JUDGMENT OF THE COURT (Fifth Chamber)

24 November 2016 ( *1 )

‛Failure of a Member State to fulfil obligations — Directive 2009/147/EC — Conservation of wild birds — Special protection areas — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Directive 92/43/EEC — Conservation of natural habitats’

In Case C‑461/14,

ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 7 October 2014,

European Commission , represented by C. Hermes, E. Sanfrutos Cano, D. Loma-Osorio Lerena and G. Wilms, acting as Agents,

applicant,

v

Kingdom of Spain , represented by A. Gavela Llopis, acting as Agent,

defendant,

THE COURT (Fifth Chamber)

composed of J.L. da Cruz Vilaça, President of the Chamber, M. Berger, A. Borg Barthet (Rapporteur), E. Levits and F. Biltgen, Judges,

Advocate General: N. Wahl,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 23 February 2016,

gives the following

Judgment

1By its action, the European Commission asks the Court to declare that, by failing to take appropriate steps to avoid, in the special protection area (‘the SPA’) ‘Campiñas de Sevilla’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which that area was established, the Kingdom of Spain has failed to fulfil its obligations under Article 3 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment ( OJ 1985 L 175, p. 40 ), as amended by Council Directive 97/11/EC of 3 March 1997 ( OJ 1997 L 73, p. 5 ) (‘Directive 85/337’), Article 4(4) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds ( OJ 2009 L 20, p. 7 ) (‘the Birds Directive’), and Article 6(2) 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 Habitats Directive’).

Legal context

Directive 85/337

2In accordance with Article 2(1) of Directive 85/337, Member States are to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. Those projects are defined in Article 4 of that directive.

3Article 3 of that directive reads as follows:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:

—

human beings, fauna and flora;

—

soil, water, air, climate and the landscape;

—

material assets and the cultural heritage;

—

the interaction between the factors mentioned in the first, second and third indents.’

4Article 4 of that directive provides:

‘1. ... Projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. ... For projects listed in Annex II, the Member States shall determine through:

(a)

a case-by-case examination,

or

(b)

thresholds or criteria set by the Member State

whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

Member States may decide to apply both procedures referred to in (a) and (b).

3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.

…’

5Annex I to Directive 85/337 contains a list of projects referred to in Article 4(1) thereof. It mentions, in point 7(a) and (b), the ‘construction of lines for long-distance railway traffic and of airports with a basic runway length of 2100 m or more’ and the ‘construction of motorways and express roads’.

6Point 2 of Annex III to that directive, entitled ‘Location of projects’ provides, with regard to the selection criteria set out in Article 4(3) of that directive:

‘The environmental sensitivity of geographical areas likely to be affected by projects must be considered, having regard, in particular, to:

—

the existing land use;

—

the relative abundance, quality and regenerative capacity of natural resources in the area;

—

the absorption capacity of the natural environment, paying particular attention to the following areas:

(a)

wetlands;

…

(d)

nature reserves and parks;

(e)

areas classified or protected under Member States’ legislation; special protection areas designated by Member States pursuant to [Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ( OJ 1979 L 103, p. 1 ), and the Habitats Directive];

…’

The Birds Directive

7Directive 79/409 has been substantially amended several times. Thus, in the interests of clarity and rationality that directive was codified by the Birds Directive.

8According to its Article 1, the Birds Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the FEU Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation.

9Article 4 of that directive provides:

‘1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.

In this connection, account shall be taken of:

(a)

species in danger of extinction;

(b)

species vulnerable to specific changes in their habitat;

(c)

species considered rare because of small populations or restricted local distribution;

(d)

other species requiring particular attention for reasons of the specific nature of their habitat.

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 in the geographical sea and land area where this Directive applies.

2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.

…

4. In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.’

10Amongst several other species, Otis tarda (the Great Bustard) is mentioned in Annex I to the directive.

The Habitats Directive

11According to Article 2(1) of the Habitats Directive, the aim of the directive is to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies.

12Article 6(1) to (3) of that directive provides:

‘1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

13Under Article 7 of that directive:

‘Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of Directive 79/409/EEC in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC, where the latter date is later.’

