Orders nº T-137/04 of Court of First Instance of the European Communities, June 22, 2006

• Resolution Date: June 22, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-137/04

(Council Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora − Commission Decision 2004/69/EC − List of sites of Community importance for the Alpine biogeographical region − Action for annulment − Inadmissibility)

In Case T‑137/04,

Kurt Martin Mayer, residing in Eisentratten (Austria),

Tilly Forstbetriebe GmbH, established in Treibach (Austria),

Anton Volpini de Maestri, residing in Spittal/Drau (Austria),

Johannes Volpini de Maestri, residing in Seeboden (Austria),

represented by M. Schaffgotsch, lawyer,

applicants,

v

Commission of the European Communities, represented by M. van Beek and B. Schima, acting as Agents,

defendant,

supported by

Republic of Finland, represented by T. Pynnä and A. Guimaraes-Purokoski, acting as Agents,

intervener,

ACTION for annulment of Commission Decision 2004/69/EC of 22 December 2003 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Alpine biogeographical region (OJ 2004 L 14, p. 21),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of R. García-Valdecasas, President, I. Labucka and V. Trstenjak, Judges,

Registrar: E. Coulon,

makes the following

Order

Legal and factual background

1 On 21 May 1992, the Council adopted Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the habitats directive’).

2 The aim of the habitats directive is, according to Article 2(1) thereof, to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the territory of the Member States to which the EC Treaty applies.

3 Article 2(2) of the habitats directive provides that the measures taken for its implementation are to be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.

4 According to the sixth recital in the preamble to the habitats directive, it is necessary, in order to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status, to designate special areas of conservation in order to create a coherent European ecological network in accordance with a specified timetable.

5 By virtue of Article 3(1) of the habitats directive, such network, under the title ‘Natura 2000’, is to include special areas of conservation as well as special protection areas classified by the Member States pursuant to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1).

6 Under Article 1(l) of the habitats directive, ‘special area of conservation’ means ‘a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated’.

7 Article 4 of the habitats directive lays down a three-stage procedure for the designation of special areas of conservation. Under Article 4(1), each Member State is to propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host. Within three years of the notification of the habitats directive, that list is to be transmitted to the Commission, together with information on each site.

8 Under Article 4(2) of the habitats directive, the Commission is to establish, from those lists and on the basis of the criteria set out in Annex III to the directive and in agreement with each Member State, a draft list of sites of Community importance. The list of sites of Community importance is to be adopted by the Commission in accordance with the procedure laid down in Article 21 of the habitats directive. In accordance with Article 4(3), that list is to be established within six years of the notification of the habitats directive.

9 Article 4(4) of the habitats directive provides that, once a site of Community importance has been adopted in accordance with the procedure laid down in Article 4(2), the Member State concerned is to designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.

10 Article 4(5) of the habitats directive states that, as soon as a site is placed on the list of sites of Community importance established by the Commission, it is to be subject to Article 6(2) to (4) of the habitats directive.

11 Under the terms of Article 6 of the habitats directive:

‘1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

2. 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.

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.’

   12 Commission Decision 2004/69/EC of 22 December 2003 adopting, pursuant to the habitats directive, the list of sites of Community importance for the Alpine biogeographical region (OJ 2004 L 14, p. 21; ‘the contested decision’) was adopted on the basis of the third subparagraph of Article 4(2) of that directive. Among the sites of Community importance included in the list are the following sites:

   – AT 2102000 Nockberge (Kernzone), Kärnten;

   – AT 2119000 Gut Walterskirchen.

   13 The applicants are farmers and foresters who carry on, on their properties, in addition to the activities connected with their exploitation, secondary activities. Under the contested decision, those properties are included among the sites of Community importance for the Alpine biogeographical region.

   14 The second applicant is the owner of land, which corresponds, in its entirety, to the site of Community importance with reference AT 2119000. The other applicants are owners of lands situated in the site of Community importance with reference AT 2102000.

   Procedure

   15 The applicants brought this action by application lodged at the Registry of the Court...