OPINION OF ADVOCATE GENERAL

TIZZANO

delivered on 24 November 2005 ¹(1)

Case C-98/03

Commission of the European Communities

v

Federal Republic of Germany

(Failure by a Member State to fulfil obligations – Conservation of natural habitats – Wild fauna and flora)

I –  Introduction

1.        In the present action, brought on 28 February 2003 pursuant to Article 226 EC, the European Commission seeks a declaration by the Court of Justice that the Federal Republic of Germany has failed to fulfil its obligations under Article 6(3) and (4), and Articles 12, 13 and 16 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (hereinafter referred to as ‘the Directive’ or ‘the Habitats directive’ (2)).

II –  Legal framework

A –    The relevant Community provisions

2.        The principal aim of the Habitats directive established in Article 2(1) 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.        To that end, Article 2(2) of the Directive provides that:

‘Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.

… '.

4.        Article 3 provides that ‘[a] coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range … ’.

5.        The provisions of Article 6(2) to (4) lay down rules for the conservation of protected sites.

6.        Article 6(2) provides that ‘Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.’

7.        Article 6(3) and (4), which are of more interest here, lay down rules for the authorisation of plans and projects, providing that:

‘3.      Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

4.      If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’

8.        With regard to the protection of animal species, Article 12 of the Directive provides that:

‘1.      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.

2.      For these species, Member States shall prohibit the keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild, except for those taken legally before this Directive is implemented.

3.      The prohibition referred to in paragraph 1(a) and (b) and paragraph 2 shall apply to all stages of life of the animals to which this Article applies … ‘.

9.        With reference to the protection of plant species, Article 13 of the Directive provides that:

‘1.      Member States shall take the requisite measures to establish a system of strict protection for the plant species listed in Annex IV(b), prohibiting:

(a)      the deliberate picking, collecting, cutting, uprooting or destruction of such plants in their natural range in the wild;

(b)      the keeping, transport and sale or exchange and offering for sale or exchange of specimens of such species taken in the wild, except for those taken legally before this Directive is implemented.

2.      The prohibitions referred to in paragraph 1(a) and (b) shall apply to all stages of the biological cycle of the plants to which this Article applies.’

10.      However, pursuant to Article 16 of the Directive:

‘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;

(b)      to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;

(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;

(d)      for the purpose of research and education, of repopulating and re-introducing these species and for the breedings operations necessary for these purposes, including the artificial propagation of plants;

(e)      to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities … ’.

B –    The relevant national provisions

11.      The Federal Republic of Germany transposed the Habitats directive in the Zweite Gesetz zur Änderung des Bundesnaturschutzgesetzes (second law amending the Federal Law on Nature Conservation, hereinafter referred to as the ‘Bundesnaturschutzgesetz’ or ‘BNatSchG’) of 30 April 1998. (3)

12.      That law was superseded by the Gesetz zur Neuregelung des Rechts des Naturschutzes und der Landschaftspflege und zur Anpassung anderer Rechtsvorschriften (Law on nature protection and countryside conservation, amending other legislative provisions, hereinafter referred to as ‘the new law’) of 25 March 2002, (4) the provisions of which are, in so far as they concern the present case, almost identical to the relevant provisions of the preceding law. (5)

13.      For present purposes, under Paragraph 10(1)(11)(a) to (c) of the new law (ex Paragraph 19a(2)(8) BNatSchG), ‘project’ is defined as follows:

‘(a)      projects and measures planned within a site of Community importance or a European site for the protection of birds, in so far as they are subject to a decision by an authority or to notification to an authority or that they are carried out by an authority,

(b)      acts affecting nature and the countryside, within the meaning of Paragraph 18, in so far as they are subject to a decision by an authority or to notification to an authority or are carried out by an authority, and

(c)      installations subject to an authorisation under the Federal law on protection against pollution and the use of water, which are subject to an authorisation or to approval under the Law on water use,

in so far as, separately or in conjunction with other projects or plans, they are likely to have a significant effect on a site of importance to the Community or a European site for the protection of birds … ’.