Background to the dispute and the pre-litigation procedure

14Following a complaint lodged in the month of February 2010 concerning a project for the construction of a high-speed railway line between Seville (Spain) and Almería (Spain), sections ‘Marchena-Osuna I’, ‘Marchena-Osuna II’ and ‘Variante de Osuna’, the Commission sent, on 17 June 2011, a letter of formal notice to the Kingdom of Spain in which it stated that that State had failed to fulfil its obligations under Article 3 of Directive 85/337, Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive. That complaint was accompanied by a report on the potential impacts of the works on the railway corridor crossing Andalucía as it passes through the SPA ‘Campiñas de Sevilla’.

15Overall, the project makes provision, first, for infrastructure improvements and adaptation of the existing railway line and, secondly, further installation works required for the implementation and commissioning of the new railway platform.

16With regard to the section relating to the improvement and adaptation of the existing track, the environmental impact assessment was submitted for public consultation on 4 July 2006. By decision of 26 November 2006, an environmental impact statement was adopted in accordance with that assessment. The works relating to the infrastructure began on 4 December 2007 and were interrupted in 2009. That project makes provision to cross a natural site, classified by the Spanish authorities on 29 July 2008 as an SPA for birds. That area was declared as an SPA after authorisation of the project in question and after the environmental impact statement in respect of that project by the Spanish authorities. However, the site in question was already included, since 1998, under No 238 of the list of areas of importance for the conservation of birds in Europe, namely in the Inventory of Important Bird Areas in the European Community (‘the IBA 98’).

17On 20 July 2011, the Kingdom of Spain asked the Commission for an extension of the prescribed period for reply, which was granted.

18On 20 September 2011, the Kingdom of Spain replied to the letter of formal notice.

19By letter of 20 June 2013, the Commission delivered a reasoned opinion in which it complained that the Kingdom of Spain had failed to fulfil its obligations under Article 3 of Directive 85/337, Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive.

20On 21 August 2013, the Kingdom of Spain replied to that reasoned opinion by enclosing with its letter an annex presenting a report entitled ‘Análisis de la afección del Eje Ferroviario Transversal a la avifauna de la ZEPA Campiñas de Sevilla’ (Analysis of the impacts of the railway corridor crossing the bird areas of the SPA ‘Campiñas de Sevilla’), drawn up in the month of July 2013 by the Environment and Water Management Agency of the Consejería de Agricultura, Pesca y Medio Ambiente de la Junta de Andalucía (Regional Ministry for Agriculture, Fisheries and the Environment of the Region of Andalucía, Spain).

21Taking the view that the measures taken by the Kingdom of Spain remained unsatisfactory, the Commission decided to bring the present action.

Admissibility of the action

Arguments of the parties

22The Kingdom of Spain challenges the admissibility of the action on the ground that the application was based on a complaint different from that relied on during the pre-litigation procedure.

23That Member State submits, in that regard, that, during the pre-litigation procedure, the subject matter of the dispute was clearly limited to the ‘Marchena-Osuna I’ and ‘Marchena-Osuna II’ sections of the railway line. However, in its application, the Commission also criticised the Kingdom of Spain for not having complied with the requirements of Directive 85/337 concerning the section ‘Variante de Osuna’, with a length of 3 km, thus broadening the subject matter of the dispute.

24The Commission recalls that the infringement proceedings were initiated following a complaint concerning the project for the ‘Marchena-Osuna I’, ‘Marchena-Osuna II’ and ‘Variante de Osuna’ sections of a new high-speed railway line between Seville and Almería. Therefore, it is claimed that, although the facts constituting the failure explicitly referred to in the proceedings are those concerning the ‘Marchena-Osuna I’ and ‘Marchena-Osuna II’ sections, a reference to the wider context of the project is relevant.

Findings of the Court

25First of all, in this case, the Court notes that the validity of the reasoned opinion and of the procedure which preceded it is not in dispute. Nevertheless, the Kingdom of Spain contends that the complaint put forward in the application differs from that contained in the letter of formal notice and the reasoned opinion.

26It should be recalled in that regard that, in accordance with settled case-law, the letter of formal notice from the Commission to the Member State concerned, and then the reasoned opinion issued by the Commission, delimit the subject matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to make use of it, is an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (judgment of 3 September 2014, Commission v Spain, C‑127/12 , not published, EU:C:2014:2130 , paragraph 23 and the case-law cited).

