Bund Naturschutz in Bayern eV and Others v Freistaat Bayern.
Date: 2006-09-14
36. It follows, as the Court ruled in Case C-117/03 Dragaggi and Others [2005] ECR I-167, paragraph 25, that the protective measures prescribed in Article 6(2) to (4) of the Directive are required only as regards sites which are placed on the list of sites selected as sites of Community importance.
37. However, the Court pointed out at paragraph 26 of that judgment that that did not mean that the Member States are not to protect sites as soon as they propose them, under Article 4(1) of the Directive, as sites eligible for identification as sites of Community importance on the national list transmitted to the Commission.
39. As the national court raises the question of the interpretation to be given to the obligation to take such ‘appropriate’ protective measures, more precisely, the criteria for the application of the protection scheme for sites designated by the national competent authorities, it must be remembered that, as the Court pointed out in Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraphs 22 and 23, to produce a draft list of sites of Community importance, capable of leading to the creation of a coherent European ecological network of special sites of conservation, the Commission must have available an exhaustive list of the sites which, at national level, have an ecological interest which is relevant from the point of view of the Directive’s objective of conservation of natural habitats and wild fauna and flora. Only in that way is it possible to realise the objective, in Article 3(1) of the Directive, of maintaining or restoring the natural habitat types and the species’ habitats concerned at a favourable conservation status in their natural range, in the entire European territory of the Member States.
41. Consequently, the Commission must be sure of having available an exhaustive list of sites eligible as special areas of conservation, the drawing up of which is aimed at a coherent European ecological network. It also follows from this that, at the time of the decision which the Commission is called upon to take, the sites identified by the Member States must reflect the situation on the basis of which the scientific evaluations of potential sites of Community importance have been carried out.
42. If that were not the case, the Community decision-making process which is not only based on the integrity of the sites as notified by the Member States, but is also characterised by the ecological comparisons between the different sites proposed by the Member States, would run the risk of being distorted and the Commission would no longer be in a position to fulfil its duties in the area concerned.
44. Having regard to the foregoing considerations, the Member States must, as regards the sites identified with a view to their inclusion on the Community list, take appropriate protective measures in order to maintain the ecological characteristics of those sites.
46. Member States cannot therefore authorise interventions which may pose the risk of seriously compromising the ecological characteristics of a site, as defined by those criteria. This is particularly the case when an intervention poses the risk either of significantly reducing the area of a site, or of leading to the disappearance of priority species present on the site, or, finally, of having as an outcome the destruction of the site or the destruction of its representative characteristics.
47. The answer to the first and second questions must therefore be that the appropriate protection scheme applicable to the sites which appear on a national list transmitted to the Commission under Article 4(1) of the Directive requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites.
The third question
50. In that regard, the detailed procedural rules applicable fall within the ambit of the domestic legal order of each Member State, provided that such rules are not less favourable than those governing similar domestic situations of an internal nature and do not render impossible in practice or excessively difficult the exercise of rights conferred by Community law (see, to that effect, inter alia, Case C-312/93 Peterbroeck  [1995] ECR I-4599, paragraph 12, and Case C-78/98 Preston and Others  [2000] ECR I-3201, paragraph 31).