Commission of the European Communities v French Republic.
Date: 2000-12-07
13 In this connection, it should first be noted that, according to the settled case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, inter alia, Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 13).
14 Second, it is well settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that State at the end of the period laid down in the reasoned opinion (Commission v France, cited above, paragraph 18). On that point, it is undisputed that no part of the Basses Corbières site had been classified as an SPA before the expiry of the period laid down by the reasoned opinion.
16 However, it has not been shown that there are migratory species justifying the classification of the Basses Corbières site as an SPA by virtue of Article 4(2) of the birds directive. All the species mentioned for that purpose by the Commission as migratory species, such as the honey buzzard, the black kite, the kite, the Egyptian vulture, the short-toed eagle, the marsh harrier, the hen harrier and Montagu's harrier are listed in Annex I to the birds directive, whereas Article 4(2) of that directive applies only to migratory species not listed in Annex I.
20 As regards the alleged insufficiency of the protection regime arising from the special conservation measures adopted by the French authorities, it should be noted in any event that, even though the three decrees for protecting the biotope are all aimed primarily at ensuring the conservation of the biotope of Bonelli's eagle, and thus the protection of that species, their provisions nevertheless benefit all wild birds frequenting the areas covered by that legislation, by laying down in some detail the prohibition of activities capable of adversely affecting the integrity of the biotopes in question.
21 Moreover, there is nothing in the documents before the Court to show that the regime established by the three decrees for protecting the biotope is insufficient in relation to the conservation requirements of any of the bird species present in the areas covered by those decrees.
25 It should also be noted that the inventory of areas which are of great importance for the conservation of wild birds, more commonly known under the acronym IBA (Inventory of Important Bird Areas in the European Community) includes the area in question. The Court of Justice has held that that inventory, although not legally binding on the Member States concerned, contains scientific evidence making it possible to assess whether a Member State has complied with its obligation to classify as SPAs the most suitable territories in number and size for conservation of the protected species (Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraphs 69 and 70).
26 It follows from the general scheme of Article 4 of the birds directive that, where a given area fulfils the criteria for classification as an SPA, it must be made the subject of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species mentioned in Annex I to that directive.
28 Furthermore, it does not appear that the part of the area indicated by the GOR which lies outside the scope of the decree in question is subject to any special conservation measures whatsoever.
46 Moreover, the text of Article 7 of the habitats directive states that Article 6(2) to (4) of that directive replace 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. That passage of Article 7 appears to support the interpretation to the effect that the application of Article 6(2) to (4) presupposes the classification of the area concerned as an SPA.
47 It is clear, therefore, that 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.
48 The Commission's arguments to the contrary cannot be accepted.
49 Thus, the fact that, as the case law of the Court of Justice shows (see, in particular, Case C-355/90 Commission v Spain [1993] ECR I-4221, paragraph 22), the protection regime under the first sentence of Article 4(4) of the birds directive applies to areas that have not been classified as SPAs but should have been so classified does not in itself imply that the protection regime referred to in Article 6(2) to (4) of the habitats directive replaces the first regime referred to in relation to those areas.
50 Moreover, as regards the Commission's argument concerning a duality of applicable regimes, it should be noted that the fact that the areas referred to in the previous paragraph of this judgment are, under the first sentence of Article 4(4) of the birds directive, made subject to a regime that is stricter than that laid down by Article 6(2) to (4) of the habitats directive in relation to areas classified as SPAs does not appear to be without justification.
51 As the Advocate General points out in paragraph 99 of his Opinion, a Member State cannot derive an advantage from its failure to comply with its Community obligations.
52 In that respect, if it were lawful for a Member State, which, in breach of the birds directive, has failed to classify as an SPA a site which should have been so classified, to rely on Article 6(3) and (4) of the habitats directive, that State might enjoy such an advantage.
53 Since no formal measure for classifying such a site as an SPA exists, it is particularly difficult for the Commission, in accordance with Article 155 of the EC Treaty (now Article 211 EC), to carry out effective monitoring of the application by Member States of the procedure laid down by Article 6(3) and (4) of the habitats directive and to establish, in appropriate cases, the existence of possible failures to fulfil the obligations arising thereunder. In particular, the risk is significantly increased that plans or projects not directly connected with or necessary to the management of the site, and affecting its integrity, may be accepted by the national authorities in breach of that procedure, escape the Commission's monitoring and cause serious, or irreparable ecological damage, contrary to the conservation requirements of that site.
54 Natural or legal persons entitled to assert before the national courts interests connected with the protection of nature, and especially wild bird life, which in this case means primarily environmental protection organisations, would face comparable difficulties.
55 A situation of this kind would be likely to endanger the attainment of the objective of special protection for wild bird life set forth in Article 4 of the birds directive, as interpreted by the case-law of the Court (see, in particular, Case C-44/95 Royal Society for the Protection of Birds [1996] ECR I-3805, paragraphs 23 and 25).
56 As the Advocate General has, essentially argued in paragraph 102 of his Opinion, the duality of the regimes applicable, respectively, to areas classified as SPAs and those which should have been so classified gives Member States an incentive to carry out classifications, in so far as they thereby acquire the possibility of using a procedure which allows them, for imperative reasons of overriding public interest, including those of a social or economic nature, and subject to certain conditions, to adopt a plan or project adversely affecting an SPA.
57 It follows from the above that Article 6(2) to (4) of the habitats directive do not apply to areas which have not been classified as SPAs but should have been so classified.
60 The remainder of the application must be dismissed.