Elliniki Ornithologiki Etaireia and Others (Environment - Directive - Conservation of wild birds - Judgment) [2024] EUECJ C-66/23 (12 September 2024)

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( Reference for a preliminary ruling - Environment - Directive 92/43/EEC - Directive 2009/147/EC - Conservation of wild birds - Conservation of natural habitats and of wild fauna and flora - Classification of a territory as a Special Protection Area - ‘Classification’ species - Temporary horizontal measures applied uniformly to all Special Protection Areas - Failure to adopt individualised management plans )

REQUEST for a preliminary ruling under Article 267 TFEU from the Symvoulio tis Epikrateias (Council of State, Greece), made by decision of 19 December 2022, received at the Court on 7 February 2023, in the proceedings

composed of A. Arabadjiev (Rapporteur), President of the Chamber, T. von Danwitz, P.G. Xuereb, A. Kumin and I. Ziemele, Judges,

having regard to the written procedure and further to the hearing on 18 January 2024,

- the Elliniki Ornithologiki Etaireia and the Syllogos Diktyo Oikologikon Organoseon Aigaiou, by P. Fokas-Pagoulatos, dikigoros,

- the Perivallontikos Syllogos Rethymnou, the Politistikos Syllogos Thronos Kleisidiou, KX and the other parties, by D. Bousmpouras and V. Kounelis, dikigoroi,

- the Ypourgos Esoterikon, the Ypourgos Oikonomikon, the Ypourgos Anaptyxis kai Ependyseon, the Ypourgos Perivallontos kai Energeias, the Ypourgos Agrotikis Anaptyxis kai Trofimon and the Greek Government, by E. Leftheriotou, M. Tassopoulou and A. Vasilopoulou, acting as Agents,

- the Czech Government, by J. Benešová, L. Langrová and M. Smolek, acting as Agents,

- the Netherlands Government, by E.M.M. Besselink, M.K. Bulterman and C.S. Schillemans, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 February 2024,

1 This request for a preliminary ruling concerns the interpretation of Article 4(1) and (2) of 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; ‘the Birds Directive’), Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the Habitats Directive’) and of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between the Elliniki Ornithologiki Etaireia (Hellenic Ornithological Society), the Syllogos Diktyo Oikologikon Organoseon Aigaiou (Network Association of the Environmental Organisations of the Aegean), the Perivallontikos Syllogos Rethymnou (Rethymno Environmental Association), the Politistikos Syllogos Thronos Kleisidiou (Thronos Kleisidi Cultural Association), KX and other parties, on the one hand, and the Ypourgos Esoterikon (Minister for the Interior, Greece), the Ypourgos Oikonomikon (Minister for Finance, Greece), the Ypourgos Anaptyxis kai Ependyseon (Minister for Development and Investment, Greece), the Ypourgos Perivallontos kai Energeias (Minister for the Environment and Energy, Greece) and the Ypourgos Agrotikis Anaptyxis kai Trofimon (Minister for Rural Development and Food, Greece), on the other, regarding the lawfulness of a ministerial decision adopted in 2012 to amend and supplement the measure transposing the Birds Directive into Greek law.

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

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

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

Trends and variations in population levels shall be taken into account as a background for evaluations.

Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species in the geographical sea and land area where this Directive applies.

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

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

5 Under Article 1(l) of the Habitats Directive, ‘special area of conservation’ means ‘a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated’.

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

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

3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. …

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 [European] Commission of the compensatory measures adopted.

‘Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of [Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1)] in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC, where the latter date is later.’

8 Nomos 1650/1986 gia tin prostasia tou perivallontos (Law 1650/1986 on environmental protection) (FEK Α’160/16.10.1986), as amended by Nomos 3937/2011 (Law 3937/2011) (FEK Α’60/31.3.2011) and Nomos 4685/2020 (Law 4685/2020) (FEK Α’92/7.5.2020), governs special protection areas (‘SPAs’) in Greece. Law 1650/1986, as amended, requires, in essence, management plans to be drawn up for the species concerned and SPAs following a special environmental assessment.

9 Nomos 4014/2011 gia tin perivallontiki adeiodotisi ergon kai drastitriotiton, rithmisi afthereton se sinartisi me dimiourgia perivallontikou isozigiou ki alles diatakseis armodiotitas Ypourgeiou Perivallontos, Energeias kai Klimatikis Allagis (Law 4014/2011 on environmental consent for projects and activities, regulation of unauthorised constructions in the context of creating environmental balance and other provisions coming within the scope of the Ministry of the Environment, Energy and Climate Change) (FEK A’209/21.9.2011) lays down the conditions for carrying out projects within SPAs.

