Bund Naturschutz in Bayern eV and Others v Freistaat Bayern.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Silva de Lapuerta
• ECLI: ECLI:EU:C:2006:579
• Docket Number: C-244/05
• Date: 14 September 2006
• Procedure Type: Reference for a preliminary ruling

Case C-244/05

Bund Naturschutz in Bayern eV and Others

v

Freistaat Bayern

(Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof)

(Conservation of natural habitats and of wild fauna and flora – Directive 92/43/EEC – Protection regime before the inclusion of a habitat in the list of sites of Community importance)

Summary of the Judgment

Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation

(Council Directive 92/43, Arts 3(1) and 4(1))

Before a site is placed on the list of sites of Community importance adopted by the Commission in accordance with Article 4(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, Member States must take appropriate protective measures in order to maintain the ecological characteristics of the sites which appear on the national list transmitted to the Commission under Article 4(1) of that directive.

That appropriate protection scheme not only requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites, but also to take, in accordance with the provisions of national law, all the measures necessary to avoid such interventions.

The Commission must be sure of having available an exhaustive list of sites eligible as special areas of conservation, the drawing up of which is aimed at a coherent European ecological network. It follows from this that, at the time of the decision which the Commission is called upon to take, the sites identified by the Member States must reflect the situation on the basis of which the scientific evaluations of potential sites of Community importance have been carried out. If that were not the case, the Community decision-making process which is not only based on the integrity of the sites as notified by the Member States, but is also characterised by the ecological comparisons between the different sites proposed by the Member States, would run the risk of being distorted and the Commission would no longer be in a position to fulfil its duties in the area concerned.

Furthermore, in so far as, in accordance with the first part of Annex III to the directive, the ecological characteristics of a site identified by the competent national authorities must reflect a number of assessment criteria which are expressly listed there, Member States cannot authorise interventions which may pose the risk of seriously compromising the ecological characteristics of a site, as defined by those criteria. This is particularly the case when an intervention poses the risk either of significantly reducing the area of a site, or of leading to the disappearance of priority species present on the site, or, finally, of having as an outcome the destruction of the site or the destruction of its representative characteristics.

(see paras 41-42, 44-47, 51, operative part 1-2)

JUDGMENT OF THE COURT (Second Chamber)

14 September 2006 (*)

(Conservation of natural habitats and of wild fauna and flora – Directive 92/43/EEC – Protection regime before the inclusion of a habitat in the list of sites of Community importance)

In Case C-244/05,

REFERENCE for a preliminary ruling under Article 234 EC from the Bayerischer Verwaltungsgerichtshof (Germany), made by decision of 19 April 2005, received at the Court on 7 June 2005, in the proceedings

Bund Naturschutz in Bayern eV,

Johann Märkl and Others,

Angelika Graubner-Riedelsheimer and Others,

Friederike Nischwitz and Others,

v

Freistaat Bayern,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), P. Kūris, G. Arestis and J. Klučka, Judges,

Advocate General: L.A. Geelhoed,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 6 April 2006,

after considering the observations submitted on behalf of:

– Bund Naturschutz in Bayern eV, by U. Kaltenegger and
P. Rottner, Rechtsanwälte,

– J. Märkl, by C. Deißler and A. Schwemer, Rechtsanwälte,

– F. Nischwitz, by A. Lehners and E. Schönefelder, Rechtsanwälte,

– Freistaat Bayern, by Professors A. Brigola and M. Dauses, and by G. Schlapp and M. Wiget, acting as Agents,

– the Commission of the European Communities, by M. Van Beek and M. Heller, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 May 2006,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Article 3 of 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; ‘the Directive’).

2 This reference was made in the course of proceedings between Bund Naturschutz in Bayern eV and 23 other persons (‘the applicants’) and Freistaat Bayern regarding a decision to approve a motorway project.

The Directive

3 Under the sixth recital in the preamble to the Directive, ‘in order to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status, it is necessary to designate special areas of conservation in order to create a coherent European ecological network according to a specified timetable’.

4 Article 3 of the 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. … .’

5 Article 4 of the Directive is worded as follows:

‘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 …

The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information on each site. …

2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the five 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 lost 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...