C-209/02, Commission v. Austria - Wörschacher Moos

• Author: European Commission
• Pages: 102-103

Page 102

Judgment of the Court (Second Chamber) of 29 January 2004. - Commission of the European Communities v Republic of Austria. - Directive 92/43/EEC - Failure of a Member State to fulfil obligations - Conservation of natural habitats - Wild fauna and flora - Habitat of the corncrake - Wˆrschacher Moos special protection area. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:62002J0209:EN:HTML

The Commission brought an action under Article 226 EC for a declaration that, by authorising the proposed extension of the golf course in the district of Wˆrschach in the Province of Styria despite a negative assessment of the implications for the habitat of the corncrake (crex crex) in the special protection area, within the meaning of Article 4 of the Birds Directive, situated in that district, the Republic of Austria has failed to fulfil its obligations under Article 6(3) and (4), in conjunction with Article 7, of the Habitats Directive. The Commission maintains that, by virtue of Article 6(3) of the Habitats Directive, the planned extension of the golf course in question on a site classified as a SPA should never have been authorised. The extension was likely significantly to affect the site and the corncrake population, and therefore to reduce considerably the function of the SPA with regard to the conservation objectives fixed by Community legislation. Furthermore, the conditions for authorisation of the project under Article 6(4) of the Habitats Directive were not met.

The Austrian Government states that, in view of the impact assessment which was duly carried out and of the subsequent measures imposed by the decision of 14 May 1999, any significant threat to the corncrake population in the `Wˆrschach Moos' SPA was removed. Therefore it was not necessary for the conditions laid down in Article 6(4) of the Habitats Directive to be fulfilled in order for the extension of the golf course to be authorised.

It can be seen from Article 6(3) of the Habitats Directive, read in conjunction with Article 7, that any plan or project not directly connected with or necessary to the management of a SPA classified under Article 4 of the Birds Directive but likely to have a significant effect thereon, either individually or in combination with other plans or projects, is to be subject to appropriate assessment of its implications for the SPA in view of the SPA's conservation objectives. In the light of the conclusions of the assessment of the implications for the SPA, the competent national authorities are to agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the SPA concerned and, if appropriate, after having obtained the opinion of the general public. It is common ground that, in 1998, in the course of the investigations preceding the adoption of the decision of 14 May 1999, an expert's report was produced, at the request of the authorities of the Province of Styria, by Mr Gepp of the Graz Institute for the Protection of Nature and Ecology. This report is reproduced as part of that decision. The report stated that a corncrake population was present in the SPA where the disputed extension to the golf course was to be created. The extension would entail in particular the loss of part of the feeding and resting areas of the species in question, the destruction of the functional links by the splitting up ofPage 103 the different zones used by the corncrake and the elimination of, and disturbance to, elements of habitat. The measures which might counter the disturbance liable to be caused by the disputed project would be only partially effective, difficult to implement and of doubtful long-term effectiveness. In short, the creation of the two holes in question could well threaten the continued existence of the corncrake population in the `Wˆrschacher Moos' SPA, the only population in the Central Alps likely to reproduce. It is for this reason that the report suggests some alternative sites for the extension to the golf course. At the request of the authorities of the Province of Styria, Mr Lentner produced a report, on 26 June 1999, assessing the value of Mr Gepp's report, in the light of the conclusions drawn from it by the Styrian authorities. According to Mr Lentner, the proposition contained in the decision of 14 May 1999 that the measures laid down would enable negative effects on the corncrake population to be avoided and ensure its continuation was not in any way supported by Mr Gepp's report or by other ornithological reports or opinions available to the authorities. In reality, those measures, laid down as compensatory measures, had to be considered inappropriate for avoiding those negative effects with a margin of safety. Having regard to the content of those expert's reports and in the absence of evidence to the contrary, the inevitable conclusion is that at the time of the adoption of the decision of 14 May 1999, the Austrian authorities were not justified in considering that the planned extension of the golf course in question in the present case, coupled with the measures prescribed by that decision, was not such as significantly to disturb the corncrake population in the `Wˆrschacher Moos' SPA and would not adversely affect the integrity of that SPA. The fact that the note dated 15 July 2002 produced by Mr Gepp at the request of the Government of the Province of Styria regarding the interpretation of the assessments and conclusions contained in his own report seems to soften somewhat their implications cannot affect the finding made in the previous paragraph of this judgment. The same is true of the surveys of the corncrake population in the `Wˆrschacher Moos' SPA carried out in 2000 and 2002 and recording the presence, respectively, of three and two parading males, to which the Austrian Government refers to show that the creation of the extension of the golf course has not caused a significant reduction in that population. It is apparent from the above that the decision of 14 May 1999 was not adopted in compliance with the requirements of Article 6(3) of the Habitats Directive. It is also established that the conditions laid down in Article 6(4) thereof have not been fulfilled in the present case. Accordingly, it must be held that, by authorising the proposed extension of the golf course in the district of Wˆrschach in the Province of Styria despite a negative assessment of its implications for the habitat of the corncrake (crex crex) in the `Wˆrschacher Moos' SPA situated in that district and classified as provided for in Article 4 of the Birds Directive, the Republic of Austria has failed to fulfil its obligations under Article 6(3) and (4), in conjunction with Article 7, of the Habitats Directive.