10 Article 11 of that law provides that special environmental assessments of projects for public or private works involve, first, the registration of the species concerned and, second, an appropriate assessment of the implications of that project, in particular on the wild birds listed in Annex I to Article 14 of the Koini Ypourgiki apofasi No 37338/1807/2010 ‘Kathorismos metron kai diadikasion gia tin diatirisi tis agrias ornithopanidas kai ton oikotopon/endietimaton tis, se simmorfosi me tin Odigia 79/409/ΕΟK, “peri diatiriseos ton agrion ptinon” tou Europaikou Simvouliou tis 2as Apriliou 1979, opws kodikopoiithike me tin Odigia 2009/147/EK’) (Joint Ministerial Decision No 37338/1807/2010 ‘Definition of measures and procedures for the conservation of wild birds and their habitats, in compliance with Council Directive 79/409/EEC, as codified by Directive 2009/147/EC’ (FEK Β’1495/6.9.2010) (‘the 2010 ministerial decision’) - adopted in order to transpose the Birds Directive into Greek law - and on regularly occurring migratory species which are not listed in that annex but are regularly occurring on Greek territory.

11 Under Article 2 of the 2010 ministerial decision, those wild birds and migratory species are ‘classification species’, that is, bird species for which the areas concerned were classified as SPAs following an assessment for the purposes of that classification of specific scientific and ornithological criteria set out in Annex A to that ministerial decision. Those wild birds and migratory species are, together with the criteria for the classification of SPAs, decisive indicators to justify the designation of an area as an SPA. Article 4 of that ministerial decision creates SPAs in which special measures are taken, such as restricting certain activities or setting conditions on, or even prohibiting certain actions liable to have negative effects on the areas concerned.

12 Koini Ypourgiki apofasi n^o 8353/276/Ε103 ‘Tropopoiisi kai simplirosi tis koinis ypourgikis apofasis n^o 37338/1807/2010 “Kathorismos metron kai diadikasion gia tin diatirisi tis agrias ornithopanidas kai ton oikotopon/endiaitimaton tis, se symmorfosi me tin Odigia 79/409/ΕΟΚ ‘peri diatiriseos ton agrion ptinon’ tou Europaikou Simvouliou tis 2as Apriliou 1979, opws kodikopoiithike me tin Odigia 2009/147/EK” (Joint Ministerial Decision No 8353/276/Ε103 ‘Amendments and addenda to Joint Ministerial Decision No 37338/1807/2010 ‘Definition of measures and procedures to conserve wild birds and their habitats, in compliance with Directive 79/409/EEC as codified by Directive 2009/147/EC’) (FEK Β’415/23.2.2012) (‘the 2012 ministerial decision’) amends and supplements the 2010 ministerial decision. It lays down horizontal measures applicable to all SPAs designated as such under the 2010 ministerial decision. The 2012 ministerial decision adds to Article 14 of the 2010 ministerial decision an annex listing the SPAs according to the ‘classification species’ referred to in paragraph 10 of the present judgment and lays down special protection measures for the wild birds concerned and their habitat, which may be supplemented by management plans.

The dispute in the main proceedings and the questions referred for a preliminary ruling

13 Several associations and a large number of individuals are challenging the protection regime laid down in the 2012 ministerial decision. They submit, inter alia, that that ministerial decision failed to transpose correctly the Birds Directive into the Greek legal order.

14 That ministerial decision is thus the subject of two actions for annulment before the referring court, the Symvoulio tis Epikrateias (Council of State, Greece). The first seeks annulment of that ministerial decision in its entirety. The second seeks annulment of Articles 5a(2), 5b(3) and (4), 5c(1), 5d(1) and (3b) and 5i(4) of that decision.

15 In support of those two actions, the applicants in the main proceedings submit, first, that the protection measures laid down in the 2012 ministerial decision concern the ‘classification species’ referred to in paragraph 10 of the present judgment only in so far as they fulfil the numerical criteria laid down in Annex A to Article 14 of the 2010 ministerial decision. That provision runs counter to Article 4(1) and (2) of the Birds Directive, which makes granting the protection provided for in that directive conditional on whether species are listed in Annex I to the directive, not on whether species are on a list drawn up at national level.

16 Second, the applicants in the main proceedings argue that the 2012 ministerial decision lays down horizontal protection measures for all SPAs, without protection for all the bird species listed in Annex I to the Birds Directive and regularly occurring migratory birds in each SPA (‘the protected species’).

17 The defendants in the main proceedings contends that that ministerial decision is a ‘guideline for activities carried out within SPAs’ and that the measures concerned are ‘precautionary safeguards’ adopted pending the introduction of a comprehensive framework of protection for each SPA.

18 The referring court adds that, at the time when that ministerial decision was adopted, suitable conservation objectives had not yet been set and appropriate conservation measures had not been taken for individual SPAs. Accordingly, that court is uncertain whether the Greek legislature transposed the Birds Directive correctly, particularly on account of the fact that the horizontal ‘precautionary’ safeguards remain in force, although they relate only to the ‘classification species’ referred to in paragraph 10 of the present judgment.

19 In those circumstances, the Symvoulio tis Epikrateias (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 4(1) and (2) of [the Birds Directive], read in combination with Article 6(2) to (4) of [the Habitats Directive], be interpreted as precluding national regulatory provisions … which provide that measures for the special protection, conservation and restoration of wild bird species and habitats in [SPAs] apply only to the “classification species”, that is to say only to the species of wild birds listed in Annex I to [the Birds Directive] and to the regularly occurring migratory birds in each SPA which, combined with the criteria for the classification of SPAs contained in the national legislation, are used as indicators to justify the classification of an area as an SPA?

(2) Is the answer to the [first] question affected by the fact that the measures referred to above for the special protection, conservation and restoration of wild bird species and habitats in [SPAs] are, in essence, basic preventive measures to safeguard SPAs (“precautionary safeguards”) that apply horizontally, that is to say, to all SPAs, or by the fact that management plans for each specific SPA setting out the targets and measures needed to achieve or ensure satisfactory conservation of each SPA and the species living within it have not been adopted to date in Greek law?

(3) Is the answer to the [first and second] questions affected by the fact that, based on the obligation to assess the environmental effects of projects and activities in accordance with Directive [2011/92] and to carry out an “appropriate assessment” in accordance with Article 6(2) to (4) of [the Habitats Directive], all the species listed in Annex I to [the Birds Directive] or the regularly occurring migratory birds in each SPA must be recorded as part of the assessment of the environmental effects of each specific planned public or private project?’

20 By its first question, the referring court asks, in essence, whether Article 4 of the Birds Directive, read in conjunction with Article 6(2) to (4) of the Habitats Directive, must be interpreted as meaning that measures for the protection, conservation and restoration of wild bird species and habitats in special protection areas (‘SPAs’) for which the directive provides apply only to those species which justify the classification of the site in question, or also to other species of birds to be protected under Article 4 of the Habitats Directive which are present in those SPAs.

21 At the outset, the Court observes that, The Birds Directive, according to the first sentence of Article 1(1) thereof, concerns the conservation of ‘all species of naturally occurring birds in the wild state in the European territory of the Member States to which the [FEU] Treaty applies’.

22 Article 4(1) of the directive provides that Member States must adopt special conservation measures concerning habitats which must be capable of ensuring, inter alia, the survival and reproduction of the species of bird referred to in Annex I to that directive. That provision also requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species referred to in Annex I.

23 In accordance with Article 4(2) of the Birds Directive, Member States are also to classify as SPAs the breeding, moulting and wintering areas of regularly occurring migratory species not listed in that annex and the staging posts along their migration routes (see, by analogy, judgment of 6 March 2003, Commission v Finland, C-240/00, EU:C:2003:126, paragraph 16 and the case-law cited).

24 Article 4 of the Birds Directive thus lays down a regime which is specifically targeted and reinforced both for the species listed in Annex I to that directive and for regularly occurring migratory species not listed in that annex, an approach justified by the fact that they are the most endangered species and the species constituting a common heritage of the European Union, respectively. The Member States are therefore required to adopt the measures necessary for the conservation of those species (see, by analogy, judgment of 13 December 2007, Commission v Ireland, C-418/04, EU:C:2007:780, paragraph 46 and the case-law cited).

26 First, Member States must classify as SPAs the most suitable territories in number and size for conservation of the protected species - an obligation which it is not possible to avoid by adopting other special conservation measures. Accordingly, where such species occur on the territory of a Member State, it is obliged to define, inter alia, SPAs for them (see, by analogy, judgment of 19 May 1998, Commission v Netherlands, C-3/96, EU:C:1998:238, paragraphs 55 and 56 and the case-law cited).