14.      Paragraph 18 (ex Paragraph 8 of the BNatSchG), to which Paragraph 10(1)(11)(b) refers, defines ‘acts affecting nature and the countryside’ as follows:

‘1.      Acts affecting nature and the countryside, within the meaning of this Law, are changes of form or use of surface areas or changes to the level of the water table connected to the surface soil stratum which may alter to a considerable extent the capacity and functioning of the ecosystem or the countryside.

2.      The use of soil for the purpose of agriculture, forestry and fishing shall not constitute an intervention where it takes account of the objectives and the principles of nature protection and countryside conservation. The use of soil for the purposes of agriculture, forestry and fishing does not, in principle, undermine the objectives and principles set out above, provided that it complies with the conditions in Paragraph 5(4) to (6) and the rules of professional practice under the Law on agriculture forestry and fishing and Paragraph 17(2) of the Federal Law on soil protection.’

15.      On the subject of emissions, Paragraph 36 of the new law (ex Paragraph 19e of the BNatSchG) provides that:

‘If it is foreseeable that installations, subject to an authorisation under the Federal Law on protection against pollution, will cause emissions which, together with other installations or measures, will significantly affect, in the area of impact of that installation, the elements fundamentally necessary for the conservation of a site of Community importance or a European site for the protection of birds, and if the damage cannot be made good in accordance with Paragraph 19(2), the authorisation shall not be issued unless the conditions in the combined provisions of Paragraph 34(3) and (4) are fulfilled. Paragraph 34(1) and (5) are applicable mutatis mutandis. Decisions shall be taken with the agreement of the authorities responsible for nature protection and conservation areas.’

16.      Lastly, Paragraph 43(4) of the new law (ex Paragraph 20f(3) of the BNatSchG) lays down rules on derogations from the prohibitions imposed for the protection of the environment, providing that:

‘the prohibitions laid down in Paragraph 42(1) and (2) shall not apply to acts intending to use land for the purposes of agriculture, forestry or fishing and carried out in accordance with good professional practice and the requirements laid down in Paragraph 5(4) to (6); acts intending to process the products obtained in the course of those activities; acts designed to implement an act authorised under Paragraph 19, or an assessment of the effect on the environment within the framework of the Law on the assessment of environmental impact; acts to implement a measure authorised under Paragraph 30; provided that animals and their nesting and incubation sites, habitats and resting places, and plant species which are specifically protected, are not intentionally damaged as a result. The provisions of Länder which afford a greater measure of protection are unaffected.’

17.      The Habitats directive was also transposed in Germany by means of a number of sectoral laws. For the purposes of the present case, mention should be made of the Pflanzenschutzgesetz (Law on Plant Protection) of 14 May 1998, (6) Paragraph 6(1) of which provides that:

‘Pesticides must be used in accordance with good professional practice. Use shall be prohibited if it is foreseeable that it will produce harmful effects on humans or animals or the water table, or that it will produce other serious harmful effects, in particular, on the balance of nature. The competent authority shall order the measures necessary in order to satisfy the requirements mentioned in the first two sentences of this subparagraph.’

III –  Facts and procedure

18.      After examining the national provisions transposing the Habitats directive, communicated to it by the Federal Republic of Germany, the Commission expressed doubts as to their compatibility with the Directive and consequently sent that State a letter of formal notice on 10 April 2000 pursuant to Article 226 EC.

19.      That letter was followed on 25 July 2001 by a reasoned opinion, inviting Germany to comply within two months with the obligations arising from the said Directive.

