Conservation of wild birds — EEC Birds Directive — Whether economic considerations to be taken into account when designating a special protection area
In December
1993 the Secretary of State for the Environment designated an area of wetland as
a Special Protection Area (‘SPA’) under the Council Directive 79/409/EEC (Birds
Directive). He excluded an area known as Lappel Bank because of the need not to
inhibit the viability of an adjoining port and because the significant
contribution that the expansion into Lappel Bank would make to the local and
national economy outweighed its nature conservation value. On appeal to the
House of Lords, against the refusal of the Court of Appeal to allow judicial
review of that decision, the Royal Society for the Protection of Birds
contended that the Secretary of State was not entitled to have regard to
economic considerations when classifying an SPA. Article 2 provides that the
member states are to take all necessary measures to maintain the population of
all those species of birds at a level which corresponds in particular to
ecological, scientific and cultural requirements, while taking account of
economic and recreational requirements. The questions put by the House of Lords
were treated by the Court of Justice on a preliminary ruling as follows:
Whether in
applying article 2, article 4(1) or (2) of the directive is to be interpreted
as meaning that a member state when designating an SPA, and defining its
boundaries is:
(1) to take
account of the economic requirements in article 2; and if not,
(2)(a) to take
account of economic requirements as constituting a general interest superior to
that represented by the ecological objective of that directive; and if not,
(2)(b) to take
account of economic requirements to the extent that they reflect imperative
reasons of overriding public interest of the kind referred to in article 6(4)
of the Habitats Directive 92/43/EEC
an SPA and defining its boundaries
1. Is not
authorised to take account of the economic requirements mentioned in article 2
thereof: see p9.
2. May not
take account of economic requirements as constituting a general interest
superior to that represented by the ecological objective of that directive: see
p9.
3. may not take account of economic
requirements which may constitute imperative reasons of overriding public
interest of the kind referred to in article 6(4) of the Habitats Directive: see
p9.
to in the opinion
Association
pour la Protection des Animaux Sauvage v Préfets
de la Maine-et-Loire Case C–435/92 [1994] I–67
Commission v Germany Case C–57/89 [1991] ECR I–883
Commission v Spain Case C–355/90 ECR I–4221
Ruiz
Barnáldez Case C–129/94 [1996] ECR I–0000
Van den
Burg Case C–169/89 [1990] ECR I–2143
Reference to
the European Court of Justice
This was a
preliminary ruling by the European Court of Justice following a reference by
the House of Lords under article 177 of the EC Treaty on two questions on the
interpretation of articles 2 and 4 of Council Directive 79/409/EEC on the
conservation of wild birds.
Richards and Alistair Lindsay (instructed by the Treasury Solicitor) appeared
on behalf of the United Kingdom Government.
Gordon QC (instructed by Richard Buxton) appeared for the Royal Society for the
Protection of Birds.
Isaacs QC and Clive Lewis (instructed by Brachers, of Maidstone) represented
the Port of Sheerness Ltd.
the hearing the opinion of the Advocate General at the sitting on March 21
1996, the court delivered the following judgment.
By order of
February 9 1995, received at the court on February 24 1995, the House of Lords
referred to the Court of Justice for a preliminary ruling under article 177 of
the EC Treaty two questions on the interpretation of articles 2 and 4 of
Council Directive 79/409/EEC of April 2 1979 on the conservation of wild birds
(OJ 1979 L 103 p1, hereinafter ‘the Birds Directive’).
Those
questions were raised in proceedings between an association for the protection
of birds, the Royal Society for the Protection of Birds (hereinafter ‘the
RSPB’), and the Secretary of State for the Environment (hereinafter ‘the
Secretary of State’) concerning a decision designating a special protection
area for the protection of wild birds.
The Birds
Directive, which covers all species of birds naturally occurring in the wild in
the European territory of the member states to which the treaty applies, provides,
in article 2, that the member states are to take all necessary measures to
maintain the population of all those species of birds at a level which
corresponds in particular to ecological, scientific and cultural requirements,
while taking account of economic and recreational requirements.
According to
article 3 of the Birds Directive, the member states, having regard to the
requirements mentioned in article 2, are to take all necessary
of habitats for all the protected species.
Pursuant to
article 4(1) of that directive, the species mentioned in Annex I are to be the
subject of special conservation measures concerning their habitat in order to
ensure their survival and reproduction in their area of distribution. In
particular, the member states are to classify the most suitable territories in
terms of number and size as special protection areas for the conservation of
those species in the geographical sea and land area where the directive
applies.
According to
article 4(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.
Finally,
according to article 4(4):
[I]n respect
of the areas referred to in paras 1 and 2 above, 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.
