Commission of the European Communities v Kingdom of Spain.
Date: 2007-06-28
23. As a preliminary point, it must be borne in mind that Article 4 of Directive 79/409 lays down a regime which is specifically targeted and reinforced both for the species listed in Annex I and for the 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 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.
24. 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.
26. In view of the scientific nature of the IBA 89 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, 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 Directive 79/409 (see, to that effect, Case C‑3/96 Commission  v Netherlands  [1998] ECR I‑3031, paragraphs 68 to 70, and Case C‑378/01 Commission  v Italy  [2003] ECR I‑2857, paragraph 18).
27. It must be held that the IBA 98 provides an up-to-date list of the areas of importance for the conservation of birds in Spain which, in the absence of scientific proof to the contrary, constitutes a basis of reference permitting an assessment to be made as to whether that Member State has classified areas of a sufficient number and size as SPAs to protect all the bird species listed in Annex I to Directive 79/409 and the migratory species not listed in that annex.
47. Such a contradiction in the heads of claim put forward by the Commission in support of its action for failure to fulfil obligations does not satisfy the requirements of Article 21 of the Statute of the Court of Justice and Article 38(1)(c) of the Rules of Procedure.
48. The Court has held that the Commission must, in the heads of claim in an application made under Article 226 EC, indicate the specific complaints on which the Court is asked to rule. Those heads of claim must be set out unambiguously so that the Court does not rule ultra petita  or indeed fail to rule on a complaint (see Case C‑255/04 Commission  v France  [2006] ECR I-5251, paragraph 24 and case-law cited).
52. According to consistent case-law, in the context of an action under Article 226 EC, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the 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‑168/03 Commission  v Spain  [2004] ECR I‑8227, paragraph 24). The Commission’s claim with regard to the Autonomous Community of Andalusia must therefore be accepted.
55. Although the Spanish Government submits that there were internal difficulties in the classification of certain SPAs, it must be recalled that, according to the Court’s settled case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations and time-limits laid down by a directive (see, inter alia, Case C‑374/98 Commission  v France  [2000] ECR I‑10799, paragraph 13).
79. Such an argument must be rejected. It should be recalled that the Court has held that the legal regimes of Directives 79/409 and 92/43 are separate (see, to that effect, Case C-374/98 Commission  v France , paragraphs 50 to 57). It follows that a Member State cannot exonerate itself from its obligations under Article 4(1) and (2) of Directive 79/409 by relying on measures other than those laid down by that directive.
81. With regard to wetland areas, it is clear from Article 4(2) of Directive 79/409 that the Member States are to pay particular attention to the protection of wetlands and particularly to wetlands of international importance.