C-374/98, Commission v. France - Basses Corbières
| Author | European Commission |
| Pages | 77-79 |
Page 77
Judgment of the Court (Sixth Chamber) of 7 December 2000. - Commission of the European Communities v French Republic. - Failure of Member State to fulfil its obligations - Directives 79/409/EEC and 92/43/EEC - Conservation of wild birds - Special protection areas. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61998J0374:EN:HTML
The Commission states that the ornithological richness of the Basses CorbiËres site, which is situated in a migration corridor of European importance, caused the French authorities to enter it as an important area for the conservation of wild birds (zone importante pour la conservation des oiseaux sauvages; ZICO), and that the area thus designated as a ZICO amounts to 47 400 hectares. The Basses CorbiËres site both shelters several species listed in Annex I to the birds Directive, particularly a pair of Bonelli's eagles, of which there are about 20 pairs in France, and constitutes an important area for the migration of birds of prey.
The French Government acknowledges that the classification of the Basses CorbiËres as an SPA has been delayed on account of fierce local controversy. Nevertheless, thanks to the work of a mediator sent by the French Government, it had been possible to classify a major part of the Basses CorbiËres site as an SPA. The French Government further argues that, under Article 4 of the birds Directive, as interpreted by the Court of Justice, it is for the Government to classify as SPAs the territories which appear to it to be the most suitable in number and size for the conservation of birds. The French authorities were therefore not required to classify the whole of the area listed in the national inventory of ZICOs as SPAs. The Government also maintains that Bonelli's eagle is the most remarkable species of the area in terms of ornithological interest. As for migratory species, it claims that the area is more one of passage than of stopping or feeding. Certain species might, it is true, be observed on a migratory halt in that area for a resting or feeding period. However, the Basses CorbiËres region does not contain large gathering areas as is the case on coastal lakes.
It should first be noted that, according to the settled case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive. Second, it is well settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that State at the end of the period laid down in the reasoned opinion. On that point, it is undisputed that no part of the Basses CorbiËres site had been classified as an SPA before the expiry of the period laid down by the reasoned opinion. Third, it is undisputed that the Basses CorbiËres site contains natural areas of particular ornithological interest, at least because of the presence of Bonelli's eagle, which is a species listed in Annex I to the birds Directive. In that respect it should be noted that, in January 1999, the French authorities classified two nesting areas of Bonelli's eagle, representing a total area of around 360 hectares and already referred to by two prefectoral decrees for conserving the biotope of that species, as SPAs. One of those areas extends over the municipalities of Tautavel and Vingrau, the other over the municipalities of Maury, PlanËzes and RaziguiËres. However, it has not been shown that there are migratory species justifying the classification of the Basses CorbiËres site as an SPA by virtue of Article 4(2) of the birds Directive. All the species mentioned for that purpose by the Commission as migratory species, such as the honey buzzard, the black kite, the kite, the Egyptian vulture, the short-toed eagle, the marsh harrier, the hen harrier and Montagu's harrier are listed in Annex I to the birds Directive, whereas Article 4(2) of that Directive applies only to migratory species not listed in Annex I. Therefore, without there being any need in this case to consider what area the SPA in the Basses CorbiËres should cover for the obligations arising under the birds Directive to be met, it must be concluded that the French Republic has not, within the prescribed period, classified any territory in the Basses CorbiËres site as an SPA within the meaning of Article 4(1) of the birds Directive.
