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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Cascina Tre Pini s.s. v Ministero dell'Ambiente e della Tutela del Territorio e del Mare and Others [2013] EUECJ C-301/12 (20 June 2013)
URL: http://www.bailii.org/eu/cases/EUECJ/2013/C30112_O.html
Cite as: [2013] EUECJ C-301/12
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OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 20 June 2013 (1)
Case C-301/12
Cascina Tre Pini s.s.
v
Ministero dell'Ambiente e della Tutela del Territorio e del Mare and Others
(Reference for a preliminary ruling from the Consiglio di Stato (Italy))
(Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Site of Community importance – Declassification – Property – Assessment on request – Hearing – Competent authorities)
I – Introduction
1. The Court of Justice has repeatedly had to consider the setting up of Natura 2000, the network of European areas of conservation, and the protection of those areas. The present case, however, concerns the circumstances in which the protected status of protected land is to be withdrawn.
2. Although the Habitats Directive (2) mentions the possibility of the declassification of special areas of conservation, the dispute in the present case concerns the rights to which the owners of the land in question are entitled. That question is of major importance for the acceptance of European nature conservancy. The answer will depend on the provisions of general European Union law on the implementation of the Habitats Directive by national administrations, with particular reference to the fundamental right to property and the right to be heard.
II – Legislative framework
A – European Union law
3. Article 3(1) of the Habitats Directive defines Natura 2000, the European network of special areas of conservation, as follows :
‘A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.’
4. The selection of areas to be protected is governed by Article 4 of the Habitats Directive. Article 4(1) requires each Member State to propose a list of sites on the basis of specific criteria. On the basis of further criteria, the Commission is to select, in accordance with Article 4(2) from the lists submitted by all Member States those sites which are to be included in the list of Sites of Community Importance (‘SCIs’).
5. Particular attention should be paid to the fourth sentence of Article 4(1), which concerns the adaptation of the list:
‘Where appropriate, Member States shall propose adaptation of the list in the light of the results of the surveillance referred to in Article 11.’
6. Article 4(4) and (5) of the Habitats Directive concern the protection of SCIs:
‘4. Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.
5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article 6(2), (3) and (4).’
7. Article 6(2), (3) and (4) of the Habitats Directive define the protection of sites in more specific terms:
‘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.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
…’
8. Article 9 of the Habitats Directive refers to the possibility of withdrawing the protected status of certain areas:
‘The Commission, acting in accordance with the procedure laid down in Article 21, shall periodically review the contribution of Natura 2000 towards achievement of the objectives set out in Article 2 and 3. In this context, a special area of conservation may be considered for declassification where this is warranted by natural developments noted as a result of the surveillance provided for in Article 11.’
9. Article 11 of the Habitats Directive requires the Member States to observe the species and habitats to be protected in accordance with the directive:
‘Member States shall undertake surveillance of the conservation status of the natural habitats and species referred to in Article 2 with particular regard to priority natural habitat types and priority species.’
10. Pursuant to Article 17 of the Habitats Directive, the Member States are to forward to the Commission every six years a report which includes the main results of the surveillance referred to in Article 11.
B – Italian law
11. Article 3(4a) of Decreto del Presidente della Repubblica (Decree of the President of the Republic; ‘D.P.R.’) No 357/1997 transposing Directive 92/34/EEC lays down rules on the national competence for reviewing Natura 2000:
‘In order to ensure the functional implementation of the … [Habitats Directive] …, the Regions … shall, on the basis of monitoring activities …, undertake periodic reviews of the suitability of the sites for achieving the objectives of the directive, following which they may propose to the Ministero dell’Ambiente e della Tutela del Territorio e del Mare (Ministry of the Environment and the Protection of the Land and the Sea) that the list of the sites, the site boundaries and the content of the relevant information document be updated. The Ministero dell’Ambiente e della Tutela del Territorio e del Mare shall transmit that proposal to the European Commission for the purposes of the review referred to in Article 9 of the directive.’
