C-103/00, Commission v. Greece - Caretta caretta on Zakinthos
| Author | European Commission |
| Pages | 89-91 |
Page 89
Judgment of the Court (Sixth Chamber) of 30 January 2002. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Protection of species. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:62000J0103:EN:HTML
The sea turtle Caretta caretta only lays eggs every two or three years. In Greece, the laying season starts at the end of May and finishes at the end of August. The turtle leaves the sea at night and moves towards the driest area of the beach, where it digs a hole of 40 to 60 centimetres in which it lays an average of 120 eggs. Two months later the eggs hatch and the baby turtles then crawl onto the sand and head towards the sea. The baby turtles are very vulnerable and a large number of them die. The Commission emphasises the fact that the bay of Laganas on Zakinthos is a vital breeding region, perhaps even the most important in the Mediterranean, for the sea turtle Caretta caretta. Given the significance of the bay of Laganas, the Greek authorities have proposed that the region be classified as one of the sites of Community importance for the Natura 2000 network. ThePage 90 Commission's principal complaint is that the Hellenic Republic has infringed its obligations under the Treaty and Article 12(1)(b) and (d), first, by failing to adopt a legislative framework which would ensure the strict protection of the sea turtle Caretta caretta against any deliberate disturbance during its breeding period and against any deterioration or destruction of its breeding sites and, second, by failing to take specific measures to prevent such nuisances.
According to the Commission, the Greek Government has not adopted an institutional framework within the prescribed time-limit capable of ensuring the effective long-term protection of the sea turtle Caretta caretta.
The Greek Government claims that by issuing a presidential decree on 22 December 1999 which classifies the land and sea regions of the bay of Laganas and the Strofada islands as a national marine park and the costal areas of the communes of Zakinthos and Laganas as a regional park, it has instituted a system of strict protection for the sea turtle Caretta caretta. The Greek Government submits that, over the last 20 years, measures have been progressively taken to ensure the protection of that species on the island of Zakinthos. It refers to various laws, regulations and administrative measures adopted to that end from 1980 onwards. The Decree of 1999 constitutes only the most recent measure in a process of progressive implementation of a system of strict protection for that species. According to the Greek Government, the lack of grounds for the Commission's action is also demonstrated by the nesting figures available for the sea turtle Caretta caretta on the bay of Laganas over the last 15 years. These figures do not show that the number of nests has decreased.
It should be observed in this regard that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes. The Decree of 1999, on which the Greek Government has based a significant part of its pleadings, was adopted after the expiry of the two-month time-limit laid down in the reasoned opinion. Consequently, it is not necessary to examine whether the system of protection for the sea turtle Caretta caretta provided for by that decree meets the protection requirements set out in Article 12(1)(b) and (d). As regards the other measures which, according to the Greek Government, are intended to implement an effective system of protection for that species, it must be remembered that Article 12(1)(b) and (d) require that the requisite measures be taken to establish a system of strict protection for the animal species listed in Annex IV(a) of that Directive in their natural habitats, prohibiting the deliberate disturbance of those species, particularly during the period of breeding, rearing, hibernation and migration, and the deterioration or destruction of breeding sites or resting places. First, it is undisputed that the bay of Laganas is a vital breeding region for the protected species Caretta caretta. Second, according to the findings of the Greek Council of State in a report in 1999 Annexed to the draft presidential decree establishing the marine park of Zakinthos, the provisions in force at that time did not ensure, to the extent necessary, the effective protection of the sea and land areas of the bay of Laganas. In particular, given the pressure and the erosion caused to the breeding beaches at Dafni, Gerakas and Kalamaki by the construction of access routes to those beaches and given the noise resulting from human activity, the Council of State recommended the prohibition not only of the opening of new access routes to those beaches, but also of the creation of infrastructure such as kiosks, tents or parking facilities. The Greek Government does not contest those matters. Third, it should be observed that during the pre-litigation period, the Greek Government particularly stressed that the