27Nevertheless, the Commission may, after the letter of formal notice, clarify its complaints, provided that the subject matter of those complaints remains in substance the same (judgment of 3 September 2014, Commission v Spain, C‑127/12 , not published, EU:C:2014:2130 , paragraph 24 ).

28In the present case, it should be noted that the subject matter of the dispute, as defined during the pre-litigation procedure, has been extended or altered.

29It should be pointed out that the section ‘Variante de Osuna’ was not examined during the pre-litigation procedure and that the action must, therefore, be declared inadmissible in so far as that section is concerned.

The infringement

The first complaint, alleging infringement of Article 3 of Directive 85/337

Arguments of the parties

30The Commission states, above all, that it does not deny that an environmental impact assessment has been carried out for the entire project in question, nor does it claim that that project was divided into several sections in order to avoid the assessment of the cumulative effects of those sections on the environment. Its first complaint thus relates to the fact that the environmental impact assessment which was carried out does not satisfy the requirements of Article 3 of Directive 85/337.

31The Commission criticises the Kingdom of Spain for having failed to fulfil the obligations arising under Article 3 of that directive, in so far as it has neither identified nor described, nor adequately assessed the effects of the high-speed railway line project in question on the environment and more specifically on bird areas. The environmental impact assessment in question did not take into account the fact that the railway line would pass through an ecologically sensitive area whose importance had been recognised by the scientific community since 1998 and was included in the IBA 98.

32According to the Commission, the environmental impact statement in question did not mention habitats of vital importance for bird life, such as wetlands, namely the Ojuelos lagoon. In addition, the species of birds present in the area in question were simply listed and there was absolutely no assessment of the impact of the project on the affected species. Furthermore, the findings of the environmental impact assessment which was conducted are, it is claimed, limited to two general protective measures, namely the interruption of work during the periods of breeding and rearing of offspring and the requirement to adopt measures to prevent the risk of electrocution of birds.

33The Commission also stresses that the project in question will continue to affect birds even after completion of the works. The operation of a high-speed railway line, it is claimed, clearly has an impact on bird life, such as noise and the risk of collision or even electrocution, which were not considered during the environmental impact assessment carried out by the Spanish authorities. In its reply, the Commission argues that, as the ultimate goal of the project is the implementation and commissioning of a new high-speed line, the operational phase of that line should have been taken into consideration in the initial impact assessment to avoid a situation where dividing up the project leads to inconsistencies in the full environmental protection that is sought.

34Due to the absence of an adequate assessment of the environmental impact of the project in question, the Spanish authorities, it is claimed, also failed to fulfil their obligation to inform the public concerned of the likely effects of that project on the area concerned before the decision was taken regarding the application for implementation of that project.

35The Commission considers that the fact that the proposed high-speed railway line runs parallel to an ordinary railway line does not have the effect of limiting the harmful effects on birds. A high-speed rail line, it claims, has more intense and invasive effects than those likely to occur in the case of an ordinary railway line, and those effects have not been correctly assessed with regard not only to the necessary works and installations, but also regarding the subsequent operation of the high-speed railway line.

36The Commission submits that Directive 85/337 gives particular importance to the assessment of the likely effects of a project when it is to be implemented on sites of ecological importance, in particular in accordance with point 2, entitled ‘Location of projects,’ in Annex III to that directive, which indicates, with regard to the criteria referred to in Article 4(3) of that directive, that particular attention be paid to wetlands.

37Furthermore, the Commission considers that the undertaking made by the Kingdom of Spain to carry out a further environmental impact assessment confirms that the authorisation of the project was not preceded by an appropriate assessment of those impacts.

38The Kingdom of Spain denies the alleged failure to fulfil obligations. It contends, first, that there is no statutory requirement to mention in the environmental impact statements that a site is included in an inventory of important bird areas (IBA) in the European Union. The Court, it is contended, has acknowledged on several occasions that an IBA had no binding effect (judgment of 19 May 1998, Commission v Netherlands, C‑3/96 , EU:C:1998:238 , paragraph 70 ). The only value which the Court attributes to an IBA is that it can be used by a Member State as a basis of reference for assessing whether, in the absence of scientific proof to the contrary, it has classified a sufficient number and area of sites as SPAs (judgment of 28 June 2007, Commisson v Spain, C‑235/04 , EU:C:2007:386 , paragraphs 26 and 27 ).