III – Factual background and reference for a preliminary ruling
12. Cascina Tre Pini s.s. is a partnership which owns an area of approximately 22 hectares in the Comune di Somma Lombardo, a short distance from Milan-Malpensa airport. That land forms part of the ‘Brughiera del Dosso’ area, which the Commission has included in the list of SCIs under No IT2010012, (3) referring to an area of 455 hectares.(4)
13. According to the standard data form for this area, (5) it features primarily old, acidophilic oak forests (Quercus robur – Code 9190) on sandy plains and some dry European heathland (Code 4030) and a total of 14 species listed in Annex II to the Habitats Directive, in particular the Italian agile frog (Rana latastei) and the Italian nase (Chondrostoma soetta). Priority species and natural habitats are not named.
14. Meanwhile, Malpensa airport – the development of which was outlined in the ‘Piano d’Area Malpensa’ (Malpensa Area Plan), approved by a regional law of 1999 – has undergone a process of expansion. According to Cascina Tre Pini, land on the territory of, for instance, the Comune di Somma Lombardo is earmarked for development of a ‘commercial and industrial’ nature.
15. The steady increase in air traffic at Malpensa has, according to Cascina Tre Pini, led to progressive environmental damage on its land with the passage of time. Consequently, in 2005, Cascina Tre Pini asked the Consorzio Parco lombardo Valle del Ticino, which manages the ‘Brughiera del Dosso’ site, to adopt the measures necessary to prevent the environmental degradation of its land. According to Cascina Tre Pini, no decision has been taken on that request.
16. In 2006, Cascina Tre Pini called on the Italian Environment Ministry to withdraw its land from the ‘Brughiera del Dosso’ site, since it considered that the factual and legal requirements of the relevant legislation and, in particular, the requirements laid down in Annex III to the Habitats Directive were no longer satisfied. By decision of 2 May 2006, the Environment Ministry declared that it was not competent and referred the appellant to the Region of Lombardy.
17. Cascina Tre Pini then submitted an application to the Region of Lombardy, which rejected it on 26 July 2006, since ‘… the request contained … in the application may be considered only if the Environment Ministry requires the Regions to initiate the procedure provided for in Article 3(4a) of DPR 357/97.’
18. The Tribunale amministrativo regionale per la Lombardia (Lombardy Regional Administrative Court) rejected at first instance the action brought by Cascina Tre Pini against that decision. Its appeal is now before the Consiglio di Stato, the Italian Council of State. The latter has referred the following questions to the Court of Justice:
‘(1) Is the proper application of Articles 9 and 10 of [the Habitats Directive] prevented by a provision of national law (Article 3(4a) of DPR No 357/97 of the President of the Republic) under which power is conferred on the Regions and the Autonomous Provinces to propose, of their own motion, a review of the SCIs, but no obligation is placed on them to exercise that power in response to a reasoned request to that effect made by private owners of land falling within SCIs, even where those private individuals argue that the land has suffered environmental degradation?
(2) Is the proper application of Articles 9 and 10 of [the Habitats Directive] prevented by a provision of national law (Article 3(4a) of DPR No 357/97 of the President of the Republic) under which power is conferred on the Regions and the Autonomous Provinces to propose, of their own motion, a review of the SCIs, through a periodic assessment, but the frequency with which that review must be conducted (every two or three years, for example) is not specified and there is no obligation for notice to be given of the periodic review by the Regions and Autonomous Provinces by means of some form of general advertising campaign designed to enable stakeholders to submit comments or proposals?
(3) Is the proper application of Articles 9 and 10 of [the Habitats Directive] prevented by a provision of national law (Article 3(4a) of DPR No 357/97 of the President of the Republic) under which a power of initiative is conferred on the Regions and Autonomous Provinces in relation to the review of the SCIs, but no power of initiative is also conferred on the State, even to act in lieu of the Regions or Autonomous Provinces in the event that they fail to act?
(4) Is the proper application of Articles 9 and 10 of [the Habitats Directive] prevented by a provision of national law (Article 3(4a) of DPR No 357/97 of the President of the Republic) under which power is conferred on the Regions and Autonomous Provinces to propose, of their own motion, a review of the SCIs, where that power is entirely discretionary and not mandatory, even where pollution or environmental degradation has taken place and this has been formally confirmed?’
19. It is apparent from the reference for a preliminary ruling that the reference to Article 10 of the Habitats Directive in those questions is due to a typing error. The Consiglio di Stato actually means Article 11.
