Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the procedure prior to the action

(Art. 226 EC)

2. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the procedure prior to the action

(Art. 226 EC)

3. Environment – Conservation of wild birds – Directive 79/409 – Special conservation measures

(Council Directives 79/409, Art. 4(4) and 92/43, Arts 6(2) and 7)

4. Environment – Conservation of wild birds – Directive 79/409 – Classification as a special protection area

(Council Directive 79/409, Art. 4)

5. Environment – Conservation of wild birds – Directive 79/409 – Special conservation measures

(Council Directive 79/409, Art. 4(4))

Summary

1. In an action under Article 226 EC, 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. 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.

Consequently, an action for failure to fulfil obligations is inadmissible in so far as it is based on complaints which did not appear in the letter of formal notice.

(see paras 15-17)

2. 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.

An action for failure to fulfil obligations is therefore inadmissible as regards a plea the grounds of which have been changed in comparison to those stated in the context of the pre-litigation procedure and which does not therefore meet the requirements of coherence and precision referred to.

(see paras 18, 22-23)

3. The first sentence of Article 4(4) of Directive 79/409 on the conservation of wild birds requires Member States to take appropriate steps to avoid in special protection areas (SPAs) pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of that article.

Member States must comply with the obligations arising under that provision even where the areas in question have not been classified as SPAs, provided that they should have been so classified.

In so far as concerns land classified as SPAs, Article 7 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora provides that the obligations arising under the first sentence of Article 4(4) of Directive 79/409 are replaced, inter alia, by the obligations arising under Article 6(2) of Directive 92/43 as from the date of implementation of the latter or the date of classification under Directive 79/409, where the latter date is later. Thus, 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 Directive 79/409.

(see paras 26-28)

4. The ‘Important Bird Areas’ directory of 1998, which provides an up-to-date list of the areas of importance for the conservation of birds in a Member State, 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 Directive 79/409 on the conservation of wild birds and the migratory species not listed in that annex.

(see para. 30)

5. A Member State will be in breach of its obligation under the first sentence of Article 4(4) of Directive 79/409 on the conservation of wild birds if it authorises an irrigation project of an extent such as that at issue without taking appropriate measures to avoid, in the areas affected by that project which ought to have been classified as SPAs, the prohibited disturbances. That obligation exists before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialised.

That finding cannot be called into question by the mere fact that the project is of considerable importance to the economic and social development of the area which it affects. The Member States’ ability significantly to harm areas which ought to have been classified as SPAs and which fall within the scheme laid down in the first sentence of Article 4(4) of Directive 79/409 cannot, in any event, be justified by economic and social requirements.

(see paras 36-37)