20.      The Commission was not satisfied with the explanations and replies given by the German Government and it therefore brought an action on 28 February 2003 requesting the Court to declare that:

–        by failing, in respect of certain projects carried out outside special areas of conservation (‘SACs’) within the meaning of Article 4(1) 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; ‘the Directive’), to require compulsory assessment of the impact on the site, in accordance with Article 6(3) and (4) of that directive, whether or not such projects are capable of significantly affecting an SAC;

–        by authorising emissions in an SAC, irrespective of whether they are likely to have a significant effect on that area;

–        by derogating from the scope of the provisions concerning the protection of species in the case of certain non-deliberate effects on protected animals;

–        by failing to ensure compliance with the criteria for derogation set out in Article 16 of the directive in the case of certain activities compatible with the conservation of the area;

–        by retaining provisions on the application of pesticides which do not take sufficient account of the protection of species;

–        by failing to notify fishery catch legislation and/or to ensure that such legislation contains adequate bans on fishing,

the Federal Republic of Germany has failed to fulfil its obligations under Article 6(3) and (4) and Articles 12, 13 and 16 of the Directive.

21.      Germany and the Commission submitted written observations before the Court.

22.      The German Government and the Commission also attended the hearing held on 14 July 2005.

IV –  Assessment

Admissibility

23.      The German Government contends that the action is inadmissible on the ground that the Commission has not taken sufficient account of the effect of the substantial amendments made during the pre-litigation procedure both to the BNatSchG and to certain other national provisions. Those amendments should, it claims, have led the Commission to reach a different conclusion as to the compatibility of the German provisions with the Habitats directive.

24.      I should say at once that I do not think the German Government’s arguments are relevant for the purpose of contesting the admissibility of the present action. The question whether the Commission did or did not take account of certain legislative amendments in determining the compatibility of the German provisions concerns the merits of the case, that is to say the substance, not the admissibility, of the action.

25.      That being said, I should also point out that the adoption of the new law and the other instruments cited by the defendant government did not alter the content of any of the provisions contested by the Commission in its reasoned opinion. In other words, the present action turns on provisions that have remained essentially unchanged. (7)

26.      In any event, even if it were to be supposed that those amendments had had an effect of any kind on any of the provisions contested by the Commission, that would not constitute grounds for holding the present action to be inadmissible. It should be noted that, in accordance with the settled case-law of the Court, ‘the question whether there has been a failure to fulfil obligations must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account by the Court’. (8) Well, at the end of the period of two months laid down in the reasoned opinion sent to Germany on 25 July 2001, the legislative amendments cited by the defendant government had not yet entered into force. Indeed, as the German Government confirmed at the hearing, they were not adopted until March 2002.

27.      I therefore consider that the objections raised by the German Government on this point should be dismissed.

28.      Nor can the Commission – in wishing to raise the doubt of its own motion, since Germany made no objection in this connection – be blamed for citing different grounds in its application from those formulated in the course of the pre-litigation procedure inasmuch as it referred in the application to provisions of the new law that were not in force at the end of the period laid down in the reasoned opinion. According to settled Community case-law, for an action for failure to fulfil obligations to be deemed admissible, it is not in fact necessary ‘that the national provisions mentioned in the reasoned opinion and in the application should always be completely identical’. (9) The Court considers that ‘it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application’. (10) And that condition, as I have said, is fully satisfied in the present case.

29.      That being established, I now pass on to a detailed examination of the Commission’s complaints.

The first complaint

30.      The Commission claims first that Article 6(3) and (4) of the Directive has not been fully transposed inasmuch as the definition of the term ‘project’ contained in Paragraph 10(1)(11)(b) and (c) of the new law (ex Paragraph 19a(2)(8) of the BNatSchG) and applicable to projects executed outside special areas of conservation is too narrow and allows the impact assessment obligation to be waived in the case of some activities and interventions that are potentially damaging to protected sites.

31.      The Commission points out in the first place that the projects described in Paragraph 10(1)(11)(b) as ‘acts affecting nature and the countryside’ include only interventions consisting, in accordance with Paragraph 18(1) (ex Paragraph 8(1)) to which the provision refers, of ‘changes’ in the form or use of ‘surface areas’ without however taking account of all the other activities or measures that do not involve changes of this type. Paragraph 18(2) (ex Paragraph 8(7)) expressly excludes the use of the land for agriculture, forestry and fishing provided that it takes into account the objectives and principles of nature protection and countryside conservation. However, in the Commission’s view, that condition is couched in terms that are too general to guarantee an appropriate level of protection for protected sites.

