C-415/01, Commission v. Belgium
| Author | European Commission |
| Pages | 94-95 |
Page 94
Judgment of the Court (Sixth Chamber) of 27 February 2003. - Commission of the European Communities v Kingdom of Belgium. - Failure by a Member State to fulfil its obligations - Conservation of wild birds - Special protection areas. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:62001J0415:EN:HTML
The Commission points out the lack of any provision applying to the RÈgion flamande which automatically links the classification of a site as an SPA to the application of the system of protection and conservation provided for by Community law in that respect.
The Belgian Government observes that there already exist, in the RÈgion flamande, certain general and sectorial protection measures which affect SPAs, it recognises, on the other hand, that no provision applying to that region provides that the classification of a site as an SPA is automatically accompanied by the application to that site of the system of protection established by the Directive on birds.
It must be borne in mind that, according to the Court's case-law, Article 4(1) and (2) on birds requires the Member States to provide SPAs with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the Directive and the breeding, moulting and wintering of migratory species not listed in that Annex which are regular visitors. Since Article 7 on habitats provides that the obligations which arise, among others, under Article 6(2) of that Directive are to replace those arising under the first sentence of Article 4(4) on birds in respect of SPAs, the legal status of protection of those areas must also guarantee the avoidance therein of the deterioration of natural habitats and the habitats of species as well as significant disturbance of the species for which those areas have been designated. The absence of any provision applying to the RÈgion flamande linking the classification of a site as an SPA to the application of a status of protection such as that described in paragraphs 15 and 16 of this judgment undermines the objective of special protection for wild bird life set out in Article 4 on birds.
The Commission claims that the Directive on birds has not been properly transposed on the ground that the maps demarcating the SPAs in the RÈgion flamande do not have binding force with regard to third parties and cannot, therefore, be relied upon as against them. In Belgian law, measures adopted by the regional authorities must be published in the Moniteur belge in order to have binding force. Only such publication creates, as regards citizens, an irrebuttable presumption of their awareness of the measures adopted and ensures, thereby, that they are enforceable against third parties. The maps demarcating the SPAs in the RÈgion flamande have not been published in the Moniteur belge. They have simply been lodged in municipal offices to enable the population to become acquainted with them.
The Kingdom of Belgium submits that the question of the binding force of the maps demarcating the SPAs is a matter for the domestic law of the Member States. They enjoy a broad discretion in determining the manner in which they ensure the binding force of measures transposing Directives. The fact that, under Belgian law, publication in the Moniteur belge is the general rule does not prevent, in particular cases, the possibility of choosing another method of publication, on condition that all citizens may effectively become acquainted with the legislation in question. The Cour de cassation (Court of Cassation, Belgium) has accepted that principle concerning publication of regional and area plans in the context of town and country planning. The Belgian Government maintains that the deposit at the relevant municipal offices of the maps on which the SPAs are demarcated, as prescribed by Article 3 of the ArrÍtÈ de l'exÈcutif flamand (Order of the Flemish Executive) of 17 October 1988 on the designation of special protection zones for the purposes of Article 4 on birds (Moniteur belge of 29 October 1988), constitutes, in this case, a sufficient method of publication, given that those concerned have a real possibility of becoming acquainted with those maps. Nevertheless, an amendment of the DÈcret de la CommunautÈ flamande (Decree of the Flemish Community) of 21 October 1997 concerning nature conservation and the natural environment (Moniteur belge of 10 January 1998), is being prepared in order for the maps demarcating the SPAs to be published in the Moniteur belge.
It is important to recall that, according to consistent 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. The principle of legal certainty requires appropriate publicity for the national measures adopted pursuant to Community rules in such a way as to enable the persons concerned by such measures toPage 95 ascertain the scope of their rights and obligations in the particular area governed by Community law. With regard to maps demarcating SPAs, they must be invested with unquestionable binding force. If not, the boundaries of SPAs could be challenged at any time. Also, there would be a risk that the objective of protection under Article 4 on birds would not be fully attained. In the reply to the reasoned opinion, it is admitted that, in principle, only publication of a measure in the Moniteur belge ensures an irrebuttable presumption of awareness of that measure by third parties. The fact that the Cour de cassation has accepted, in the context of town and country planning, the binding nature of regional and area plans, although they have been published otherwise than in the Moniteur belge, does not, in this case, show that the same applies to maps demarcating SPAs in the RÈgion flamande, which, according to the amendment referred to in paragraph 20 of this judgment, will in any case have to be published in the Moniteur belge. Even assuming that a rebuttable presumption of awareness of a measure could, as maintained in the reply to the reasoned opinion, arise from a method of publication other than entire publication in the Moniteur belge, it must be pointed out that maps demarcating SPAs with the benefit of such a presumption do not appear to have unquestionable binding force.
