Articles 2(3) and 4(1) of Council Directive 92/43/EEC – Habitats Directive – Procedure for designating special areas of conservation under Article 4(1) on the conservation of natural habitats and of wild fauna and flora – Whether Secretary of State obliged or entitled to take into account the economic, social and cultural requirements when designating special areas of conservation
First Corporate Shipping Ltd (FCS) was the statutory authority for the port of Bristol and the owner of substantial land. Since acquiring land, FCS invested substantial sums on developing the port facilities and it employs thousands of people. The Secretary of State indicated that he had in mind proposing the Severn Estuary to the Commission of the European Communities under Article 4(1) on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive). A majority of the intertidal part of the estuary had already been classified as an area of special protection pursuant to Council Directive 79/409/EEC on the conservation of wild birds. FCS sought, by way of judicial review, to quash that decision, contending that Article 2(3) of the Habitats Directive imposes an obligation upon the Secretary of State to take into account the economic, social and cultural requirements when deciding which sites to propose to the Commission pursuant to Article 4(1) of that Directive. The Secretary of State relied on the court’s reasoning in R v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds [1996] ECR I-3805; [1997] 2 PLR 1. The High Court stayed the proceedings and referred a question to the European Court for a preliminary ruling on the interpretation of Article 4(1) in conjunction with Article 2(3) of the Council Directive 92/43/EEC on the Habitats Directive. The High Court sought clarification on the powers of the member states during the first stage of the procedure for designating SACs under Article 4(1) of the Habitats Directive, and, more precisely, whether in drawing up the list of sites eligible for selection as sites of Community importance, a member state is obliged, or merely entitled, to take account of the requirements, in particular economic requirements, set out in Article 2(3) of that Directive.
Held On a proper construction of Article 4(1) of Council Directive 92/43/EEC, dated 21 May 1992, on the conservation of natural habitats of wild fauna and flora, a member state may not take account of economic,
Case referred to in the judgment
R v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds (C44/95) [1997] QB 206; [1997] 2 WLR 123; [1997] 2 PLR 1; [1996] JPL 844; [1996] ECR I-3805, ECJ
Reference for a preliminary ruling under Article 177 of the EC Treaty
By an order of 21 July 1998, the Queen’s Bench Division (Divisional Court) of the High Court of Justice of England and Wales referred to the Court of Justice of the European Communities for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a question on the interpretation of Articles 2(3) and 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. The question arose in proceedings brought by First Corporate Shipping Ltd for judicial review of the act by which the Secretary of State for the Environment, Transport and the Regions indicated that he was minded to propose the Seven Estuary to the Commission of the European Communities as a site eligible for designation as a special area of conservation under Article 4(1) of the Habitats Directive.
Written submissions were submitted on behalf of:
Gerald Barling QC, Mark Shaw and Mark Hoskins (instructed by Tite &Lewis) represented First Corporate Shipping Ltd.
Phillipe Sands and Jonathan H Marks (instructed by Leigh Day & Co) represented the interveners, World Wide Fund for Nature UK (WWF) and Avon Wildlife Trust.
Richard Drabble QC and JE Collins (instructed by the Treasury Solicitor) represented the United Kingdom government.
The facts are set out in the opinion of the Advocate General.
Advocate General P Léger delivered the following opinion on 7 March 2000 (translated from French).
1. The High Court of Justice of England and Wales, Queen’s Bench Division (hereinafter the High Court), has referred a question to the court for a preliminary ruling on the interpretation of Article 4(1) in conjunction with Article 2(3) of Council Directive 92/43/EEC, of 21 May 1992, on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L206 at p7, (hereinafter the Habitats Directive1).
