1. By application lodged at the Court Registry on 9 November 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by not ensuring the observance in its territory of Articles 12 and 16 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7, hereinafter " the Directive" ), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive. Legal background Community legislation
2. According to Article 2(1) of the Directive, its aim is " to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies" .
3. Article 12(1) of the Directive provides: " Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting: (a) all forms of deliberate capture or killing of specimens of these species in the wild; (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; (c) deliberate destruction or taking of eggs from the wild; (d) deterioration or destruction of breeding sites or resting places. "
4. The Great crested newt ( triturus cristatus ) is one of the species specified in Annex IV(a).
5. Article 16(1)(a) and (c) of the Directive provide: " 1. Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15(a) and (b): (a) in the interest of protecting wild fauna and flora and conserving natural habitats; ... (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment " . National legislation
6. Articles 12 and 16 of the Directive were, essentially, transposed in the United Kingdom by the Conservation (Natural Habitats, & c.) Regulations 1994.
7. Regulation 39(1) makes it an offence deliberately to capture, kill or disturb a wild animal of a species protected at European level, or to take or destroy its eggs, or deliberately to damage or destroy its breeding sites or resting places.
8. Regulation 44 enables the appropriate authority to license, for specific purposes, derogations concerning species protected at European level. Under paragraph 2 thereof, such purposes include: " ... (c) conserving wild animals or wild plants or introducing them to particular areas; ... (e) preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment; ... "
9. Regulation 44(3) supplements that provision by requiring that the appropriate authority is not to grant a licence thereunder unless it is satisfied that there is no satisfactory alternative and that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.
10. The appropriate authorities to grant licences under Regulations 4 and 44(4) are the appropriate nature conservation bodies, namely, the Nature Conservancy Council for England, the Countryside Council for Wales and the Scottish Natural Heritage for the cases referred to in Regulation 44(2)(a) to (d), and the Minister for Agriculture for the cases referred to in subparagraphs (e) to (g). Background to the case
11. On being informed that populations of Great crested newts were being subjected to disturbances on the sites at Broughton Park, Pontblyddyn and Connah ' s Quay in Flintshire, Wales, the Commission, after obtaining clarifications from the United Kingdom authorities, sent the United Kingdom a letter of formal notice on 28 April 1999 in which it maintained that the national authorities were granting derogations from the system of strict protection of protected species in breach of Articles 12 and 16 of the Directive. In that letter, the Commission pointed out that the disturbances of populations of Great crested newts occupying a site of actual or potential development which had been authorised by the appropriate nature conservation agency involved a translocation of those populations.
12. The United Kingdom authorities replied by letter of 12 August 1999.
13. In reply to the Commission ' s request for clarification of certain matters the United Kingdom Government intimated, by letter of 3 April 2000, that national law required planning authorities to take account of the Directive in the exercise of their powers. When an application for planning permission is submitted and the planning authority is informed of the presence of a protected species on a site the development of which is envisaged, it is bound to take that fact into consideration in determining such an application. When a developer submits an application for planning permission with a view to a development which may affect a protected species, two outcomes are possible: either the application is refused by the planning authority, or it is accepted subject to certain specific conditions ensuring the protection of the species in question. In the latter case, the developer must take account of the requirements of Articles 12 and 16 of the Directive and whether he needs to apply for a licence under Regulation 44.
14. By letter of 2 February 2001, the Commission issued a reasoned opinion in which it maintained the arguments set out in the letter of formal notice and declared that, by not ensuring the observance in its territory of Articles 12 and 16 of the Directive, the United Kingdom had failed to fulfil its obligations thereunder. The United Kingdom was requested to take the measures necessary to comply with the reasoned opinion within 2 months of its notification.
