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

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 5 September 2024 (1)

Case C‑47/23

European Commission

v

Federal Republic of Germany

( Failure of a Member State to fulfil obligations - Article 258 TFEU - ‘Systemic and persistent infringement’ - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Admissibility of evidence relating to individual situations not discussed during the pre-litigation procedure - Article 6(2) - Appropriate steps to avoid, in special areas of conservation, the deterioration of natural habitats - Failure to take such appropriate steps - Habitat types 6510 and 6520 - ‘Lowland hay meadows’ and ‘Mountain hay meadows’ - Article 4(1) - Obligation for the Member States to propose a list of sites hosting protected natural habitat types - Failure to update regularly the information relating to those sites )

I.      Introduction

1.        Under the Habitats Directive (2) which, together with the directive on the conservation of wild birds, (3) is the cornerstone of the EU biodiversity policy, most of the obligations imposed on the Member States relate to the protection or conservation of specific sites. When a Member State fails to comply with those obligations as regards a single site, that failure may be sufficient for the European Commission to bring proceedings before the Court in application of Article 258 TFEU. (4) However, where the same failure can be observed not with regard to one, but to numerous sites, the Commission may find it overly burdensome (or even impossible) to initiate parallel proceedings for each occurrence of that failure. Instead, it may conclude that those particular situations are illustrative of a widespread policy or practice of the Member State concerned which is, in and of itself, contrary to EU law. It may then bring a single set of proceedings before the Court, alleging a ‘systemic and persistent infringement’ of EU law. (5)

2.        In the present proceedings, the Commission claims that the Federal Republic of Germany has failed ‘in a general and structural manner’ to prevent, in a significant number of sites across its territory, the deterioration of two natural habitat types: Habitat type 6510 (Lowland hay meadows) and Habitat type 6520 (Mountain hay meadows), the protection of which the Habitats directive aims to ensure. Furthermore, it contends that that Member State has failed, also ‘in a general and structural manner’, to update regularly the data relating to sites hosting those habitat types.

3.        By using the expression ‘in a general and structural manner’, the Commission thus claims before the Court that the Federal Republic of Germany is responsible for a ‘systemic and persistent infringement’ of two key provisions of that directive.

4.        Within that context, the present case furnishes the Court with the opportunity to elaborate, first, on the admissibility of evidence relating to sites which has been presented by the Commission for the first time before the Court and was not discussed during the pre-litigation procedure and, second, on the legal criteria that must guide the Court’s assessment of whether the Commission has discharged its burden of proof and in fact established the existence of a ‘systemic and persistent infringement’.

5.        In accordance with the request of the Court, I will confine my analysis to examining those two issues.

II.    Legal background

A.      European Union law

6.        Pursuant to Article 2(2) of the Habitats Directive, ‘measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest’.

7.        Article 4(1) of that directive provides:

‘On the basis of the criteria set out in Annex III (Stage 1) and the relevant scientific information, each Member State shall propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host … Where appropriate, Member States shall propose adaptation of the list in the light of the results of the surveillance referred to in Article 11.

The list shall be transmitted to the Commission within three years of the notification of this Directive, together with information on each site. That information shall include a map of the site, its name, location and extent and the data resulting from application of the criteria specified in Annex III (Stage 1) provided in a format established by the Commission in accordance with the procedure laid down in Article 21.’

8.        Pursuant to Article 6(2) of the Habitats Directive:

‘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.’

B.      German law

9.        The relevant national legislation is the Gesetz über Naturschutz und Landschaftspflege (Bundesnaturschutzgesetz) (Law on the protection of nature and rural conservation) of 29 July 2009 (BGBl. 2009 I, p. 2542; ‘the Federal Law on the protection of nature’).

10.      Paragraph 30 of that law provides:

‘…

(2)      Actions that could result in the destruction or significant deterioration of the following habitats are prohibited:

…

7. Lowland hay meadows and mountain hay meadows within the meaning of Annex I to the [Habitats Directive] …

(3)      Upon request, derogations from the prohibitions set out in subparagraph 2 may be granted where it is possible for the deterioration to be offset.’

11.      Paragraph 33(1) of the Federal Law on the protection of nature provides:

‘Any change and any disturbance such as to lead to significant adverse effects for a Natura 2000 site in its components that are decisive for the conservation objectives or the protection purpose shall be prohibited. The authority that is competent in the protection of nature and rural preservation matters may, subject to the conditions laid down in Paragraph 34(3) to (5), allow derogations from the prohibition referred to in the first sentence …’

12.      Paragraph 34 of that law provides:

‘(1)      Before they are approved or implemented, projects must be assessed as regards their implications in view of the conservation objectives of a Natura 2000 site, where, individually or in combination with other projects or plans, they are likely to have a significant adverse effect on the site and are not directly used for the management of the site. …

(2)      If the assessment of the implications shows that the project may have a significant adverse effect on the site in its components that are decisive for the conservation objectives or the protection purpose, the project shall be prohibited.

(3)      By way of derogation from subparagraph 2, a project may only be approved or implemented in so far as

1.      it is necessary for imperative reasons of overriding public interest, including those of a social or economic nature, and

2.      reasonable alternative means of achieving the purpose pursued with the project in a different place without any adverse effects or with less adverse effects are not available.

…’

III. The pre-litigation procedure

13.      On 7 May 2018, the Commission, having noted a deterioration of the geographical sites hosting Habitat types 6510 (Lowland hay meadows) and 6520 (Mountain hay meadows) on the territory of Germany, issued a request for information to the Federal Republic of Germany.

14.      In the light of the Federal Republic of Germany’s reply of 12 October 2018, the Commission took the view that that Member State had breached Article 6(2) of the Habitats Directive by systematically failing to adopt appropriate measures to avoid the deterioration of Habitat types 6510 and 6520 in designated geographical sites. On 26 July 2019, the Commission sent a letter of formal notice to the Federal Republic of Germany.

15.      In its letter, the Commission noted a loss of surface area across a significant number of sites hosting Habitat types 6510 and 6520 in Germany. It also noted that no binding legal measures had been adopted to ensure the adequate monitoring of those sites or to protect them against over-fertilisation and early mowing.

16.      It also alleged that the Federal Republic of Germany had systematically breached the second subparagraph of Article 4(1) of the Habitats Directive, since it had consistently failed to update the standard data forms (SDFs) submitted to the Commission in accordance with the format prescribed in the Commission Implementing Decision of 11 July 2011 concerning a site information format for Natura 2000 sites (6) (‘the 2011 Implementing Decision’).