1 This directive is also commonly known as Natura 2000
2. The Habitats Directive aims to create a coherent European ecological network in order to promote the maintenance or restoration, at a favourable conservation status, of natural habitats and of wild fauna and
1 First, third, fourth, fifth and sixth recitals in the preamble
2 Sixth and seventh recitals in the preamble
3. The High Court asks the court to define the extent of the member states’ powers in the first stage of the procedure for designating SACs under Article 4(1) of the Habitats Directive, and, more precisely, to state whether, in drawing up the list of sites eligible for selection as sites of Community importance (SCIs), a member state is obliged, or merely entitled, to take account of the requirements, in particular economic requirements, set out in Article 2(3) of that directive.
Relevant Community law background
4. The Habitats Directive, adopted on the basis of Articles 130r and 130s of the EC Treaty (now, after amendment, Articles 174 and 175 EC), proceeds from the following assessment:
In the European territory of the member states, natural habitats are continuing to deteriorate and an increasing number of wild species are seriously threatened;… given that the threatened habitats and species form part of the Community’s natural heritage and the threats to them are often of a transboundary nature, it is necessary to take measures at Community level in order to conserve them.1
1 Fouth recital in the preamble
5. The main aim of the Habitats Directive is to “promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements”1, by creating a coherent European ecological network according to a specified timetable2. By using that formulation, the Community legislature indicates that its intention is to comply with the objective of ‘sustainable development in Article 2 of the EC Treaty (now, after amendment, Article 2 EC), and the principle of ‘integration in Article 130r(2) in fine of the EC Treaty: see paras 54 to 57. The principle of integration now appears in Article 6 EC [formerly Article 3c of the EC Treaty3], inserted by the Treaty of Amsterdam. That article expressly states that the principle of integration must be capable of ‘promoting sustainable development.
1 Third recital in the preamble
2 Sixth recital in the preamble
3Inserted by Article 2 (4) of the treaty of Amsterdam and renumbered Article 6 EC
(OJ 1997 C 340, p25)
6. Article 1 of the Habitats Directive defines the principal terms used.
7. Article 2[2] and [3] sets out the measures to be taken in order to attain the objective of the directive. Those paragraphs provide:
2. Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of
3. Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics.
8. Articles 4 and 6 regulate in more detail the measures defined in Article 2.
9. First, under Article 4, the SACs are designated; second, under Article 6, the rules governing the SACs are adopted.
10. The procedure for designating SACs comprises three stages.
11. The first stage is described in Article 4(1) of the Habitats Directive.
12. The first subparagraph of Article 4(1) prescribes that the first stage is for the member states and consists of drawing up a list, on the basis of the criteria set out in Annex III (Stage 1), of sites that host the natural habitat types in Annex I and the native species in Annex II. For “animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction”. In addition, for “aquatic species which range over wide areas, such sites will be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction”.
13. The second subparagraph of Article 4(1) of the Habitats Directive indicates that the lists drawn up by member states must show the sites containing the priority natural habitat types and priority species1. “Priority” means species and natural habitats in danger of disappearance, for the conservation of which the Community has particular responsibility2. The second subparagraph of Article 4(1) further states that the list is to be “transmitted to the Commission… together with [certain information and] data… provided in a format established by the Commission”. The format was adopted on 18 December 19963.
1 Annex III, Stage 1, point D
2 Article 1 (d) and (h) of the Habitats Directive. They are marked with
an asterisk in Annexes I and II
3 Commission Decision 97/266/EC concerning a site information format
for proposed Natura 2000 sites (OJ 1997 L 107, p1 at p20, herinafter “the data form”)
14. The second stage is set out in Article 4(2) and (3) of the Habitats Directive.
15. It follows a two-part procedure. The first part is to enable the Commission “on the basis of the criteria set out in Annex III (Stage 2)… [to] establish, in agreement with each member state, a draft list of sites of Community importance drawn from the member states’ lists identifying those which host one or more priority natural habitat types or priority species” [Article 4(2), first subparagraph, judge’s emphasis].