Council
Directive 92/43/EEC of May 21 1992 on the conservation of the natural habitats
of wild fauna and flora (OJ 1992 L 206, p 7, hereinafter ‘the Habitats
Directive’), to be implemented in the United Kingdom by June 1994, provides in
article 7 that the obligations under article 6(2), (3) and (4) are to replace
any obligations arising under the first sentence of article 4(4) of the Birds
Directive in respect of areas classified pursuant to article 4(1) or similarly
recognised under article 4(2) of that directive. Article 6(2), (3) and (4) of
the Habitats Directive is worded as follows:
2. Member States shall take appropriate steps
to avoid, in the special areas of conservation, the deterioration of natural
habitats and the habitats of species as well as disturbance of the species for
which the areas have been designated, in so far as such disturbance could be
significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected
with or necessary to the management of the site but likely to have a
significant effect thereon, either individually or in combination with other
plans or projects, shall be subject to appropriate assessment of its
implications for the site in view of the site’s conservation objectives. In the
light of the conclusions of the assessment of the implications for the site and
subject to the provisions of para 4, the competent national authorities shall
agree to the plan or project only after having ascertained that it will not
adversely affect the integrity of the site concerned and, if appropriate, after
having obtained the opinion of the general public.
4. If, in spite of a negative assessment of
the implications for the site and in the absence of alternative solutions, a
plan or project must nevertheless be carried out for imperative reasons of
overriding public interest, including those of a social or economic nature, the
Member State shall take all compensatory measures necessary to ensure that the
overall coherence of Natura 2000 is protected. It shall inform the Commission
of the compensatory measures adopted.
Where the
site concerned hosts a priority natural habitat type and/or a priority species,
the only considerations which may be raised are those relating to human health
or public safety, to beneficial consequences of primary importance for the
environment or, further to an opinion from the Commission, to other imperative
reasons of overriding public interest.
The United
Kingdom did not transpose the Habitats Directive until October 1994.
On December 15
1993, the Secretary of State decided to designate the Medway Estuary and
Marshes as a Special Protection Area (hereinafter ‘SPA’). At the same time, he
decided to exclude from it an area of about 22 ha known as Lappel Bank.
According to
the order for reference, the Medway Estuary and Marshes are an area of wetland
of international importance covering 4,681 ha on the north coast of Kent and
listed under the Ramsar Convention. They are used by a number of wildfowl and
wader species as a breeding and wintering area and as a staging post during
spring and autumn migration. The site also supports breeding populations of the
avocet and the little tern, which are listed in Annex I to the Birds Directive.
Lappel Bank is
an area of inter-tidal mudflat immediately adjoining, at its northern end, the
port of Sheerness and falling geographically within the bounds of the Medway
Estuary and Marshes. Lappel Bank shares several of the important ornithological
qualities of the area as a whole. Although it does not support any of the
species referred to in article 4(1) of the Birds Directive, some of the bird
species of the area are represented in significantly greater numbers than
elsewhere in the Medway SPA. Lappel Bank is an important component of the
overall estuarine ecosystem and the loss of that inter-tidal area would
probably result in a reduction in the wader and wildfowl populations of the
Medway Estuary and Marshes.
The port of
Sheerness is at present the fifth largest in the United Kingdom for cargo and
freight handling. It is a flourishing commercial undertaking, well located for
sea traffic and access to its main domestic markets. The port, which is also a
significant employer in an area with a serious unemployment problem, plans
extended facilities for car storage and value added activities on vehicles and
in the fruit and paper product market, in order better to compete with
continental ports offering similar facilities. Lappel Bank is the only area
into which the port of Sheerness can realistically envisage expanding.
Accordingly,
taking the view that the need not to inhibit the viability of the port and the
significant contribution that expansion into the area of Lappel Bank would make
to the local and national economy outweighed
area from the Medway SPA.
The RSPB
applied to the Divisional Court of the Queen’s Bench Division to have the
Secretary of State’s decision quashed on the ground that he was not entitled,
by virtue of the Birds Directive, to have regard to economic considerations
when classifying an SPA. The Divisional Court found against the RSPB. On appeal
by the RSPB, the Court of Appeal upheld that judgment. The RSPB therefore
appealed to the House of Lords.
Uncertain as
to how the directive should be interpreted, the House of Lords stayed
proceedings pending a preliminary ruling from the Court of Justice on the
following questions:
1. Is a Member State entitled to take account
of the considerations mentioned in Article 2 of Directive 79/409/EEC of 2 April
1979 on the conservation of wild birds in classification of an area as a
Special Protection Area and/or in defining the boundaries of such an area
pursuant to Article 4(1) and/or 4(2) of that Directive?
2. If the answer to Question 1 is ‘no’, may a
Member State nevertheless take account of Article 2 considerations in the
classification process in so far as:
(a) they amount to a general interest which is
superior to the general interest which is represented by the ecological
objective of the Directive (ie the test which the European Court has laid down
in, for example, Commission v Germany (‘Leybucht Dykes’) Case
57/89, for derogation from the requirements of article 4(4)); or
(b) they amount to imperative reasons of overriding
public interest such as might be taken into account under Article 6(4) of
Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and
of wild fauna and flora?