27 The Court has stated in that regard that, if Member States could escape that obligation if they considered that other specific conservation measures are sufficient to ensure survival and reproduction of protected species, the objective of creating a coherent network of SPAs, referred to in Article 4(3) of the Birds Directive, might not be achieved (see, by analogy, judgment of 19 May 1998, Commission v Netherlands, C-3/96, EU:C:1998:238, paragraph 58).

28 More specifically, Article 4(1) and (2) of the Birds Directive requires the Member States to provide SPAs with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species not listed in that annex which are, nevertheless, regular visitors (judgment of 14 October 2010, Commission v Austria, C-535/07, EU:C:2010:602, paragraph 56 and the case-law cited).

29 It follows that SPAs are designated for specific bird species listed in Annex I to the Birds Directive and for regularly occurring migratory species not listed in that annex. Each of those protection areas is therefore characterised by certain protected species.

30 Second, Member States are required to adopt special conservation measures for the habitat.

31 They cannot be limited to avoiding external anthropogenic impairment and disturbance but must also, depending on the situation that presents itself, include positive measures to preserve or improve the state of the site concerned (judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C-441/17, EU:C:2018:255, paragraph 209 and the case-law cited).

32 Under the first sentence of Article 4(4) of the Birds Directive, replaced by the obligations stemming from Article 6(2) to (4) of the Habitats Directive, Member States are to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting ‘birds’ in SPAs, in so far as these would be significant having regard to the objectives of Article 4.

33 The Court observes, as did the Advocate General in point 36 of her Opinion, that Article 4(1) and (2) of the Birds Directive does not differentiate between protection requirements according to whether the SPA in question was designated for the bird species protected pursuant to that provision, or whether such species are ‘present’ there as other species worthy of protection, without that area having been classed as an SPA for those other species.

34 It must also be noted that the purpose of Article 4 is the adoption of the conservation measures necessary for maintaining a favourable conservation status of the species present in the designated SPAs (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C-441/17, EU:C:2018:255, paragraph 210).

35 That being said, as the Court noted in paragraph 32 of the present judgment, in accordance with Article 7 of the Habitats Directive, the obligations arising under Article 6(2) to (4) of that directive are to replace any obligations arising under the first sentence of Article 4(4) of that directive in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) of the directive.

36 Article 6(2) of the Habitats Directive lays down a general obligation for the Member States to take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and 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 the directive.

37 In the present case, the applicants in the main proceedings submit that, under the national provisions in the main proceedings or the application of the criteria laid down in those provisions, neither the special conservation measures provided for in Article 4(1) of the Birds Directive relating to the species listed in Annex I to that directive nor the equivalent measures provided for in Article 4(2) of that directive relating to regularly occurring migratory species, or even the measures provided for in Article 6(2) of the Habitats Directive, are applied to all the species of birds included in the standard data forms established by Commission Decision 97/266/EC of 18 December 1996 concerning a site information format for proposed Natura 2000 sites (OJ 1997 L 107, p. 1) and the presence of which has been evaluated as higher than ‘non-significant’.

38 Article 6(2) of the Habitats Directive must be read in context, taking account of Article 4 of the Birds Directive and of the provisions which precede and follow it.

39 In that regard, the Court notes that Article 6 of the Habitats Directive divides the measures to be adopted into three categories, namely conservation measures, preventive measures and compensatory measures, provided for in Article 6(1), (2) and (4), respectively (judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation), C-444/21, EU:C:2023:524, paragraph 147 and the case-law cited).

40 First, the Court observes that Article 6(1) of the Habitats Directive, which is not applicable to SPAs but is, as pointed out by the Commission, the equivalent provision to Article 4(1) and (2) of the Birds Directive, relating to the introduction of conservation measures, thus requires the Member States to take the necessary conservation measures corresponding to the ecological requirements of the natural habitat types listed in Annex I to that directive and the species listed in Annex II to that directive which are ‘present on the sites’. The relevant criterion is therefore whether species are present on the site concerned.

41 Second, according to case-law, the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by that directive. Indeed, Article 6(2) and Article 6(3) are designed to ensure the same level of protection of natural habitats and habitats of species, whilst Article 6(4) merely derogates from the second sentence of Article 6(3) (judgment of 12 April 2018, People Over Wind and Sweetman, C-323/17, EU:C:2018:244, paragraph 24 and the case-law cited).

42 In that connection, as set out by the Commission, Article 6(3) and (4) of the Habitats Directive, which also applies to SPAs pursuant to Article 7 of that directive, under which Member States must carry out an ex ante assessment and submit for prior authorisation any plans or projects likely to have a significant effect on the sites concerned, specifies that the site’s conservation objectives are to act as a mandatory reference point for the appropriate assessments required.