17.      On 26 November 2019, the Federal Republic of Germany responded to the Commission’s letter of formal notice, denying the allegations contained therein.

18.      On 30 October 2020, the Commission addressed a reasoned opinion to the Federal Republic of Germany, in which it reiterated its complaints.

19.      In its response of 30 December 2020, the Federal Republic of Germany indicated that the Commission’s complaints were unfounded.

20.      On 31 January 2023, the Commission decided to initiate infringement proceedings against the Federal Republic of Germany before the Court, in application of the second paragraph of Article 258 TFEU.

IV.    Procedure before the Court

21.      In the application, lodged on 31 January 2023, the Commission claims that the Court should:

–        declare that the Federal Republic of Germany has failed to comply with its obligations under Article 6(2) and the second subparagraph of Article 4(1) of the Habitats Directive, with respect to Habitat types 6510 (Lowland hay meadows) and 6520 (Mountain hay meadows), since it has failed, ‘in a general and structural manner’:

–        to adopt appropriate measures to avoid the deterioration of those habitat types in the designated geographical sites that host them, and

–        to communicate to the Commission regularly updated data as regards those sites;

–        order the Federal Republic of Germany to pay the costs of the proceedings.

22.      The Federal Republic of Germany, having been duly served the application initiating the proceedings, lodged a defence on 17 April 2023. It claims that the Court should:

–        dismiss the action in its entirety;

–        order the Commission to pay the costs of the proceedings.

23.      The parties to the present case were invited by the Court to submit a second round of written observations. The reply and the rejoinder were lodged on 30 May 2023 and 10 July 2023, respectively.

24.      Both parties were represented at the hearing, which took place on 6 March 2024.

V.      Analysis

25.      The Habitats Directive has as its aim ‘to promote the maintenance of biodiversity’, (7) by ensuring that Member States contribute to the creation of the Natura 2000 network (the EU-wide network of nature conservation areas) in proportion to the representation, within their respective territories, of the natural habitat types and the habitats of species listed in Annex I and Annex II to that directive. To that effect, Member States are required, in accordance with Article 4 of that instrument and at the end of the procedure established by it, (8) to designate the sites hosting those natural habitats and species as ‘special areas of conservation’. (9)

26.      As regards those areas, Member States must adopt three categories of measures, namely conservation measures, preventive measures and compensatory measures, as provided by Article 6(1), (2) and (4) of that directive, respectively. The present case concerns the second category of measures, namely preventive measures (Article 6(2) of the Habitats Directive).

27.      Habitat types 6510 (Lowland hay meadows) and 6520 (Mountain hay meadows), which are at issue in the present proceedings, are two of the natural habitat types listed in Annex I to the Habitats Directive which may be present in ‘special areas of conservation’. (10) Both are described as species-rich hay meadows, which may be harmed by intensive management practices (such as early mowing or the heavy application of fertilisers). (11)

28.      I understand from the Court’s case-law on Article 6(2) of the Habitats Directive that Member States must not only refrain from undertaking actions that could have a negative ecological impact on ‘special areas of conservation’ (negative obligation), but must also adopt appropriate measures to prevent natural or man-caused impairment of the habitats or significant disturbance of the species for which those areas have been designated (positive obligation). (12) In other words, the purpose of that provision is, essentially, to pre-empt any future damage to those habitats or species in ‘special areas of conservation’. However, it does not specify what protective measures are to be adopted in that regard.

29.      Indeed, the Court has already had the opportunity to clarify that the expression ‘appropriate steps’ in Article 6(2) of the Habitats Directive imply that Member States enjoy discretion in applying that provision. (13) The Court has emphasised that that provision places on Member States an obligation of result, which is consistent with the objective, pursued within the framework of the EU environmental policy under Article 191(1) TFEU, of preserving, protecting and improving the quality of the environment and with the principle, set out in Article 191(2) TFEU, that environmental damage should as a priority be rectified at source. (14)

30.      Having made those preliminary remarks, I would recall that, as I have explained in the introduction above, by the first complaint, the Commission claims that, inasmuch as the Federal Republic of Germany has failed to take appropriate steps to prevent the deterioration of a significant number of sites hosting Habitat types 6510 and 6520 across its territory (by failing to adopt preventive measures), it has breached Article 6(2) of the Habitats Directive ‘in a general and structural manner’. By the second complaint, the Commission argues that Article 4(1) of that directive places Member States under the obligation to update regularly the data relating to ‘special areas of conservation’, in the SDFs prepared pursuant to the 2011 Implementing Decision. It considers that the Federal Republic of Germany has infringed that obligation in the same ‘general and structural manner’ in respect of sites hosting Habitat types 6510 and 6520.

31.      I will start by recalling some of the specific features of ‘systemic and persistent infringements’ (A). I will then explain why evidence relating to sites mentioned by the Commission for the first time before the Court may be admissible for establishing the existence of a ‘systemic and persistent infringement’ (B). Finally, I will clarify the legal criteria that must guide the Court’s assessment of whether the Commission has discharged its burden of proof in such a context, before assessing the two complaints formulated in the present case against those criteria (C).

A.      Preliminary remarks on the concept of ‘systemic and persistent infringement’

32.      As I have already explained in the introduction, the concept of ‘systemic and persistent infringement’ comes into play where the Commission relies on particular situations of non-compliance with EU law obligations with a view to making the broader claim that the Member State concerned has infringed those obligations in a ‘general and persistent’ manner. The possibility of the Commission making such a claim involves significant practical benefits, as it enables that institution to save time and resources by initiating a single set of proceedings before the Court, instead of adopting a ‘piecemeal’ approach by targeting each isolated occurrence of the breach separately. As some authors have argued, this enables a more effective enforcement of EU law. (15)

33.      Furthermore, if a Member State has committed such a ‘systemic and persistent infringement’ of EU law, it must, in my view, not only remedy the specific instances relied on by the Commission, but also adopt a general change in its practice. In other words, it must identify the source or origin of the ‘systemic and persistent infringement’, with a view to ‘curing’ not only the ‘symptoms’ but also the ‘disease’ itself. (16) It seems to me that the Court hinted at that requirement when it stated that ‘the fact that the deficiencies identified in any particular case have been remedied does not necessarily mean that the general and continuous approach of those authorities, as evidenced by those specific deficiencies in some cases, has come to an end’. (17)

34.      The Court introduced the concept of ‘systemic and persistent infringement’ in Commission v Ireland. (18) In that judgment, it insisted on two particular features. First, it indicated that, in order to prove such an infringement, it is sufficient for the Commission to show the existence of an administrative practice contrary to EU law. In other words, the source of the infringement does not have to be a legislative or regulatory act adopted by the Member State concerned. Second, the particular occurrences of the infringement on which the Commission relies must not be isolated, but must form a pattern of non-compliance.

35.      The judgments delivered since then have concerned the situation where the Commission was seeking, in parallel, a finding that specific provisions of EU law had not been complied with in particular specifically identified situations and a finding that those provisions had not been complied with because of a general practice contrary to EU law, which was illustrated by those particular situations. (19)

36.      The present case differs from the previous case-law in that the Commission seeks (to my knowledge, for the first time) only a declaration from the Court that there has been a general practice on the part of the competent German authorities contrary to Article 6(2) and Article 4(1) of the Habitats Directive. That institution relies on particular situations merely to illustrate such a general failure, that is to say, not with the aim of obtaining a specific declaration from the Court that those provisions have been infringed in each of those situations. Accordingly, if the Court were to conclude that the Federal Republic of Germany has indeed breached ‘in a general and structural manner’ Article 6(2) and Article 4(1) of the Habitats Directive, the Commission could not subsequently ask for sanctions to be imposed on that Member State, if it failed to remedy each of those situations. It could only do so if it had sought a finding that those provisions had not been complied in each occurrence of the infringement.

37.      That difference aside, I am of the view that the requirements which I have outlined in point 34 above must be applied in the present case in the same way as they were in previous cases.

38.      Having made those remarks, I will now explain why, in the situation of an allegedly ‘systemic and persistent infringement’, the Commission may, in general, bring before the Court additional examples of the alleged practice of non-compliance, even though those examples were not discussed during the pre-litigation procedure.

B.      Admissibility of ‘additional examples’ of the practice of non-compliance not discussed during the pre-litigation stage

1.      Arguments of the parties

39.      The Federal Republic of Germany notes that, in the application, the Commission alleges a loss of surface area across 596 sites hosting Habitat type 6510 and 88 sites hosting Habitat type 6520. However, in its reasoned opinion, the Commission mentions only 497 and 86 sites respectively. Accordingly, it submits that the Commission’s action is inadmissible in so far as it concerns 101 sites which are not mentioned in the reasoned opinion (‘the disputed sites’).

40.      The Federal Republic of Germany states that the subject matter of an action for failure to fulfil obligations is determined by the Commission’s reasoned opinion. Such an action must, therefore, be based on the same grounds and pleas as that opinion. (20) Facts or complaints not notified during the pre-litigation procedure may not be relied on in support of the action.

41.      The Commission disputes those arguments. It claims that the evidence relating to the disputed sites is complementary to that already presented during the pre-litigation stage as regards other sites and, therefore, admissible.

2.      Assessment

42.      According to settled case-law relating to the burden of proof in proceedings for failure to fulfil an obligation under Article 258 TFEU, it is for the Commission to determine, in each case, that the particular EU law obligation in dispute has not been fulfilled. That institution must provide the Court with the information necessary for it to determine whether the infringement exists and is not allowed to alter the subject matter of the dispute, which must be delimited by the complaints submitted during the pre-litigation procedure. (21) It follows that the Commission cannot seek a declaration of a specific infringement of EU law regarding a particular situation that was not referred to in the course of that procedure. (22) A specific ground of complaint of that kind would necessarily have had to be raised at the pre-litigation stage, so that the Member State concerned has the opportunity to remedy the particular situation complained of or avail itself of its right to defend itself in that regard.

43.      However, in the present case, the Commission has stated from the outset, before the Court, that the particular situations referred to in the application constitute illustrations of the ‘systemic and persistent infringement’ of Article 6(2) and Article 4(1) of the Habitats Directive by the Federal Republic of Germany.

44.      In that regard, the Court has made it abundantly clear that, in such a context, the production of additional evidence intended to support that finding before the Court cannot, in principle, be ruled out. Indeed, in such a situation, the Commission does not alter the subject matter of the dispute, but merely clarifies its initial grounds of complaint by producing additional evidence intended to illustrate the general and persistent failure which it alleges. (23)

45.      Those statements date back to the judgment in Commission v Ireland, (24) a judgment which I have already mentioned in point 34 above and in which the Court found that Ireland had failed to take all the measures necessary to ensure a correct implementation of certain provisions of the ‘Waste Directive’ in force at the time. (25) The Court held that, although they were not referred to during the pre-litigation procedure, examples of the massive illegal dumping of (on occasions, hazardous) waste in the County Wicklow (Ireland), of which the Commission had become aware after issuing the reasoned opinion, could properly be mentioned by that institution in the application for the purpose of illustrating Ireland’s general failure to fulfil its obligations under that directive. (26)The Court did not require the Commission to establish that those examples occurred only after the adoption of the reasoned opinion. (27) Nor did it require the Commission to establish that there was no way for it to have discovered or known about those examples prior to issuing the reasoned opinion. (28)

46.      Applying that logic to the present case, I am of the view that the evidence relating to the 101 sites that the Commission did not include in the reasoned opinion is admissible, even where it was already accessible to that institution during the pre-litigation stage. Indeed, it suffices, in my view, that that evidence came to the attention of the Commission, in good faith, after it issued the reasoned opinion and that those examples are presented as further illustrations or examples of the ‘systemic and persistent’ failure alleged by that institution.

47.      To conclude on that issue, I would nevertheless like to point out that the possibility which the Commission has of introducing such new illustrations or examples of a ‘systemic and persistent’ failure to comply with EU law obligations before the Court is, indeed, broad but not without limits. It would be an abuse of procedure if the Commission could rely on only a few examples during the pre-litigation procedure, but then initiate proceedings before the Court as regards a ‘bag’ of infringements, made up not only of those few examples but also of numerous others, making it excessively difficult for the Member State concerned to refute that institution’s claims. (29) There is, in my view, a line to be drawn between ‘mere clarification’ of the initial grounds of complaint, which, as I have explained, the Court has expressly acknowledged as a possibility, and situations where the production of additional examples could actually amount to an abuse of procedure (a situation which, fortunately, does not arise in the present case).