First
question
The point of
this question is whether article 4(1) or (2) of the Birds Directive is to be
interpreted as meaning that a member state is authorised to take account of the
economic requirements mentioned in article 2 thereof when designating an SPA
and defining its boundaries.
As a
preliminary point, it must be borne in mind that, according to the ninth
recital in the preamble to the Birds Directive, ‘the preservation, maintenance
or restoration of a sufficient diversity and area of habitats is essential to
the conservation of all species of birds [covered by the directive]’, that
‘certain species of birds should be the subject of special conservation
measures concerning their habitats in order to ensure their survival and
reproduction in their area of distribution’, and, finally, that ‘such measures
must also take account of migratory species’.
That recital
is formally reflected in articles 3 and 4 of the directive. In para 23 of its
judgment in Case C–355/90 Commission v Spain [1993] ECR I–4221
(hereinafter Santoña Marshes) the court pointed out that the first of those
provisions imposes obligations of a general character, namely the obligation to
ensure a sufficient diversity and area of habitats for all the birds referred
to in the directive, while the second contains specific obligations with regard
to the species of birds listed in Annex I and the migratory species not listed
in that annex.
According to
the United Kingdom government and the Port of Sheerness Ltd, article 4 cannot
be considered in isolation from article 3. They state that article 4 provides,
in relation to certain species of particular interest, for the specific
application of the general obligation imposed by article 3. Since the latter
provision allows account to be taken of economic requirements, the same should
apply to article 4(1) and (2).
The French
government reaches the same conclusion, observing that, when an SPA is created,
the member states take account of all the criteria mentioned in article 2 of
the Birds Directive, which is general in scope, and, therefore, inter alia,
of economic requirements.
Those
arguments cannot be upheld.
It must be
noted first that article 4 of the Birds Directive lays down a protection regime
which is specifically targeted and reinforced both for the species listed in
Annex I and for migratory species, an approach justified by the fact that they
are, respectively, the most endangered species and the species constituting a
common heritage of the Community: see Case C–169/89 Van den Burg [1990]
ECR I–2143, para 11.
While article
3 of the Birds Directive provides for account to be taken of the requirements
mentioned in article 2 for the implementation of general conservation measures,
including the creation of protection areas, article 4 makes no such reference
for the implementation of special conservation measures, in particular the
creation of SPAs.
Consequently,
having regard to the aim of special protection pursued by article 4 and the
fact that, according to settled case-law (see in particular Case C–435/92 Association
pour la Protection des Animaux Sauvage v Préfets de Maine-et-Loire
[1994] ECR I–67, para 20), article 2 does not constitute an autonomous
derogation from the general system of protection established by the directive,
it must be held (see paras 17 and 18 of Santoña Marshes) — that the
ecological requirements laid down by the former provision do not have to be
balanced against the interests listed in the latter, in particular economic
requirements.
It is the
criteria laid down in paras (1) and (2) of article 4 which are to guide the
member states in designating and defining the boundaries of SPAs. It is clear
from paras 26 and 27 of Santoña Marshes that, notwithstanding the
divergences between the various language versions of the last subparagraph of
article 4(1), the criteria in question are ornithological criteria.
In view of the
foregoing, the answer to the first question must be that article 4(1) or (2) of
the Birds Directive is to be interpreted as meaning that a member state is not
authorised to take account of the economic requirements mentioned in article 2
thereof when designating an SPA and defining its boundaries.
Second
question
First part
of the second question
By the first
part of the second question, the national court seeks to ascertain whether
article 4(1) or (2) of the Birds Directive must be interpreted as allowing a
member state, when designating an SPA and
constituting a general interest superior to that represented by the ecological
objective of that directive.
In its
judgment in Case C–57/89 Commission v Germany [1991] ECR I–883,
paras 21 and 22 (hereinafter Leybucht Dykes), the court held that the
member states may, in the context of article 4(4) of the Birds Directive,
reduce the extent of an SPA only on exceptional grounds, being grounds
corresponding to a general interest superior to the general interest
represented by the ecological objective of the directive. It was held that
economic requirements cannot be invoked in that context.
It is also
clear from para 19 of Santoña Marshes that, in the context of article 4
of that directive, considered as a whole, economic requirements cannot on any
view correspond to a general interest superior to that represented by the
ecological objective of the directive.
Accordingly,
without its being necessary to rule on the possible relevance of the grounds
corresponding to a superior general interest for the purpose of classifying an
SPA, the answer to the first part of the second question must be that article
4(1) or (2) of the Birds Directive is to be interpreted as meaning that a
member state may not, when designating an SPA and defining its boundaries, take
account of economic requirements as constructing a general interest superior to
that represented by the ecological objective of that directive.