43 Consequently, the level of protection provided for by Article 6(2) of the Habitats Directive must, inter alia, be determined by reference to the conservation objectives of the site in question.

44 What is more, SPAs are subject to obligations relating to the management of protection areas laid down in Article 4(1) and (2) of the Birds Directive and Article 6(2) of the Habitats Directive which, as noted by the Advocate General in point 54 of her Opinion, are intended to ensure protection in SPAs equivalent to that afforded by Article 4(4) and Article 6(1) of the Habitats Directive.

45 In the judgment of 21 September 2023, Commission v Germany (Protection of special areas of conservation) (C-116/22, EU:C:2023:687, paragraph 105), concerning the Habitats Directive but the interpretation of which is transposable to the Birds Directive, the Court held that the obligation to set conservation objectives exists for sites designated under the Habitats Directive, even though that directive does not set out that obligation explicitly.

46 It follows that the obligations relating to the management of SPAs provided for by Article 4 of the Birds Directive, read in the light of Article 6 of the Habitats Directive, involve the Member States setting conservation objectives for those areas. According to the case-law recalled in paragraph 28 of the present judgment, the legal regime governing an SPA must include such conservation objectives.

47 As stated, in essence, by the Advocate General in point 44 of her Opinion, when defining site-level conservation objectives, account must be taken of protected species, that is, the species listed in Annex I of the Birds Directive and of regularly occurring migratory species not listed in that annex, as those species are protected by the specifically targeted and reinforced regime laid down in Article 4 of that directive.

48 In addition, the obligation to set conservation objectives for the selected sites applies to the species concerned according to whether their presence within the sites concerned is significant, without being restricted to only the species on which the selection of the sites was based.

49 The Court therefore finds that the conservation objectives of a site must be defined while taking account of the ‘classification species’ and of other species of birds which must be protected under Article 4 of the Birds Directive and which are present in a significant manner in the SPA concerned, without that site having been designated as an SPA for those other species.

50 A contrary interpretation of Article 6 of the Habitats Directive, read in the light of Article 4 of the Birds Directive, according to which the ‘classification species’ alone are to be taken into account, is inconsistent with the purpose of those directives. If such an interpretation were endorsed, the Member State concerned would not be required, as far as an SPA is concerned, to set conservation objectives including the objective specific to the population and habitat of a species protected under Article 4 other than the species which justified designation as an SPA, or to adopt and implement conservation measures corresponding specifically to the ecological needs of that species, despite this being provided for in Article 4(1) of the Birds Directive. Similarly, that Member State would not be required to adopt the measures provided for in Article 6(2) to (4) of the Habitats Directive to prevent deterioration of natural habitats or significant disturbances affecting that species or to carry out an appropriate assessment of the implications of projects on the population and habitat of that species.

51 It is thus clear that such a contrary interpretation cannot confer on protected species the protection ‘regime which is specifically targeted and reinforced’ required for all those species by Article 4 of the Birds Directive. As is apparent from paragraph 24 of the present judgment, that regime must be adopted and implemented since it relates to the ‘most endangered species and the species constituting a common heritage’ of the European Union.

52 It must be added that, although the Member States must accordingly take into account all the species of birds referred to in Article 4(1) and (2) of the Birds Directive present in an SPA and their habitat, in so far as that provision requires measures to be adopted according to the requirements of the protection of species, which depend on the situation within the SPA concerned, the Member States are responsible for defining priorities regarding the protection of those species.

53 In that connection, the national authorities are required under that provision to establish the presence of bird species to be protected within an SPA, the contribution of the populations concerned to the objectives of the Birds Directive and the risks and threats to those populations.

54 In that context, as observed, in essence, by the Advocate General in point 52 of her Opinion, the species and habitats for which a site has been designated as an SPA enjoy, naturally, priority status regarding special conservation measures that must be adopted and implemented on that site. That being said, the presence of other vulnerable species such as rare bird species and bird species living naturally in an isolated manner on the site concerned cannot be disregarded, and the adoption of such conservation measures in relation to them may prove useful or necessary to attain the relevant conservation objectives.