16. Following the first part, “the list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission” [Article 4(2), third subparagraph, judge’s emphasis], in accordance with a
17. The third stage is described in Article 4(4). It concludes the procedure for designation of SACs and is within the exclusive competence of the member states. Under that provision, once a site has been selected as an SCI, and is on the list adopted by the Commission in the second stage, “upon that the member state concerned shall designate that site as a special area of conservation” [Article 4(4), judge’s emphasis].
18. Annex III to the Habitats Directive sets out the criteria to be used by the member states for assessing the sites that are to appear on the list drawn up at the end of the first stage1 and the criteria that must be taken into account by the member states and the Commission for selecting the SCIs in the second stage2.
1 Among the selection criteria applied are the “degree of
representatively of the natural habitat type on the site” (Annex III, Stage 1, point A(a)),
the “degree of conservation of the structure and functions of the natural habitat type
concerned and restoration possibilities” (Annex III, Stage 1, point A(c)), and the “value
of the site” (Annex III, Stage 1, point A(d)).
2 Among the selection criteria applied are the “geographical situation
of the site in relation to the migration routes of species in Annex II and whether it belongs
to a continuous ecosystem situated on both sides of one or more internal Community
frontiers” (Annex III, Stage 2, point 2(b)) and the “ecological value of the site” (Annex
III, Stage 2, point 2(e))
19. Article 6 prescribes that member states are to establish the system for ensuring the management and conservation of SACs. The measures adopted for that purpose are, in principle, adopted after the third stage has been completed. However, the Directive states that measures intended to prevent deterioration of SCIs1 must be taken following the second stage [Article 4(5)].
1 For example, certain plans or projects likely to have a
significant effect on an SCI are to be subject to an assessment of their implications
for the site (Article 6(3) of the Habitats Directive).
Factual and procedural background
20. First Corporate Shipping Ltd (hereinafter FCS), the statutory authority for the port of Bristol, on the Severn Estuary, is the owner of a substantial amount of land in the neighbourhood of the port. Since acquiring that land, FCS has invested, together with partners, about £22m in capital on developing the port facilities. It employs 495 permanent full-time employees. The High Court also notes that the number of workers employed in the port, including FCS’s own employees, is estimated at 3,000 to 5,000.
21. The Secretary of State for the Environment, Transport and the Regions (hereinafter the Secretary of State) indicated that he had in mind to propose the Severn Estuary to the Commission of the European Communities under Article 4(1) of the Habitats Directive. The majority of the intertidal part of the estuary had already been classified as a special protection area (SPA) [see para 8 of order for reference] pursuant to
22. FCS considered that its rights as owner of the land were infringed by the Secretary of State’s decision, and applied to the High Court for leave to seek judicial review.
23. In the High Court, FCS argued that Article 2(3) of the Habitats Directive imposes an obligation on the Secretary of State to take account of economic, social and cultural requirements when deciding which sites to propose to the Commission pursuant to Article 4(1) of that Directive.
24. The Secretary of State contended that, in the light of the court’s reasoning in R v Secretary of State for the Environment ex parte Royal Society for the Protection of Birds Case C-44/95 [1996] ECR I-38051, (hereinafter the Lappel Bank judgment), a member state may not take such requirements into account in the context of Article 4(1) of the Habitats Directive.
1 [1997] 2 PLR 1
25. Since the High Court was uncertain as to the correctness of those arguments, and considered that the outcome of the case before it depended upon the interpretation of Article 4(1) in conjunction with Article 2(3) of the Habitats Directive, by order of 15 September 1998 it stayed the proceedings, pending a ruling by the court on the following question:
Is a member state entitled or obliged to take account of the considerations laid down in Article 2(3) of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p7), namely economic, social and cultural requirements and regional and local characteristics, when deciding which sites to propose to the Commission pursuant to Article 4(1) of that Directive and/or in defining the boundaries of such sites?
Answer to the question referred
26. By its question, the High Court seeks clarification on the powers of the member states during the first stage of the procedure for designating SACs. More precisely, it wishes to know whether, in the first stage defined in Article 4(1) of the Habitats Directive, a member state may, or must, on the basis of Article 2(3) of that Directive, refuse to include in the list of sites to be proposed to the Commission, a site that, although satisfying the criteria set out in Annexes I and II, is the scene of economic and social interests that are considered to be important, or even vital, for the state or region concerned.
