Opinion of Advocate General Ćapeta delivered on 9 February 2023.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Celex Number62021CC0444
Date09 February 2023



delivered on 9 February 2023(1)

Case C444/21

European Commission



(Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 6(1) – Special areas of conservation – Obligation to establish the necessary conservation measures – General and persistent infringement)

I. Introduction

1. ‘The living world is a unique and spectacular marvel. … We rely entirely on this finely tuned life support machine and it relies on its biodiversity to run smoothly.’ (2)

2. Biodiversity not only has an intrinsic value, but it is also of utmost importance for human survival. According to the World Economic Forum, (3) the possible consequences arising from biodiversity loss (4) include, at least, food insecurity, exacerbation of climate change and risks to health, business and culture.

3. The European Union recognises problems that the loss of biodiversity might bring. (5) Part of its fight to preserve biodiversity is the Habitats Directive. (6)

4. The present infringement proceedings concern that directive. On the basis of Article 258 TFEU, the European Commission has brought an action against Ireland for failing to fulfil its obligations under Articles 4(4) and 6(1) of the Habitats Directive.

5. This is the third infringement action which has been brought before the Court – following the judgments of 5 September 2019, Commission v Portugal (Designation and protection of special areas of conservation), (7) and of 17 December 2020, Commission v Greece – (8) relating to the implementation of Articles 4(4) and 6(1) of the Habitats Directive. Two other actions of a similar type are also pending before the Court, (9) and additional infringement procedures are ongoing. (10)

6. Consequently, the present case is not just another ‘run of the mill’ infringement action brought by the Commission against a Member State on the basis of Article 258 TFEU. Rather, it seems to be part of the Commission’s policy to address insufficient results in the improvement of the state of habitats and the species living in them, which are included in the Habitats Directive. (11)

7. At the same time, the present case demonstrates several difficulties with which the Court is faced in infringement proceedings alleging the failure of Member States to reach environmental targets. What are precisely the obligations that a Member State must fulfil if it is to be considered that it has properly implemented the Habitats Directive? How is the Commission to prove such a failure, and what can a Member State raise in defence? Additionally, and quite importantly, how is the Court to assess those arguments?

8. As I will show, it is essential, more than in many other areas of EU law, that, in answering these questions, a substantive approach is adopted, avoiding legal formalism and concentrating on the main objective of the Habitats Directive. That objective is to safeguard biodiversity. Within the framework of that directive, this is to be achieved by measures taken by the Member States aimed at maintaining or restoring selected natural habitats and their wild fauna and flora at a favourable conservation status. (12)

9. The Habitats Directive aims, therefore, at achieving the result which is to be perceived in nature. That result is not a network of legal provisions (though some might prove necessary), but the preservation of the biodiversity covered by that directive. The objective of the Habitats Directive cannot be accomplished merely by the adoption of a number of legal norms, nor even by the enforcement of such norms. Many required measures are not legal in the sense of creating rights and obligations for specific subjects. Such measures are often not capable of being evaluated by the usual methods of assessment which the Court uses in infringement proceedings, namely verifying whether a legal measure exists, whether it is enforced in practice and whom it creates rights and obligations for. In the present context, the questions are of a different order and the Court is not equipped to answer them on the basis of its own knowledge. For example, the question whether prohibiting the recreational use of certain parts of a forest is sufficient to save an endangered species of animals or plants is difficult for the Court to assess. However, it is necessary that the Court be able to rule that a Member State has or has not done what is required by the Habitats Directive.

10. After briefly describing the course of these infringement proceedings against Ireland (II), I will proceed as follows. I will first explain the system of the Habitats Directive and demonstrate that the obligations of the Member States under Articles 4(4) and 6(1) of that directive create an indivisible whole (III). I will then analyse, as requested by the Court, the complaint alleged by the Commission in this case relating to the infringement of Article 6(1) of that directive (IV). I will conclude that Ireland has failed to fulfil its obligations under Article 6(1) of the Habitats Directive, thereby substantively entailing, at the same time, an infringement of Article 4(4) thereof.