According to the Commission given that, as from the implementation date of the habitats Directive, namely 10 June 1994, the obligations under Article 6(2) to (4) of that Directive were substituted, pursuant to Article 7 thereof, for the obligations under the first sentence of Article 4(4) of the birds Directive those obligations underPage 78 the habitats Directive have had to be complied with since that date in the case of the Basses CorbiËres site, even if the latter has not yet been classified as an SPA under Article 4(1) and (2) of the birds Directive. In reply to the Court's question on that point, the Commission maintains that, since Article 7 of the habitats Directive does not in any way amend Article 4(1) and (2) of the birds Directive, the grounds which led the Court to extend the protection regime under the first sentence of Article 4(4) of the birds Directive to areas not classified as SPAs are equally relevant in relation to the protection regime under Article 6(2) to (4) of the habitats Directive, which replaced it. The Commission further argues that, if the provisions of Article 7 of the habitats Directive had to be interpreted as being intended to make the obligations under Article 6(2) to (4) applicable only to SPAs actually classified as such by the national authorities pursuant to Article 4(1) and (2) of the birds Directive, the result would be a duality in the protection schemes that would be hard to justify. The protection regime laid down in the birds Directive is, the Commission submits, stricter than that under the habitats Directive, and it would be paradoxical to place areas of ornithological interest that have not been the subject of a national classification measure such as an SPA under a stricter protection scheme than that applicable to areas which have actually been classified as SPAs by Member States. The Commission states that the realisation of the project to open and work limestone quarries in the territory of the Vingrau and Tautavel municipalities within the Basses CorbiËres site is likely to cause disturbance to the species present in that site and a deterioration of their habitat. It argues that, for Bonelli's eagle in particular, the opening of the quarries involves the disappearance of part of its hunting territory and risks disturbing its reproduction on account of the visual and noise pollution connected with the quarries' activity. The Commission also argues that in this case, even if, for determining the areas due to benefit from the special protection regime, one were to take only those classified as SPAs by the French authorities and which correspond to the territories covered by the two decrees for protecting the biotope (nesting areas of Bonelli's eagle), it appears that the quarrying project of the OMYA company is likely significantly to affect those areas, which are of undisputed ornithological interest. The Commission maintains that, in those circumstances, an appropriate assessment of the impact of the project on the conservation of the site concerned should have been carried out. The impact study prior to the authorisation to operate quarries, dated 1994, did not meet that requirement.
The French Republic also infringed the obligation to adopt appropriate compensatory measures. The Commission submits that the cultivation of prey for Bonelli's eagle, the scientific monitoring of that species, the construction of a merlon and a plan for managing the natural environment, besides the fact that they do not concern the other bird species requiring protection, cannot compensate for the disturbance and deterioration caused, since the latter have not been assessed. Since there had been no appropriate assessment of the impact of the quarries project on the site to be classified as an SPA in the municipality of Vingrau and, moreover, a negative impact was far from being excluded, the Commission claims that the French authorities should have refused to give their agreement to that project without demonstrating that there was no alternative solution and that a major public interest was capable of justifying the project. In that respect, the Commission states that several reports emanating from qualified universities conclude that solutions do exist which are equivalent to that of the Vingrau deposit. In any event, neither the OMYA company nor the French authorities had seriously studied those other solutions. The French Government maintains that the Commission does not present any scientific or other evidence to demonstrate that the quarries create significant disturbance for the pair of Bonelli's eagles or for the other species. In any event, the Government denies that the opening and operation of the quarries are capable of entailing serious consequences for the species present in the site. In that respect, it argues, first, that none of the scientific studies carried out concluded that operation of the quarries might involve such consequences for the wild birds and in particular Bonelli's eagle; second, that such operation was preceded by a detailed impact study which concluded that the project had no significant effect on the environment; and, finally, that important precautionary measures designed to avoid potential negative effects of the project on the environment have been put into operation. The French Government states that Bonelli's eagle was present before the Tautavel quarry began operating in 1968, and that it has since maintained itself on the site without the working of the limestone noticeably causing a disturbance of the species. Nothing in the monitoring of that species, carried out by local bird protection associations independent of the administration, supports the conclusion that moving the Tautavel workings to Vingrau might have negative effects, the nesting area of Bonelli's eagle being in any event unaffected by either of the working sites. Concerning the hunting area of Bonelli's eagle, the French Government points out that, in the impact study referred to above, it is stated, first, that the area needed for working the quarries should not unduly disturb the habits of that species, which has a hunting territory of several square kilometres, and, secondly, that precautionary measures to encourage proliferation of the small prey upon which that eagle feeds have been taken. As regards possible alternative solutions to the deposit currently being worked by the OMYA company in the Vingrau and Tautavel municipalities, the French Government claims that they have been seriously studied by that company but are not equivalent to that deposit. In reply to the question put by the Court as to the applicability of Article 6(2) to (4) of the habitats Directive to areas not yet classified as SPAs, the French Government, which acknowledges that it has not pleaded the inapplicability of those provisions to the Basses CorbiËres area, maintains that thePage 79 substitution of the obligations contained therein for those in the first sentence of Article 4(4) of the birds Directive, as provided for in Article 7 of the habitats Directive, concerns only areas already classified as SPAs under the birds Directive.