Second
part of the second question
By the second
part of the second question, the House of Lords asks essentially whether
article 4(1) or (2) of the Birds Directive is to be interpreted as meaning that
a member state may, when designating an SPA and defining its boundaries, take
account of economic requirements to the extent that they reflect imperative
reasons of overriding public interest of the kind referred to in article 6(4)
of the Habitats Directive.
The United
Kingdom government considers that that question is relevant only to cases of
classification decisions made after the expiry of the period for transposition
of the Habitats Directive. Since that is not the case in the main proceedings,
it considers that it is unnecessary to answer the question.
It is well
settled that it is for the national courts alone, before which the proceedings
are pending and which will be responsible for the eventual judgment, to
determine, having regard to the particular features of each case, both the need
for a preliminary ruling to enable them to give judgment and the relevance of
the questions which they refer to the court. A request for a preliminary ruling
from a national court may be rejected only if it is clear that the
interpretation of Community law requested bears no relation to the true nature
of the case or the subject-matter of the main action: see in particular case
C–129/94 Ruiz Barnáldez [1996] ECR I–0000, para 7. That is, however, not
the case in the main proceedings.
Consequently,
it is necessary to examine the second part of the second question submitted by
the national court.
It is
important first to bear in mind that article 7 of the Habitats
6(4) thereof are to apply, in place of any obligations arising under the first
sentence of article 4(4) of the Birds Directive, to the areas classified under
article 4(1) or similarly recognised under article 4(2) of that directive as
from the date of implementation of the Habitats Directive or the date of
classification or recognition by a member state under the Birds Directive,
whichever is the later.
As the
Commission submits in its observations, article 6(4) of the Habitats Directive,
as inserted in the Birds Directive, has, following Leybucht Dykes where
the point in issue was the reduction of an area already classified, widened the
range of grounds justifying encroachment upon SPAs by expressly including
therein reasons of a social or economic nature.
Thus, the imperative
reasons of overriding public interest which may, pursuant to article 6(4) of
the Habitats Directive, justify a plan or project which would significantly
affect an SPA in any event include grounds relating to a superior general
interest of the kind identified in Leybucht Dykes and may where
appropriate include grounds of a social or economic nature.
Next, although
article 6(3) and (4) of the Habitats Directive, in so far as it amended the
first sentence of article 4(4) of the Birds Directive, established a procedure
enabling the member states to adopt, for imperative reasons of overriding
public interest and subject to certain conditions, a plan or a project
adversely affecting an SPA and so made it possible to go back on a decision
classifying such an area by reducing its extent, it nevertheless did not make
any amendments regarding the initial stage of classification of an area as an
SPA referred to in article 4(1) and (2) of the Birds Directive.
It follows
that, even under the Habitats Directive, the classification of sites as SPAs
must in all circumstances be carried out in accordance with the criteria
permitted under article 4(1) and (2) of the Birds Directive.
Economic
requirements, as an imperative reason of overriding public interest allowing a
derogation from the obligation to classify a site according to its ecological
value, cannot enter into consideration at that stage. But that does not, as the
Commission has rightly pointed out, mean that they cannot be taken into account
at a later stage under the procedure provided for by article 6(3) and (4) of
the Habitats Directive.
The answer to
the second part of the second question must therefore be that article 4(1) or
(2) of the Birds Directive is to be interpreted as meaning that a member state
may not, when designating an SPA and defining its boundaries, take account of
economic requirements which may constitute imperative reasons of overriding
public interest of the kind referred to in article 6(4) of the Habitats
Directive.
Costs
The costs incurred
by the governments of the French Republic and the United Kingdom and by the
Commission of the European Communities, which have submitted observations to
the court, are not recoverable. Since
actions pending before the national court, the decision on costs is a matter
for that court.
On those
grounds, the court in answer to the questions submitted to it by the House of
Lords, by order of February 9 1995, hereby rules:
1. Article
4(1) or (2) of Council Directive 79/409/EEC of April 2 1979 on the conservation
of wild birds is to be interpreted as meaning that a member state is not
authorised to take account of the economic requirements mentioned in article 2
thereof when designating a special protection area and defining its boundaries.
2. Article
4(1) or (2) of Directive 79/409 is to be interpreted as meaning that a member
state may not, when designating a special protection area and defining its
boundaries, take account of economic requirements as constituting a general
interest superior to that represented by the ecological objective of that
directive.
3. Article
4(1) or (2) of Directive 79/409 is to be interpreted as meaning that a member
state may not, when designating a special protection area and defining its
boundaries, take account of economic requirements which may constitute
imperative reasons of overriding public interest of the kind referred to in
article 6(4) of Directive 92/43/EEC of May 21 1992 on the conservation of the
natural habitats of wild fauna and flora.