32.      In the second place, the Commission continues, only such water installations as are subject to authorisation or approval under the anti-pollution law and the law governing the water system respectively are described as ‘projects’ (Paragraph 10(1)(11)(c)). All installations which are not subject to those procedures therefore escape the assessment requirement laid down in Article 6(3) of the Directive, irrespective of whether or not they may have a significant effect on protected sites.

33.      The German Government, for its part, objects first that the interpretation of the term ‘project’ proposed by the Commission is too broad inasmuch as it does not allow any type of restriction on the obligation to assess the effect of the relevant equipment. According to the German Government, that term should on the contrary be interpreted in the light of the precise definition contained in Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. (11)

34.      The defendant government also maintains that the categories of ‘projects’ covered in the aforesaid Paragraph 10(1)(11)(b) and (c) includes in practice all cases of intervention outside special areas of conservation in which there is likely to be a significant effect on such sites. Interventions not falling into those categories are, it contends, subject in any event to compliance with strict rules on the environment, which guarantee appropriate and effective protection of special areas of conservation.

35.      I should say at once that I do not find the German Government’s arguments convincing.

36.      In my view, the approach adopted by the national provisions at issue is in fact inconsistent with both the letter and the spirit of Article 6(3) of the Habitats directive. It follows from the combined provisions of Paragraph 10(1)(11)(b) and (c) and Paragraph 18(1) and (2) of the new law – and this is not disputed by the German Government – that some measures and activities are not covered by the term ‘project’ and therefore escape the assessment requirement in respect of factors such as the nature of the intervention (i.e. whether or not they constitute changes in the form or use of surface areas or changes to the level of the water table), the sector of activity (agriculture, forestry and fishing) and the fact that they are not subject to some form of authorisation or approval.

37.      However, Article 6(3) of the Habitats directive provides that ‘any plan or project … likely to have a significant effect … , either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site’. (12) This obligation is thus broad in scope, covering all measures and activities that are, individually or in conjunction with others, potentially damaging to special areas of conservation, and there is only one restriction on its application, namely that there be no possibility of any significant effect on such sites.

38.      In my view it is clearly impossible to presume in a general and abstract way, as the German legislation does, that certain predetermined categories of activities or interventions will never produce such an effect. The impact of a project is relative, varying according to the nature and characteristics of the project in question, the site and the species concerned, and it must therefore be assessed case by case. For example, small habitats containing unusual and particularly delicate species may react much more sharply than other less ‘sensitive’ protected sites to a given type of external influence. I consider that this interpretation is also entirely consistent with the priority accorded by the Directive to the conservation of protected sites and the protection of threatened species.

39.      Morever, the Court has already had occasion to note that ‘national legislation which allows the environmental assessment obligation for [plans or projects] to be waived because of the low costs entailed or the particular type of work planned’ is contrary to the provisions of Article 6(3) of the Habitats directive. (13) A statement which, in my view, is particularly applicable to national legislation such as the legislation at issue here, which in principle allows the preventive assessment obligation to be waived in the case of whole categories of activities and interventions.

40.      These shortcomings in the provisions transposing the Directive are not, in my view, remedied by the fact, mentioned by the German Government, that projects which are not subject to assessment must in any case, under Paragraph 18 of the new law, observe the principles and rules on the environment, conservation of nature and care of the landscape, which it is claimed satisfies, albeit indirectly, the requirements with regard to conservation of sites and impact assessment laid down in Article 6(3) and (4) of the Habitats directive. I do not think a reference to general rules or ‘good professional practice’ can guarantee the necessary level of specificity, precision and clarity in the transposition of directives required in accordance with settled Community case-law. (14) All the more so in that a faithful transposition is particularly important in the present case, since it concerns procedural rules which are an essential part of the general system of the Habitats directive, which relate specifically to the protection of certain sites (‘Natura 2000’ special areas of conservation), and in which the assessment obligation consequently has a central role.

41.      I therefore consider that the Commission’s complaints with regard to Article 6(3) and (4) of the Directive are well founded.