39Thus, the argument put forward by the Commission is, it is contended, irrelevant in that it assesses whether there is a breach of Article 3 of Directive 85/337 on account of the fact that the environmental impact assessment does not refer to direct and indirect effects on the environment in general and on birds in particular. The only relevant fact, it is argued, is that the environmental impact assessment identifies the wildlife affected and allows appropriate measures to be taken to avoid and remedy any damaging effects. The environmental impact assessment which was carried out, it is contended, did fully meet those requirements, even without mentioning the IBA 98.

40Second, the Kingdom of Spain considers that the existence of wetlands or areas legally declared to be protected was not included in Annex I to Directive 85/337, but in Annex III thereto, so that such elements are considered by the European Union to be of relative importance rather than essential.

41Third, as regards the Commission’s argument that the existence of a railway line parallel to the projected railway line produces more intense and more invasive effects that are likely to generate cumulative effects which have not been assessed, the Kingdom of Spain considers that the environmental impact assessment carried out makes it possible to conclude that those will be significantly alleviated by the construction of the new railway line parallel to, and at a short distance from, the existing railway line.

42Fourth, the Kingdom of Spain considers that the environmental impact assessment which was carried out provides for adequate preventive and corrective measures, namely respecting the breeding periods of steppe birds, halting the works, creating walking paths along the route which have been completed after those works have been re-examined in order to avoid directly affecting bird life, as well as other measures to protect the air environment, the soil and the hydrological system, which also reinforce the prevention of negative effects on birds.

43Moreover, those measures, it is contended, were extended with a view to declaring a part of the area concerned as an SPA.

44Fifth, the Kingdom of Spain points out that the environmental impact assessment in question only concerns the project relating to earthworks, platform construction and fencing.

45Furthermore, that Member State submits that the Commission makes a biased interpretation of the intention of the Spanish authorities to carry out a new environmental impact assessment, insofar as it was expressly provided that, at a later date, another project would be undertaken to carry out the work necessary for the commissioning of the railway line, including the power line, which will also necessarily be subject to the corresponding assessment. In that regard, it is contended, the Commission failed to establish that providing for two consecutive projects that are subject to their respective assessments would undermine the purpose and procedures laid down by Directive 85/337.

46Finally, the Kingdom of Spain contends that the fact that the population of steppe birds has increased during and after the execution of the work proves that the assessment carried out is sufficient. According to the Kingdom of Spain, the measures adopted on the basis of the environmental impact assessment carried out protected the birds and helped to achieve the final objective of the directives in question.

Findings of the Court

47As a preliminary remark, it must be recalled that the scope of the obligation to assess the impacts on the environment follows from Article 3 of Directive 85/337, according to which the environmental impact assessment is to identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11 of that directive, the direct and indirect effects of a project on human beings, fauna and flora, soil, water, air, climate and the landscape, material assets and the cultural heritage, and the interaction between those factors (judgment of 24 November 2011, Commission v Spain, C‑404/09 , EU:C:2011:768 , paragraph 78 ).

48The Court has also frequently pointed out that the scope of Directive 85/337 is wide and its purpose very broad (judgment of 28 February 2008, Abraham and Others, C‑2/07 , EU:C:2008:133 , paragraph 42 ). Furthermore, Article 2(1) of Directive 85/337 requires Member States to ensure that projects likely by virtue, inter alia, of their nature, size and location, to have significant effects on the environment are made subject to an assessment with regard to their effects. In that regard, that directive seeks an overall assessment of the environmental impact of projects or of their modification (judgment of 28 February 2008, Abraham and Others, C‑2/07 , EU:C:2008:133 , paragraph 42 ).