C.      The Commission’s burden of proof when it alleges the existence of a ‘systemic and persistent infringement’

48.      As a rule, when the Commission alleges the existence of a ‘systemic and persistent’ failure to comply with the provisions of a directive, first, it must establish that the Member State in question has failed to comply with an EU law obligation in a number of particular specifically identified situations. Second, the Commission must show, to the requisite legal standard, by means of sufficiently precise, clear and detailed arguments and data, that those particular situations are, in fact, representative (or illustrative) of a general and persistent practice contrary to such an obligation. (30)

49.      It follows that that institution cannot, under the guise of claiming that that Member State has generally and persistently failed to fulfil its obligations under EU law, avoid complying with its obligation to prove the alleged failure on the basis of concrete evidence and simply rely on presumptions or schematic causations. (31) At the same time, as Advocate General Ćapeta (32) has stated, it is not necessary for it to demonstrate, or for the Court to assess, the existence of a failure as to each site concerned (in the present case, each one of the sites hosting Habitat types 6510 and 6520 across the territory of Germany). As I have already explained, it suffices for the Commission to show a pattern of non-compliance, which recurs in a number of particular specifically identified situations that are representative (or illustrative) of the breach alleged and from which the conclusion could be drawn that that breach likely exists in respect of other situations not specifically examined by the Commission.

50.      In comparison to ‘classic’ claims of infringement, the burden of proof incumbent on the Commission when it alleges a ‘systemic and persistent infringement’ is thus twofold: not only must it show that certain EU law obligations have not been complied with in particular specifically identified situations, but it must also establish (as an additional requirement) that those particular situations are, in fact, representative (or illustrative) of a general and persistent practice contrary to such an obligation.

51.      In the following sections, I will elaborate on and consider those legal requirements in relation to the two complaints put forward by the Commission.

1.      The first complaint: ‘systemic and persistent infringement’ of Article 6(2) of the Habitats Directive

(a)    Arguments of the parties

52.      By the first complaint, the Commission takes the view that the Federal Republic of Germany has failed, ‘in a general and structural manner’, to adopt appropriate measures to prevent the deterioration of Habitat types 6510 and 6520 in ‘special areas of conservation’ across its territory, thereby infringing Article 6(2) of the Habitats Directive.

53.      In that regard, the Commission submits, first, that the deterioration of those habitat types can be inferred from the 2014 Grünland-Report (Meadowland Report) of the Bundesamt für Naturschutz (Federal Agency for Nature Conservation, Germany) and from the reports submitted by the Federal Republic of Germany, in application of Article 17 of the Habitats Directive, for the periods 2001‑2006, 2007‑2012 and 2013‑2018. It also notes that the surface area of ‘special areas of conservation’ hosting Habitat types 6510 and 6520 in Germany is in decline. A loss of area qualifies as a ‘deterioration’, within the meaning of Article 6(2) of the Habitats Directive.

54.      The Commission explains that it has done a comparative analysis of the data contained in the SDFs prepared and submitted to it by that Member State in accordance with the format prescribed in the 2011 Implementing Decision. That analysis shows that, between 2006 and 2017, over 50% of the surface area across more than 30% of sites hosting Habitat types 6510 and 6520 has been lost. That loss of area affects 596 out of 2 027 sites hosting Habitat type 6510 and 88 out of 295 sites hosting Habitat type 6520. Those sites are spread out across the German territory.

55.      The Commission adds that, contrary to what the Federal Republic of Germany submits, a global assessment of all sites hosting Habitat types 6510 and 6520 was not necessary, because deterioration in certain areas cannot be compensated by improvements in others.

56.      Furthermore, it points to the fact that, while the Federal Republic of Germany recognises some of the losses of area (977.44 hectares for Habitat type 6510 and 110.49 hectares for Habitat type 6520), that Member State also argues that (part of the) other losses observed by the Commission are not ‘real losses’, but the result of the correction of ‘scientific errors’ or errors which were due to (i) the erroneous classification of certain sites as ‘special areas of conservation’ and (ii) estimates that ‘vitiated’ the initial calculation of the perimeter of the relevant sites in 2006. Those errors would account for 6 476.61 hectares across 347 sites hosting Habitat type 6510 and 1 322.16 hectares across 75 sites hosting Habitat type 6520. The Commission does not accept those justifications. It claims that it was entitled to rely on the data provided by the Federal Republic of Germany in the SDFs submitted in 2006, as well as during the subsequent years, to carry out its comparative analysis.

57.      At any rate, the Commission submits that the losses of area that it has noted are too significant to be the result of mere corrections. Indeed, for more than 50% of the sites examined by that institution, approximately 60 to 100% of the surface area in 2006 had been lost by 2017.

58.      Second, the Commission contends that the deterioration of the sites hosting Habitat types 6510 and 6520 in Germany is due to the systematic failure of the competent German authorities to perform adequate, regular monitoring of those sites. According to the Commission, a Member State, the authorities of which do not perform regular and specific monitoring of ‘special areas of conservation’, necessarily fails to comply with its obligations under Article 6(2) of the Habitats Directive. The frequency with which check-ups must be performed depends on what is necessary in order to avoid deterioration.

59.      The Commission further submits that the deterioration of Habitat types 6510 and 6520 across the German territory is also caused by the Federal Republic of Germany’s failure to adopt legally binding measures to protect ‘special areas of conservation’. The Federal Republic of Germany favours a contractual approach to ensuring the protection of nature. In the Commission’s view, that approach would not be sufficient to prevent early mowing or over-fertilisation in the sites hosting those habitat types.

60.      The Federal Republic of Germany disputes the Commission’s arguments and submits that it has not failed to fulfil its obligations under Article 6(2) of the Habitats Directive.

61.      First, it claims that the Commission could not have concluded, based on a global assessment of the sites concerned, that the losses of area across sites hosting Habitat types 6510 and 6520 in Germany are so significant as to demonstrate the existence of a ‘systemic and persistent’ failure to comply with that provision. According to that Member State, the Commission has focused its comparative analysis on a limited number of sites the surface area of which is relatively small. Had the Commission performed a global assessment of all the sites hosting those Habitat types instead of focusing on only a portion of them, it would have noted only a 4.27% loss of area for the sites hosting Habitat type 6520 and a 5.22% increase in area for those hosting Habitat type 6510, the losses in certain areas being compensated by gains in other areas.

62.      The Federal Republic of Germany adds that the 2006 SDFs do indeed contain scientific errors and estimates, which were corrected in subsequent SDFs. That is why the area recorded for sites hosting Habitat types 6510 and 6520 in those subsequent SDFs is significantly smaller than in the 2006 SDFs. According to that Member State, ‘real losses’ of area account for only 977.44 hectares (across 81 sites hosting Habitat type 6510) and 110.49 hectares (across 15 sites hosting Habitat type 6520). Those numbers are insufficient to establish the existence of a ‘systemic and persistent’ infringement.