20. The Consiglio di Stato also forwards a question put by Cascina Tre Pini:
‘(5) Must the procedure governed by Article 9 of [the Habitats Directive], implemented by the national legislature by means of Article 3(4a) of DPR No 357/97 of the President of the Republic, be interpreted as a procedure which must close with the adoption of an administrative act, or as a procedure the outcome of which is merely “optional”? Is it necessary to construe a “procedure which must close with the adoption of an administrative act” as a procedure which, “where the conditions are satisfied, consists in the transmission of the regional proposal, by the Minister for the Environment and the Protection of the Land, to the European Commission”, there being no need in that regard for any consideration as to whether it must be construed as a procedure which may be instigated only by the authority of its own motion or whether it may also be instigated at the request of a party?’
21. The reference for a preliminary ruling also contains six questions from the Region of Lombardy, which the Consiglio di Stato has, however, already declared inadmissible. (6) Those questions are not therefore reproduced here.
22. Cascina Tre Pini s.s., the Italian Republic, the Czech Republic and the European Commission have submitted statements of written observations. Apart from the Czech Republic, all those parties also made oral submissions at the hearing on 16 May 2013.
IV – Legal assessment
A – The admissibility of the questions contained in the reference for a preliminary ruling
23. Questions Nos 1 to 4 from the Consiglio di Stato, set out above, (7) are clearly admissible and will therefore be answered below.
24. By contrast, the Czech Republic doubts the admissibility of the questions from the parties to the national proceedings. Article 267 TFEU envisages direct cooperation between the Court of Justice and the national courts by way of a non-contentious procedure excluding any initiative of the parties, who are merely invited to be heard in the course of that procedure. According to that provision, it is for the national court, and not the parties to the main action, to bring a matter before the Court of Justice. (8) Although that court is at liberty to request the parties to the dispute before it to suggest wording suitable for the question to be referred, the fact remains that it is for it alone ultimately to decide both its form and its content. (9)
25. However, the present case differs from earlier cases in that the questions of the parties are not to be found in their observations. Instead, the national court itself has informed the Court of Justice of them in the reference for a preliminary ruling. And, as the Commission notes, only the national court before which the action is pending and within whose jurisdiction the decision to be taken lies has, in the context of the procedure pursuant to Article 267 TFEU, to assess the relevance of the questions referred to the Court of Justice with due regard for the specific features of the case. Consequently, where the questions submitted to it concern the interpretation of European Union law, the Court of Justice is, in principle, bound to give a ruling. (10)
26. There is thus a presumption of the relevance of the questions referred by national courts for a preliminary ruling. (11) It must also apply to questions of which the national court informs the Court of Justice after they have been proposed by the parties to the proceedings.
27. By way of exception, that presumption may be rebutted where it is obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court of Justice does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (12)
28. It is clear, however, that the fifth question proposed by Cascina Tre Pini is closely related to the main action, that also being evident from the similarities it bears to the questions of the Consiglio di Stato. Furthermore, the reference for a preliminary ruling contains the necessary information for that question to be answered.
29. Conversely, the six questions from the Region of Lombardy are hypothetical. According to the Consiglio di Stato, as they concern rules which do not currently exist in Italian law, they are inadmissible. (13)
B – The response to the reference for a preliminary ruling
30. The reference for a preliminary ruling concerns procedural matters associated with the possible declassification of a site which is protected under European Union law and which the Commission has included in the list of SCIs.
31. The questions should be grouped as follows: the aim of the first, fourth and fifth questions is to determine whether the competent authorities are required by Articles 9 and 11 of the Habitats Directive to consider, in response to a reasoned request from the landowners concerned, the reclassification of SCIs, in particular where they refer to the degradation of the site and/or where degradation is proven (see 1 below). The second question seeks to establish whether the competent authorities are required to review the classification of SCIs at set intervals (see 2 below) and, if so, to enable the public to participate (see 3 below). The third question concerns the distribution of national competences, that is, the possible need for an alternative power of intervention by central government agencies to review the classification of SCIs (see 4 below).
1. The obligation to review the classification of SCIs
32. With the first and fourth questions, which largely correspond to the fifth question by Cascina Tre Pini, the Consiglio di Stato seeks to determine whether the freedom of the competent national authorities to decide whether to propose the reclassification of SCIs, without the applications of private landowners or the information they provide on the degradation of the sites having to be taken into account, is compatible with Articles 9 and 11 of the Habitats Directive.
