Case C‑97/17

European Commission

v

Republic of Bulgaria

(Failure of a Member State to fulfil obligations — Protection of nature — Directive 2009/147/EC — Conservation of wild birds — Special Protection Area (SPA) — Classification as SPAs of the most suitable territories in number and size for the conservation of the bird species listed in Annex I to Directive 2009/147 — Important Bird Area (IBA) — IBA Rila — Partial classification of IBA Rila as an SPA)

Summary — Judgment of the Court (Second Chamber), 26 April 2018

1. Actions for failure to fulfil obligations—Pre-litigation procedure—Formal notice—Definition of the subject-matter of the dispute—Reasoned opinion—Detailed list of complaints

   (Art. 258 TFEU)

2. Actions for failure to fulfil obligations—Application initiating proceedings—Statement of subject-matter and pleas in law—Formal requirements—Unambiguous wording of the form of order sought by the applicant

   (Art. 258 TFEU; Rules of Procedure of the Court of Justice, Art. 120(c))

3. Environment—Conservation of wild birds—Directive 2009/147—Choice and delimitation of Special Protection Areas—Member States’ discretion—Limits

   (European Parliament and Council Directive 2009/147, Art. 4(1) and Annex I)

4. Actions for failure to fulfil obligations—Proof of failure—Burden of proof on Commission—Production of evidence showing failure—Valid sources of information

   (Art. 258 TFEU)

5. Environment—Conservation of wild birds—Directive 2009/147—Classification as a special protection area—Obligation of the Member States—Failure to fulfil obligations—Criteria for assessment—Taking into consideration of the list of areas of importance for the conservation of birds in Europe—Lawfulness

   (European Parliament and Council Directive 2009/147, Art. 4(1))

1.  See the text of the decision.

   (see paras 18, 19)

2.  See the text of the decision.

   (see paras 23, 24)

3.  The Member States’ margin of discretion in choosing the most suitable territories for classification as Special Protection Areas (SPAs) concerns not the appropriateness of classifying as SPAs the territories which appear 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 to the Birds Directive. Thus, on the one hand, a decision on the classification and delimitation of SPAs must be based solely on the ornithological criteria laid down in the Birds Directive. On the other, a Member State cannot, on the ground that it has discretion as regards the choice of SPAs, classify as SPAs sites the number and total area of which are manifestly less than the number and total area of the sites considered to be the most suitable.

   (see paras 64-66)

4.  In proceedings under Article 258 TFEU for failure to fulfil obligations, it is incumbent upon the Commission to prove the alleged failure. It must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose. However, the Commission, which does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants, private or public bodies active in the territory of the Member State concerned and that Member State itself. Similarly, any official document issued by the authorities of the Member State concerned can be regarded as a valid source of information for the purposes of the initiation, by the Commission, of the procedure referred to in Article 258 TFEU.

   (see paras 69, 70)

5.  The updating of scientific data is necessary to determine the situation of the most endangered species and the species constituting the common heritage of the European Union in order to classify the most suitable areas as Special Protection Areas (SPAs) and it is necessary to use the most up-to-date scientific data available at the end of the period laid down in the reasoned opinion. Nonetheless, in the absence of other up-to-date scientific studies capable of justifying a solely partial classification of an Important Bird Area (IBA) as an SPA, the Commission is entitled to take the view, in its application, that the IBA inventory is the most up-to-date and accurate reference for assessing whether a Member State has classified a sufficient number and area of territories as SPAs for the purpose of Article 4(1) of the Birds Directive. 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 flowing from that provision.

   (see paras 81, 82)