63.      The Federal Republic of Germany also claims that the 2014 Grünland-Report of the Federal Agency for Nature Conservation and the reports submitted, in application of Article 17 of the Habitats Directive, for the periods 2001‑2006, 2007‑2012 and 2013‑2018, merely confirm that there has been a loss of area. However, they do not indicate that such a loss is significant enough to establish the existence of ‘persistent and systemic infringement’.

64.      Second, the Federal Republic of Germany agrees with the Commission that Article 6(2) of the Habitats Directive imposes an obligation of monitoring for the Member States. However, it submits that it is for the Member States to determine how that monitoring is to be performed. Article 6(2) of the Habitats Directive lays down an obligation of result only (which is to prevent the deterioration of certain natural habitats and species) and does not set out in detail the specific measures that must be taken in that regard.

65.      In that regard, the Federal Republic of Germany claims that Member States are also free to decide which preventive measures they wish to adopt. In Germany, it is for the competent authorities to decide the content of such measures on a case-by-case basis, following a flexible contractual approach. Although such an approach cannot guarantee that deterioration will never occur, it is generally effective and entails regular monitoring.

(b)    Assessment

66.      The Federal Republic of Germany and the Commission agree that Article 6(2) of the Habitats Directive requires Member States to achieve a certain result (namely to prevent the deterioration of the habitats listed in Annex I to that directive and the disturbance of species listed in Annex II thereto) by taking ‘appropriate steps’.

67.      In that regard, I would recall that the Court has already indicated that, even though a provision of a directive does not specify the actual content of the measures to be taken in order to fulfil the objective that it pursues, it is nonetheless binding on the Member States as to that objective. (33) Article 6(2) of the Habitats Directive is such a provision. It imposes a clear obligation as to the result to be achieved (to prevent deterioration), without prescribing the actual content of the ‘appropriate steps’ to be taken in that regard.

68.      Given the two requirements which I have outlined in point 50 above, it follows, in my view, that, to show that the Federal Republic of Germany has ‘in a general and structural manner’ failed to comply with that provision, the Commission must, first, establish the existence of a failure, on the part of the Federal Republic of Germany, to prevent deterioration, contrary to the objective pursued under Article 6(2) of the Habitats Directive, in a number of particular specifically identified situations (that is to say, sites hosting Habitat types 6510 and 6520 in Germany). Second, in application of what I have called the ‘additional requirement’, which is specific to ‘systemic and persistent infringements’, it must show that those situations of non-conformity are representative (or illustrative) of that Member State’s ‘systemic and persistent’ failure to comply with that provision.

(1)    The first requirement (failure to prevent deterioration in a number of particular specifically identified situations)

69.      To begin with, I am of the view that, in the present case, the Commission may satisfy its burden of proof as to the first requirement without having to determine the exact cause of the deterioration allegedly affecting sites hosting Habitat types 6510 and 6520 in Germany. Indeed, as I have explained above, Article 6(2) of the Habitats Directive lays down an obligation to prevent deterioration, whatever its cause (natural or man-made or both). Biodiversity losses across the sites analysed by the Commission may be linked to various phenomena, which the Commission is not under an obligation to identify or quantify. What the Commission must show, however, is, first, that there is a deterioration (whatever the reason or cause) and, second, that the Member State concerned has taken action that had a risk of causing such a deterioration or failed to take steps to prevent it from occurring. Indeed, while, for example, the simple occurrence of a deterioration of ‘special areas of conservation’ linked to climate change is not sufficient to establish a breach of Article 6(2) of the Habitats Directive, the failure of a Member State to take measures to limit the effects of climate change may, in fact, be sufficient.

70.      In that regard, I would add that the Court has already found that the tolerant approach of a Member State towards situations in which the provisions of a directive are not complied with or the persistence of a situation of deterioration in the environment over a protracted period without any action being taken by the competent authorities can, in and of itself, be indicative of an administrative problem, which, if sufficiently general and long-lasting, could enable the conclusion to be drawn that the Member State concerned has exceeded the discretion conferred on it to achieve the prescribed result. (34) As such, both positive actions and omissions (or deferential conduct) of a Member State are relevant for the purpose of establishing a breach of Article 6(2) of the Habitats Directive.

71.      I would also note that the Court has held that it is sufficient for the Commission to show that there is a probability or risk that the action or inaction of the Member State concerned might have caused (or failed to prevent) a deterioration of the habitats listed in Annex I to that directive or significant disturbance of the species referred to in Annex II thereto. Indeed, it is not for the Commission to establish the existence of a cause-and-effect relationship between the action or inaction of the Member State concerned and the deterioration or disturbance of the habitats or species concerned. (35)

72.      Turning now to the factual situation at hand in the present case, I would recall, first, that the Federal Republic of Germany does not dispute the Commission’s finding that that Member State has, at national level, failed to adopt legally binding conservation measures to prevent, in relevant sites, the deterioration of Habitat types 6510 and 6520, preferring instead a contractual approach to ‘the protection of nature’.

73.      Second, the Commission claims that 596 sites hosting Habitat type 6510 and 89 sites hosting Habitat type 6520 across Germany are affected by a loss of area amounting to ‘deterioration’, within the meaning of Article 6(2) of the Habitats Directive. The Republic of Germany disagrees with those findings. However, it does concede that there has been a loss of area in 89 sites hosting Habitat type 6510 (81 upon correction (36) and as confirmed at the hearing) and 15 sites hosting Habitat type 6520 (16 upon correction (37) and 15 as confirmed at the hearing) across its territory (‘the admitted losses’). In addition, that Member State recognises that it can provide no valid justification or explanation for some (other) losses of area noted by the Commission in its comparative analysis (‘the unexplained losses’). Those losses represent a total of 9 853.38 hectares across more than 200 sites of Habitat type 6510 and 249.78 hectares across 24 sites of Habitat type 6520. (38)

74.      Third, the Federal Republic of Germany does not present any convincing argument or sufficiently precise evidence to rebut the Commission’s contention that there is a probability or risk that its failure to adopt, at national level, legally binding conservation measures might have caused the admitted and unexplained losses.

75.      In the light of the foregoing, taking into account only those admitted and unexplained losses, and without its being necessary to consider the losses of surface which the Republic of Germany claims to be the result of scientific errors or other errors, I am of the view that the Court can already, without much difficulty, come to the conclusion that the Federal Republic of Germany has failed to comply with Article 6(2) of the Habitats Directive in at least 200 sites hosting Habitat type 6510 and 24 sites hosting Habitat type 6520.

76.      Having made those remarks, I will now examine whether those examples are sufficiently representative (or illustrative) of the Federal Republic of Germany’s ‘systemic and persistent’ failure to comply with that provision (the second requirement).

