Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations – Examination of merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion

(Art. 226, second para. 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. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission

(Art. 226 EC; Council Directive 92/43)

4. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43

(Council Directive 92/43, Art. 12(1))

Summary

1. Under the second paragraph of Article 226 EC, an action for failure to fulfil obligations can be brought before the Court only if the Member State concerned has failed to comply with the reasoned opinion within the period laid down by the Commission for that purpose.

Furthermore, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion.

(see paras 22-23)

2. In an action for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the State concerned the opportunity, on the one hand, to comply with its obligations under Community law and, on the other hand, to avail itself of its right to defend itself against the complaints formulated by the Commission.

Therefore, in its action for failure to fulfil obligations, the Commission is permitted to limit the subject-matter of the proceedings. Even though the aim of letter of formal notice is to delimit the subject-matter of the dispute and the Commission is obliged to specify precisely in the reasoned opinion the grounds of complaint which it has already raised more generally in the letter of formal notice, that does not, however, prevent it, at the stage of the proceedings before the Court, from restricting the subject-matter of the dispute or expanding it to cover subsequent measures that are essentially the same as the measures challenged in the formal notice.

(see paras 33, 36-37)

3. In an action for failure to fulfil obligations brought under Article 226 EC it is for the Commission to prove that the obligation has not been fulfilled without being able to rely on any presumption.

Thus, it is for the Commission, in the context of a failure to fulfil obligations relating to Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, to adduce proof of the presence of the protected animal species in the area concerned and not only evidence which proves at the very most that there is a possibility that they are to be found in that area.

(see paras 59, 63)

4. A Member State fails to fulfil its obligations under Article 12(1)(b) and (d) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora where it does not take all the requisite specific measures to prevent the deliberate disturbance of the animal species concerned during its breeding period or the deterioration or destruction of its breeding sites.

The condition as to ‘deliberate’ action in Article 12(1)(a) of Directive 92/43 is met where it is proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing.

It follows that a Member State does not fail to fulfil those obligations if it permits the hunting of an animal species which is different from those protected by the directive.

(see paras 70-72)