European Commission v Republic of Austria.
Date: 2010-10-14
15. A preliminary point to be recalled is that Article 4(1) of the Birds Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I to the directive and that, under Article 4(2), Member States are also to classify as SPAs the breeding, moulting and wintering areas of regularly occurring migratory species not listed in the annex and the staging posts along their migration routes (Case C‑240/00 Commission  v Finland  [2003] ECR I‑2187, paragraph 16).
Failure to classify the Hanság site as an SPA
– Arguments of the parties
22. 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 the Court cannot take account of any subsequent changes (see, inter alia, Case C-183/05 Commission  v Ireland  [2007] ECR I‑137, paragraph 17). Therefore, as the classification referred to in paragraph 20 of the present judgment occurred after that period expired, the complaint that the Hanság site was not classified as an SPA, in breach of Article 4(1) of the Birds Directive, is well founded.
24. Nor can that finding be calle d into question by the fact, even if it is established, that, first, a good part of the Hanság site was already protected under the Habitats Directive in the Natura 2000 network and, secondly, the site has not suffered any deterioration. First, since the legal regimes of the Birds and Habitats Directives are separate, a Member State cannot exonerate itself from its obligations under Article 4(1) and (2) of the Birds Directive by relying on measures other than those prescribed by that directive (Case C‑235/04 Commission  v Spain  [2007] ECR I‑5415, paragraph 79). Second, the fact that the site concerned has not suffered any deterioration is not capable of affecting the obligation imposed on Member States to classify sites as SPAs (see, to similar effect, Case C-418/04 Commission  v Ireland  [2007] ECR I‑10947, paragraph 38).
Incorrect delimitation of the Niedere Tauern SPA
– Arguments of the parties
40. The subject-matter of an action for failure to fulfil obligations is determined by the Commission’s reasoned opinion, so that the action must be based on the same grounds and pleas as the reasoned opinion (see Case C-236/05 Commission  v United Kingdom [2006] ECR I‑10819, paragraph 10 and the case-law cited).
41. Also, in accordance with settled case-law, the letter of formal notice sent by the Commission to the Member State and then the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. 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 Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure. If that is not the case, that irregularity cannot be regarded as having been cured by the fact that the defendant Member State submitted observations on the reasoned opinion (see Case C-186/06 Commission  v Spain  [2007] ECR I‑12093, paragraph 15 and the case-law cited).
42. Furthermore, the reasoned opinion and the action must set out the complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of European Union law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged (see Case C-186/06 Commission  v Spain , paragraph 18).
Widening of the subject-matter of the action
50. Furthermore, while the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty, the Commission is not, however, obliged to set out in that opinion the steps to be taken to remedy the infringement complained of (see Case C-394/02 Commission  v Greece  [2005] ECR I‑4713, paragraph 21 and the case-law cited). Nor, likewise, is the Commission obliged to set out such steps in its application.
56. According to the case-law of the Court, Article 4(1) and (2) of the Birds Directive requires the Member States to provide SPAs with a legal protection regime that is capable, in partic ular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species not listed in that annex which are, nevertheless, regular visitors (see Case C-166/97 Commission  v France  [1999] ECR I‑1719, paragraph 21; Case C-418/04 Commission  v Ireland , paragraph 153; and judgment of 11 December 2008 in Case C-293/07 Commission  v Greece , paragraph 22).
57. It is also settled case-law that Article 4 of the Birds Directive lays down a regime which is specifically targeted and reinforced, both for the species listed in Annex I to the directive and for migratory species, an approach justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage of the European Union (Case C‑44/95 Royal Society for the Protection of Birds  [1996] ECR I‑3805, paragraph 23; Case C‑418/04 Commission  v Ireland , paragraph 46; and Case C-293/07 Commission  v Greece , paragraph 23).
58. By virtue of Article 6(2) of the Habitats Directive, the obligations under which replace those arising under the first sentence of Article 4(4) of the Birds Directive in respect of classified areas, the protective legal status of SPAs must also guarantee the avoidance therein of the deterioration of natural habitats and the habitats of species as well as significant disturbance of the species for which those areas have been classified (see Case C‑415/01 Commission  v Belgium  [2003] ECR I‑2081, paragraph 16, and Case C-293/07 Commission  v Greece , paragraph 24).
59. Moreover, the protection of SPAs is not to be limited to measures intended to avoid external anthropogenic impairment and disturbance but must also, according to the situation that presents itself, include positive measures to preserve or improve the state of the site (see, to this effect, Case C-418/04 Commission  v Ireland , paragraph 154).
60. According to the wording of the third paragraph of Article 249 EC, now the third paragraph of Article 288 TFEU, a directive, while being binding, as to the result to be achieved, upon each Member State to which it is addressed, leaves to the national authorities the choice of form and methods. It follows that the Republic of Austria, just like any other Member State, may choose the form and methods for implementing the Birds Directive (see, to this effect, Case C-418/04 Commission  v Ireland , paragraph 157).
61. Whilst it is true that faithful transposition becomes particularly important in the case of the Birds Directive, where management of the common heritage is entrusted to the Member States in their respective territories (see Case C-418/04 Commission  v Ireland , paragraphs 64 and 159), it cannot, in any event, require the Member States to include the obligations and prohibitions flowing from Article 4(1) and (2) of the Birds Directive and Article 6(2) of the Habitats Directive in legal measures laying down for each SPA the protected species and habitats and the conservation objectives.
62. As regards those obligations, which in the Commission’s submission must be positive and specific to SPAs and to particular species, it is apparent from paragraph 59 of the present judgment and paragraph 34 of the judgment in Case C-6/04 Commission  v United Kingdom  [2005] ECR I‑9017 that the adoption of positive measures to preserve and improve the state of an SPA is not systematic in nature, but depends on the specific situation in the SPA concerned.
63. As to the prohibitions which, it is alleged, should be specific to SPAs and to particular species, whilst it is true, for example, that protection of SPAs against the activities of individuals requires that the latter be prevented in advance from engaging in potentially harmful activities (Case C-418/04 Commission  v Ireland , paragraph 208), it does not appear that attainment of that objective necessarily requires prohibitions specific to each area or, as is apparent from paragraph 20 of the judgment in Case C-374/98 Commission  v France  [2000] ECR I‑10799, to each particular species to be laid down.
64. As regards identification of the protected species and habitats in each SPA, just as the delimitation of an SPA must be invested with unquestionable binding force (see Commission  v Belgium , paragraph 22), the identification of the species which have warranted classification of that SPA must satisfy the same requirement. If that were not the case, the protective objective arising from Article 4(1) and (2) of the Birds Directive and from Article 6(2), read in conjunction with Article 7, of the Habitats Directive might not be fully attained.
65. So far as concerns conservation objectives, it is apparent from paragraphs 20 and 21 of the judgment in Case C-374/98 Commission  v France  that the protective legal status which SPAs must obtain does not mean that those objectives have to be specified for each species considered separately. Nor, having regard to what is stated in paragraphs 60 and 61 of the present judgment, can it be held in any event that the conservation objectives must be contained in the same legal measure as that relating to the protected species and habitats of a particular SPA.