ORNIS committee meeting – summary of recent judgements from ECJ in nature cases Patrick Wegerdt Infringements Unit A.2 DG Environment Brussels – 15 October 2009

Case C-293/07 – Commission v Greece (1) 11 December 2008 - Case brought by the Commission for failure to comply with the obligations of the Birds directive for the establishment and application of coherent, specific and integrated legal regime for the protection of sites designated under Art 4(1) and (2). Case concerns some 151 sites designated as SPAs in Greece. Of these sites, the Court considered that only some 15 SPAs had the appropriate legal protection, where legal decree specifying the conservation objectives etc in line with Art 4 had been adopted.

Case C-293/07 – Commission v Greece (2) 11 December 2008 The legal system applying to the outstanding sites was in the view of the Court too broad in nature and did not take into account the specific objectives set out in Art 4(1) and (2) for the protection of the bird species concerned (para. 26) In relation to SPA sites designated as national parks, the Court noted that the legal regime in place did not address the specific objectives of Art 4 in relation to that site (reference to: SPA, species for which the site was designated etc). Where the national park covered only the centre of the SPA, activities undertaken outside that area could still have a potential impact on the SPA itself (para. 27) Court concluded that Greece had failed to establish a coherent, specific and integrated legal regime capable of ensuring viable management and effective protection of areas designated as SPAs, in light of the conservation objectives under Art 4(1) and (2).

Case C-76/08 – Commission v Malta (1) 10 September 2009 Case brought by the Commission for failure to comply with the obligations of the Birds directive by permitting hunting of two species of birds – turtle dove (Streptopelia turtur) and quail (Coturnix coturnix) during the spring migration period in breach of Article 7. The Commission considered that derogation for spring hunting did not comply with requirements of Art 9 in that another ‘satisfactory solution’ (the first condition of Art 9(1)) was available – that is autumn hunting. Court in its judgement emphasised that conditions under Art 9(1) for a derogation must be interpreted strictly with MSs required to establish that the conditions for its application are met (para. 48)

Case C-76/08 – Commission v Malta (2) 10 September 2009 In relation to the condition of ‘no other satisfactory solution’ the Court reiterated position that were birds are available in autumn, even in considerably smaller numbers than in spring, then a satisfactory solution can be said to exist. (para. 51) It considered that in the case of Malta whilst autumn hunting was possible, in its view only an ‘inconsiderable number’ of birds were present. (Therefore, having regard to the very specific circumstances in Malta, the Court concluded that autumn hunting could not be considered a satisfactory alternative (para. 63) Nonetheless, the Court went on, spring hunting in Malta was in breach of Art 9(1) in that the number of birds shot in spring did not constitute an adequate solution that is strictly proportionate to the Directive’s objective of conservation of the species (para. 65) The Court concluded that Malta had failed to comply with the conditions under Art 9 and therefore it was in breach of those obligations under the Directive.