49In the present case, the Commission contends, in essence, that the environmental impact assessment carried out pursuant to Directive 85/337, covering the infrastructure works necessary for the operation of the ‘Marchena-Osuna I’ and ‘Marchena-Osuna II’ sections of the high-speed railway line between Seville and Almería, and including the construction works on the tracks and the rail route, including the construction of a raised and expanded platform, is inadequate since it does not mention the existence of a site in the IBA 98 and does not take account of the fact that the contested project crosses a site of particular ecological importance.

51In the first place, as regards the Commission’s argument based, in essence, on the fact that the environmental impact assessment which was carried out should have mentioned that the site concerned by the contested project was an important area for birds in Europe and has been listed since 1998 in the IBA 98, before being classified as an SPA by the Spanish authorities in 2008, the Court has held that that inventory, although not legally binding, could be used by the Court as a basis of reference for assessing whether a Member State has classified a sufficient number and size of areas as SPAs (see, to that effect, judgment of 28 June 2007, Commission v Spain, C‑235/04 , EU:C:2007:386 , paragraph 26 ).

52It must be held that the IBA 98 provides an up-to-date list of the areas of importance for the conservation of birds in Spain which, in the absence of scientific proof to the contrary, constitutes a basis of reference permitting an assessment to be made as to whether that Member State has classified areas of a sufficient number and size as SPAs to protect all the bird species listed in Annex I to Directive 79/409 and the migratory species not listed in that annex (see, to that effect, judgments of 28 June 2007, Commission v Spain, C‑235/04 , EU:C:2007:386 , paragraph 27 , and of 18 December 2007, Commission v Spain, C‑186/06 , EU:C:2007:813 , paragraph 30 ).

53It should be noted, however, that Directive 85/337 does not contain any provision requiring the environmental impact assessment to state that a site affected by a project subject to such assessment is included in an IBA. The Commission’s argument must therefore be rejected.

54Second, as regards the Commission’s argument that the environmental impact assessment in question did not adequately identify, describe or assess the effects of the project in question on the environment, and more specifically on bird areas, it should be pointed out that, in the absence of more specific and detailed explanations, it cannot be concluded, as the Advocate General has pointed out, in essence, in point 41 of his Opinion, that it has been established to the requisite legal standard that such was the case.

55As regards the identification of the bird species present in the area concerned by the project in question, it must be held that, despite the absence of a reference to the IBA 98, the environmental impact assessment at issue refers to the particularity of that area as regards bird life, contains an inventory of the bird species listed in Annex I to the Birds Directive present in that area, in particular Otis tarda , and indicates the category of protection applicable to each of them. That assessment also identifies certain measures intended to preserve those species, such as the interruption of works during periods of breeding and rearing of offspring, as well as the prohibition of removing vegetation between March and July in order to avoid a negative effect on reproduction. The Commission does not specify the reasons why, having regard to the project specifically referred to in the assessment at issue, those measures are insufficient.

56As regards, thirdly, the Commission’s argument that the environmental impact statement did not cover the Ojuelos lagoon, which is located in an area subsequently classified as an SPA, examination of the elements in the case file reveals that that lagoon and its role and importance were described in the environmental impact assessment at issue.

57As regards, in the fourth place, the Commission’s argument that the project in question would continue to affect the birds even after completion of the works, given that the operation of a high-speed railway line clearly has an impact on bird life, such as noise, the risk of collision or electrocution, which were not considered during the environmental impact assessment carried out by the Spanish authorities, it must be held that that assessment did not precisely identify the measures to be adopted in order to avoid those risks.

58It should be noted, however, as the Advocate General pointed out, in essence, in points 37 and 51 of his Opinion, that, as the Commission pointed out in its reasoned opinion and in the context of the present proceedings, the environmental impact assessment at issue does not infringe Article 3 of Directive 85/337 because it does not relate to the entire contested project. In accordance with the case-law referred to in paragraph 26 of the present judgment, the complaint to that effect put forward by the Commission for the first time in its reply must therefore be declared inadmissible.

59In the fifth place, the Commission submits that the environmental impact assessment at issue did not adequately consider the consequences related to the works and installations required for the construction of a high-speed railway parallel to an existing railway line and the subsequent operation of that planned line.

