Commission of the European Communities v Hellenic Republic.
Date: 2007-10-25
24. It must be borne in mind that Article 4 of Directive 79/409 lays down a system which is specifically targeted and reinforced both for the species listed in Annex I to that directive and for migratory species not included in that annex, an approach justified by the fact that they are, respectively, the most endanger ed species and the species constituting a common heritage of the Community (Case C‑191/05 Commission  v Portugal  [2006] ECR I‑6853, paragraph 9 and the case-law cited). Furthermore, it is clear from the ninth recital in the preamble to that 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 Member States are therefore required to adopt the measures necessary for the conservation of those species (Case C‑235/04 Commission  v Spain  [2007] I‑0000, paragraph 23).
25. For that purpose, 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 Community in order to classify the most suitable areas as SPAs. It is therefore necessary to use the most up-to-date scientific data available at the end of the period laid down in the reasoned opinion ( Commission  v Spain , paragraph 24).
27. As regards the IBA 89, the Court has held that, in view of its scientific nature and of the absence of any scientific evidence adduced by a Member State tending particularly to show that the obligations flowing from Article 4(1) and (2) of Directive 79/409 could be satisfied by classifying as SPAs sites other than those appearing in that inventory and covering a smaller total area, that inventory, although not legally binding, could be used by the Court as a basis of reference for assessing whether a Member State had classified a sufficient number and size of areas as SPAs for the purposes of the abovementioned provisions of Directive 79/409 (see, to that effect, Case C‑3/96 Commission  v Netherlands  [1998] ECR I‑3031, paragraphs 68 to 70; Case C‑378/01 Commission  v Italy  [2003] ECR I‑2857, paragraph 18; and Commission v Spain , paragraph 26).
34. Next, on the question of the clearly insufficient nature of the classification as SPAs of territories which satisfy the preconditions to be classified as SPAs within the meaning of Article 4(1) of Directive 79/409, it must be borne in mind that Member States are obliged to classify as SPAs all the sites which, applying ornithological criteria, appear to be the most suitable for conservation of the species in question (see Commission v Netherlands , paragraph 62).
37. Lastly, as regards the partial classification of areas of importance for the conservation of birds and, in particular, that of wetlands, it should be recalled that Article 4(2) of Directive 79/409 provides that Member States are to pay particular attention to the protection of wetlands and particularly to wetlands of international importance (see Commission  v Spain , paragraph 81).
42. It should be noted that Member States’ margin of discretion in choosing the most suitable territories for classification as SPAs concerns the application of ornithological criteria for identifying the most suitable territories for conservation of the species in question (see, to that effect, Commission  v Netherlands , paragraph 61).
45. In addition, in the absence of scientific data to the contrary, area No 166 referred to in the IBA 2000 appears to be the most suitable for conservation of the species in question (see Commission  v Netherlands , paragraph 62). The classification as SPAs of only Lake Psalidi and Alyki, as wetlands, is thus not sufficient to meet the obligations arising out of Article 4(1) and (2) of Directive 79/409. The Commission’s claim in this regard must therefore be accepted.