«(Failure of a Member State to fulfil obligations – Conservation of wild birds – Special protection areas)»

1.. Environment – Conservation of wild birds – Directive 79/409 – Classification of special protection areas – Obligation of the Member States – Obligation to adopt measures which automatically link the classification of a site as a special protection area to the application of a protection regime (Council Directive 79/409, Art. 4)

2.. Acts of the institutions – Directives – Implementation by the Member States – Need for clear and precise transposition (Art. 249 EC)

JUDGMENT OF THE COURT (Sixth Chamber) 27 February 2003 (1)

((Failure by a Member State to fulfil its obligations – Conservation of wild birds – Special protection areas))

In Case C-415/01,

applicant,

v

defendant,

APPLICATION for a declaration that, in so far as the Région flamande (Flemish Region) has failed to transpose Article 4(1) and (2) of and Annex I to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), to demarcate special protection areas within its territory capable of being relied upon as against third parties, and to adopt the measures necessary to ensure that the classification of a site as a special protection area automatically and simultaneously entails the application of a system of protection and conservation complying with Community law, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) and (2) in conjunction with Article 4(4), as partially amended, of Directive 79/409 in accordance with Article 7 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), by Article 6(2) to (4) of the latter directive,

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, C. Gulmann (Rapporteur), F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: P. Léger,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 7 November 2002,

gives the following

In this connection, account shall be taken of:

Trends and variations in population levels shall be taken into account as a background for evaluations.Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this directive applies.

...

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.

The alleged failure to transpose Article 4(1) and (2) of and Annex I to the directive on birds

The alleged lack of a system of protection of SPAs

The alleged unenforceability as against third parties of the demarcation of SPAs

On those grounds,

THE COURT (Sixth Chamber)

hereby:

Puissochet

Schintgen

Gulmann

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 27 February 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber