Keywords
Summary

Keywords

1 Actions for failure to fulfil obligations - Pre-litigation procedure - Subject-matter - Matters put forward in the reply to the reasoned opinion - Not taken into account in the application - No infringement of the right to a fair hearing

(EC Treaty, Art. 169)

2 Environment - Conservation of wild birds - Directive 79/409 - Classification of special protection areas - Obligation of the Member States - Extent - Failure to fulfil obligation - Criteria

(Council Directive 79/409, Arts 2 and 4(1))

Summary

1 The aim of the pre-litigation procedure provided for in Article 169 of the Treaty is to give the Member State concerned an opportunity to justify its position or, as the case may be, to comply of its own accord with the requirements of the Treaty. If that attempt to reach a settlement proves unsuccessful, the Member State is requested to comply with its obligations as set out in the reasoned opinion which concludes the pre-litigation procedure, within the period prescribed in that opinion. The proper conduct of that procedure constitutes an essential guarantee intended by the Treaty not only to protect the rights of the Member State concerned but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter, the subject-matter being determined by the Commission's reasoned opinion.

Where it is not disputed that the reasoned opinion and the procedure leading up to it were properly conducted, a Member State's right to a fair hearing is not infringed by the circumstance that the contentious procedure is opened by an application which takes no account of any new matters of fact or law put forward by the Member State concerned in its reply to the reasoned opinion. It is fully open to that State to raise those matters in the contentious procedure, to begin with in its first pleading in defence.

2 Article 4(1) of Directive 74/409 on the conservation of wild birds requires Member States, if species mentioned in Annex I occur on their territory, to classify as special protection areas the most suitable territories in number and size for their conservation, an obligation which it is not possible to avoid by adopting other special conservation measures. Nor may the economic requirements mentioned in Article 2 of the directive be taken into account in this respect.

As regards the Member States' margin of discretion in choosing the most suitable territories, that does not concern the appropriateness of classifying as special protection areas the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species in question.

Consequently, where it appears that a Member State has classified as special protection areas 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, it will be possible to find that that Member State has failed to fulfil its obligation under Article 4(1) of the directive; for assessing the extent to which the Member State has complied with that obligation, the Court may use as a basis of reference the Inventory of Important Bird Areas in the European Community, 1989, which draws up an inventory of areas of great importance for the conservation of wild birds in the Community.