60In that regard, it must be held that the environmental impact assessment at issue demonstrated that the route parallel to the existing railway line was the most appropriate solution from an environmental point of view, whereas the Commission, which, according to the case-law cited in paragraph 50 of this judgment, has the onus to adduce the evidence of the alleged breach, did not support its claims that the two parallel railway lines could have increased negative effects, in several respects, on the environment.

61It follows that the complaint alleging breach of Article 3 of Directive 85/337 must be rejected.

The second complaint, alleging infringement of Article 4(4) of the Birds Directive

Arguments of the parties

62By its second complaint, the Commission criticises the Kingdom of Spain for the harmful consequences arising from a project to build a high-speed railway line between Seville and Almería for certain bird species listed in Annex I to the Birds Directive.

63The Commission considers that, by approving the construction of a high-speed railway line within an area mentioned in the IBA 98, the Kingdom of Spain failed to fulfil its obligations under Article 4(4) of the Birds Directive.

64According to the Commission, given that the ‘Campiñas de Sevilla’ site was belatedly classified as an SPA, namely in July 2008, once the environmental impact assessment procedure had been completed, and even if the works had already begun, the Spanish authorities should have taken appropriate conservation measures in accordance with the provisions of Article 4(4) of the Birds Directive (judgments of 20 September 2007, Commission v Italy, C‑388/05 , EU:C:2007:533 , paragraph 18 , and of 18 December 2007, Commission v Spain, C‑186/06 , EU:C:2007:813 , paragraph 27 ). This obligation, it is claimed, exists until the designation of the area as an SPA and, according to the case-law of the Court, it should be fulfilled before any reduction in the bird population or the risk of disappearance of protected species has materialised (judgment of 2 August 1993, Commission v Spain, C‑355/90 , EU:C:1993:331 , paragraph 15 ). Consequently, the Commission considers that, by authorising the high-speed railway line crossing a site included in the IBA 98, the Kingdom of Spain did not fulfil its obligations under the first sentence of Article 4(4) of the Birds Directive, namely to take appropriate measures to avoid prohibited disturbances in the areas affected by that project which should have been classified as SPAs.

65The Commission submits that the construction works carried out have significantly altered the environmental characteristics of the area concerned, in particular as a result of the installation of a high platform and a double safety barrier. Those changes were, according to the Commission, likely to cause limitations to birds’ access to their breeding, resting and feeding grounds.

66Furthermore, the Commission submits that the environmental impact assessment that was carried out was insufficient as regards the possible effects of the project in question on birds present in the area concerned and as regards corrective and compensatory measures, in accordance with Article 3 of Directive 85/337, which led to inadequate identification of the risks posed by the project.

67The Kingdom of Spain submits that, in order to comply with Article 4(4) of the Birds Directive, it is not necessary to follow the procedures laid down by that directive for areas expressly designated as SPAs. On the contrary, it considers that it is sufficient for Member States to have adopted measures to preserve and protect birds even before those areas are classified. In that regard, the Kingdom of Spain considers that it has adopted appropriate conservation measures, in particular by limiting the dates of earthworks according to the breeding season of the birds, by creating walking paths along the route to avoid directly affecting bird life and by installing anti-collision equipment for birds.

68In addition, it considers that Article 4(4) of the Birds Directive has been respected, given that the population of the SPA ‘Campiñas de Sevilla’ has not decreased, but increased during the period between 2001 and 2012.

Findings of the Court

69Article 4(4) of the Birds Directive requires Member States to take appropriate steps to avoid, within SPAs, pollution or deterioration of habitats or any disturbances affecting the birds, in so far as those are significant having regard to the objectives of that article.

70In that respect, it should be noted, in the first place, that, according to the case-law of the Court, Member States must fulfil the obligations arising under the first sentence of Article 4(4) of the Birds Directive, even where the areas in question have not been classified as SPAs, provided that they should have been so classified (judgments of 18 December 2007, Commission v Spain, C‑186/06 , EU:C:2007:813 , paragraph 27 and the case-law cited, and of 14 January 2016, Commission v Bulgaria, C‑141/14 , EU:C:2016:8 , paragraph 67 ).