The second complaint

42.      In its second complaint, the Commission claims that Article 6(3) and (4) of the Directive have also not been fully transposed with regard to the assessment of the effect of atmospheric emissions on protected sites.

43.      According to the Commission, the problem arises from the fact that, under Paragraph 36 of the new law (ex Paragraph 19e of the BNatSchG), an installation which produces emissions cannot be authorised only in cases where it is likely to have a significant adverse effect on a special area of conservation within the ‘area of influence’ of the installation, as defined in the provisions implementing the anti-pollution law and in particular the so-called ‘air’ circular (Erste allgemeine Verwaltungsvorschrift zum Bundesimmissionsschutzgesetz – TA Luft  (15)). Thus, contrary to Article 6(3) and (4) of the Directive, the effects on special areas of conservation outside the ‘area of influence’ are not taken into consideration.

44.      The German Government objects that the arrangements for monitoring the harmful effects of pollutants in a particular ‘area of influence’ take all the relevant local factors expressly into account. In practice, they claim, authorisation will not be granted for emissions which are likely to cause damage to property protected under the Habitats directive.

45.      For my own part, I believe that the considerations just set out in the analysis of the first complaint are equally applicable mutatis mutandis here. In this case too, the German legislation restricts consideration of the effects of certain activities on protected sites in principle, on the basis of a selective criterion (whether a protected site is inside or outside an ‘area of influence’) which is not prescribed in Article 6(3) and (4) of the Directive.

46.      I therefore take the view that this complaint should be upheld.

The third complaint

47.      In this complaint, the Commission claims that Article 12(1)(d) has not been faithfully transposed into the German legislation because that legislation prohibits only the deliberate damaging of breeding sites or resting places of certain animal species. To be more precise, the Commission claims that the national provisions (Paragraph 43(4) of the new law, ex Paragraph 20f(3) of the BNatSchG) designed to transpose the abovementioned article of the Directive contain a derogation from the prohibition, in connection with the protection of animal species, in the case of activities which cause non-deliberate damage to the sites where protected species nest, breed, or find refuge. However, the system of protection set out in Article 12 does not, in its view, authorise any derogation of this kind.

48.      Germany disputes that interpretation of Article 12(1)(d), on the ground that it is too strict and is therefore contrary to the principle of proportionality.

49.      For my part, I consider that the interpretation advocated by the Commission is supported, first, by the actual wording of the provision in question. Unlike the other prohibitions laid down in Article 12(1), which apply expressly only to ‘deliberate’ acts (Article 12(1)(a) to (c)), the prohibition relating to breeding sites and resting places (Article 12(1)(d)) covers all forms of destruction or deterioration, without drawing any distinction based on whether or not the damage caused to the said areas was deliberate.

50.      But in my view stronger protection of those sites is also justified in the light of the purpose of the Habitats directive, ‘the main aim of this Directive being to promote the maintenance of biodiversity’. (16) The protection of breeding sites and resting places seems to me to be of crucial importance, not only for the conservation but for the very survival of threatened animal species.

51.      However, the contested German legislation does not provide such protection precisely because, as the defendant government itself acknowledges, activities which may cause non-deliberate damage to the breeding sites and resting places of protected species are not subject, under that legislation, to the system of protection for animal species established by Article 12 of the Directive. (17)

52.      I therefore consider that the Federal Republic of Germany has failed to fulfil its obligations under Article 12(1) of the Directive.

The fourth complaint

53.      The Commission also claims that Article 16(1) has not been faithfully transposed into German law inasmuch as the German legislation does not comply with the precise conditions set out in that provision for granting derogations from the various prohibitions laid down in the Directive. In particular, it claims that Paragraph 43(4) of the new law (ex Paragraph 20f(3) of the BNatSchG) contains no clear reference to those conditions.