(2)    The second requirement (‘representativeness’)

77.      I would recall that, in his Opinion in Commission v Ireland, (39) Advocate General Geelhoed stated that, to establish that an infringement by a Member State is ‘systemic and persistent’, dimensions of scale, time and seriousness must be taken into consideration. The dimension of scale refers to the number of instances in which it is established that the relevant EU law obligations have been infringed, as well as indications that the breach is widespread and/or likely to keep recurring. The dimension of time (duration) corresponds to a requirement that the situation of non-compliance must have existed for a certain period of time during which the obligation was effective. The dimension of seriousness refers to the degree to which the actual situation in the Member State concerned deviates from the result to be achieved by the obligation in question.

78.      That framework of analysis was relied upon, inter alia, by Advocate General Cápeta in a context where the Commission had alleged that Ireland had ‘systemically and persistently’ failed to comply with its obligation under Article 6(1) of the Habitats Directive. (40)Advocate General Cápeta considered that all three dimensions are relevant when examining whether the ‘representativeness’ criterion is fulfilled, that is to say whether the particular situations relied on by the Commission are representative (or illustrative of) a ‘systemic and persistent infringement’. I agree.

79.      Indeed, it seems to me that all three dimensions (scale, duration and seriousness) must be considered by the Court as part of that assessment, although they do not have to be fulfilled to the same degree. For example, the particular situations relied upon by the Commission may be particularly serious and numerous, but they may not have lasted for very long; however, that does not prevent them from being ‘illustrative of’ a ‘systemic and persistent infringement’. Conversely, those situations may not be numerous, but they may be of such seriousness and duration that only a defect of a structural nature could have caused them. In other words, the three dimensions provide a flexible ‘toolkit’, more than an indispensable ‘checklist’.

80.      As to the first dimension (scale), I would note that, in the present proceedings, the Federal Republic of Germany openly admits a loss of surface area in 96 out of 2 322 sites hosting Habitat types 6510 and 6520 across the German territory. Overall, that Member State thus admits that 4.13% of all sites hosting those habitat types on its territory have experienced a loss of area since 2006. I agree that that percentage is not very high. However, first, those sites are distributed across the German territory, since they are located in 10 different Länder (41) (for Habitat type 6510) and 5 different Länder (for Habitat type 6520). Second, for at least five sites hosting Habitat type 6520, the loss of surface area exceeds 25% of the area recorded in 2006. Significant losses (in relation to the overall surface area of certain sites) can also be observed in a significant number of the sites hosting Habitat type 6510.

81.      Third, while it is true that, for Habitat type 6510, the losses admitted by the Federal Republic of Germany represent 957.75 hectares only, if account is also taken of the losses for which that Member State admits that it can provide no valid justification or explanation, the total deficit becomes 10 811.13 hectares (almost 60% of that alleged by the Commission). (42) Similarly, for Habitat type 6520, the losses expressly recognised by the Federal Republic of Germany account for 110.49 hectares only. However, once the losses for which that Member State has no valid justification or explanation are included in the assessment, the total deficit becomes 360.27 hectares (approximately 20% of the deficit alleged by the Commission). (43)

82.      In my view, those numbers are sufficient to establish the existence of a failure to comply with Article 6(2) of the Habitats Directive in multiple sites, that are not only widespread (in terms of their geographical distribution across the German territory) but also sufficiently numerous to enable the conclusion to be drawn that the infringement is likely to keep recurring and that the administrative practice followed in Germany with a view to implementing that provision is problematic on the whole.

83.      I should add that, in the present case, the Commission’s action concerns only two natural habitat types (namely Habitat type 6510 and Habitat type 6520) and that the evidence presented by that institution relates only to sites that host those natural habitats. This case is therefore different from the case which led to the recent judgment in Commission v Ireland (Protection of special areas of conservation), (44) in which the Court rejected the Commission’s arguments on the ground that those examples were not ‘representative’ of all the sites of Community importance at issue. Indeed, in that judgment, the action pertained to 423 sites of Community importance in Ireland, hosting a great variety of habitats and species, whereas the Commission had relied on only three examples of those habitats and species (coastal lagoons, blanket bogs and the freshwater pearl mussel) to show that the conservation measures put in place by Ireland in those sites were generally, systemically and persistently of insufficient quality.

84.      Concerning the evidence submitted in the present case, I wish to emphasise, first, that it is not actually necessary, in my view, for the Commission to show that the particular situations that it relies on represent a ‘major’ or even ‘significant’ part of all the sites hosting Habitat types 6510 and 6520. As I have stated, it suffices that they are numerous enough to show that the breach is widespread and/or likely to keep recurring because of a defect in the administrative practice adopted by the Member State whose effects could carry on over time.

85.      Second, contrary to what the Federal Republic of Germany submits, the Commission is not required to perform a global assessment and analyse whether the losses experienced in some sites are compensated by gains in others. In that regard, I would recall that, as I have already explained, Article 6(2) of the Habitats Directive lays down an obligation for the Member States to prevent deterioration in every site that is recognised as a ‘special area of conservation’. It does not require them to prevent an overall deterioration of those sites considered as a whole. Had that been the case, the Commission would not have been able to claim a ‘systemic and persistent’ infringement of Article 6(2) of the Habitats Directive. It could simply have sought a declaration that that provision has been breached in a single instance (that is to say, in relation to all the sites hosting Habitat types 6510 and 6520, taken as a whole).

86.      As to the second dimension (duration), I note that the numbers mentioned by the Commission correspond to losses for the period 2006‑2017. It follows that the deficit shown by that institution is not temporary, but has lasted over a significantly long period. The 2014 Grünland-Report of the Federal Agency for Nature Conservation confirms an overall decline of the conservation status of hay meadows in Germany since 2007. That report indicates that ‘meadows … are no longer in a good condition throughout Germany. The reason for this is a significant loss in surface area and quality. Compared with … 2007, the situation in … lowland hay meadows and mountain hay meadows have measurably deteriorated in parts’. (45)

87.      As to the third dimension (seriousness), which corresponds to the degree to which the actual situation in the Member State concerned deviates from the result to be achieved by the obligation in question, I would recall that, as I have explained in point 28 above, the objective of Article 6(2) is to prevent the natural or man-caused impairment of the habitats or significant disturbance of the species for which ‘special areas of conservation’ have been designated. That objective will, in my view, be seriously compromised if the area of the sites hosting those habitats and species diminishes over time. What is more, a loss of area appears to me to be a particularly serious form of ‘deterioration’ within the meaning of that provision, given its irreversible nature.

