C-117/03 (reference for a preliminary ruling) - Dragaggi
| Author | European Commission |
| Pages | 109-111 |
Page 109
Judgement of the Court (Second Chamber) of 13 January 2005 In Case C-117/03, Reference for a preliminary ruling under Article 234 EC from the Consiglio di Stato (Italy), made by order of 17 December 2002, received at the Court on 18 March 2003, in the proceedings Societ Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti, Regione Autonoma del Friuli Venezia Giulia. http://curia.eu.int/jurisp/cgibin/form.pl?lang=en&Submit=Rechercher&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=C-117/03&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100
The reference for a preliminary ruling relates to the interpretation of Articles 4(5), 6(3) and 21 of the Habitats Directive. The reference was submitted in proceedings between, first, Societ Italiana Dragaggi SpA ('Dragaggi') amongst others and, second, the Ministry for Infrastructure and Transport and the Autonomous Region of Friuli-Venezia Giulia concerning the annulment, by the contracting authority, of a tender procedure relating to dredging works and the dumping of sediment on reclaimed land in the port of Monfalcone.
On 14 May 2001 Dragaggi was awarded a contract relating to dredging works and the dumping of the sediment on reclaimed land in the port of Monfalcone. Four months later the contracting authority annulled the entire tender procedure on the ground that the reclaimed land on which the sediment resulting from the works was intended to be deposited was classified as a site of Community interest, requiring an impact assessment under the relevant national legislation. According to the authority, such an assessment could not have a positive outcome. Dragaggi challenged the legality of the decision annulling the tender procedure before the Regional Administrative Court of Friuli Venezia Giulia. It contended in particular that the procedure for classifying as a site of Community importance the 'mouth of the Timavo' site where the reclaimed land in question was situated had not yet been completed. Although the Italian authorities had proposed a list of sites, including the site at the mouth of the Timavo, to the Commission, the latter had not yet adopted the Community list under the third subparagraph of Article 4(2). Therefore, the obligation to carry out a prior assessment of projects that had significant implications for the site was not yet applicable. In its judgment, the court rejected the argument alleging that the impact assessment procedure was not applicable to the project. According to the Regional Administrative Court of Friuli Venezia Giulia, where a Member State has, as in the present instance, identified a site hosting a priority species and has included it in the list proposed to the Commission, that site must, under paragraph 1 of Schedule III (Stage 2) to the Directive, be considered to be of Community importance. Accordingly it is subject, pursuant to Article 4(5), to the protective measures referred to in Article 6(2), (3) and (4) thereof, and in particular to the impact assessment which is provided for in Article 6(3). According to that court, this approach is the only one capable of giving logical meaning to the Directive which, inasmuch as it seeks to protect habitats or species in danger of disappearance and extinction, must be capable of applying directly, if only in order to provide a safeguard. Furthermore, the measures proposing the classification of the mouth of the Timavo as a priority site, in particular the decree of the Minister for the Environment of 3 AprilPage 110 2000, were not challenged. Holding that an impact assessment was necessary, the Regional Administrative Court of Friuli Venezia Giulia upheld Dragaggi's other complaints alleging that the persons concerned by the carrying out of the project had not been consulted, that alternative solutions to those defined in the project had not been considered before the tender procedure was annulled and that the competent authority had not considered the possibility of giving a positive assessment accompanied by conditions. Dragaggi brought an appeal against the judgment of the Regional Administrative Court of Friuli Venezia Giulia before the Council of State. In particular, it repeated before the Council of State the argument that Article 4(5) requires the protective measures envisaged in Article 6 to be applied only once the Community list has been established. In its submission, this view is confirmed by Article 4 of Decree No 357/97 which provides that the protective measures must be adopted within three months following the inclusion of the site on the list established by the Commission. The Council of State observed that, inasmuch as the listing of sites of Community importance hosting priority habitats appeared to be a purely declaratory act that did not require the exercise of any discretion by the Community authority, the interpretation placed on Article 4(5) by the Regional Administrative Court of Friuli Venezia Giulia could not be considered to be manifestly unfounded. In those circumstances the Council of State decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling:
'Is Article 4(5) of the Habitats Directive to be interpreted as meaning that the measures under Article 6 and, in particular, under Article 6(3) of that Directive are mandatory for the Member States only after final approval at Community level of the list of sites under Article 21 or, alternatively, in addition to determination of the ordinary commencement date of conservation measures, must a distinction be drawn between declaratory listing and determinative listing (including in the first category the listing of priority sites) with the result that, in order to ensure the effectiveness of the Directive, where a Member State identifies a site of Community importance sustaining priority natural habitat types or species, there must be considered to be an obligation to carry out an assessment of plans and projects with a significant effect on the site even before the Commission draws up the draft list of sites or the adoption of the final version of that list pursuant to Article 21 and, in fact, with effect from the drawing up of the national list?'