27. FCS submits that the court should rule, in answer to that question, that Article 4(1), in conjunction with Article 2(3) of the Habitats Directive, must be interpreted as requiring member states to take account of economic, social and regional interests when deciding upon sites to be proposed to the Commission as eligible for designation as SACs. It thus claims that in the first stage of the procedure for designating SACs, a member state must
28. Conversely, the Commission, the World Wide Fund for Nature UK (WWF), the Avon Wildlife Trust, the United Kingdom government and the Finnish government contest that argument. Most of those who argue against FCS, with the exception of the Finnish government, rely upon the Lappel Bank judgment to support their position.
29. It was held in that judgment that the provisions of the Birds Directive are to be interpreted as authorising a member state to take account of certain economic requirements at the stage of adopting measures for the conservation or management of SPAs, but not at the stage of the procedure for designating SPAs and defining their boundaries [paras 31-41].
30. In my opinion, the solution arrived at by the court in the Lappel Bank judgment cannot be applied in the context of the Habitats Directive. I consider that it is not excluded1 that economic, social or cultural considerations or regional and local characteristics may already be taken into account at the stage of designation of SACs, and that they may allow a site hosting one of the natural habitat types in Annex I or native species in Annex II to be excluded from designation as an SAC. I shall explain this below [see paras 52 to 58].
1 Except where a site hosts priority natural habitat types (see para 47)
31. I consider, however, that in the first stage of the procedure for designating SACs, such considerations do not allow a site that hosts natural habitat types in Annex I or native species in Annex II to be removed from the list of sites selected by the member states. I shall therefore propose that the court answer the High Court’s question in the negative.
32. In my opinion, in the first stage described in Article 4(1) of the Habitats Directive, the role of the member states is not to draw up definitively the list of SACs, but consists only of: establishing an exhaustive list of the sites that, on the national territory of each of the member states, host the natural habitat types in Annex I and the native species in Annex II; and providing the Commission with all the necessary scientific, ecological, economic and social information on the sites thus listed.
33. First, the suggested interpretation follows clearly from the wording of Article 4(1) of the Habitats Directive.
34. The first subparagraph of Article 4(1) expressly states that: “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”, that list showing the sites containing priority habit types and priority species1.
1 Annex III, Stage 1, point D
35. Again, the second subparagraph of Article 4(1) specifies that: “the list shall be transmitted… together with information… [which] shall include a map of the site, its name, location, extent and the data – provided in a format established by the Commission…”
36. According to the data form instructions [see para 13], the member states must include with the list information not only of a scientific, ecological1 and geographical (such as site location and a map of the site) nature, but also of an economic and social nature.
1 Such as a classification of animal populations according to the
ornithological criteria in Annex I to the Birds Directive, and also information on
migratory birds normally present on the site and not listed in that annex, a classification
of the mammals, amphibians and reptiles, fish and invertebrates and plants in Annex
II to theHabitats Directive, and other important species of flora and fauna not listed in
that annnex.
37. Thus, the member states are recommended to communicate “information on impacts and activities in and around the site” [see the data form, p37, point 6.1 (judge’s emphasis], which are understood as including “all human activities and natural process that may have an influence, either positive or negative, on the conservation and management of the site” (listed in Appendix E)1. To that end, member states are requested to supply information on activities connected with agriculture and forestry; fishing, hunting and collecting; mining and extraction of minerals; urbanisation, industrialisation and similar activities; and transportation and communication (relating, inter alia, to port areas2 and shipping3).
1 Ibid, point 6.1, first indent
2 Ibid, Appendix E, code 504
3 Ibid, code 520
38. The reading I favour is also, I think, supported by Annex III (Stage 1). The criteria that member states must take into account undeniably include scientific, ecological and geographical elements1. However, they are also asked to make a global assessment of the value of the site2, and not only as specified in Annex III (stage 2)3, a global assessment of the ecological value of the site.