73In that regard, as has been pointed out in paragraph 52 of the present judgment, the Court considered that the IBA 98, which provides an up-to-date list of the areas of importance for the conservation of birds in Spain, constitutes, in the absence of scientific proof to the contrary, a basis of reference permitting an assessment to be made as to whether that Member State has classified areas of a sufficient number and size as SPAs to protect all the bird species listed in Annex I to the Birds Directive and the migratory species not listed in that annex.

74It is common ground that the geographical area known as ‘Campiñas de Sevilla’, which is located in the province of Seville, is home to steppe bird species listed in Annex I to the Birds Directive, so that it was entered in IBA 98 before being designated as an SPA by a decision of 29 July 2008.

75It seems, therefore, that such an area, which ought to have been classified as an SPA before 29 July 2008, falls within the protection scheme laid down in the first sentence of Article 4(4) of the Birds Directive, in accordance with the case-law cited in paragraphs 70 and 71 of the present judgment.

76In the second place, in order to establish that there has been a failure to fulfil the obligations resulting from the first sentence of Article 4(4) of the Birds Directive, it is necessary to refer, by analogy, to the case-law of the Court relating to the failure to fulfil obligations under Article 6(2) of the Habitats Directive, since the content of the latter provision is largely the same as that of the first sentence of Article 4(4) of the Birds Directive (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14 , EU:C:2016:8 , paragraph 69 and the case-law cited).

77According to that case-law, an infringement of the provision in question is deemed to exist where the Commission establishes that there is a probability or risk that a project will cause deterioration to the habitats of protected species of birds or cause significant disturbance to those species (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14 , EU:C:2016:8 , paragraph 70 ).

78Consequently, it is necessary to examine whether the Commission has established that there is a probability or risk that the project at issue in the ‘Campiñas de Sevilla’ site, which was belatedly classified as an SPA, will cause the deterioration and disturbances referred to in the preceding paragraph.

79It is apparent from the case file that the construction of a high-speed railway line requiring, in particular, the construction of roads, a high platform and earthworks and which crosses an area containing several species referred to in Annex I to the Birds Directive, is likely to cause significant disturbances and deterioration to the habitats of protected species of birds.

80It is true that, as the Kingdom of Spain contends, that Member State took certain measures intended to compensate for the effects of the construction works, such as the limitation of such work during the birds’ reproductive seasons and the creation of walking paths along the railway line.

81However, as the Advocate General pointed out in points 75 and 77 of his Opinion, those measures do not exclude the possibility that the new railway platform crossing an important habitat for certain species of birds, including Otis tarda , is likely to cause significant disturbance and deterioration of the habitats of protected bird species.

82The fact that, according to the Kingdom of Spain, the population of birds in question has increased cannot call that reasoning into question.

84It is therefore necessary to find that, before 29 July 2008, the Kingdom of Spain failed to fulfil its obligations under Article 4(4) of the Birds Directive and the Commission’s action must succeed in that respect.

85On the other hand, the Court cannot accept the Commission’s argument that the operation of the railway line at issue would have significant effects on birds present in the area concerned due, in particular, to disturbances caused by noise and the risks of electrocution and collision.

86As the Advocate General pointed out in point 69 of his Opinion, those effects relate to the possible authorisation of works subsequently required for the operation of the railway line as a result of a further environmental impact assessment, whereas the contested project concerns the improvement of the existing infrastructure, namely the construction of a high platform.

The third complaint, alleging infringement of Article 6(2) of the Habitats Directive

Arguments of the parties

87By its third complaint, the Commission submits that, since the ‘Campiñas de Sevilla’ site was classified as an SPA, the Kingdom of Spain has failed to fulfil its obligations under Article 6(2) of the Habitats Directive.

88In that regard, the Commission reiterates, in essence, the arguments put forward in the context of the second complaint and referred to in paragraphs 65 and 66 of the present judgment.

89The Kingdom of Spain considers that, since the area in question was designated as an SPA, all the measures necessary have been adopted in order to comply with Article 6(2) of the Habitats Directive.

90It contends that the Commission has not adduced any evidence demonstrating the inadequacy or non-existence of appropriate protective measures to avoid a significant impact on birds during the construction works of the railway line in question and its operation.