54.      I should say at once that, in this case too, I consider that the Commission’s criticisms are well founded. Paragraph 43(4) of the national law deals with exceptions to the prohibitions applicable in connection with the protection of fauna and flora but it contains no reference to Article 16 of the Directive or to the categories of authorised derogations listed exhaustively in that article. Thus, it seems to me that the provision at issue allows additional derogations or in any event derogations expressed in much more general terms than the provisions on the subject contained in the Directive. (18) For example, the German law provides that ‘the prohibitions … shall not apply to acts intending to use land for the purposes of agriculture, forestry or fishing …’ whereas Article 16(1)(b) of the Directive allows derogations in those sectors of activity only in order to ‘prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property’.

55.      It follows that, contrary to the requirement confirmed, as I have already observed (see point 40 above), in settled case-law, Paragraph 43(4) of the new law (ex Paragraph 20f(3) of the BNatSchG) does not constitute a sufficiently clear and precise transposition of the abovementioned provision of the Directive.

56.      I therefore consider that the fourth complaint should also be upheld.

The fifth complaint

57.      In the fifth complaint, the Commission claims that Paragraph 6(1) of the Pflanzenschutzgesetz (Law on Plant Protection), communicated to it by Germany as the transposing measure, does not take sufficient account of the protection of animal and plant species, within the meaning of Articles 12 and 13 of the Directive, as far as the use of pesticides is concerned.

58.      The German Government objects essentially that such products are monitored, until such time as they are authorised, for any harmful effects on human or animal health or on the ‘balance of nature’ and that this meets the objectives of the Habitats directive.

59.      I must however agree with the Commission that the provision at issue, in stating the cases in which the use of pesticides is prohibited, not only does not refer to the Habitats directive but above all does not clearly and specifically include the prohibitions on causing damage to protected species laid down in Articles 12 and 13. The precise obligations imposed in this connection by the Directive cannot therefore be held to have been fulfilled.

60.      I therefore consider that the Commission’s complaints are well founded.

The sixth complaint

61.      Lastly, the Commission claims that there is a breach of Articles 12 and 16 of the Directive because (i) Germany did not notify it of the relevant fishing provisions in eight Länder (19) and (ii) the provisions in force in three other Länder (20) do not contain fishing prohibitions such as to meet the requirements laid down in the Directive.

62.      The German Government acknowledges that a certain number of the fishing provisions in the Länder, for example those of the Land Bremen, are not entirely consistent with the Directive, but it objects that it is not under an obligation to notify such provisions, since they are in any event subject to compliance with both Federal and Community law.

63.      In this connection, I feel bound to point out once again (see point 40 above) that, in accordance with settled Community case-law, the provisions of directives must be implemented with ‘unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty’. (21) That becomes particularly important, according to the same case-law, in a case such as this, in which ‘the management of the common heritage is entrusted to the Member States in their respective territories’. (22)

64.      Therefore, even supposing that the provisions of the Länder on fishing comply with Federal and Community law, a reference to general principles of primacy of Community law and interpretation consistent with that law cannot be regarded as a clear and precise transposition of the Directive. On the contrary, the situation of a conflict of rules which, as the German Government itself acknowledges, obtains in some Länder at least, is in my view likely to result in confusion that will make it difficult to ensure strict compliance with the prohibitions on fishing.

65.      In my view, therefore, Germany has undoubtedly failed to fulfil its obligations under Articles 12 and 16 with regard to the rules on fishing.

66.      In conclusion, I consider that the Commission’s complaints are well founded in all respects and should therefore be upheld.

V –  Costs

67.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and Germany has been unsuccessful, the latter must be ordered to pay the costs.

VI –  Conclusion

68.      In the light of the foregoing considerations, I propose that the Court should:

‘(1)      Declare that, by not fully and faithfully transposing Article 6(3) and (4), and Articles 12, 13 and 16 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Federal Republic of Germany has failed to fulfil its obligations under that Directive.

(2)      Order the Federal Republic of Germany to pay the costs’.

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1 – Original language: Italian.

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2 – OJ 1992 L 206, p. 7.

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3 – BGB1. 1998 I, p. 823.

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4 – BGB1. 2002 I, p. 1193.