33. Before that question can be answered, the conditions under which the reclassification of SCIs is possible under the Habitats Directive must be clarified. The directive does not expressly provide for reclassification. However, the second sentence of Article 9 states that ‘an [SCI] may be considered for declassification’. That would entail the reclassification of SCIs, since Article 4(4) requires the Member States to designate all SCIs as special areas of conservation. Consequently, they may resort to declassification only if the land concerned is no longer considered to be part of an SCI.
34. In the absence of specific rules, the declassification of or any change to an SCI must be effected by the same procedure as that adopted to include the site in the list. Pursuant to Article 4(1) and (2) of the Habitats Directive, the Commission, acting on a proposal from the Member State, is to decide on the inclusion of a site in the list of SCIs. Accordingly, the Member States propose, where appropriate and pursuant to the fourth sentence of Article 4(1), adaptation of the list in the light of the results of the surveillance referred to in Article 11. The second sentence of Article 9 shows that such adaptation may include the declassification of SCIs.
35. The wording of the second sentence of Article 9 of the Habitats Directive does not, however, reveal any obligation to declassify SCIs. It makes clear only that the Commission’s power to adapt the list of SCIs also extends to the declassification of SCIs.
36. Conversely, the wording of the fourth sentence of Article 4(1) of the Habitats Directive does not give the Member States an unlimited discretion to propose the adaptation of the list of SCIs. Although it follows from the rules governing the procedure for identifying sites eligible for designation as special areas of conservation, set out in Article 4(1) of the directive, that Member States have a margin of discretion when making their site proposals, the fact none the less remains that they must do so in compliance with the criteria laid down by the directive. (14) They must therefore make appropriate proposals when the results of the surveillance referred to in Article 11 admit of no other assessment, that is, when, in view of the actual findings, the margin of discretion admits of only one proposal for the adaptation of the list. The English version is particularly clear in that it uses the word ‘shall’, as is the Dutch version, according to which the proposal is made when it is ‘nodig’, meaning necessary.
37. Such an obligation undoubtedly corresponds to the objectives of the Habitats Directive, when new areas which must be included in the list are discovered.(15)
38. Shortening the list is also appropriate, however, where a site can no longer contribute to the achievement of the objectives of the Habitats Directive. In that event, there is no reason to continue subjecting the site to its requirements. It would be of no benefit to the conservation of species and natural habitats for the competent authorities to continue spending scarce resources on the administration of the site. Furthermore, misunderstandings or errors about the quality of the Natura 2000 network might occur if it included areas which made no contribution to the achievement of its objectives.
39. In the present case, however, the fundamental right to property is the determining factor. The classification of land as part of an SCI limits the ways in which it may be used and so restricts the right to property of the owners of the land concerned. As long as the site protection requirements apply, such restrictions of the right to property are, as a rule, justified by the objective of protecting the environment. (16) However, where those requirements no longer apply, continuing to restrict the use of land might be an infringement of the right to property. In the European Union, no measures may be accepted as lawful if they are incompatible with the observance of recognised and guaranteed human rights. (17)
40. It would therefore be incompatible with an interpretation and application of the fourth sentence of Article 4(1) of the Habitats Directive which respect fundamental rights for the consideration of a reasoned application by the owners for a proposal for the reclassification of SCIs to be left to the discretion of the competent authorities.
41. The question is, however, what reasoning can trigger a review. If any reason were to suffice, it is to be feared that the competent authorities would be required to consider a large number of hopeless applications, without the effort involved having a corresponding benefit for owners or for Natura 2000.
42. According to the second sentence of Article 9 of the Habitats Directive, an SCI may be considered for declassification (only) where this is warranted by natural developments noted as a result of the surveillance provided for in Article 11.
43. The reference for a preliminary ruling refers to two reasons for possible reclassification: first, it is claimed that the operation of the Malpensa airport has caused environmental degradation on the land in question. Second, the land is located in an area intended for ‘commercial and industrial’ development.
44. Neither circumstance is due to natural developments. Pursuant to the second sentence of Article 9 of the Habitats Directive, neither therefore warrants the declassification of the land as part of an SCI.
45. However, the Habitats Directive does not contain any rules which would expressly prevent SCIs from being reclassified because of other developments. It should therefore be considered whether the directive requires the Member States to propose the reclassification of SCIs when land has been degraded by human activities or provision has been made for certain activities which would be incompatible with its protection in accordance with the Habitats Directive.
