Commission of the European Communities v Ireland.
Date: 2007-12-13
36. The Court notes, as a preliminary point, that, according to its settled case-law, Article 4(1) and (2) of the Birds Directive requires the Member States to classify as SPAs the territories meeting the ornithological criteria specified by those provisions (Case C‑378/01 Commission  v Italy  [2003] ECR I‑2857, paragraph 14 and case-law cited).
37. 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 (Case C‑3/96 Commission  v Netherlands  [1998] ECR I‑3031, paragraph 62).
38. Thirdly, the obligation imposed on Member States to classify sites as SPAs cannot be avoided by the adoption of other special conservation measures (see, to that effect, Commission  v Netherlands , paragraph 55).
39. Fourthly and lastly, although Member States do have a certain margin of discretion with regard to the choice of SPAs, the classification of those areas is nevertheless subject exclusively to the ornithological criteria determined by the Birds Directive (see, to that effect, Case C‑355/90 Commission  v Spain  [1993] ECR I‑4221, paragraph 26). The economic requirements mentioned in Article 2 of that directive may therefore not be taken into account when selecting an SPA and defining its boundaries ( Commission  v Netherlands , paragraph 59 and case-law cited).
IBA 2000
46. It must be borne in mind that Article 4 of the Birds Directive lays down a protection regime which is specifically targeted and reinforced both for the species listed in Annex I 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 Community (Case C‑191/05 Commission  v Portugal  [2006] ECR I‑6853, paragraph 9 and 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] ECR I-0000, paragraph 23).
47. 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 (Case C-235/04 Commission  v Spain , paragraph 24).
51. That lack of completeness, as pointed out by the Advocate General in point 25 of her Opinion, does not undermine the probative value of IBA 2000. The situation would be different if Ireland had adduced scientific evidence 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 other than those appearing in that inventory and covering a smaller total area (see Commission  v Italy , paragraph 18).
52. In view of the scientific nature of IBA 89 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 other than those appearing in that inventory and covering a smaller total area, the Court has held that that inventory, although not legally binding, could be used by the Court 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 the abovementioned provisions of that directive (Case C‑235/04 Commission  v Spain , paragraph 26 and case-law cited).
53. In the present case, it is common ground that Ireland has not put forward any other ornithological criteria which are objectively verifiable, as compared with those used in IBA 2000, to serve as a basis for a different classification; nor has it presented a complete national inventory contradicting IBA 2000, established according to scientific methods and designating all the most suitable areas with a view to classification as SPAs.
54. The Court accordingly finds that IBA 2000 provides an up-to-date inventory of the areas of importance for the conservation of birds in Ireland which, in the absence of scientific evidence to the contrary, provides a point of reference which makes it possible to assess whether that Member State has classified as SPAs sufficient areas of territory in terms of number and size to provide protection to all the species of birds listed in Annex I and also to migratory species not listed in that annex.
61. Indeed, if each Member State could escape the obligation to classify SPAs to ensure protection of the species listed in Annex I and present on its territory on the sole ground that there were numerous other sites in other Member States which were much more appropriate for the conservation of those same species, the objective of creating a coherent network of SPAs, as referred to in Article 4(3) of the Birds Directive, might not be achieved (see, by analogy, Commission  v Netherlands , paragraph 58).
63. The Court finds on this point 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 (see, to that effect, Case C‑60/05 WWF Italia and Others  [2006] ECR I‑5083, paragraph 27), 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.
64. On the contrary, as the Court has held previously, 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 262/85 Commission  v Italy  [1987] ECR 3073, paragraph 9, and Case C‑38/99 Commission  v France  [2000] ECR I‑10941, paragraph 53).
67. It follows from all the foregoing that, in the absence of scientific studies capable of rebutting the results of IBA 2000, that inventory is the most up-to-date and accurate reference for identifying the most suitable sites in number and in size for the conservation of the species listed in Annex I and for the regularly occurring migratory species not listed in that annex.
The first part of the first complaint
– Arguments of the parties
74. According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood 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‑282/02 Commission  v Ireland  [2005] ECR I‑4653, paragraph 40).
82. It is common ground that the Cross Lough area was identified in both IBA 89 and IBA 2000 as being one of the most suitable areas for conservation of the sandwich tern, a species referred to in Annex I, according to the ornithological criteria drawn up in 1984 and 1995 respectively. It must accordingly be held that the area has featured among the most suitable areas for conservation of that species since 6 April 1981. Consequently, pursuant to the case-law resulting from the judgment in Commission  v Netherlands , paragraph 62, Ireland should have classified that area as an SPA.
83. As noted by the Advocate General in point 58 of her Opinion, that classification obligation does not necessarily cease to apply if the area is no longer most suitable.
