European Commission v Kingdom of Spain.
Date: 2016-11-24
26


It should be recalled in that regard that, in accordance with settled case-law, the letter of formal notice from the Commission to the Member State concerned, 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 make use of it, is 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 (judgment of 3 September 2014, Commission v Spain, C‑127/12, not published, EU:C:2014:2130, paragraph 23 and the case-law cited).
27


Nevertheless, the Commission may, after the letter of formal notice, clarify its complaints, provided that the subject matter of those complaints remains in substance the same (judgment of 3 September 2014, Commission v Spain, C‑127/12, not published, EU:C:2014:2130, paragraph 24).
38


The Kingdom of Spain denies the alleged failure to fulfil obligations. It contends, first, that there is no statutory requirement to mention in the environmental impact statements that a site is included in an inventory of important bird areas (IBA) in the European Union. The Court, it is contended, has acknowledged on several occasions that an IBA had no binding effect (judgment of 19 May 1998, Commission v Netherlands, C‑3/96, EU:C:1998:238, paragraph 70). The only value which the Court attributes to an IBA is that it can be used by a Member State as a basis of reference for assessing whether, in the absence of scientific proof to the contrary, it has classified a sufficient number and area of sites as SPAs (judgment of 28 June 2007, Commisson v Spain, C‑235/04, EU:C:2007:386, paragraphs 26 and 27).
47


As a preliminary remark, it must be recalled that the scope of the obligation to assess the impacts on the environment follows from Article 3 of Directive 85/337, according to which the environmental impact assessment is to identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11 of that directive, the direct and indirect effects of a project on human beings, fauna and flora, soil, water, air, climate and the landscape, material assets and the cultural heritage, and the interaction between those factors (judgment of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 78).
48


The Court has also frequently pointed out that the scope of Directive 85/337 is wide and its purpose very broad (judgment of 28 February 2008, Abraham and Others, C‑2/07, EU:C:2008:133, paragraph 42). Furthermore, Article 2(1) of Directive 85/337 requires Member States to ensure that projects likely by virtue, inter alia, of their nature, size and location, to have significant effects on the environment are made subject to an assessment with regard to their effects. In that regard, that directive seeks an overall assessment of the environmental impact of projects or of their modification (judgment of 28 February 2008, Abraham and Others, C‑2/07, EU:C:2008:133, paragraph 42).
50


In that regard, it must be pointed out that, according to established case-law, it is for the Commission to prove the alleged failure to fulfil obligations. It is the Commission which must 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 (judgment of 20 May 2010, Commission v Spain, C‑308/08, EU:C:2010:281, paragraph 23 and the case-law cited).
51


In the first place, as regards the Commission’s argument based, in essence, on the fact that the environmental impact assessment which was carried out should have mentioned that the site concerned by the contested project was an important area for birds in Europe and has been listed since 1998 in the IBA 98, before being classified as an SPA by the Spanish authorities in 2008, 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 (see, to that effect, judgment of 28 June 2007, Commission v Spain, C‑235/04, EU:C:2007:386, paragraph 26).
52


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 (see, to that effect, judgments of 28 June 2007, Commission v Spain, C‑235/04, EU:C:2007:386, paragraph 27, and of 18 December 2007, Commission v Spain, C‑186/06, EU:C:2007:813, paragraph 30).
64


According to the Commission, given that the ‘Campiñas de Sevilla’ site was belatedly classified as an SPA, namely in July 2008, once the environmental impact assessment procedure had been completed, and even if the works had already begun, the Spanish authorities should have taken appropriate conservation measures in accordance with the provisions of Article 4(4) of the Birds Directive (judgments of 20 September 2007, Commission v Italy, C‑388/05, EU:C:2007:533, paragraph 18, and of 18 December 2007, Commission v Spain, C‑186/06, EU:C:2007:813, paragraph 27). This obligation, it is claimed, exists until the designation of the area as an SPA and, according to the case-law of the Court, it should be fulfilled before any reduction in the bird population or the risk of disappearance of protected species has materialised (judgment of 2 August 1993, Commission v Spain, C‑355/90, EU:C:1993:331, paragraph 15). Consequently, the Commission considers that, by authorising the high-speed railway line crossing a site included in the IBA 98, the Kingdom of Spain did not fulfil its obligations under the first sentence of Article 4(4) of the Birds Directive, namely to take appropriate measures to avoid prohibited disturbances in the areas affected by that project which should have been classified as SPAs.
70