adoption of a decree creating a marine park at Zakinthos would introduce a system of strict protection for the sea turtle Caretta caretta. In its defence, the Greek Government claimed that, in respect of that species, the Decree of 1999 met the protection objectives set out in Article 12. In its rejoinder, the Greek Government submitted, for the first time, that the requisite measures to establish a system of strict protection for that species pursuant to Article 12(1)(b) and (d) had been taken prior to 14 August 1999, the date on which the time-limit set by the Commission expired. However, in the oral hearing, the Greek Government admitted that the Decree of 1999 had established a system creating stricter protection than had been afforded by the system of protection previously in force. It should also be observed that, when asked by the Court to identify, and submit the wording of, the specific provisions in force in their legal system on 14 August 1999 which it believed met the requirements laid down by Article 12(1)(b) and (d), the Greek Government merely listed a series of laws, regulations and administrative measures without referring to any specific provisions capable of meeting those requirements. In the light of the foregoing, it must be held that the Greek Government did not adopt a legal framework within the prescribed time-limit which was capable of ensuring strict protection for the sea turtle Caretta caretta against any deliberate disturbance during the breeding period and against any deterioration or destruction of its breeding sites. Consequently, the Commission's application must be granted on this point. The fact that it does not appear that the number of nests of that species has decreased over the last 15 years does not, of itself, call this finding into question.
Page 91
The Commission points out that, during a visit to the breeding beaches of the sea turtle Caretta caretta on the island of Zakinthos at the end of August 1999, its officials reported inter alia the use of mopeds on the sand beach to the east of Laganas, the presence of pedalos and small boats in the sea around Gerakas and Dafni and the presence of illegal buildings on the beach at Dafni.
It is undisputed that the use of mopeds on a beach used for breeding by the Caretta caretta turtle is, particularly owing to the noise pollution, liable to disturb that species during the laying period, the incubation period and the hatching of the eggs, as well as during the baby turtles' migration to the sea. It is also established that the presence of small boats near the breeding beaches constitutes a source of danger to the life and physical well-being of the turtles. It is apparent from the documents before the Court that at the time the facts were ascertained by the Commission's officials, the use of mopeds on the breeding beaches was prohibited and notices indicating the presence of turtle nests on the beaches had been erected. As regards the sea area around Gerakas and Dafni, it had been classified as an absolute protection area and special notices had been erected there. It follows that the use of mopeds on the sand beach to the east of Laganas and the presence of pedalos and small boats in the sea area around Gerakas and Dafni constitute the deliberate disturbance of the species in question during its breeding period for the purposes of Article 12(1)(b). Moreover, the acts were not isolated occurrences. As regards the use of mopeds on the breeding beaches, this is clear from the Greek Government's assertion that nocturnal supervision of the eastern part of beach at Laganas was, at the material time, particularly difficult to ensure owing to the length of the beach, the high number of access points and the low number of supervisors. As far as the presence of small boats in the relevant sea area is concerned, it should be noted that these were observed on two visits to Zakinthos by Commission officials, as stated at paragraphs 8 and 13 of this judgment. Finally, there is no doubt that the presence of buildings on a breeding beach such as the one at Dafni is liable to lead to the deterioration or destruction of the breeding site within the meaning of Article 12(1)(d). It must, therefore, be held that the Hellenic Republic did not take, within the prescribed time-limit, all the requisite specific measures to prevent the deliberate disturbance of the sea turtle Caretta caretta during its breeding period and the deterioration or destruction of its breeding sites. Consequently, the Commission's application must also be granted on this point. In the light of the foregoing, the Court finds that by failing to take, within the prescribed time-limit, the requisite measures to establish and implement an effective system of strict protection for the sea turtle Caretta caretta on Zakinthos so as to avoid any disturbance of the species during its breeding period and any activity which might bring about deterioration or destruction of its breeding sites, the Hellenic Republic has failed to fulfil its obligations under Article 12(1)(b) and (d).