1 Points A and B, (a)
2 Ibid, (d)
3 Ibid, (e)
39. In my opinion, since it is not stated that the assessment relates only to the ecological value of the site, it may reasonably be supposed that in the first stage of designation of SACs, the fullest information relating, inter alia, to human activities, which indisputably includes economic data, must be communicated to the Commission.
40. It also follows from the wording of Article 4(1) of the Habitats Directive that, in this first stage, the discretion of the member states as to the choice of sites to propose to the Commission is very limited.
41. Thus, the first subparagraph of Article 4(1) of the Habitats Directive authorises a member state to leave off the list of sites to be communicated to the Commission only those sites that do not host a natural habitat type in Annex I or a native species in Annex II, or sites within which no clearly identifiable areas can be defined that present the physical and biological factors essential to the life and reproduction of protected animal or plant species.
42. Moreover, the purpose of the task allotted to the member states in this first stage militates in favour of this interpretation.
43. The purpose of Article 4(1) of the Habitats Directive is set out in Article 4(2) thereof and in the introduction section of the data form.
44. Thus, the first subparagraph of Article 4(2) prescribes that “the Commission shall establish, in agreement with each member state, a draft list of sites of Community importance drawn from the member states’ lists” (judge’s emphasis). Again, the third subparagraph of Article 4(2) states that it is only after the second stage that the list of SCIs is to be definitively adopted by the Commission in accordance with a procedure of concertation between the Commission and the member states.
45. Similarly, the data form expressly states that it “will initially be used to supply the necessary information for sites eligible for identification as sites of Community importance”1.
1 Introduction, third paragraph, p21, emphasis added
46. The conclusion must be that the procedure laid down in Article 4(1) constitutes a preparatory phase in the taking of the final decision relating to the determination and definition of the boundaries of SACs, with the intention of providing a complete “panorama” of the site.
47. I note, however, that the sites identified as priority sites by the member states in the first stage are automatically considered as SCIs in the second stage, and will consequently be designated as SACs in the third stage of the procedure1. I do not know whether the sites at issue in the main proceedings fall into that category. That is, in any event, for the national court to ascertain. If that is the case, because of the priority nature of the sites, as a consequence of the natural habitat types or species concerned, the member state will not be able to take the requirements listed in Article 2(3) into account to delete a site hosting those natural habitat types or species from the list of SACs2.
1 See Annex III, Stage 2, point 1: ‘All the sites identified by
Member States in Stage 1 which contain priority natural habitat types and/or
species will be considered as sites of Community importance.’
2 In that the sites listed in the first stage as hosting priority
natural habitats and native species are automatically considered as SCIs (see
Annex III, Stage 2, point 1) and my analysis tends to show that, in the first stage,
economic considerations may not be used to delete from the list of sites to be
transmitted to the Commission a site hosting non-priority natural habitat types
and native species defined in Annexes I and II, this conclusion applies a fortiori
where those sites host priority natural habitat types and native species.
49. It follows that the purpose of Article 4(1) of the Habitats Directive is to enable the Commission and the member states, in the second stage of the procedure for designating SACs, to carry out the selection of the SCIs [regulated in Article 4(2) and (3)], and then, following the third stage [regulated in Article 4(4)], to adopt the list of the SACs to be designated by the member states, no consideration of an economic or social nature being capable of influencing the eligibility of a site to appear on that list.
Finally, for the member states and the Commission to be able to assess the interests concerned as accurately as possible in the second stage, it is essential that, in the first stage, the member states do not proceed by “elimination” but list as fully, objectively and descriptively as possible all
50. The conclusion I draw is that Article 4(1) of the Habitats Directive must be interpreted as precluding a member state, during the first stage, from deciding not to list as sites eligible for designation as SCIs in the second stage those that, while satisfying the criteria mentioned above, are the scene of important economic and social interests, such as the site formed by the Severn Estuary.