In that respect, it should be noted, in the first place, that, according to the case-law of the Court, Member States must fulfil the obligations arising under the first sentence of Article 4(4) of the Birds Directive, even where the areas in question have not been classified as SPAs, provided that they should have been so classified (judgments of 18 December 2007, Commission v Spain, C‑186/06, EU:C:2007:813, paragraph 27 and the case-law cited, and of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 67).
71


However, in so far as concerns land classified as an SPA, Article 7 of the Habitats Directive provides that the obligations arising under the first sentence of Article 4(4) of the Birds Directive are replaced, inter alia, by the obligations arising under Article 6(2) of the Habitats Directive as from the date of implementation of the Habitats Directive or the date of classification under the Birds Directive, where the latter date is later (judgment of 18 December 2007, Commission v Spain, C‑186/06, EU:C:2007:813, paragraph 28 and the case-law cited).
76


In the second place, in order to establish that there has been a failure to fulfil the obligations resulting from the first sentence of Article 4(4) of the Birds Directive, it is necessary to refer, by analogy, to the case-law of the Court relating to the failure to fulfil obligations under Article 6(2) of the Habitats Directive, since the content of the latter provision is largely the same as that of the first sentence of Article 4(4) of the Birds Directive (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 69 and the case-law cited).
77


According to that case-law, an infringement of the provision in question is deemed to exist where the Commission establishes that there is a probability or risk that a project will cause deterioration to the habitats of protected species of birds or cause significant disturbance to those species (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 70).
83


It must be recalled that the obligations to protect exist even before any reduction in the number of birds has been observed or before the risk of a protected species becoming extinct has materialised (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 76 and the case-law cited).
92


It must be pointed out that, as regards areas classified as SPAs, Article 7 of the Habitats Directive provides that the obligations arising under Article 4(4) of the Birds Directive are replaced, inter alia, by the obligations arising under Article 6(2) of the Habitats Directive as from the date of implementation of the Habitats Directive or the date of classification under the Birds Directive, where the latter date is later (judgment of 18 December 2007, Commission v Spain, C‑186/06, EU:C:2007:813, paragraph 28 and the case-law cited).
94


It should nevertheless be recalled that an activity complies with Article 6(2) of the Habitats Directive only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 56 and the case-law cited).
95


In that regard, it should be noted that 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 SPAs classified in accordance with Article 4(1) of the Birds Directive, deterioration of habitats and disturbance significantly affecting the species for which the SPAs have been classified (judgment of 20 September 2007, Commission v Italy, C‑388/05, EU:C:2007:533, paragraph 26).
96


It follows that the third complaint is well founded only if the Commission demonstrates to a sufficient legal standard that the Kingdom of Spain has not taken appropriate protective measures, consisting in ensuring that the construction works relating to the high-speed railway line within the ‘Campiñas de Sevilla’ area, in so far as they took place after classification of the ‘Campiñas de Sevilla’ site as an SPA on 29 July 2008, do not lead to deteriorations of the habitats of the steppe bird species listed in Annex I to the Birds Directive or cause disturbances to those species, likely to have significant effects having regard to the objective of the Habitats Directive of ensuring the conservation of those species (see, by analogy, judgment of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 128).
97


However, in order to establish failure to fulfil obligations under Article 6(2) of the Habitats Directive, the Commission does not have to establish the existence of a cause-and-effect relationship between the construction of a high-speed railway line and significant disturbance caused to the species concerned. It is sufficient for the Commission to establish that there is a probability or risk that that construction will cause significant disturbance to those species (see, to that effect, judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 58 and the case-law cited).