Commission of the European Communities v Kingdom of Spain.
Date: 2007-12-18
15. With regard to the first point raised by the defendant Member State, it must be recalled that, in accordance with settled case-law, the letter of formal notice sent by the Commission to the Member State 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 be able to submit its observations, even if it chooses not to avail itself thereof, constitutes 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 (see Case C‑191/95 Commission  v Germany  [1998] ECR I‑5449, paragraph 55, and Case C‑422/05 Commission  v Belgium  [2007] ECR I‑0000, paragraph 25). If that is not the case, that irregularity cannot be regarded as having been cured by the fact that the defendant Member State subsequently submitted observations on the reasoned opinion (see Case 51/83 Commission  v Italy  [1984] ECR 2793, paragraphs 6 and 7).
18. With regard to the second point raised by the Kingdom of Spain, it must be recalled that the reasoned opinion and the action referred to in Article 226 EC must be based on the same pleas and grounds and set out the complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of Community law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged (see Case C‑234/91 Commission  v Denmark  [1993] ECR I‑6273, paragraph 16, and Case C‑98/04 Commission  v United Kingdom  [2006] ECR I‑4003, paragraph 18).
27. It is clear from the case-law of the Court that Member States must comply with 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 (see Case C-166/97 Commission  v France  [1999] ECR I-1719, paragraph 38, and Case C‑388/05 Commission  v Italy  [2007] ECR I‑0000, paragraph 18).
28. 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 (see Case C‑117/00 Commission  v Ireland  [2002] ECR I‑5335, paragraph 25). Thus, areas which have not been classi fied 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 (see Case C-374/98 Commission  v France  [2000] ECR I‑10799, paragraph 47).
30. In that regard, the Court has held that the IBA 98 directory, which provides an up-to-date list of the areas of importance for the conservation of birds in Spain, constitutes, in the absence of scientific proof to the contrary, 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 the Birds Directive and the migratory species not listed in that annex (see Case C‑235/04 Commission  v Spain  [2007] ECR I‑0000, paragraph 27).
36. In those circumstances, it must be held that, by authorising the irrigation project in the irrigable area of the Segarra-Garrigues Canal, the Member State concerned did not fulfil its obligation under the first sentence of Article 4(4) of the Birds Directive to take appropriate measures to avoid, in the areas affected by that project which ought to have been classified as SPAs, the prohibited disturbances, since that obligation exists, in accordance with the case-law of the Court, before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialised (see Case C‑355/90 Commission  v Spain  [1993] ECR I‑4221, paragraph 15).