15. The United Kingdom replied by letter of 15 May 2001.
16. Since it considered that that reply did not enable it to conclude that the United Kingdom had terminated the failure, the Commission decided to bring this action before the Court. The action
17. The Commission, which reduced, in its reply, the subject-matter of the action, maintains that the United Kingdom has failed to put in place a system guaranteeing that, if planning permission is granted to develop sites on which live protected species, such as the Great crested newt, the appropriate authorities comply with the conditions laid down in Article 16(1)(c) of the Directive for the grant of a derogation. Arguments of the parties
18. According to the Commission, the criteria applied by local planning authorities in granting planning permission are not as rigorous as those laid down in Article 16(1)(c) of the Directive. They are obliged to observe only a general requirement to take account of the presence of protected species, such presence being described as " a factor to be taken into consideration" for the purposes of town and country planning at national level. In particular, they are not legally required to enquire as to satisfactory solutions other than the proposed project or to check that the said project serves one of the purposes defined in that provision.
19. The Commission argues that, in practice, planning permission for development is most often granted before the application for a licence is made. Once the planning authority has decided to grant planning permission, the appropriate nature conservation agency or the Minister for Agriculture, in deciding whether to grant a licence, is no longer really in a position to establish, in accordance with Article 16(1) of the Directive, that there is no satisfactory alternative to the proposed development or that the development is really justified for reasons of overriding public interest within the meaning of Article 16(1)(c). In fact, those central authorities depend, in determining whether the two conditions in question are fulfilled, on information supplied to them by the relevant local planning authorities, which have considered the development proposals at the planning stage.
20. The United Kingdom Government points out that none of the appropriate central authorities may grant a licence unless it is satisfied that it falls within one of the grounds set out in Article 16(1)(a) to (e) of the Directive and that the two conditions in Article 16(1) are met. For that purpose, the appropriate authority must itself carry out an independent assessment of the relevant information and considerations, even if planning permission has already been granted by the local planning authority. While, as a general rule, it is true that the factual information in the possession of the planning authorities is the principal source of factual information available to the central authorities, where it appears to those authorities that the information supplied to them needs to be supplemented or more detailed, they have the power to suspend the grant of a licence until they are convinced that the information required to enable them to take a decision is available to them. Findings of the Court
21. It is settled case-law that, in proceedings for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission ' s responsibility to provide the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see, for example, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6, and Case C-404/00 Commission v Spain [2003] ECR I-6695, paragraph 26).
22. Thus, in the context of this action, it is incumbent upon the Commission to adduce evidence that the practice followed in the United Kingdom which is in question in these proceedings adversely affects the system of strict protection of the animal species listed in Annex IV(a) to the Directive, as laid down by Article 12(1) thereof, on the ground that derogations from that system are not granted in compliance with the conditions laid down in Article 16(1)(c) of the Directive.
23. In support of that argument, the Commission relies on a letter of 25 October 2000 sent by the Department of Environment, Transport and the Regions to a complainant. In that letter it is stated that the appropriate authority, when it is a matter of granting a derogation from the system of strict protection, takes into account the fact that the local authorities have decided to permit the development. However, in the following passage of that letter, it is stated that the final administrative decision concerning the derogation in question is taken by the appropriate authority which is responsible for the observance of the conditions set out in Regulation 44.
24. It is not disputed that Regulation 44 transposes Article 16 of the Directive properly into national law.
25. In the circumstances of this case, it must be observed that it is not clear from the letter of 25 October 2000 that the central authorities grant derogations from the system of strict protection laid down in Article 12(1) of the Directive without ascertaining whether the conditions of Article 16(1)(c) thereof are fulfilled. Nor does that appear from any other evidence in the file.
26. In addition, the simple fact that two authorities are called on in turn to assess the same facts does not, of itself, mean that assessments made by the second authority systematically follow those of the first, especially as, in this case, in contrast to local authorities which are simply required to take the principles of the Directive into consideration, the central authorities are themselves required to apply the strict conditions of Regulation 44.
27. Since, therefore, the Commission has not proved that the United Kingdom has failed to fulfil its obligations under the Directive, this action must be dismissed.