European Commission v Republic of Cyprus.
Date: 2012-03-15
20. As regards the subject-matter of the action, it must be remembered that under Article 92(2) of the Rules of Procedure of the Court the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case.
21. It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under European Union law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission. The subject-matter of the action brought under Article 258 TFEU is, therefore, delimited by the pre-litigation procedure provided for by that article. Accordingly, the action cannot be founded on any objections other than those stated in the pre-litigation procedure (see, inter alia, Case C‑152/98 Commission v Netherlands  [2001] ECR I‑3463, paragraph 23).
27. Since 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, and judgment of 11 November 2010 in Case C‑164/09 Commission v Italy , paragraph 19), it must be held that the Commission’s action is well founded as regards that complaint.
Tolerance of activities which degrade or damage the habitat of the species concerned
Admissibility
– Arguments of the parties
37. As regards the operation of the firing range, it should be noted that, as the Commission itself accepts, that matter was not mentioned during the pre-litigation procedure. While it is true that even events which took place after the reasoned opinion, but of the same kind as the events to which the opinion referred and constitute the same conduct, may be taken into account in the context of infringement proceedings (see, to that effect, Case 42/82 Commission v France  [1983] ECR 1013, paragraph 20, and Case 113/86 Commission v Italy [1986] ECR 607, paragraph 11), that is not the case with the operation of a firing range when compared with excessive extraction of water, residential development, excavation works or the organisation of moto-cross racing.
44. The appropriate protection scheme applicable to the sites which appear on a national list transmitted to the Commission under Article 4(1) of the Habitats Directive requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites. 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 (see Bund Naturschutz in Bayern and Others , paragraphs 46 and 47).
45. If that were not the case, the European Union 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, namely, in particular, to draw up the list of selected sites as sites of Community importance in order to form a coherent European ecological network (see Bund Naturschutz in Bayern and Others , paragraphs 41 and 42).
53. In that regard, it is established case-law that, in proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (see, inter alia, Commission v Ireland , paragraph 39, and judgment of 22 September 2011 in Case C‑90/10 Commission v Spain , paragraph 25).
60. The transposition of that provision requires the Member States not only to adopt a comprehensive legislative framework but also to implement concrete and specific protection measures ( Commission v Ireland , paragraph 29).
61. Similarly, the system of strict protection presupposes the adoption of coherent and coordinated measures of a preventive nature (judgment of 16 March 2006 in Case C‑518/04 Commission v Greece , paragraph 16, and Commission v Ireland , paragraph 30).