88.      In view of the foregoing, I consider that the Commission has established the existence of an infringement of Article 6(2) of the Habitats Directive by the Federal Republic of Germany of such scale, duration and seriousness that it may be regarded as ‘systemic and persistent’.

2.      The second complaint: ‘systemic and persistent infringement’ of Article 4(1) of the Habitats Directive

(a)    Arguments of the parties

89.      By the second complaint, the Commission submits that the Federal Republic of Germany has breached Article 4(1) of the Habitats Directive by failing ‘in a general and structural manner’ to provide updated data relating to the sites hosting Habitat types 6510 and 6520. According to the Commission, that failure concerns 202 out of 596 sites hosting Habitat type 6510 and 14 out of 88 sites hosting Habitat type 6520, in 10 Länder.

90.      In that regard, the Commission claims that Article 4(1) of the Habitats Directive requires Member States to provide regularly updated data about, inter alia, the surface area of each ‘special area of conservation’. Such an obligation is not expressly mentioned in that provision, but follows from a contextual and teleological interpretation of the provision. Indeed, it is necessary for the Commission to be in possession of accurate information and data as regards ‘special areas of conservation’ in order to ensure compliance with the conservation objectives set out in Article 2 of the Habitats Directive. The importance of providing such regularly updated data is also made clear by Article 17 of that directive, which requires Member States to draw up a report every six years, in which they must set out in detail the measures taken and the improvements made to each site.

91.      The Commission further points out that recital 4 of the 2011 Implementing Decision states that: ‘the content of the Natura 2000 Standard Data Form should be updated regularly based on the best available information for each site of the network in order to allow the Commission to fulfil its coordinating role…’.

92.      The Federal Republic of Germany disputes those arguments. It claims that Article 4(1) of the Habitats Directive requires data relating to relevant sites to be communicated only once (namely, when the list of ‘special areas of conservation’ is established by the Commission). The key provision regarding subsequent communications that must take place between that institution and the Member States is Article 17 of the Habitats Directive, not Article 4(1) thereof.

93.      That Member State adds that the fact that the 2011 Implementing Decision refers to the importance of ‘regular’ updates without specifying when those updates must take place confirms that the Habitats Directive contains no specific obligation in that regard. Furthermore, it is not necessary, with a view to identifying which sites suffer from deterioration, to update regularly the data contained in SDFs. At any rate, the SDFs communicated by the Federal Republic of Germany are systematically updated. However, the Commission has rejected the 2021 SDFs submitted by the Federal Republic of Germany.

(b)    Assessment

94.      The main point of disagreement between the Commission and the Federal Republic of Germany as regards the second complaint concerns whether Article 4(1) of the Habitats Directive includes an obligation for the Member States to update the data relating to ‘special areas of conservation’, within the meaning of that directive. In that regard, the Commission admits that that provision does not expressly contain such an obligation.

95.      Indeed, Article 4(1) of the Habitats Directive provides, in unambiguous terms, that the list of relevant sites shall be transmitted to the Commission ‘within three years of the notification of this Directive, together with information on each site’. (46) I understand from that provision that Member States are only expressly required, under that provision, to communicate information about relevant sites at a specific point in time, that is to say, before those sites are formally recognised as ‘special areas of conservation’ and as part of the procedure for them to be designated as such. I do not see anything in Article 4(1) of the Habitats Directive from which an obligation for the Member States to update the data relating to ‘special areas of conservation’ regularly, once those areas have been formally identified, could be derived. In fact, the sole purpose of that provision seems to me to be to lay down the procedure which the Commission and Member States must follow in order for ‘special areas of conservation’ to be properly designated.

96.      Moreover, I would note that Article 17 of the Habitats Directive provides that Member States are to draw up a report on the implementation of the measures taken under that directive ‘every six years’. Again, I fail to see, in that provision, any indication that Article 4(1) of that directive is to be interpreted as meaning that Member States are required to provide updated data relating to ‘special areas of conservation’ every year.

97.      I agree with the Commission that Article 9 of the Habitats Directive requires it to ‘periodically review the contribution of Natura 2000 towards [the] achievement of the objectives set out in Article 2 and 3’ of that directive. In application of that provision, the Commission has adopted the 2011 Implementing Decision, recital 4 of which provides that ‘the content of the Natura 2000 Standard Data Form should be updated regularly based on the best available information for each site of the network in order to allow the Commission to fulfil its coordinating role and in accordance with Article 9 of [the Habitats Directive] to periodically review the contribution of Natura 2000 towards the achievement of the objectives set out in Articles 2 and 3’ of that directive.

98.      However, even assuming that an obligation for the Member States to update regularly the data for each site classified as a ‘special area of conservation’ could be read into Article 9 of the Habitats Directive, that does not change the fact, in my view, that such an obligation still does not result from Article 4(1) of that instrument.

99.      Accordingly, I consider that the Commission has failed to show to the requisite legal standard that the Federal Republic of Germany has breached that provision. The second complaint must, therefore, be rejected.

VI.    Conclusion

100. In the light of the foregoing, I suggest that the Court of Justice:

–        declare that the Federal Republic of Germany has failed, in a general and structural manner, 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, as amended by Council Directive 2013/17/EU of 13 May 2013;

–        dismiss the action as to the remainder;

–        order the European Commission and the Federal Republic of Germany to each bear its own costs.

1      Original language: English.

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 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193).

3      Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7), as amended by Regulation (EU) 2019/1010 of the European Parliament and of the Council of 5 June 2019 on the alignment of reporting obligations in the field of legislation related to the environment, and amending Regulations (EC) No 166/2006 and (EU) No 995/2010 of the European Parliament and of the Council, Directives 2002/49/EC, 2004/35/EC, 2007/2/EC, 2009/147/EC and 2010/63/EU of the European Parliament and of the Council, Council Regulations (EC) No 338/97 and (EC) No 2173/2005, and Council Directive 86/278/EEC (OJ 2019 L 170, p. 115).

4      Indeed, Article 258 TFEU enables the Commission to institute proceedings for failure to fulfil obligations each time it takes the view that a Member State has failed to fulfil an obligation under EU law, without its being required to draw distinctions based on the nature or gravity of the infringement (see, to that effect, judgment of 1 February 2001, Commission v France (C‑333/99, EU:C:2001:73, paragraph 33)).

5      See, for examples of ‘systemic and persistent infringements’ of the provisions of the Habitats Directive, judgments of 29 June 2023, Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:524), and of 21 September 2023, Commission v Germany (Protection of special areas of conservation) (C‑116/22, EU:C:2023:687).