55 The applicants in the main proceedings also submit that, under the national provisions in the main proceedings, the SPA management plans and the measures and actions set out in those plans for the protection of bird species and their habitat do not cover all the species listed in the relevant site information format for proposed Natura 2000 sites. They argue that that situation results in a lack of protection of the protected species, since the national provisions in the main proceedings limit the extent of the obligation provided for in Article 6(3) of the Habitats Directive to include a summary of the specific bird data in the special environmental assessment of a project in accordance with Directive 2011/92. As no precise scientific information was included for species other than ‘classification species’, that environmental assessment was not carried out in accordance with that provision.

56 The Court recalls in that regard that the obligations on Member States under Article 6 of the Habitats Directive must be implemented effectively and by complete, clear and precise measures (judgment of 29 June 2023, Commission v Ireland (Protection of special areas of conservation), C-444/21, EU:C:2023:524, paragraph 138 and the case-law cited).

57 The protective legal status which SPAs must obtain does not mean that conservation objectives have to be specified for each species considered separately. Similarly, it cannot be held that the conservation objectives must be contained in the same legal measure as that relating to the protected species and habitats of a particular SPA (see, to that effect, judgment of 14 October 2010, Commission v Austria, C-535/07, EU:C:2010:602, paragraph 65 and the case-law cited).

58 Last, the Court states that the delimitation of an SPA, like the identification of the species which have justified classification of that area as an SPA, must be invested with unquestionable binding force. If that were not the case, the protective objective arising from Article 4(1) and (2) of the Birds Directive and from Article 6(2) of the Habitats Directive might not be fully attained (see, to that effect, judgment of 14 October 2010, Commission v Austria, C-535/07, EU:C:2010:602, paragraph 64).

59 Having regard to all the foregoing considerations, the answer to the first question is that Article 4(1) and (2) of the Birds Directive and Article 6(2) to (4) of the Habitats Directive must be interpreted as requiring Member States to establish, for each SPA, individual conservation objectives and conservation measures for all protected species and their habitat. That being said, Member States are responsible for defining priorities according to the significance of those measures for achieving conservation objectives in respect of all those species.

60 In the light of the answer given to the first question, there is no need to examine the second question. As is apparent from the answer to the first question, protection, conservation and restoration measures adopted under Article 4(1) and (2) of the Birds Directive and Article 6(2) to (4) of the Habitats Directive must, in principle, be based on the ecological requirements of individual SPAs and require a determination for each SPA, considered individually and according to a list of priorities defined by the Member State concerned, of conservation objectives and measures in relation to all bird species listed in Annex I of the Birds Directive and regularly occurring migratory species not listed in that annex and their habitat.

61 However, it is apparent from the request for a preliminary ruling that the national measures in the main proceedings are specific only in so far as they are intended to benefit the bird species justifying the designation of the SPA concerned.

62 By its third question, the referring court asks, in essence, whether Article 4(1) and (2) of the Birds Directive and Article 6(2) to (4) of the Habitats Directive must be interpreted as meaning that the requirement to carry out an environmental assessment of a project under Directive 2011/92 affects the scope of the obligations under those provisions.

63 The referring court states in that context that such an assessment involves an analysis being carried out of the implications of the project concerned on all occurring bird species listed in Annex I and regularly occurring migratory species in each SPA.

64 In that connection, it is sufficient to note that carrying out such an analysis may be additional but, in any event, does not affect the interpretation of the conservation obligations of SPAs arising from the Birds Directive, read in conjunction with the Habitats Directive.

65 Having regard to all the foregoing considerations, the answer to the third question is that Article 4(1) and (2) of the Birds Directive and Article 6(2) to (4) of the Habitats Directive must be interpreted as meaning that the requirement to carry out an environmental assessment of a project under Directive 2011/92 does not affect the scope of the obligations under those provisions.

66 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. Article 4(1) and (2) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds and Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora

must be interpreted as requiring Member States to establish, for each special protection area, individual conservation objectives and measures for all bird species listed in Annex I to Directive 2009/147 and regularly occurring migratory species not listed in that annex and their habitat. That being said, Member States are responsible for defining priorities according to the significance of those measures for achieving conservation objectives in respect of all those species.

2. Article 4(1) and (2) of Directive 2009/147 and Article 6(2) to (4) of Directive 92/43

must be interpreted as meaning that the requirement to carry out an environmental assessment of a project under Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, does not affect the scope of the obligations under those provisions.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Elliniki Ornithologiki Etaireia and Others (Environment - Directive - Conservation of wild birds - Judgment) [2024] EUECJ C-66/23 (12 September 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C6623.html Cite as: EU:C:2024:733, ECLI:EU:C:2024:733, [2024] WLR(D) 430, [2024] EUECJ C-66/23

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