46. The starting point in this respect must be the principles governing the selection of SCIs. Pursuant to Article 4(1) and (2) of the Habitats Directive, only requirements relating to the conservation of natural habitats and wild fauna and flora or the setting up of the Natura 2000 network are to be taken into account in this context. (18) This is necessary if the goal of setting up the Natura 2000 network for which Article 3(1) of the Habitats Directive provides is to be achieved. That network is composed of sites hosting the natural habitat types listed in Annex I to the directive and the habitats of the species listed in Annex II and is meant to enable the natural habitat types and the species’ habitats concerned to be maintained at or, where appropriate, restored to a favourable conservation status in their natural range. (19)
47. On the other hand, reasons other than those associated with nature conservation, and in particular economic, social and cultural requirements and regional and local characteristics, may not be taken into account in the choice of SCIs. (20)
48. Accordingly, declassification is warranted only if the site is no longer capable of making its contribution to the conservation of the natural habitats listed in Annex I to the Habitats Directive or of the wild fauna and flora listed in Annex II or to the setting up of the Natura 2000 network. (21)
49. Although there is no conclusive evidence, it is conceivable, that the operation of the Malpensa airport is doing such serious harm to the land in question that it is no longer capable of making an appropriate contribution. It is, on any basis, doubtful that it could make that contribution if it is developed for commercial or industrial purposes in accordance with the Malpensa Area Plan.
50. However, not every case of serious harm to an SCI warrants declassification. Article 6(2) of the Habitats Directive, after all, requires the Member States to protect SCIs against deterioration. A Member State’s failure to fulfil those obligations to afford protection does not warrant the withdrawal of protected status. (22) Member States should rather take the necessary measures to restore the site. And, particularly after being informed of deterioration, they should not remain inactive, but see that information as a reason for ensuring adequate protection against further deterioration of the site.
51. The protection obligation does not apply, however, where the deterioration of a site is due to a plan or project which has been approved pursuant to Article 6(3) and (4) of the Habitats Directive. (23) An assessment of the compatibility of the measure with the conservation objectives for the site pursuant to Article 6(3) must, in those circumstances, have revealed that the site was liable to deteriorate in the future. None the less, the competent authorities must have decided on the basis of Article 6(4) to carry out the measure for imperative reasons of overriding public interest, and no alternative solution was available. Moreover, all necessary compensatory measures must be taken to ensure that the overall coherence of Natura 2000 is protected.
52. When the 1999 Malpensa Area Plan was adopted, however, the ‘Brughiera del Dosso’ site was not yet on the list of SCIs. Article 6(3) and (4) were, therefore, not yet applicable. (24) The national courts would be required to make further findings in order to determine whether that also applies to the approval of the Malpensa airport.
53. None the less, the obligation on the State to afford protection pursuant to Article 6(2) has applied since the inclusion of the site in the list. (25) In the present case, the deterioration of the site due to a previously approved project can be accepted only if its implications are – if necessary, subsequently – reviewed in accordance with the standards set in Article 6(3) and if the requirements laid down in Article 6(4) are met. (26)
54. Article 6(2) may, moreover, require the Member States to take steps to avoid natural developments which may cause the conservation status of species and habitats in special areas of conservation to deteriorate. (27)
55. Thus the answer to the first and fourth questions and the fifth question from Cascina Tre Pini must be that, pursuant to the fourth sentence of Article 4(1) of the Habitats Directive, the competent national authorities must consider, on a request from an owner of land which forms part of an SCI, whether it should be proposed to the Commission that that land should be excluded from the SCI, provided that the request is based on substantiated reasoning that, despite compliance with Article 6(2) to (4) of the directive,, the land cannot make a contribution to the conservation of natural habitats and wild fauna and flora or to the setting up of the Natura 2000 network.
2. The need for a regular review of SCIs
56. In the first part of the second question the Consiglio di Stato seeks to establish whether the competent authorities are required to review SCIs regularly, at intervals of two to three years, for example.
57. The Habitats Directive does not lay down any express rules on the frequency of such reviews. All that can be inferred from the discussion of the first, fourth and fifth questions is that such reviews are to be undertaken when there are signs that an SCI or certain parts of it no longer meet nature conservation requirements.
