Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

6 March 2003 (1)

(Directive 79/409/EEC - Protection of wild birds and their habitats - Special protection areas)

In Case C-240/00,

Commission of the European Communities, represented by E. Paasivirta and R.B. Wainwright, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Republic of Finland, represented by T. Pynnä, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to classify special protection areas fully and definitively, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1),

THE COURT (Sixth Chamber),

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

Advocate General: P. Léger,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 28 February 2002,

after hearing the Opinion of the Advocate General at the sitting on 25 April 2002,

gives the following

Judgment

1. By application lodged at the Court Registry on 15 June 2000, the Commission of the European Communities brought an action, under Article 226 EC, for a declaration that, by failing to classify special protection areas fully and definitively, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, 'the Birds Directive').

   The Birds Directive

2. Article 4(1) and (2) of the Birds Directive provide:

'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, taking into account their protection requirements 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, 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.

3. Member States shall send to the Commission all the relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 above form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this directive applies.'

The pre-litigation procedure

3. By letter of 11 October 1996, the Finnish authorities presented to the Commission information on 15 territories classified as special protection areas ('SPAs') covering a total area of 967 km².

4. On 10 July 1998, the Commission sent a letter of formal notice to the Republic of Finland, alleging that it had failed to observe the provisions of Article 4(1), (2) and (3) of the Birds Directive. In that letter, it was stated that the list of SPAs presented to the Commission on 11 October 1996 was manifestly incomplete and was not sufficient to satisfy the requirements of the Birds Directive. The letter mentioned certain specific examples of sites, such as the Kemihaara bogs, which should have been classified as an SPA.

5. By letter of 9 October 1998, the Finnish Government informed the Commission that the Finnish Council of Ministers had adopted, on 20 August 1998, a decision on the Finnish proposal Natura 2000, in accordance with Council Directive92/43/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'). That decision ('the Council of Ministers' decision') contains the list of SPAs designated in accordance with Article 4(1) and (2) of the Birds Directive.

6. That letter stated that the Council of Ministers' decision, provisionally notified to the Commission by letter of 3 September 1998, would be notified to it within the time-limit provided by the Finnish Law on Council of Ministers' decisions, at the earliest by November 1998. Moreover, the Finnish Government pointed out that the list of SPAs to be sent to the Commission also indicated the areas subject to an action before a national court, which as a result could only be included in the Natura 2000 network as SPAs when those actions had been decided. At the end of the letter it was stated that the Kemihaara bogs had not been included in the proposal for the Natura 2000 programme.

7. By letter of 15 December 1998, the Finnish Government stated that during the period in which actions could be brought, approximately 850 applications had been made to the Korkein hallinto-oikeus for the amendment of 610 different points in the Council of Ministers' decision. Many actions sought the amendment of several points. In that regard, the Finnish Government stated that it reserved for itself the possibility of amending the list of areas coming within the Natura 2000 network sent to the Commission, in accordance with the national court's judgments on the actions before it. Therefore, in regard to the European Union, the abovementioned decision did not concern the areas subject to an action. Accordingly, the SPAs envisaged by the Birds Directive could only be incorporated in the Natura 2000 network if the Korkein hallinto-oikeus gave judgment so as to permit such incorporation.

8. By letter of 17 December 1998, the Commission issued a reasoned opinion in which it considered that the classification of certain sites as SPAs drawn up by the Finnish authorities was insufficient, or at the very least, that they had not provided it with a complete list of SPAs for classification, nor the geographic information necessary to do so. Given the scientific data available, the Republic of Finland should have classified at least 91 areas listed in the BirdLife of 1997 Report ('BirdLife Report') as important areas for the conservation of birds ('Important Bird Areas', hereinafter 'IBAs'). Of those areas, only 12 have been classified as SPAs. The Commission again pointed out that the Kemihaara bogs in particular had not been classified as an SPA, although that area features in the Report.

9. By letter of 23 December 1998, the Finnish authorities notified the Commission of the Council of Ministers' decision of 20 August 1998, which included, inter alia, a list of 439 SPAs with a total area of approximately 2.81 million hectares.

10. However, the decision states that, with respect to the European Community, the Finnish proposal does not cover those areas subject to legal proceedings. As regards the SPAs required by the Birds Directive, that means that the list sent tothe Commission indicates the areas which are subject to an action before the Korkein hallinto-oikeus and which, as a result, may be incorporated in the Natura 2000 network as SPAs only after it has given judgment to that effect.

11. By letter of 11 February 1999, the Finnish authorities responded to the Commission's reasoned opinion. They indicated, inter alia, that the SPAs proposed, with a view to incorporating them into the Natura 2000 network, had been designated by means of scientific criteria. Moreover, the letter confirmed that given the actions pending against the Council of Ministers' decision, it did not have legal force.

