C-220/99, Commission v. France
| Author | European Commission |
| Pages | 87-89 |
Page 87
Judgment of the Court (Sixth Chamber) of 11 September 2001. - Commission of the European Communities v French Republic. - Failure by a Member State to fulfil its obligations - Directive 92/43/EEC - Conservation of natural habitats - Conservation of wild fauna and flora - Article 4(1) - List of sites - Site information. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61999J0220:EN:HTML
With regard to the obligation to transmit the site list referred to in Article 4(1), first subparagraph, of the Habitats Directive, the Commission points out that each Member State's contribution to the setting up of a coherent European ecological network depends on the representation on its territory of the natural habitat types andPage 88 species' habitats listed in Annexes I and II to the Directive respectively. It is clear from a combined reading of Article 4(1) of and Annex III to the Directive that Member States enjoy a certain margin of discretion when selecting sites for inclusion in the list. The exercise of that discretion is, however, in the Commission's view, subject to compliance with the following three conditions:
- only criteria of a scientific nature may guide the choice of the sites to be proposed;
- the sites proposed must provide a geographical cover which is homogeneous and representative of the entire territory of each Member State, with a view to ensuring the coherence and balance of the resulting network. The list to be submitted by each Member State must therefore reflect the ecological variety (and, in the case of species, the genetic variety) of the natural habitats and species present within its territory;
- the list must be complete, that is to say, each Member State must propose a number of sites which will ensure sufficient representation of all the natural habitat types listed in Annex I and all the species' habitats listed in Annex II to the Directive which occur within its territory.
So far as the French national list is concerned, the Commission notes that, when the period laid down in the reasoned opinion expired on 6 January 1998, the French Republic had forwarded to it a list of 535 sites; when it brought its action before the Court, this list had increased to 672 sites; at the date of the hearing, 18 January 2001, the French Republic had forwarded in total a list of 1 030 sites.
The Commission states that it instituted the present proceedings with a view to securing a declaration that the French national list was manifestly inadequate, and that such inadequacy far exceeded the margin of discretion given to Member States. Such inadequacy is evident with regard to the situation existing when the period set in the reasoned opinion expired, since the French Republic subsequently almost doubled the number of sites proposed. That inadequacy, moreover, still persists, notwithstanding indubitable progress. The French national list, the Commission concludes, does not therefore meet the criteria set out in Article 4(1), read in conjunction with Annex III thereto.
The French Government acknowledges that, when the period set in the reasoned opinion expired, it had not forwarded all of the sites which ought to feature on the list of sites mentioned in Article 4(1), first subparagraph, of the Directive. The French Government does, however, point out that, at the date of the hearing, the French national list contained a total of 1 030 sites covering approximately 5% of French territory. The Commission, it argues, has failed to adduce any evidence capable of establishing that this list of 1 030 sites does not satisfy the obligation laid down in Article 4(1). The first stage of the procedure for the designation of SACs does not, it contends, involve the establishment of an exhaustive inventory of the sites within the territory of each Member State which host the natural habitat types and native species listed in Annexes I and II to the Directive respectively. The relevance of the national list must be judged, not on the basis of the number of sites proposed, but on the basis of the representative nature of the natural habitats and species' habitats featuring on that list, assessed particularly with regard to their degree of rarity and their distribution throughout national territory.