58. The fourth sentence of Article 4(1) and the second sentence of Article 9 of the Habitats Directive show, however, that surveillance pursuant to Article 11 is very important for the reclassification of SCIs.
59. Article 11 of the Habitats Directive requires the Member States to undertake surveillance of the conservation status of the species and habitats referred to in Article 2. The Member States must therefore keep all natural habitats and all wild fauna and flora in their European territory under surveillance. The surveillance is to be geared to the achievement of the objectives of the Habitats Directive and thus to ensuring biodiversity though the conservation of those species and habitats.
60. The inclusion of that provision in the section of the Habitats Directive which concerns site conservation is evidence of the particular interest in SCIs. This is consistent with their importance, since, pursuant to Article 3(1), they are to enable natural habitats and species of Community interest, that is to say the habitats and species particularly deserving of protection pursuant to Article 1(c) and (g), to be maintained or, where appropriate, restored at a favourable conservation status. (28)
61. In particular, the surveillance of SCIs must be suited to ensuring compliance with the priorities established pursuant to Article 4(4) for the maintenance at or restoration to a favourable conservation status of species and habitats in the SCI concerned, the implementation of the conservation measures specified in Article 6(1) and the fulfilment of the protection obligations pursuant to Article 6(2).
62. Circumstances which may necessitate the declassification of SCIs will inevitably be noted if these objectives are taken into account .
63. Where the surveillance indicates that this is so, the competent authorities must consider the necessary implications. The first option considered should be supplementary measures to protect the SCI and to restore the elements which have been adversely affected. If, however, the conditions described above for the withdrawal of protected status are capable of being satisfied, they too should be examined with a view to avoiding an unwarranted restriction of the property rights in the land concerned.
64. Minimum requirements regarding the frequency of surveillance measures arise from the cooperation with the Commission for which the Habitats Directive provides. The first sentence of Article 9 requires the Commission to include the results of the surveillance and use them in a general review of the contribution of Natura 2000 towards the achievement of the objectives of the directive. To this end, the Member States are required by Article 17 of the Habitats Directive to draw up a report to the Commission every six years which includes the main results of the surveillance referred to in Article 11.
65. The Member States must therefore so arrange the timing of their surveillance that they are able to communicate to the Commission every six years up-to-date information on the habitats and species which are the object of the surveillance and especially on the SCI.
66. However, the Member States will not be able, as a rule, to fulfil their obligations in respect of the SCI if they undertake surveillance only at six-yearly intervals. The required site protection, compliance with the priorities and the implementation of the conservation measures could not then be guaranteed. Surveillance must rather be of a continuous nature. Only its intensity will change with the situation.
67. To summarise, the answer to the first part of the second question should be that the Member States must arrange the surveillance of SCIs pursuant to Articles 11 and 17 of the Habitats Directive in such a way that they are able to protect and manage them appropriately and to communicate to the Commission at least every six years up-to-date information on the state of the SCIs which reveals whether they are contributing towards the conservation of natural habitats and wild fauna and flora and to the setting up of the Natura 2000 network.
3. The second part of the second question
68. The second part of the second question seeks to establish whether the competent authorities must ensure public participation in the review of SCIs.
69. Here again, the Habitats Directive does not contain any express rules. Where landowners are concerned, however, certain requirements arise from the general principles of European Union law, in particular from the right to be heard. (29)
70. Observance of the rights of defence is a general principle of European Union law which applies where the authorities are minded to adopt a measure which will adversely affect an individual. In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. They must be granted sufficient time for this purpose. (30)
71. The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of European Union law, even though the European Union legislation applicable does not expressly provide for such a procedural requirement. If the implementation of that principle is not, as in the main proceedings, fixed by European Union law, it is governed by national law on condition that the provisions are the same as those which apply to individuals or undertakings in comparable situations under national law (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (principle of effectiveness). (31)
72. The review as to whether the designation of SCIs should be proposed to the Commission is conducive to the implementation of the Habitats Directive and so falls within the scope of European Union law. Although the owners of the land concerned would not be the addressees of a decision to propose declassification to the Commission or to refrain from such a proposal, that decision may significantly affect their interests. If the competent authorities do not propose the declassification of the SCI to the Commission, the land concerned will continue to form part of the protected site, which may restrict its use considerably. A proposal for declassification, on the other hand, may have an adverse effect on the interest in being financially assisted for management within the meaning of the conservation objectives.