91Furthermore, the Kingdom of Spain argues that Article 6(2) of the Habitats Directive does not require the immediate adoption of corrective measures for risks that are likely to arise from future actions. In fact, the risks identified by the Commission would arise only in the event of implementation of the second works project, whose start date had not yet been provided for, and those risks would be neutralised before they arise.

Findings of the Court

93It follows that, in the present case, as the ‘Campiñas de Sevilla’ area was classified as an SPA on 29 July 2008, Article 6(2) of the Habitats Directive applied to that area from that date.

94It should nevertheless be recalled that an activity complies with Article 6(2) of the Habitats Directive only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14 , EU:C:2016:8 , paragraph 56 and the case-law cited).

95In that regard, it should be noted that Article 6(2) of the Habitats Directive, like the first sentence of Article 4(4) of the Birds Directive, requires Member States to take appropriate steps to avoid, in SPAs classified in accordance with Article 4(1) of the Birds Directive, deterioration of habitats and disturbance significantly affecting the species for which the SPAs have been classified (judgment of 20 September 2007, Commission v Italy, C‑388/05 , EU:C:2007:533 , paragraph 26 ).

96It follows that the third complaint is well founded only if the Commission demonstrates to a sufficient legal standard that the Kingdom of Spain has not taken appropriate protective measures, consisting in ensuring that the construction works relating to the high-speed railway line within the ‘Campiñas de Sevilla’ area, in so far as they took place after classification of the ‘Campiñas de Sevilla’ site as an SPA on 29 July 2008, do not lead to deteriorations of the habitats of the steppe bird species listed in Annex I to the Birds Directive or cause disturbances to those species, likely to have significant effects having regard to the objective of the Habitats Directive of ensuring the conservation of those species (see, by analogy, judgment of 24 November 2011, Commission v Spain, C‑404/09 , EU:C:2011:768 , paragraph 128 ).

97However, in order to establish failure to fulfil obligations under Article 6(2) of the Habitats Directive, the Commission does not have to establish the existence of a cause-and-effect relationship between the construction of a high-speed railway line and significant disturbance caused to the species concerned. It is sufficient for the Commission to establish that there is a probability or risk that that construction will cause significant disturbance to those species (see, to that effect, judgment of 14 January 2016, Commission v Bulgaria, C‑141/14 , EU:C:2016:8 , paragraph 58 and the case-law cited).

98In that regard, it is apparent from the case file, as the Advocate General pointed out in point 86 of his Opinion, that the construction works of the railway line in question continued after the area concerned was classified as an SPA on 29 July 2008 and were interrupted only in 2009, and that the execution of those works, in particular the construction of the high platform, is likely to cause significant disturbance and deterioration of the habitats of protected bird species. In that respect, the Kingdom of Spain has admitted that the project in question will surely lead to a reduction of habitats favourable to the population of Otis tarda .

99In the light of the above, the Court finds that the third complaint is, in part, founded.

100On the other hand, for the same reasons as those set out in paragraph 86 of the present judgment, the Court cannot accept the Commission’s argument that the operation of the railway line in question would have significant effects on birds present in the area concerned due, in particular, to disturbances caused by noise and the risks of electrocution and collision.

101It follows from all the foregoing considerations that, by failing to take appropriate steps to avoid, in the SPA ‘Campiñas de Sevilla’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which that area was established, the Kingdom of Spain failed, in respect of the period before 29 July 2008, to fulfil its obligations under Article 4(4) of the Birds Directive and, with regard to the period after that date, has failed to fulfil its obligations under Article 6(2) of the Habitats Directive.

Costs

102Under Article 138(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.

103In the present case, it must be taken into account that some of the Commission’s complaints have not been upheld.

104Accordingly, the Commission and the Kingdom of Spain should be ordered to bear their own costs.

On those grounds, the Court (Fifth Chamber) hereby:

1.Declares that, by failing to take appropriate steps to avoid, in the special protection area ‘Campiñas de Sevilla’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which that area was established, the Kingdom of Spain failed, in respect of the period before 29 July 2008, to fulfil its obligations under Article 4(4) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds and, in respect of the period after that date, has failed to fulfil its obligations under Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

2.Dismisses the action as to the remainder;

3.Orders the European Commission and the Kingdom of Spain to bear their own costs.

[Signatures]

( *1 ) Language of the case: Spanish.