Although it follows from the rules governing the procedure for identifying sites eligible for designation as SACs, set out in Article 4(1), that Member States have a margin of discretion when making their site proposals, the fact none the less remains, as the Commission has noted, that they must do so in compliance with the criteria laid down by the Directive. It should be noted in this regard that, in order to produce a draft list of sites of Community importance, capable of leading to the creation of a coherent European ecological network of SACs, the Commission must have available an exhaustive list of the sites which, at national level, have an ecological interest which is relevant from the point of view of the Directive's objective of conserving natural habitats and wild fauna and flora. To that end, that list is drawn up on the basis of the criteria laid down in Annex III (Stage 1) to the Directive. Only in that way, moreover, is it possible to realise the objective, set out in the first subparagraph of Article 3(1), of maintaining or restoring the natural habitat types and the species' habitats concerned at a favourable conservation status in their natural range, which may lie across one or more frontiers inside the Community. It follows from Article 1(e) and (i), read in conjunction with Article 2(1) thereof, that the favourable conservation status of a natural habitat or a species must be assessed in relation to the entire European territory of the Member States to which the Treaty applies. It must also be recalled that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion. The Court cannot therefore take account of any subsequent changes. When the period laid down in the reasoned opinion expired on 6 January 1998, the content of the French national list sent to the Commission was manifestly inadequate, going well beyond the margin of discretion available to Member States for the purpose of drawing up the list of sites mentioned in Article 4(1), first subparagraph. In accordance with the case-law cited in the preceding paragraph of the present judgment, the lists of sites communicated to the Commission after the expiry of that period are irrelevant for purposes of the present action. It must therefore be concluded that, by failing to transmit to thePage 89 Commission, within the prescribed period, the list of sites mentioned in the first subparagraph of Article 4(1), the French Republic has failed to fulfil its obligations under that Directive.
With regard to the obligation to transmit information on the sites eligible for designation as SACs, the French Government acknowledges that it did not send that information by the expiry of the period laid down in the reasoned opinion, but argues that it was quite impossible for it to meet that obligation within the time specified. It considers that the Commission's delay in drafting the format affected the entire national procedure. When the Commission notified Decision 97/266 adopting the format, the French authorities were obliged to transfer and amend all of the data already contained on a national schedule.
The Commission submits that the obligation to transmit the site information was to be met before 11 June 1995. Even if certain Member States which already had the list of proposed sites and relevant information before 11 June 1995 wished to await adoption of the format, they could, after the format was notified on 19 December 1996, rapidly have incorporated that information in the format and forwarded it to the Commission. The Commission adds that, in order to take account of the late adoption of the format, it extended the pre-litigation procedure by addressing an additional letter of formal notice to the French Republic on 3 July 1997, thus well after the date on which the format was notified. The French authorities were therefore fully in a position to meet their obligation to transmit the information on each site. When the period laid down in the reasoned opinion expired on 6 January 1998, the French Republic had not sent to the Commission the information on the sites to be proposed.
It is necessary first to point out that, even though the Commission had initially sent to the French Government a letter of formal notice on 27 March 1996, that is to say, before the format was notified, it sent to that Government a new letter of formal notice, following notification of the format, giving it a new period within which to comply with Article 4(1), second subparagraph. Next, it should be noted that, following notification of the Directive on 10 June 1992, the Member States were aware which types of information they would be required to collate for purposes of transmission within three years of that notification, that is to say, by 11 June 1995. They also knew that this information had to be provided on the basis of the format once it had been drawn up by the Commission. Article 4(1), second subparagraph, expressly states that the information to be transmitted, in a format established by the Commission, must include a map of the site, its name, location, extent and the data resulting from application of the criteria specified in Annex III (Stage 1). The period which the Commission gave to the French Government for meeting its obligation to include on the format the site information, which it should have had at its disposal prior to 11 June 1995, must therefore be regarded as reasonable. From 19 December 1996, the date on which the format was notified, to 6 January 1998, when the period laid down in the reasoned opinion expired, the French Government benefited from a period of more than one year to comply with that specific obligation. Since the French Government acknowledges that, when the period laid down in the reasoned opinion expired, it had not transmitted to the Commission, in the format, the information on the sites to be proposed, it must be held that, by failing to transmit to the Commission, within the period prescribed, the information relating to the sites on the list mentioned in the first subparagraph of Article 4(1), pursuant to the second subparagraph of Article 4(1), the French Republic has failed to fulfil its obligations under that Directive.