73. The answer to the second part of the second question should therefore be that the Member States must give the owners of the land concerned an opportunity to submit observations when considering whether to propose to the Commission that the list of SCIs should be adapted in respect of that land.
4. The third question
74. The third question seeks clarification as to whether conferring a power of initiative on the Regions and Autonomous Provinces in relation to the review of the SCIs, without such a power of initiative also being conferred on the State, even to act in lieu of the Regions or Autonomous Provinces in the event that they fail to act, is compatible with Articles 9 and 11 of the Habitats Directive.
75. Here again, the fourth sentence of Article 4(1) of the Habitats Directive is more important than Article 9. Consequently, the former provision must also be taken into account.
76. European Union law includes rules which lay down requirements to be met by the authorities entrusted with their application. (32) However, a directive which does not contain such requirements is, pursuant to the third paragraph of Article 288 TFEU, still binding on each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods. (33) That concerns, in particular, the designation of the competent authorities. European Union law requires only that the transposition, including the designation of the competent authorities, actually ensures the full application of its provisions in a sufficiently clear and precise manner. (34)
77. Making the regional authorities responsible for the application of the Habitats Directive, and especially the fourth sentence of Article 4(1) thereof, seems perfectly reasonable, since the protection and management of SCIs require practical knowledge of the local situation.
78. Nor does European Union law require the competence of regional authorities to be complemented by a secondary competence of the central authorities. It is, moreover, doubtful that such competence would be conducive to the proper application of those provisions. If no competent authorities are available to central government locally, its services in the capital will hardly be able to determine what measures are necessary.
79. Although it cannot be excluded that the competent authorities of Lombardy infringed the Habitats Directive in connection with the applications lodged by Cascina Tre Pini, not even evidence of such an infringement would prove that those authorities were incapable of ensuring the full application of the directive.
80. The answer to the third question must therefore be that a provision of national law under which the power of initiative in relation to the review of SCIs is conferred on the Regions and Autonomous Provinces, but no power of initiative is also conferred on the State, even to act in lieu of the Regions or Autonomous Provinces in the event that they fail to act, does not prevent the proper application of the fourth sentence of Article 4(1), Article 9 and Article 11 of the Habitats Directive.
V – Conclusion
81. I therefore propose that the Court answer the questions referred for a preliminary ruling as follows:
1. Pursuant to the fourth sentence of Article 4(1) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, the competent national authorities must consider, at the request of an owner of land forming part of a Site of Community Importance, whether it should be proposed to the Commission that that land should be excluded from the site, if the request is based on substantiated reasoning that, despite compliance with Article 6(2) to (4) of the directive, the land cannot contribute towards the conservation of natural habitats and wild fauna and flora or to the setting up of the Natura 2000 network.
2. The Member States must so arrange the surveillance of Sites of Community Interest pursuant to Articles 11 and 17 of Directive 92/43 that they are able to protect and manage them appropriately and to communicate to the Commission at least every six years up-to-date information on the state of the sites which also reveals whether the sites are contributing towards the conservation of natural habitats and wild fauna and flora or to the setting up of the Natura 2000 network.
3. The Member States must give the owners of the land concerned an opportunity to submit observations when considering whether to propose to the Commission, in relation to that land, the adaptation of the list of Sites of Community Interest pursuant to the fourth sentence of Article 4(1) of Directive 92/43.
4. A provision of national law under which the power of initiative in relation to the review of Sites of Community Interest is conferred on the Regions and Autonomous Provinces, but no such power of initiative is also conferred on the State, even to act in lieu of the Regions or Autonomous Provinces in the event that they fail to act, does not prevent the proper application of the fourth sentence of Article 4(1), Article 9 and Article 11 of Directive 92/43.
1 – Original language: German.
2 ‒ 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), as amended by Council Directive 2006/105/EC of 20 November 2006 adapting Directives 73/239/EEC, 74/557/EEC and 2002/83/EC in the field of environment, by reason of the accession of Bulgaria and Romania (OJ 2006 L 363, p. 368).
3 ‒ Commission Decision 2004/798/EC of 7 December 2004, adopting, pursuant to Council Directive 92/43/EEC, the list of Sites of Community Importance for the Continental biogeographical region.
4 ‒ The reference for a preliminary ruling refers appears to have mixed up the digits of this site number.