6      Notified under document C(2011) 4892 (OJ 2011 L 198, p. 39).

7      See the preamble to that directive. See also Article 2(1) thereof.

8      The procedure governing the designation of sites as ‘special areas of conservation’, as provided for in Article 4 of that directive, consists of various stages. Under Article 4(1) of that directive, each Member State proposes a list of sites indicating the natural habitat types and native species that they host and that list is transmitted to the Commission. Thereafter, the Commission adopts, based on the lists submitted by the Member States, a list of sites selected as ‘sites of Community importance’. Once a site of Community importance has been adopted, the Member State concerned must designate it as a ‘special area of conservation’ as soon as possible and within six years at most.

9      See judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:524, paragraph 44). See, also, the definition of ‘special area of conservation’ in Article 1(l) of the Habitats Directive.

10      See Annex I to the Habitats Directive.

11      See European Commission, Directorate-General Environment (ENV B.3) ‘Interpretation Manual of European Union Habitats – EUR 28’ (April 2013), pp. 80 and 81 (available at the following address: https://circabc.europa.eu/ui/group/3f466d71-92a7-49eb-9c63-6cb0fadf29dc/library/37d9e6d9-b7de-42ce-b789-622e9741b68f/details).

12      See judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:524, paragraphs 147 to 149 and the case-law cited). See also judgment of 13 December 2007, Commission v Ireland (C‑418/04, EU:C:2007:780, paragraph 204).

13      See judgment of 14 January 2016, Grüne Liga Sachsen and Others (C‑399/14, EU:C:2016:10, paragraphs 36 and 40).

14      See judgment of 24 June 2021, Commission v Spain (Deterioration of the Doñana natural area) (C‑559/19, EU:C:2021:512, paragraphs 152 to 154).

15      Hamer, J., ‘General and persistent breach of EC Environmental Law’, European Law Reporter (2005) n° 7-8, p.p. 324-327. See also, for a general discussion on ‘systemic and persistent infringements’, Prete, L., ‘The systemic criterion in the use of infringement proceedings’, German Law Journal, 2023, Vol. 24, pp. 1011 to 1022. As the author explains, before the possibility of bringing proceedings for ‘systemic and persistent infringements’ existed, the Commission had to initiate proceedings for every factual situation that was contrary to EU law, which was very time-consuming and of limited effectiveness.

16      See also Prete, L., as referenced in the previous footnote.

17      See judgment of 5 September 2019, Commission v Italy (Bacterium Xylella fastidiosa) (C‑443/18, EU:C:2019:676, paragraph 75). See, also, in support of that view, Prete, L., ‘The systemic criterion in the use of infringement proceedings’, German Law Journal, 2023, Vol. 24, pp. 1011 to 1022.

18      See judgment of 26 April 2005 (C‑494/01, EU:C:2005:250).

19      See judgment of 5 September 2019, Commission v Italy (Bacterium Xylella fastidiosa) (C‑443/18, EU:C:2019:676, paragraph 73 and the case-law cited) (emphasis added). For even more recent examples where both findings were sought by the Commission, see judgments of 29 June 2023, Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:524), and of 21 September 2023, Commission v Germany (Protection of special areas of conservation) (C‑116/22, EU:C:2023:687).

20      See judgment of 21 March 2019, Commission v Poland (C‑127/17, EU:C:2019:236, paragraph 119).

21      See judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:524, paragraph 141 and the case-law cited).

22      See judgment of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 37).

23      Ibid.

24      Judgment of 26 April 2005 (C‑494/01, EU:C:2005:250).

25      Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32).

26      See judgment of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 39).

27      At the same time, the Court has formally recognised that the subject matter of an action for an allegedly persistent failure to fulfil obligations may extend to events which took place after the reasoned opinion, provided that they are of the same kind as the events to which the opinion referred and constitute the same conduct (see judgment of 5 September 2019, Commission v Italy (Bacterium Xylella fastidiosa) (C‑443/18, EU:C:2019:676, paragraph 76 and the case-law cited)).

28      In that regard, I add that, during the pre-litigation stage, the Commission does not have investigative powers of its own and is largely reliant, when it comes to checking that the national provisions intended to ensure effective implementation of a directive are applied correctly in practice, on the information provided by any complainants and by the Member State concerned (see judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:524, paragraph 142 and the case-law cited)).

29      See, by analogy, the case-law pursuant to which the excessive duration of the pre-litigation procedure is capable of constituting a defect rendering an action for failure to fulfil obligations inadmissible where the conduct of the Commission has made it difficult to refute its arguments, thus infringing the rights of the defence of the Member State concerned (see judgments of 12 May 2005, Commission v Belgium (C‑287/03, EU:C:2005:282, paragraph 14 and the case-law cited, and of 8 December 2005, Commission v Luxembourg (C‑33/04, EU:C:2005:750, paragraph 76)).

30      See judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:524, paragraphs 170 and 173).

31      Ibid., paragraph 167.

32      See her Opinion in Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:90, point 50).

33      See, by analogy, judgment of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 168 and the case-law cited).

34      Ibid., paragraph 133. See, also, judgment of 5 September 2019, Commission v Italy (Bacterium Xylella fastidiosa) (C‑443/18, EU:C:2019:676, paragraph 79).

35      See judgment of 24 June 2021, Commission v Spain (Deterioration of the Doñana natural area) (C‑559/19, EU:C:2021:512, paragraph 155 and the case-law cited).

36      See columns J‑1 and J‑11 of Annex B.4 submitted by the Federal Republic of Germany.

37      Ibid.

38      See columns J‑3 and J‑31 of Annex B.4 submitted by the Federal Republic of Germany.

39      C‑494/01, EU:C:2004:546, points 43 to 48.

40      See her Opinion in Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:90, point 106).

41      Those 10 Länder are: Brandenburg, Baden-Württemberg, Bremen, Hesse, Mecklenburg-Western Pomerania, Lower Saxony, North Rhine-Westphalia, Saarland, Saxony-Anhalt and Thuringia (see column C of the table provided by the Federal Republic of Germany in Annex B.4).

42      See columns I‑1, J‑11 and J‑31 of the table provided by the Federal Republic of Germany in Annex B.4.

43      Ibid.

44      See judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation) (C‑444/21, EU:C:2023:524, paragraphs 168 to 175). See, also, in that regard, judgment of 21 September 2023, Commission v Germany (Protection of special areas of conservation) (C‑116/22, EU:C:2023:687, paragraphs 122 to 125).

45      See p. 13 of the 2014 Grünland-Report of the Federal Agency for Nature Conservation, submitted as Annex A.2 by the Commission.

46      My emphasis.

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