Pursuant to Article 4(5), the regime for the protection of special areas of conservation that is laid down in Article 6(2), (3) and (4) thereof applies to a site once it is placed, in accordance with the third subparagraph of Article 4(2), on the list of sites selected as sites of Community importance as adopted by the Commission under the procedure laid down in Article 21. The fact that, according to paragraph 1 of Annex III (Stage 2) to the Directive, all the sites identified by the Member States in Stage 1 which contain priority natural habitat types and/or species will be considered as sites of Community importance cannot render the protection regime prescribed in Article 6(2), (3) and (4) applicable to them before they appear, in accordance with the third subparagraph of Article 4(2), on the list of sites of Community importance adopted by the Commission. The contrary proposition referred to by the Consiglio di Stato, that where a Member State has, as in the main proceedings, identified a site as hosting a priority habitat and has included it in the list proposed to the Commission pursuant to Article 4(1), that site must, in view of paragraph 1 of Annex III (Stage 2) to the Directive, be considered to be of Community importance and is therefore subject, pursuant to Article 4(5), to the protective measures referred to in Article 6(2), (3) and (4), cannot succeed. First, this proposition clashes with the wording of Article 4(5), which expressly links application of those protective measures to the fact that the site concerned has been placed, in accordance with the third subparagraph of Article 4(2), on the list of sites of Community importance adopted by the Commission. Second, the proposition presupposes that, where a site has been identified by a Member State as hosting priority natural habitat types or priority species and has been referred to on the list proposed to the Commission pursuant to Article 4(1), the Commission is required to place it on the list of sites of Community importance which it adopts in accordance with the procedure laid down in Article 21 and is mentioned in the third subparagraph of Article 4(2). If that were the case, the Commission would be precluded, when establishing, in agreement with each Member State, a draft list of sites of Community importance within the meaning of the first subparagraph of Article 4(2), from contemplating not including on the draft list any site proposed by a Member State as hosting priority natural habitat types or priority species, even if it were to consider, notwithstanding the contrary opinion of the Member State concerned, that a given site did not host priority natural habitat types and/or species as referred to in paragraph 1 of Annex III (Stage 2) to the Directive. Such a situation would be contrary, in particular, to the first subparagraph of Article 4(2), read in conjunction with paragraph 1 of Annex III (Stage 2). It thus follows from the foregoing that, on a proper construction of Article 4(5), the protective measures prescribed in Article 6(2), (3) and (4) are required only as regards sites which, in accordance with the third subparagraph of Article 4(2), are on the list of sites selected as sites of Community importance adopted by the Commission in accordance with the procedure laid down in Article 21. This does not mean that the Member States are not to protect sites as soon as they propose them, under Article 4(1), as sites eligible for identification as sites of Community importance on the national list transmitted to the Commission. If those sites are not appropriately protected from that moment, achievement of the objectives seeking the conservation of natural habitats and wild fauna and flora, as set out in particular in thePage 111 sixth recital in the preamble to the Directive and Article 3(1) thereof, could well be jeopardised. Such a situation would be particularly serious as priority natural habitat types or priority species would be affected, for which, because of the threats to them, early implementation of conservation measures would be appropriate, as recommended in the fifth recital in the preamble to the Directive. In the present instance, it should be remembered that the national lists of sites eligible for identification as sites of Community importance must contain sites which, at national level, have an ecological interest that is relevant from the point of view of the Directive's objective of conservation of natural habitats and wild fauna and flora. It is apparent, therefore, that in the case of sites eligible for identification as sites of Community importance that are mentioned on the national lists transmitted to the Commission and may include in particular sites hosting priority natural habitat types or priority species, the Member States are, by virtue of the Directive, required to take protective measures appropriate for the purpose of safeguarding that ecological interest.
- on a proper construction of Article 4(5), the protective measures prescribed in Article 6(2), (3) and (4) are required only as regards sites which, in accordance with the third subparagraph of Article 4(2), are on the list of sites selected as sites of Community importance adopted by the Commission in accordance with the procedure laid down in Article 21;
- in the case of sites eligible for identification as sites of Community importance which are included in the national lists transmitted to the Commission and, in particular, sites hosting priority natural habitat types or priority species, the Member States are, by virtue of the Directive, required to take protective measures that are appropriate, from the point of view of the Directive's conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level.
On a proper construction of Article 4(5), the protective measures prescribed in Article 6(2), (3) and (4) of that Directive are required only as regards sites which, in accordance with the third subparagraph of Article 4(2), are on the list of sites selected as sites of Community importance adopted by the Commission of the European Communities in accordance with the procedure laid down in Article 21. In the case of sites eligible for identification as sites of Community importance which are included in the national lists transmitted to the Commission and, in particular, sites hosting priority natural habitat types or priority species, the Member States are, by virtue of he Directive, required to take protective measures that are appropriate, from the point of view of the Directive's conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level.