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5 – In so far as those provisions are identical, the parties referred in their written statements both to the provisions of the new law and to those of the BNatSchG. I shall adopt the same procedure in examining the case.

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6 – BGB1. 1998 I, p. 971.

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7 – And in fact, in the application itself, the Commission refers to provisions of the new law only in so far as they are identical with those of the preceding law.

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8 – Judgments in Case C-214/96 Commission v Spain [1998] ECR I-7661, paragraph 25, Case C‑384/97 Commission v Greece [2000] ECR I-3823, paragraph 35, and Case C-417/02 Commission v Greece [2004] ECR I-7973, paragraph 22.

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9 – Judgment in Case C-221/03 Commission v Belgium [2005] ECR I-0000, paragraph 39.

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10 – Judgment in Case C-221/03 Commission v Belgium, cited above, paragraph 39, and the case-law cited therein.

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11 – In accordance with the first line of Article 1(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), ‘project’ means: (i) the execution of construction works or of other installations or schemes, (ii) other interventions in the natural surroundings and landscape, including those involving the extraction of mineral resources.

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12 – Emphasis added.

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13 – Judgment in Case C-256/98 France v Commission [2000] ECR I-2487, paragraph 39, which concerned French legislation waiving the assessment obligation in the case of projects costing less than FRF 12 million and projects relating to electricity, gas and the telecommunications networks.

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14 – See, ex multis, judgments in Case  262/85 Commission v Italy [1987] ECR 3073, paragraph 9, Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraphs 18 and 24, Case C-38/99 Commission v France [2000] ECR I-10941, paragraph 53, and Case C-159/99 Commission v Italy [2001] ECR I-4007, paragraph 32.

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15 – GMBl. 1986, p. 95.

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16 – Third recital in the preamble to the Habitats directive.

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17 – See, to that effect, the judgment in Case C-6/04 Commission v United Kingdom [2005] ECR I‑0000, in which the Court noted that ‘the United Kingdom acknowledge[d] that, by prohibiting only the deliberate damaging or destruction of breeding sites or resting places of the species concerned, the legislation applicable in Gibraltar [did] not satisfy the requirements of Article 12(1)(d)’ and that accordingly ‘this part of the complaint must be held to be well founded’ (paragraph 79).

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18 – On the need to interpret Article 16 of the Directive restrictively, see the judgment in Case C‑6/04 Commission v United Kingdom, cited above, paragraphs 111 and 112.

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19 – The Länder of Berlin, Hamburg, Lower Saxony, Mecklenburg-West Pomerania, North Rhine‑Westphalia, Saarland, Saxony and Saxe-Anhalt.

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20 – In particular, in Bavaria, under the Verordnung zur Ausführung des Fischereigesetzes (Regulation implementing the Fishing Law of 4.11.1997, GVB1. 1998, p. 982, as amended by the regulation of 3.12.1998, GVB1. p. 982), coregonus oxyrhynchus is not among the species protected throughout the year; in the Land of Brandenburg, under the Fischereiordnung des Landes Brandenburg (Fishing code of 14.11.97, GVB1. II/97, p. 867, as amended by the regulation of 22.12.98, GVBl. II/99, p. 25), coregonus oxyrhynchus and unio crassus are not protected; and lastly, in the Land of Bremen, the Bremische Binnenfischereiverordnung (Inland fishing regulation of 10.3.1992, GB1., p. 51) does not mention in the list of fishing prohibitions any of the three species (acipenser sturio, coregonus oxyrhynchus, unio crassus) that are supposed to be protected in that Land and it expressly authorises the fishing of acipenser sturio and coregonus oxyrhynchus.

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21 – Judgment in Case C-159/99 Commission v Italy [2001] ECR I-4007, paragraph 32, and the case‑law cited therein.

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22 – Judgments in Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9, and Case C‑38/99 Commission v France [2000] ECR I‑10941, paragraph 53. With specific regard to the Habitats directive, see the recent judgment in Case C-6/04 Commission v United Kingdom, cited above, paragraphs 25 and 26.