84. According to settled case-law, areas which have not been classified as SPAs but should have been so classified continue to fall under the regime governed by the first sentence of Article 4(4) of the Birds Directive, since otherwise the protection objectives of that directive, as expressed in the ninth recital in the preamble thereto, could not be achieved (see Case C-355/90 Commission  v Spain , paragraph 22, and Case C‑374/98 Commission  v France  [2000] ECR I‑10799, paragraphs 47 and 57).
85. It follows that Ireland ought, at the very least, to have adopted appropriate measures pursuant to the first sentence of Article 4(4) of the Birds Directive in order to avoid pollution or deterioration of the habitats in the Cross Lough area or any disturbances affecting the sandwich tern, in so far as those disturbances may have been significant with regard to the objectives of that article.
86. In the present case, having failed to take such measures for that area, Ireland has not provided proof that the area would no longer be suitable even if protection measures had been taken (see, to that effect, Case C‑191/05 Commission  v Portugal , paragraphs 13 and 14).
106. Furthermore, it does not appear that the Commission, which has the burden of proof in proceedings for failure to fulfil obligations (Case C‑288/02 Commission  v Greece  [2004] ECR I-10071, paragraph 35 and case-law cited), has succeeded in demonstrating to the requisite legal standard that Ireland has failed to fulfil its obligations in respect of the designation of SPAs to ensure the conservation of the white-fronted goose (Greenland race), a species referred to in Annex I, and the protection of the lapwing, the redshank, the snipe and the curlew, regularly occurring migratory species not listed in Annex I. Consequently, the complaint is not well-founded on this point.
136. In accordance with the Court’s settled case-law, the subject-matter of an action under Article 226 EC for failure to fulfil obligations is delimited by the pre-litigation procedure provided for by that provision, so that the application must be based on the same grounds and pleas as the reasoned opinion (see Case C‑456/03 Commission  v Italy  [2005] ECR I‑5335, paragraph 35 and case-law cited).
142. The Commission is therefore correct in claiming, first, that SPA classification 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 wetland ecosystem and, second, that the ornithological criteria which form the foundation of the classification must have a scientific basis. The use of flawed, allegedly ornithological criteria might lead to an incorrect demarcation of the boundaries of SPAs.
153. 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 particular, 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 Annex I which are, nevertheless, regular visitors (Case C‑166/97 Commission  v France  [1999] ECR I‑1719, paragraph 21 and case-law cited).
154. As observed by the Advocate General in point 77 of her Opinion, the protection of SPAs may not be limited to avoiding harmful human effects but must also include positive measures to preserve or improve the state of the area, as the case may be.
157. According to the wording of the third paragraph of Article 249 EC, a directive, in binding all addressee Member States as to the result to be achieved, leaves it to the national authorities to decide the form and methods. It follows that Ireland, just like any other Member State, may choose the form and methods for implementing the Birds Directive (see, to that effect, Case C‑296/01 Commission  v France  [2003] ECR I‑13909, paragraph 55).
158. However, according to the case-law of the Court, the transposition of a directive into domestic law must guarantee the full application of the directive in a sufficiently clear and precise manner (see, to that effect, Case C‑361/88 Commission  v Germany  [1991] ECR I‑2567, paragraph 15).
159. The Court has also held, as mentioned in paragraph 64 of this judgment, 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.
166. Moreover, the Court has consistently held that the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (Case C‑300/95 Commission  v United Kingdom  [1997] ECR I‑2649, paragraph 37 and case-law cited). In the present case, the Commission has not put forward in support of its action any decisions of national courts which interpreted the disputed national provision in a manner contrary to the Birds Directive.
167. In those circumstances, it does not appear that the Commission, which has the burden of proof in proceedings for failure to fulfil obligations ( Commission  v Greece , paragraph 35 and case-law cited), has demonstrated to the requisite legal standard that, at the date of expiry of the period laid down in the additional reasoned opinion notified on 11 July 2003, the Habitats Regulations had the scope attributed to them by the Commission.
173. As is also clear from the Court’s case-law, the text of Article 7 of the Habitats Directive states that Article 6(2) to (4) of that directive replaces the first sentence of Article 4(4) of the Birds Directive as from the date of implementation of the Habitats Directive or the date of classification by a Member State under the Birds Directive, where the latter date is later. It is clear, therefore, that areas which have not been classified as SPAs but which should have been so classified continue to fall under the regime governed by the first sentence of Article 4(4) of the Birds Directive (Case C‑374/98 Commission  v France , paragraphs 46 and 47).
179. Although the second sentence of Article 4(4) of the Birds Directive does not require that certain results be achieved, the Member States must nevertheless make a serious attempt at protecting those habitats which lie outside the SPAs. It is thus clear, in the present case, that Ireland must endeavour to take suitable steps to avoid pollution or disturbances of the habitats (see, to that effect, Case C‑166/97 Commission  v France , paragraph 48).