12. By letter sent to the Commission on 19 March 1999, the Finnish authorities stated that, even as regards the SPAs not subject to specific proceedings, the Council of Ministers' decision could be amended because of the judgments given following actions in which procedural defects were pleaded.

    The application

13. First, the Commission complains that the Republic of Finland has not made a definitive classification of the SPAs and second, that it has not made a full classification.

    The complaint alleging the lack of a definitive classification of the SPAs

    Arguments of the parties

14. The Commission argues that the list of territories designated as SPAs sent to it by the Finnish authorities on 23 December 1998 is not definitive since amendments may be added following judgment in the actions currently pending before the Korkein hallinto-oikeus. The Republic of Finland has therefore infringed the provisions of Article 4(1) and (2) of the Birds Directive. Moreover, as it has not received the definitive list of SPAs on Finnish territory, the Commission has not been able to take the measures necessary in order to put together a coherent network as required by Article 4(3) of the Birds Directive.

15. The Finnish Government recognises that it had not sent the definitive list of SPAs by the end of the period laid down in the reasoned opinion. On that date, the Council of Ministers' decision had not yet come into force because of the actions brought against it. However, the Finnish Government denies that the delay was detrimental to the attainment of the objectives of the Birds Directive, the Habitats Directive and to the Commission's work. The Finnish authorities sent to the Commission, by letter of 18 December 1998, before the expiry of the time-limit, the information relating to all the areas proposed by them under the Habitats Directiveand all the SPAs classified under the Birds Directive. That information, notified by means of the form prescribed in Commission Decision 97/266/EC of 18 December 1996, concerning a site information format for proposed Natura 2000 sites (OJ 1997 L 107, p. 1), therefore satisfied the requirements of Article 4(3) of the Birds Directive.

    Findings of the Court

16. Article 4(1) of the Birds Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I (Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraph 55). Under Article 4(2), Member States are also to classify as SPAs the breeding, moulting and wintering areas and staging posts along the migration routes of migratory species (see, in that regard, Case C-166/97 Commission v France [1999] ECR I-1719, paragraphs 14 and 15, and Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 16).

17. It is not disputed that certain sites mentioned on the list of SPAs set out in the Council of Ministers' decision were to be classified as SPAs under Article 4(1) and (2) of the Birds Directive.

18. It is common ground that since the Council of Ministers' decision had not yet come into force at the end of the period laid down in the reasoned opinion because of the actions brought against it, the sites had not been definitively classified as SPAs.

19. A contingent classification of the SPA sites such as that resulting from the Council of Ministers' decision, which may be amended in accordance with the judgments in the actions brought against it, cannot be held to constitute proper fulfilment of the obligation to classify sites which is incumbent on Member States under Article 4(1) and (2) of the Birds Directive.

20. Moreover, the lack of definitive classification as SPAs of the sites at issue prevents the Commission from taking the appropriate initiatives in accordance with Article 4(3) of the Birds Directive, for the purpose of the coordination necessary to ensure that the SPAs form a coherent network.

21. In light of the above, it must be held that, by failing to classify definitively as SPAs certain sites on the list of SPAs set out in the Council of Ministers' decision, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive. Consequently, the Commission's application must be held to be well founded on that point.

    The complaint alleging the incomplete nature of the list of SPAs

    Arguments of the parties

22. The Commission points out that the BirdLife Report, drawn up in collaboration with the Finnish Environmental Centre, and proposed for the purpose of drawing up the list of IBAs, enumerated 96 areas which merit inclusion on the list of SPAs in the territory of the Republic of Finland. However, the Republic of Finland has only classified 69 of those areas. In particular, the Kemihaara bogs, which are listed in the BirdLife Report as a site of international importance, are not mentioned on the list of SPAs set out in the Council of Ministers' decision. The ornithological value of the bogs arises from the fact that they constitute one of the nesting areas of the species listed in Annex I to the Birds Directive. The failure to mention that site and 17 other sites important for the conservation of wild birds among the SPAs proposed by the Republic of Finland proves that the Finnish authorities have not taken account of scientific criteria during the classification procedure for SPAs.

23. The Commission adds that the BirdLife Report has been confirmed, as regards the list of IBAs in Finland, by the report on IBAs in Europe, published in 2000, entitled 'Important Bird Areas in Europe', Volume 1: Northern Europe, Birdlife Conservation Series No 8, BirdLife International 2000. Given the European dimension of that inventory of IBAs and its scientific value, the Republic of Finland should, if it intended to contest the report, have produced scientific evidence. However, in spite of the Commission's requests in that regard, the Finnish authorities did not produce evidence to show that they based themselves on scientific criteria. In any case, it is clear that some areas of high ornithological importance have not been classified as SPAs.

