of reference which makes it possible to assess whether that Member State ought to have classified the entirety of IBA Rila as an SPA (see, to that effect, judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraphs 53 and 54).
81


Admittedly, it follows from the case-law of the Court that the updating of scientific data is necessary to determine the situation of the most endangered species and the species constituting the common heritage of the European Union in order to classify the most suitable areas as SPAs and that it is necessary to use the most up-to-date scientific data available at the end of the period laid down in the reasoned opinion (judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 47).
82


Nonetheless, in the absence of other up-to-date scientific studies capable of justifying a solely partial classification of IBA Rila as an SPA, the Commission was correct to take the view, in its application, that the IBA inventory is the most up-to-date and accurate reference for assessing whether the Republic of Bulgaria has classified a sufficient number and area of territories as SPAs for the purpose of Article 4(1) of the Birds Directive (see, to that effect, judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 67). That inventory, although not legally binding on the Member States concerned, contains scientific evidence making it possible to assess whether a Member State has complied with its obligation flowing from that provision (see, to that effect, judgment of 7 December 2000, Commission v France, C‑374/98, EU:C:2000:670, paragraphs 25 and 26).
83


The Court has thus repeatedly held that, in view of the scientific nature of the IBA inventory and of the absence of any scientific evidence adduced by a Member State tending in particular to show that the obligations flowing from Article 4(1) and (2) of the Birds Directive could be satisfied by classifying as SPAs sites covering a smaller total area than that resulting from that inventory, the inventory could be used as a basis of reference for assessing whether a Member State has classified a sufficient number and size of areas as SPAs for the purposes of Article 4(1) of that directive (see, to that effect, judgments of 20 March 2003, Commission v Italy, C‑378/01, EU:C:2003:176, paragraph 18, and of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 52).