204. Article 6(2) of the Habitats Directive, like the first sentence of Article 4(4) of the Birds Directive, requires Member States to take appropriate steps to avoid, in the areas classified pursuant to Article 4(1) or recognised pursuant to Article 4(2), the deterioration of habitats and disturbances having a significant effect on the species for which the SPAs were classified or recognised (see, to that effect, Case C‑117/00 Commission  v Ireland  [2002] ECR I‑5335, paragraph 26).
207. As to the argument that Regulation 17 of the Habitat Regulations empowers the competent minister to seek injunctive relief to stop operations or activities that appear on assessment to be damaging to a European site, including an SPA, and that Regulation 18 of those regulations provides for similar ministerial powers in the event that an operation or activity damaging to an SPA is being carried out in an area outside the SPA, the Court finds that, as rightly pointed out by the Commission and the Advocate General in point 127 of her Opinion, those provisions do not make it possible to avoid the deterioration of natural habitats and the habitats of species as well as significant disturbance of the species for which the areas concerned have been designated.
208. Although Ireland states, in its rejoinder, that the powers of the competent minister, as described in the preceding paragraph of this judgment, can be used to apply immediately for injunctive relief on an interim basis, it is clear that those provisions necessarily can come into play only after the activities in question have already commenced and thus only after any deterioration has already occurred. Moreover, the competent minister is not entitled to prohibit a harmful activity unilaterally and the abovementioned powers presuppose that an appropriate assessment of the environmental impact of that activity has been carried out before any judicial relief is sought. The reactive protection of SPAs may be delayed considerably by those procedural steps. Moreover, those provisions do not ensure protection of SPAs against the activities of individuals, as such protection requires that individuals be prevented in advance from engaging in potentially harmful activities.
219. Lastly, regarding the argument that trespass on private property was reclassified as a crime under Irish law by section 19A of the Criminal Justice (Public Order) Act, 1994, and that penalties on conviction include fines and the seizure of vehicles and equipment, the Court notes that, in the context of the Habitats Directive, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise (see Case C‑6/04 Commission  v United Kingdom  [2005] ECR I‑9017, paragraph 26).
226. As regards the transposition of Article 6(3) and (4) of the Habitats Directive, it should be noted at the outset that the Court has already held that Article 6(3) of that directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that that plan or project will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (Case C-6/04 Commission  v United Kingdom , paragraph 54 and case-law cited).
227. It follows that the Habitats Directive requires that any plan or project undergo an appropriate assessment of its implications if it cannot be excluded on the basis of objective information that that plan or project will have a significant effect on the site concerned.
238. It should also be borne in mind that, under the first sentence of Article 6(3) of the Habitats Directive, any plan or project not directly connected with or necessary to the management of the site is to be made subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects (Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraph 45).
243. Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects (see Waddenvereniging and Vogelbeschermingsvereniging , paragraph 61).
245. It is also clear from the Court’s case-law that the failure to take account of the cumulative effect of projects in practice leads to a situation where all projects of a certain type may escape the obligation to carry out an assessment, whereas, taken together, they are likely to have significant effects on the environment (see, by analogy, Case C‑392/96 Commission  v Ireland  [1999] ECR I‑5901, paragraph 76).
250. It is, moreover, clear from the Court’s case-law that the fact that a plan or project has been authorised according to the procedure laid down in Article 6(3) of the Habitats Directive renders superfluous, as regards the action to be taken on the protected site under the plan or project, a concomitant application of the rule of general protection laid down in Article 6(2) ( Waddenvereniging and Vogelbeschermingsvereniging , paragraph 35).
254. In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Article 174(2) EC, and by reference to which the Habitats Directive must be interpreted, such an assessment must be carried out if there is doubt as to the absence of significant effects (see Waddenvereniging and Vogelbeschermingsvereniging , paragraph 44).
258. Next, it follows from the second sentence of Article 6(3) of the Habitats Directive that, in a situation such as that in the present case, the competent national authorities, taking account of the conclusions of the appropriate assessment of the implications of those works for the site concerned in the light of the site’s conservation objectives, could have authorised such an activity only if they had made certain that it would not adversely affect the integrity of that site, which would have been the case if there had remained no reasonable scientific doubt as to the absence of such effects (see Waddenvereniging and Vogelbeschermingsvereniging , paragraph 67).
263. It follows that, contrary to Article 6(3) and (4) of the Habitats Directive, Ireland carried out a drain maintenance project in 1997 which was likely to have a significant effect on the Glen Lough SPA without having carried out beforehand an appropriate assessment of its implications on the site or employed an adequate decision-making procedure, which resulted in habitat deterioration, contrary to Article 6(2) of that directive.