C-355/90, Commission v. Spain - Santoña Marshes
| Author | European Commission |
| Pages | 60-62 |
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Judgment of the Court of 2 August 1993. - Commission of the European Communities v Kingdom of Spain. - Conservation of wild birds - Special protection areas. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61990J0355:EN:HTML
The SantoÒa marshes are one of the most important ecosystems in the Iberian peninsula for many aquatic birds. The marshes serve as a wintering area or staging post for many birds on their migrations from European countries to the southern latitudes of Africa and the Iberian peninsula itself. The birds observed in the area include various species that are becoming extinct, in particular the spoonbill, which feeds and rests in the SantoÒa marshes in the course of its migrations. Moreover, it emerged from the case file and at the hearing before the Court that the area in question is regularly visited by 19 of the species listed in Annex I to the Directive and at least 14 species of migratory birds. It means that the SantoÒa marshes are not only a habitat that is essential for the survival of several species in danger of extinction within the meaning of Article 4(1) but also wetlands of international importance for regularly occurring migratory species in that area within the meaning of Article 4(2).
The Spanish Government recognizes the ecological value of the area. It points out that the SantoÒa and Noja marshes were classified as nature reserves by Law No 6 of 27 March 1992, because of the importance of those wetlands as habitats for many species of animals. However, it considers that the national authorities have a margin of discretion with regard to the choice and delimitation of special protection areas and the timing of their classification as such.
That argument cannot be accepted. Although Member States do have a certain margin of discretion with regard to the choice of special protection areas, the classification of those areas is nevertheless subject to certain ornithological criteria determined by the Directive, such as the presence of birds listed in Annex I, on the one hand, and the designation of a habitat as a wetland area, on the other. As to the classification of the SantoÒa marshes as a nature reserve by Law No 6 of 27 March 1992, this cannot be regarded as satisfying the requirements laid down in the Directive, either in respect of the territorial extent of the area or as regards its legal status as a protected area. In this connection, it must be observed first of all that the nature reserve does not cover the whole of the marshes, since an area of 40 000 square metres is excluded. Yet that land is of particular importance for aquatic birds in danger of extinction within the meaning of Article 4(1)(a), since a steady reduction in the space available for nesting has been observed in the other marshland areas close to the coast. Next the necessary protection measures have not been defined even for the marshes within the classified area. Indeed, it appears from the case file that the plan for the management of nature reserves provided for in Article 4 of the Law has not been approved by the competent authorities. Yet that plan is of the utmost importance for the protection of wild birds because it intended to identify activities which will give rise to a change in the ecosystems of the area. Since measures as essential as those determining the management of the area or governing the use of the marshes and the activities carried out there have not been adopted, the requirements of the Directive cannot be held to have been satisfied.
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The Commission claims that it is possible for a Member State to infringe both Article 4(1) and (2), relating to the classification of a territory as a special protection area, and Article 4(4), which concerns the protection measures relating to such an area.
According to the Spanish Government, a Member State cannot be accused of having infringed both those provisions at the same time, because the protection measures cannot be implemented until the decision has been taken to classify a territory as a special protection area.
That line of reasoning must be rejected. The objectives of protection set out in the Directive, as expressed in the ninth recital in its preamble, could not be achieved if Member States had to comply with the obligations arising under Article 4(4) only in cases where a special protection area had previously been established. With respect to the relationship between Articles 3 and 4, it must be borne in mind that the first of those provisions imposes obligations of a general nature, namely the obligation to ensure a sufficient diversity and area of habitats for all the birds referred to in the Directive, while the second contains specific obligations with regard to the species of birds listed in Annex I and migratory species not listed in that Annex. As it is undisputed that both categories of birds are found in the SantoÒa marshes, it will be sufficient to consider the Commission' s complaints in the light of the provisions of Article 4.
The second section of the road between ArgoÒos and SantoÒa
The Commission claims that the new route followed by the C-629 road between ArgoÒos and SantoÒa results not only in a considerable reduction in the surface area of the SantoÒa marshes but also in disturbances affecting the peaceful nature of the area and consequently the wild birds protected by the provisions of the Directive.
The Spanish Government explains that the new road is necessary to improve access to the town of SantoÒa. Also, the new route is the best of various possible alternatives, mainly because it affects only a small proportion of the total surface area of the marshes.
These explanations cannot be accepted. As the Court stressed in Case C-57/89 Commission v Germany, although Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas, they do not have the same discretion under Article 4(4) in modifying or reducing the extent of those areas. The Court finds in this connection that the construction of the new section of road C-629 between ArgoÒos and SantoÒa involves a reduction in the surface area of the marshland, an effect that, moreover, is aggravated by the erection of a number of new buildings near this new section of road. These operations have resulted in the loss of refuge, rest and nesting areas for birds. In addition to the disturbances caused by the road works, the action in question has modified the ebb and flow of the tide, causing this part of the marshland to silt up. Since, regard being had to the considerations of principle set out above, such action cannot be justified by the need to improve access to the municipality of SantoÒa.
The Commission considers that the establishment of industrial estates at Laredo and Colindres is resulting in the disappearance of a substantial part of the marshland, namely the area adjoining the mouth of the AsÛn river, also known as the AsÛn or Treto estuary. The filling-in of land adjoining these sites is also alleged to affect the ebb and flow of the tide in the bay.
The Spanish Government explains that the competent authorities have abandoned the idea of establishing these industrial estates as they were originally planned.
The Court takes note of the written and oral statements of the Spanish Government to the effect that the industrial estates at Laredo and Colindres have not been established and the municipalities concerned have abandoned the idea of carrying out those two projects as they were originally planned. Although it is no longer proposed to carry out those projects, the fact remains that, after the Kingdom of Spain joined the Communities, the local authorities re-sealed the dykes previously built round the land earmarked for the industrial estates. Nor is it disputed that no steps have so far been taken to demolish those dykes, even though the local authorities have acknowledged their harmful impact on the aquatic environment and have undertaken to demolish them. Accordingly, it must be held that there has been a failure to fulfil obligations in this respect.
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The Commission takes issue with the granting of authorization by the Spanish authorities to a fishermen' s association to farm clams in the middle of the marshes, as well as the projects for other aquaculture operations in the estuary.
The Spanish Government emphasizes the economic interest of this activity and contends that it has only a small impact on the ecological situation of the marshes.
In this connection, it should be stressed that the installation of aquaculture facilities, which not only reduce the surface area of the marshland and cause variations in the natural sedimentation processes there, but also modify the structure of the existing marsh bed, has the effect of destroying the particular vegetation of those areas, which is an important source of food for the birds. As has already been observed, considerations relating to the economic problems caused by the decline in the industrial and fishery sectors in the region, which are, moreover, contradicted by the fact that other projects have been abandoned because they were not profitable, cannot justify a derogation from the protection requirements laid down in Article 4(4).
The Commission claims that the discharge of untreated waste water, has had detrimental effects on the quality of the water in SantoÒa bay.
The Spanish Government does not deny that untreated waste water from the municipalities in the SantoÒa bay area has been discharged into the SantoÒa marshes. However, it claims that the Directive does not contain any provision obliging Member States to equip themselves with systems for treating waste in order to preserve the quality of the water in a special protection area.
That argument must be rejected. The discharge of waste water containing dangerous toxic substances is highly detrimental to the ecological conditions in the SantoÒa marshes and has a significant effect on the quality of the water in the area. In view of the fundamental importance of the quality of that water to the marshlands, the Kingdom of Spain is under a duty, where necessary, to provide systems for treating waste in order to prevent pollution of those habitats.