It first needs to be considered whether Article 6(2) to (4) of the habitats Directive apply to areas which have not been classified as SPAs but should have been so classified. In that respect, it is important to note that the text of Article 7 of the habitats Directive expressly states that Article 6(2) to (4) apply, in substitution for the first sentence of Article 4(4) of the birds Directive, to the areas classified under Article 4(1) or (2) of the latter Directive. It follows that, on a literal interpretation of that passage of Article 7 of the habitats Directive, only areas classified as SPAs fall under the influence of Article 6(2) to (4) of that Directive. Moreover, the text of Article 7 of the habitats Directive states that Article 6(2) to (4) of that Directive replace the first sentence of Article 4(4) of the birds Directive as from the date of implementation of the habitats Directive or the date of classification by a Member State under the birds Directive, where the latter date is later. That passage of Article 7 appears to support the interpretation to the effect that the application of Article 6(2) to (4) presupposes the classification of the area concerned as an SPA. It is clear, therefore, that areas which have not been classified as SPAs but should have been so classified continue to fall under the regime governed by the first sentence of Article 4(4) of the birds Directive. Thus, the fact that, as the case law of the Court of Justice shows, the protection regime under the first sentence of Article 4(4) of the birds Directive applies to areas that have not been classified as SPAs but should have been so classified does not in itself imply that the protection regime referred to in Article 6(2) to (4) of the habitats Directive replaces the first regime referred to in relation to those areas. Moreover, as regards the Commission's argument concerning a duality of applicable regimes, it should be noted that the fact that the areas referred to in the previous paragraph of this judgment are, under the first sentence of Article 4(4) of the birds Directive, made subject to a regime that is stricter than that laid down by Article 6(2) to (4) of the habitats Directive in relation to areas classified as SPAs does not appear to be without justification. A Member State cannot derive an advantage from its failure to comply with its Community obligations. In that respect, if it were lawful for a Member State, which, in breach of the birds Directive, has failed to classify as an SPA a site which should have been so classified, to rely on Article 6(3) and (4) of the habitats Directive, that State might enjoy such an advantage.
Since no formal measure for classifying such a site as an SPA exists, it is particularly difficult for the Commission, in accordance with Article 155 of the EC Treaty (now Article 211 EC), to carry out effective monitoring of the application by Member States of the procedure laid down by Article 6(3) and (4) of the habitats Directive and to establish, in appropriate cases, the existence of possible failures to fulfil the obligations arising thereunder. In particular, the risk is significantly increased that plans or projects not directly connected with or necessary to the management of the site, and affecting its integrity, may be accepted by the national authorities in breach of that procedure, escape the Commission's monitoring and cause serious, or irreparable ecological damage, contrary to the conservation requirements of that site. Natural or legal persons entitled to assert before the national courts interests connected with the protection of nature, and especially wild bird life, which in this case means primarily environmental protection organisations, would face comparable difficulties. A situation of this kind would be likely to endanger the attainment of the objective of special protection for wild bird life set forth in Article 4 of the birds Directive, as interpreted by the case-law of the Court. The duality of the regimes applicable, respectively, to areas classified as SPAs and those which should have been so classified gives Member States an incentive to carry out classifications, in so far as they thereby acquire the possibility of using a procedure which allows them, for imperative reasons of overriding public interest, including those of a social or economic nature, and subject to certain conditions, to adopt a plan or project adversely affecting an SPA. It follows from the above that Article 6(2) to (4) of the habitats Directive do not apply to areas which have not been classified as SPAs but should have been so classified.