5 ‒ According to http://natura2000.eea.europa.eu/
6 ‒ See point 27 below.
7 ‒ Point 18.
8 ‒ Case 44/65 Singer [1965] ECR 965, 970; Case C-402/98 ATB and Others [2000] ECR I-5501, paragraph 29; and C-138/08 Hochtief and Linde-Kca-Dresden [2009] ECR I-9889, paragraph 20 et seq.
9 ‒ Case C-104/10 Kelly [2011] ECR I-0000, paragraph 65.
10 ‒ Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, and Case C-617/10 Åkerberg Fransson [2013] ECR I-0000, paragraph 39.
11 ‒ Case C-355/97 Beck and Bergdorf [1999] ECR I-4977; paragraph 22, Case C-300/01 Salzmann [2003] ECR I-4899, paragraph 31; and Åkerberg Fransson, cited in footnote 10, paragraph 40.
12 ‒ Beck and Bergdorf, cited in footnote 11, paragraph 22, and Åkerberg Fransson, cited in footnote 10, paragraph 40.
13 ‒ See Åkerberg Fransson, cited in footnote 10, paragraph 41.
14 ‒ Case C-67/99 Commission v Ireland [2001] ECR I-5757, paragraph 33; Case C-71/99 Commission v Germany [2001] ECR I-5811, paragraph 26; and Case C-220/99 Commission v France [2001] ECR I-5831, paragraph 30.
15 ‒ See Case C-340/10 Commission v Cyprus [2012] ECR I-0000, paragraphs 24 and 27.
16 ‒ Case C-416/10 Križan and Others [2013] ECR I-0000, paragraphs 113 to 115.
17 ‒ Case C-260/89 ERT [1991] ECR I-2925, paragraph 41; Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 73; and Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paragraph 284.
18 ‒ See Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraph 16, and Case C-226/08 Stadt Papenburg [2010] ECR I-131, paragraph 30.
19 ‒ See First Corporate Shipping, cited in footnote 18, paragraph 19 et seq., and Stadt Papenburg, cited in footnote 18, paragraph 31.
20 ‒ Stadt Papenburg, cited in footnote 18, paragraphs 31 and 32.
21 ‒ See, to that effect, Case C-191/05 Commission v Portugal [2006] ECR I-6853, paragraph 13.
22 ‒ See, to that effect, Case C-418/04 Commission v Ireland [2007] ECR I-10947, paragraphs 83 to 86.
23 ‒ Commission v Ireland, cited in footnote 22, paragraph 250 et seq., and Case C-404/09 Commission v Spain [2011] ECR …., paragraph 122.
24 ‒ See Case C-117/03 Dragaggi and Others [2005] ECR I-167, paragraph 25, and Case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and Others [2012] ECR I-0000, paragraph 101.
25 ‒ Stadt Papenburg, cited in footnote 18, paragraph 30, and Commission v Spain, cited in footnote 23, paragraph 125.
26 ‒ Commission v Spain, cited in footnote 23, paragraphs 156 and 157.
27 ‒ Case C-6/04 Commission v United Kingdom [2005] ECR I-9017, paragraph 34.
28 ‒ See footnote 18.
29 ‒ For the relationship between this principle and Article 41(2)(a) of the Charter of Fundamental Rights see my Opinion in Case C-276/12 Sabou [2013] ECR I-0000.
30 ‒ Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraph 21; Case C-349/07 Sopropé [2008] ECR I-10369, paragraphs 36 and 37; Case C-141/08 Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I-9147, paragraph 83; and Case C-277/11 M.M. [2012] ECR I-0000, paragraphs 81 to 87.
31 ‒ Sopropé, cited in footnote 30, paragraph 38.
32 ‒ With respect to Article 6(3) of Directive 2001/42 of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30), for example, see Case C-474/10 Seaport and Others [2011] ECR I-0000, paragraph 42 et seq.
33 ‒ Commission v Ireland, cited in footnote 22, paragraph 157, and Case C-535/07 Commission v Austria [2010] ECR I-9483, paragraph 60.
34 ‒ Judgments in Case 252/85 Commission v France [1988] ECR 2243, paragraph 5, Case C-507/04 Commission v Austria [2007] ECR I-5939, paragraph 89, and Case C-311/10 Commission v Poland [2011] ECR …., paragraph 40.
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