European Commission v Ireland.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:524
• Date: 29 June 2023
• Docket Number: C-444/21
• Celex Number: 62021CJ0444
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Second Chamber)

29 June 2023 (*)

Contents

I. Legal context

II. Pre-litigation procedure and procedure before the Court

III. The action

A. First complaint: failure to designate special areas of conservation

1. Arguments of the parties

2. Findings of the Court

B. Second complaint: failure to set conservation objectives

1. Arguments of the parties

2. Findings of the Court

C. Third complaint: failure to comply with the obligation to establish the necessary conservation measures

1. Arguments of the parties

(a) Sites with, according to the Commission, no conservation measures or with partial conservation measures

(b) Sites with, according to the Commission, conservation measures which are not based on conservation objectives

(c) A persistent and systematic practice of establishing conservation measures that are not sufficiently precise and that fail to address all significant pressures and threats

2. Findings of the Court

(a) Preliminary observations

(b) Sites with no conservation measures or with incomplete conservation measures

(c) Sites with conservation measures which are not based on conservation objectives

(d) A persistent and systematic practice of establishing conservation measures that are not sufficiently precise and that fail to address all significant pressures and threats

Costs

(Failure of a Member State to fulfil obligations – Environment – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Special areas of conservation – Atlantic biogeographical region – Article 4(4) and Article 6(1) – Failure to designate special areas of conservation and to set conservation objectives – Absence or insufficiency of conservation measures)

In Case C‑444/21,

ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 16 July 2021,

European Commission, represented by C. Hermes and M. Noll-Ehlers, acting as Agents,

applicant,

v

Ireland, represented by M. Browne, A. Joyce, M. Lane and J. Quaney, acting as Agents, and by E. Barrington, Senior Counsel, A. Carroll, Barrister-at-Law, and M. Gray, Senior Counsel,

defendant,

supported by:

Federal Republic of Germany, represented by J. Möller and A. Hoesch, acting as Agents,

intervener,

THE COURT (Second Chamber),

composed of A. Prechal, President of the Chamber, M.L. Arastey Sahún (Rapporteur), F. Biltgen, N. Wahl and J. Passer, Judges,

Advocate General: T. Ćapeta,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 9 November 2022,

after hearing the Opinion of the Advocate General at the sitting on 9 February 2023,

gives the following

Judgment

1 By its action, the European Commission requests the Court to declare that:

– by failing to designate as special areas of conservation, as soon as possible and within six years at most, 217 of the 423 sites of Community importance for the Atlantic biogeographical region which were included on the list established by Commission Decision 2004/813/EC of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Atlantic biogeographical region (OJ 2004 L 387, p. 1), updated by Commission Decision 2008/23/EC of 12 November 2007 adopting, pursuant to Council Directive 92/43/EEC, a first updated list of sites of Community importance for the Atlantic biogeographical region (OJ 2008 L 12, p. 1), and by Commission Decision 2009/96/EC of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Atlantic biogeographical region (OJ 2009 L 43, p. 466) (‘the sites of Community importance at issue’);

– by failing to define detailed site-specific conservation objectives for 140 of the 423 sites of Community importance at issue; and

– by failing to adopt the necessary conservation measures which correspond to the ecological requirements of the natural habitat types referred to in Annex I and the species referred to in Annex II to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (‘the Habitats Directive’), present on the 423 sites of Community importance at issue,

Ireland has failed to fulfil its obligations under Article 4(4) and Article 6(1) of the Habitats Directive.

I. Legal context

2 The third and eighth recitals of the Habitats Directive state:

‘Whereas, the main aim of this Directive being to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements, this Directive makes a contribution to the general objective of sustainable development; whereas the maintenance of such biodiversity may in certain cases require the maintenance, or indeed the encouragement, of human activities;

…

Whereas it is appropriate, in each area designated, to implement the necessary measures having regard to the conservation objectives pursued’.

3 Article 1(l) of that directive provides:

‘For the purpose of this Directive:

…

(l) special area of conservation means a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated’.

4 Under Article 2(2) of that directive:

‘Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.’

5 Article 3(1) and (2) of the same directive provides:

‘1. A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.

The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to Directive 79/409/EEC.

2. Each Member State shall contribute to the creation of Natura 2000 in proportion to the representation within its territory of the natural habitat types and the habitats of species referred to in paragraph 1. To that effect each Member State shall designate, in accordance with Article 4, sites as special areas of conservation taking account of the objectives set out in paragraph 1.’

6 Article 4 of the Habitats Directive provides:

‘1. On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each Member State shall propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host. For animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction. For aquatic species which range over wide areas, such sites will be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction. Where appropriate, Member States shall propose adaptation of the list in the light of the results of the surveillance referred to in Article 11.

The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information on each site. That information shall 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) provided in a format established by the Commission in accordance with the procedure laid down in Article 21.

2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the nine biogeographical regions referred to in Article 1(c)(iii) and of the whole of the territory referred to in Article 2(1), the Commission shall establish, in agreement with each Member State, a draft list of sites of Community importance drawn from the Member States’ lists identifying those which host one or more priority natural habitat types or priority species.

Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be applied more flexibly in selecting all the sites of Community importance in their territory.

The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.

3. The list referred to in paragraph 2 shall be established within six years of the notification of this Directive.

4. Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.

5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to...