Commission of the European Communities v Republic of Austria.
Date: 2006-03-23
32. According to the settled case-law of the Court, Article 4(1) and (2) of the Birds Directive requires the Member States to provide SPAs with a legal status protecting them that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I and the breeding, moulting and wintering of regularly-occurring migratory species not listed in Annex I (see Case C-166/97 Commission  v France  [1999] ECR I-1719, paragraph 21, and case-law cited).
33. The Court has also held that the Member States’ margin of discretion in choosing the most suitable territories for classification as SPAs concerns not the appropriateness of classifying as SPAs the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species listed in Annex I (see, inter alia, Case C‑3/96 Commission  v Netherlands  [1998] ECR I‑3031, paragraph 61).
40. According to the settled case-law of the Court, a Member State may not, when designating an SPA and defining its boundaries, take account of economic requirements as constituting a general interest superior to that represented by the ecological objective of the Birds Directive or as constituting imperative reasons of overriding public interest of the kind referred to in the first subparagraph of Article 6(4) of the Habitats Directive (see, in particular, Case C‑44/95 Royal Society for the Protection of Birds  [1996] ECR I‑3805, paragraphs 31 and 42).
48. Lastly, regarding the Austrian Government’s argument that the Soren and Gleggen-Köblern are not left entirely unprotected, suffice it to recall that Article 4(1) of the 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, an obligation which it is not possible to avoid by adopting other special conservation methods ( Commission  v Netherlands , paragraph 55).
53. Since it follows from paragraph 11 of this judgment that certain events pertaining to the project for the construction of the S 18 carriageway occurred before the date on which the Republic of Austria acceded to the European Union, it is appropriate, before ruling on the alleged infringement of the Habitats Directive, to consider whether it is applicable to the facts of the dispute which gave rise to the Commission’s action.
54. It is common ground that the project for the construction of the S 18 carriageway began in 1992. The procedure was suspended and then resumed on 8 March 1994, the date on which it was formally presented and made subject to an assessment procedure pursuant to the 1971 Law on federal roads.
55. The case-file also shows that the overall federal expert report was made public in the same year, that is, prior to 1 January 1995, when the Republic of Austria acceded to the European Union.
56. According to the Court’s settled case-law, the principle that projects likely to have significant effects on the environment must be subjected to an environmental assessment does not apply where the application for authorisation for a project was formally lodged before the expiry of the time-limit for transposition of a directive (see, with respect to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), Case C‑431/92 Commission  v Germany  [1995] ECR I‑2189, paragraphs 29 and 32, and Case C‑81/96 Gedeputeerde Staten van Noord-Holland  [1998] ECR I‑3923, paragraph 23).
57. The Court has held that that formal criterion is the only one which accords with the principle of legal certainty and preserves a directive’s effectiveness. The reason for that is that a directive such as the Habitats Directive is primarily designed to cover large-scale projects which will most often require a long time to complete. It would therefore not be appropriate for the relevant procedures, which are already complex at national level and which were formally initiated prior to the date of the expiry of the period for transposing the directive, to be made more cumbersome and time-consuming by the specific requirements imposed by the directive and for situations already established to be affected by it (see, by analogy, Gedeputeerde Staten van Noord-Holland , paragraphs 23 and 24).
58. Both Directive 85/337 and the Habitats Directive pertain to the assessment of the effects of certain public and private projects on the environment. In both cases, the assessment procedure takes place before the project is finally decided upon. The results of that assessment must be taken into consideration when the decision on the project is made, and the decision may be amended depending on the results. The various phases of examination of a project are so closely connected that they represent a complex operation. The fact that the content of some requirements differs does not affect this assessment. It follows that this complaint must be considered as at the date on which the project was formally presented, namely the date referred to in paragraph 54 of this judgment.
59. Next, it should be borne in mind that, in accordance with the provisions of acts of accession, the rights and obligations resulting from Community law are, save where otherwise provided, immediately applicable in the new Member States (see, to that effect, Case C‑179/00 Weidacher  [2002] ECR I‑501, paragraph 18).
60. It follows from the Act of Accession that the obligations under the Birds Directive and the Habitats Directive entered into force with respect to the Republic of Austria on 1 January 1995 and that no derogation or transitional period was granted to it.
61. Accordingly, the procedure for authorisation of the project for the construction of the S 18 carriageway was formally initiated prior to the date of accession of the Republic of Austria to the European Union.
62. It follows that, in the present case, in accordance with the case-law referred to in paragraph 56 of this judgment, the obligations under the Habitats Directive did not bind the Republic of Austria and that the project for the construction of the S 18 carriageway was not subject to the requirements laid down in that directive.