C-71/99, Commission v. Germany
| Author | European Commission |
| Pages | 85-87 |
Page 85
Judgment of the Court (Sixth Chamber) of 11 September 2001. - Commission of the European Communities v Federal Republic of Germany. - 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:61999J0071:EN:HTML
With regard to the obligation to transmit the site list referred to in Article 4(1), first subparagraph, 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 and 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 exist on its territory.
The Commission states that it instituted the present proceedings with a view to securing a declaration that the German national list was manifestly inadequate, and that such inadequacy far exceeded the margin of discretion conferred on Member States. Such inadequacy is evident with regard to the situation existing when the period set in the reasoned opinion expired, and even though the German authorities have, since then, forwarded several other lists of sites, the infringements of which they stand accused still persist. The Commission submits in this connection that a comparison between the proposals of the German authorities and the scientific data provided by those authorities, in particular the manual entitled Das europische Schutzgebietssystem Natura 2000 editedPage 86 by the Bundesamt fr Naturschutz (Federal Office for Nature Protection) amply demonstrates the true nature of those infringements. The German national list does not therefore, in the Commission's opinion, satisfy the criteria referred to in Article 4(1), read in conjunction with Annex III thereto.
The German Government acknowledges that, when the period set in the reasoned opinion expired, it had not forwarded all of the sites which it intended to include on the list of sites mentioned in the first subparagraph of Article 4(1). However, it submits, first, that compliance with the obligation to forward such a list under the first subparagraph of Article 4(1) was conditional on the Member States' receiving the format, which is the first document to define the information enabling relevant sites to be selected. Consequently, the period provided for compliance with that obligation could have begun to run, at the earliest, only from notification of the format and had not yet expired at the date on which the action was brought.
Second, the German Government contends that the Directive confers on the Member States a wide margin of discretion in regard to selection of the sites for inclusion on the list to be forwarded to the Commission. The Member States are therefore entitled to notify only those sites which they consider to be appropriate and necessary for the establishment of a coherent European network of SACs, on the basis of technical criteria and having regard to the objectives of the Directive. The national level, it argues, is the most appropriate one at which to carry out an adequate selection among the sites hosting the natural habitats and species' habitats referred to respectively in Annexes I and II to the Directive. The Member States, it argues, are better informed as to the sites present within their territory.
Third, the German Government challenges the scientific sources to which the Commission referred in order to demonstrate that the German Government had forwarded an incomplete list. It contends that the manual mentioned in paragraph 21 of the present judgment is in no wise the German reference list, and is not even a scientifically certain basis of assessment.
It must first be stated that the obligation to forward the list of sites mentioned in the first subparagraph of Article 4(1) was not conditional on adoption of the format. The format is not the first text to have defined the information allowing Member States to select the relevant sites. Once the Directive had been notified, the Member States were aware of all the selection criteria to be taken into consideration. Article 4(1) requires each Member State to propose, on the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, a list of sites indicating which types of natural habitat under Annex I and which native species under Annex II to the Directive they host. It follows from Annex III (Stage 1) to the Directive that the relevant criteria are the degree of representativity of the natural habitat type on the site, the area of the site covered by the natural habitat type and its degree of conservation, the size and density of the population of the species present on the site, their degree of isolation, the degree of conservation of their habitats and, finally, the comparative value of the sites.
Next, 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.
Finally, it must be borne in mind 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 19 February 1998, the content of the German national list sent to the Commission was manifestly inadequate, far exceeding the margin of discretion which Member States enjoy in 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.
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It must therefore be concluded that, by failing to transmit to the Commission, within the prescribed period, the list of sites mentioned in the first subparagraph of Article 4(1), the Federal Republic of Germany 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 German Government does not deny its failure to forward that information by the expiry of the period laid down in the reasoned opinion, but argues that the preparatory work necessary for collating information on the sites to be proposed, for the completion of which Member States had a three-year period, could not practically begin until the end of 1996, when the format had been notified to the Member States.
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 Federal Republic of Germany on 3 July 1997, well after the date on which the format was notified. The German authorities were thus 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 19 February 1998, the Federal Republic of Germany 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 German Government a letter of formal notice on 4 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 must 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, of the Directive 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 German Government for meeting its obligation to include on the format the site information, which it was required to have 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 19 February 1998, when the period laid down in the reasoned opinion expired, the German Government benefited from a period of more than one year to carry out that specific operation.
Since the German 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 prescribed period, 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) thereof, the Federal Republic of Germany has failed to fulfil its obligations under that Directive.