II. The course of this case: the pre-litigation procedure and the procedure before the Court

11. This case concerns Ireland’s implementation of its obligations under Articles 4(4) and 6(1) of the Habitats Directive in the Atlantic biogeographical region. (13)

12. With respect to that region, the Commission, by its Decision 2004/813/EC, (14) adopted a list of 413 sites of Community importance (‘SCIs’) within the territory of Ireland. The Commission subsequently updated that list, in particular, by two decisions, (15) which added 11 sites and merged two sites into one, with regard to Ireland. The present case is therefore concerned with the total of 423 sites listed in those three Commission decisions.

13. Following inquiries through an EU pilot procedure, on 27 February 2015, the Commission sent Ireland a letter of formal notice, in accordance with Article 258 TFEU, in which it set out its view that, by failing to designate a number of sites on its territory as special areas of conservation (‘SACs’), to set site-specific detailed conservation objectives and to adopt the necessary conservation measures for all of the 423 sites in question, that Member State was in breach of its obligations under Articles 4(4) and 6(1) of the Habitats Directive.

14. On 30 April 2015, Ireland replied to the letter of formal notice, indicating its progress on the designation of SACs and the setting of site-specific conservation objectives. At the same time, it emphasised that Irish law protects sites before their formal designation as SACs. It also provided information on conservation measures which were ongoing in many sites. Further to this, on 9 December 2015, 15 January 2016 and 4 March 2016, Ireland sent the Commission three updates on the designation of SACs and the setting of site-specific conservation objectives.

15. On 29 April 2016, the Commission addressed a reasoned opinion to Ireland, considering that the alleged infringements of Articles 4(4) and 6(1) of the Habitats Directive persisted for the majority of sites. (16) It requested that Member State to put an end to those infringements within a period of two months of receipt of that reasoned opinion.

16. On 27 June 2016, Ireland responded to the reasoned opinion. In particular, it set out the recently approved ‘SAC Designation and Management work programme’ for the completion of SAC designations and site-specific conservation objectives and the development of site-level conservation measures.

17. On 9 November 2018, the Commission addressed an additional reasoned opinion to Ireland, which set out a more detailed analysis of the conservation measures presented by that Member State. (17) According to that opinion, Ireland was requested to put an end to the alleged infringements by 9 January 2019.

18. On 11 January 2019, Ireland responded to the additional reasoned opinion. In particular, that Member State set out its progress and a timetable for completion of the designation of SACs and setting site-specific conservation objectives by the end of 2020 and for identification and implementation of the necessary conservation measures for all sites by 2021. Further to this, on 26 April 2019, 2 May 2019, 11 October 2019, 12 December 2019, 14 January 2020 and 14 April 2020, Ireland provided six updates to the Commission on the designation of sites as SACs, the publication of site-specific conservation objectives and developments concerning site-specific conservation measures.

19. By its application lodged on 16 July 2021, the Commission, considering that, by 9 January 2019, Ireland had still not fulfilled its obligations under Articles 4(4) and 6(1) of the Habitats Directive, brought the present action before the Court under Article 258 TFEU.

20. By its first two complaints, the Commission asks the Court to declare that Ireland has infringed Article 4(4) of the Habitats Directive, first, by failing to designate a number of sites on its territory as SACs (217 out of the 423 SCIs), and, second, by failing to set site-specific detailed conservation objectives for certain sites (140 out of the 423 SCIs).

21. By its third complaint, the Commission asks the Court to declare that Ireland has infringed Article 6(1) of the Habitats Directive by failing to establish the necessary conservation measures for any of the 423 sites listed as SCIs in the relevant Commission decisions.

22. In its defence lodged on 15 October 2021, Ireland, supported by the Federal Republic of Germany, (18) requests the Court to dismiss the present action in its entirety as unfounded.

23. The Commission and Ireland also lodged a reply and a rejoinder on 29 November 2021 and 20 January 2022 respectively.

24. A hearing was held on 9 November 2022 at which the...

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