CGBN Co-ordination Group for Biodiversity and Nature – summary of recent judgements from ECJ in nature cases Patrick Wegerdt Infringements Unit A.2 DG Environment Brussels – 22 June 2010

Case C-293/07 – Commission v Greece (1) 11 December 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 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.

Case C-573/08R Commission vs. Italy 9 December 2009 Concerns non-conformity of Italian legislation transposing Birds Directive at national and regional level. One of the Regions concerned is Lombardia, with particular reference to its practice of allowing hunting derogations which do not comply with the strict conditions laid down in Article 9 of Birds Directive. Court application in the main case (C-573/08) lodged on 22/12/08; currently pending decision. Following the adoption by the Lombardia Region of legislation (n.21/2009) permitting the hunting of four species protected under the Birds Directive, in breach of Article 9 for the 2009/2010 hunting season, the Commission sought an order for interim measures from the Court. In its judgment, the Court considered that by permitting the hunting of the species concerned there was a risk of ‘serious and irreparable damage to fauna’; on basis of this finding, the Court ordered the Italian authorities to immediately suspend the application of the legislation concerned.

Case C-226/08 'Stadt Papenburg' 14 January 2010 Preliminary reference case and important follow-up to previous case-law regarding applicability of the Habitats Directive to projects initiated prior to the Directive's entry into force. First question to Court: whether criteria other than those relating to the conservation of natural habitats and wild fauna and flora e.g. economic considerations, can be taken into account when the Member States shall agree to the Commission's list of SCIs. The Court confirmed that first subparagraph of Article 4(2) Habitats Directive, does not provide for requirements other than those relating to the conservation of natural habitats and wild fauna and flora to be taken into account. Otherwise the achievement of the objective to set up of the Natura 2000 network would be put in danger.

Case C-226/08 'Stadt Papenburg‘ (2) 14 January 2010 Second question: where a ongoing project, authorised prior to transposition of the Directive (or prior to accession to the EU), significantly affects a site, is the site is protected by Article 6(2) or by Article 6(3)-(4)? The Court concluded that each case would have to be assessed as to whether the works were a single operation or distinct operations in order to assess whether the requirements of Article 6 applied. In case of distinct and successive projects, Court considered that Art 6(3) and (4) would apply. In the case of an SCI likely to be proposed (candidate pSCIs) or already proposed (pSCIs) but not yet adopted, the provisions of Draggagi/Bund Naturschutz would apply. Even if the decision was made that the maintenance works constituted a single ongoing operation, Court emphasised that obligations of Article 6(2) would nonetheless apply.

Case C-241/08 Commission vs. France 4 March 2010 Court ruled that France failed to fulfil its obligations under Article 6(2) and 6(3) Habitats Directive, by providing generally that fishing, aquaculture, hunting and other hunting-related activities practised under conditions and in areas authorised by laws and regulations in force do not constitute activities causing disturbance; by systematically exempting works and developments provided for in Natura 2000 contracts from the procedure of assessment of their implications for the site, and by systematically exempting works, development plans and projects which are subject to a declaratory system from the same procedure. As regards the incorrect transposition of Article 6(3) of Habitats Directive, Court confirmed literal reading of Article 6(3): since alternatives are only mentioned in Article 6(4), no alternatives to projects have to be asked in the evaluation phase of a plan/project likely to have an impact on a Natura 2000 site.

Case C-308/08 Commission vs. Spain 20 May 2010 Commission alleged failure to fulfil the obligation under the Habitats Directive not to authorise intervention of a kind which would seriously endanger the ecological characteristics of the site concerned. Commission argued there was fragmentation of the habitat of the Iberian Lynx due to the change in the use of a rural track to asphalted road through Donana national park without measures to preserve site designated to protect Iberian lynx (the world’s most endangered feline species, of which Donana holds the largest population, with some 50 individuals) and the serious risk of incidental killing, compromising the survival of the species. The Court referred to a technical report drawn up for the local municipality indicating that road crossings (introduced as part of mitigation measures for the road upgrade and designed to allow the lynx to safely cross the road) were appropriate. Other reports available indicated that the suitability of the crossings were limited. In practice, following their construction, the lynx used the crossings on only four occasions.

Case C-308/08 Commission vs. Spain (2) 20 May 2010 Court considered that speed deterrent and fencing measures had been generally successful. The Court took into account the fact that only two Iberian lynx had been run over on the road after the completion of the measures. In assessing the case, the Court also emphasised that the breeding in captivity programme was a step forward in the preservation of current genetic variability. In conclusion, the Court considered that although certain elements in the case appeared to indicate that the overall situation of the Doñana site might not be satisfactory in the light of the requirements relating to conservation of the Iberian lynx, evidence not sufficient to find that upgrading the country road constituted an intervention of a kind which placed the Iberian lynx on the site concerned in danger of extinction and which risks seriously compromising the ecological characteristics of the site.