24. The Finnish Government contends, first, that it based itself on the scientific criteria set out in the Birds Directive in drawing up the list of Finnish SPAs. In that regard, it states that it sent all the information on the criteria which it used in its choice of those SPAs to the Commission, using the form prescribed in Decision 97/266. Moreover, it states that the Korkein hallinto-oikeus, during the summer of 2000, gave judgment in all the actions brought against the Council of Ministers' decision. That court held that the criteria for the choice and delimitation of the SPAs were ecological, as required by the Birds Directive and the Habitats Directive. It reached that conclusion after making a thorough examination of each action and after verifying that the decision is founded on, in respect of each one of the areas and its delimitation, on correct facts and on studies, based on reliable scientific knowledge, of the ecological value of the sites. Following that examination the Korkein hallinto-oikeus:

    - upheld the actions relating to 50 areas, including the 18 SPAs mentioned in the Council of Ministers' decision;

    - ordered amendments to the delimitation of four SPAs and referred 14 others to the Council of Ministers to be enlarged or reduced as the case may be, and

    - referred 4 sites which do not feature in the Natura 2000 project to the Council of Ministers. Those sites were the Kemihaara bogs and the sites at Karunginjärvi, Peuralamminneva and Korpoo Långviken.

25. Second, the Finnish Government argues that the BirdLife Report does not constitute scientific evidence which makes it possible to determine whether the Republic of Finland has classified as SPAs the most suitable territories within the meaning of Article 4 of the Birds Directive. First, the report had not been completed at the end of the period laid down in the reasoned opinion, so that it was not certain that all the areas which were proposed in it as IBAs would be confirmed at international level or that other sites would not be proposed by BirdLife Finland, a body consisting of Finnish ornithological associations. Next, the criteria adopted for proposing those areas as IBAs do not lend themselves well to the evaluation of Finnish wild bird life and mistakes have been made regarding the counting of specimens of protected species of birds. Certain areas are missing from the BirdLife Report although they are important for wild birds, including at international level.

26. The Finnish Government concludes, on that point, that it could not base its choice of SPAs only on the BirdLife Report, unless there was a definitive list of IBAs, ratified at international level.

27. Third, the Finnish Government argues that the list of Finnish SPAs would be insufficient only if the number and size of the sites designated for that purpose were clearly less than the number and size of the sites considered as the most suitable for the conservation of the species of birds covered by Article 4 of the Birds Directive. The Finnish authorities have classified as SPAs a higher number of sites and a more extensive total area than those specified in the IBA inventory published in 1989 or in the list of IBAs proposed in the BirdLife Report. In any event, it does not follow either from Article 4 of the Directive or from the Court's case-law that the list of Finnish SPAs must be in accordance with the list of IBAs set out in the BirdLife Report. Nor is it clear from the case-law that the Finnish authorities must provide scientific justification of the non-inclusion in the list of SPAs of sites featuring in the IBA list.

    Findings of the Court

28. It is important to bear in mind that at the end of the period laid down in the reasoned opinion, the Council of Ministers' decision included a list of SPAs which was not only not in force, but was also not definitive, that list being subject toamendment by the addition or removal of sites, as the Finnish Government has indicated.

29. In those circumstances, there is no need to examine the Commission's complaint, in so far as it is founded on the fact that the list of SPAs in the Council of Ministers' decision is incomplete because it does not provide for the classification as SPAs of 69 of the 96 sites specified by the BirdLife Report as meriting such classification.

30. Given that, on the expiry of the abovementioned period, the list in question was not in force, was not definitive and was subject to alteration, the complaint thus raised by the Commission does not concern a non-hypothetical situation at the relevant time for the purpose of determining whether there has been a failure to fulfil obligations.

31. Nevertheless, it is common ground that at that date only 15 sites had been definitively classified as SPAs in Finland. It is also not disputed that that classification was in any event insufficient in the light of the Republic of Finland's obligations under the Birds Directive and in particular under Article 4(1) and (2) thereof.

32. It must therefore be held that, by failing to classify in full, as SPAs, the most suitable sites within the meaning of Article 4(1) and (2) of the Birds Directive, the Republic of Finland has failed to fulfil its obligations under those provisions. The Commission's application must also be allowed on that point.

33. Consequently, it must be held that, by failing to classify fully and definitively the SPAs in its territory, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive.

    Costs

34. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission applied for costs, the Republic of Finland, which has been unsuccessful, must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber),

hereby:

(1) Declares that, by failing to classify fully and definitively the SPAs in its territory, the Republic of Finland has failed to fulfil its obligations under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds.

(2) Orders the Republic of Finland to pay the costs.

PuissochetSchintgen Gulmann MackenCunha Rodrigues

Delivered in open court in Luxembourg on 6 March 2003.

R. Grass J.-P. Puissochet

Registrar President of the Sixth Chamber

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1: Language of the case: Finnish.