51. On the other hand, for the sake of completeness, I consider that it is not excluded that, in the second stage, at the time of concertation among the member states and the Commission on the selection of the SCIs, economic and social requirements may justify a site that hosts one of the natural habitat types in Annex I or native species in Annex II not being selected as an SCI, and consequently not being designated as an SAC1.
1 With the exception, as seen above, of a site identified by a Member
State as housing priority species or priority natural habitat types.
52. As FCS observes, Article 2(3) is worded in general terms and does not exclude account being taken of economic, social and regional requirements when measures are taken to designate SACs and define their boundaries1.
1 Unlike the wording of the Birds Directive (see, on this point,
paras 23 to 25 of the Lappel Bank judgment).
53. Similarly, the third recital in the preamble to the Habitats Directive expressly states that the directive, the aim of which is to “promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements”, makes “a contribution to the general objective of sustainable development”1.
1 Emphasis added. The same objective is noted in the introduction
to the data form, in indent 2, which states that one of its “main objectives” is “to provide
information which will assist the Commission in other decision-making capacities to
ensure athat the Natura 2000 network is fully considered in other policy areas and
sectors of the Commission’s activities, in particular regional, agricultural, energy,
transport and tourism policies”.
54. The concept of sustainable development does not mean that the interests of the environment must necessarily and systematically prevail over the interests defended in the context of the other policies pursued by the Community, in accordance with Article 3 of the EC Treaty (now, after amendment, Article 3 EC). On the contrary, it emphasises the necessary balance between various interests that sometimes clash, but that must be reconciled.
55. The concept originates in a communication of the Commission to the council, dated 24 March 1972, on an environmental programme of the European Communities1, in which it stated that the proposals made on 21 July 1971 on the policy of the Community in this respect2 should henceforth be implemented in accordance with the principle of integration:
Implementation of these proposals must not constitute a new common policy separate from the others. Rather, all Community activities aimed at promoting throughout the Community harmonious development of economic activities, accelerated raising of the standard of living and closer relations between member states under Article 2 of the EEC Treaty must now take into consideration the protection of the environment3.
1 OJ 1972 C 52 at p1
2 Doc SEC (71) 2616 final
3 Communication cited above, introduction para 8
56. Sustainable development, a fundamental concept of environment law, was taken up and defined in 1987 in the Brundtland Report1. According to that report, sustainable development is development that meets the needs of the present without compromising the capacity of future generations to meet their needs [p51]. It states that the concept means that the conduct of the various policies must, at the very least, not endanger the natural systems that give us life: the atmosphere, water, earth and living creatures [p53]. The report stresses that it is necessary not to set development against the environment, but, on the contrary, to let them evolve in a coordinated fashion.
1 So called after the chairperson of the World Commision on
Environment and Development set up by the 38th session of the General Assembly
of the United Nations, with the task, inter alia, of reconsidering the fundamental
questions of the environment and development
57. To reconcile these diverse interests in the context of sustainable development, the Treaty on European Union introduced the principle of integration in Article 130 r(2) in fine. That principle requires the Community legislature to conform with environmental protection requirements in the definition and implementation of other policies and actions. Integration of the environmental dimension is thus the basis of the strategy of sustainable development enshrined in both the Treaty on European Union and the Fifth Environment Programme, entitled Towards Sustainability1. The Fifth Programme expressly states, moreover, that the success of that undertaking depends upon the five key sectors of the economy – industry, energy, transport, agriculture and tourism – all making a full contribution to it. It is hoped that harmful trends and practices of those sectors may thus be modified.
1 OJ 1993 C 138 at p5
58. So it seems that the approach of the Commission and the member states in the second stage of the procedure for designating SACs must, observing the objective of “sustainable development” and the principle of integration, consist of assessing the interests concerned; ascertaining whether the maintenance of human activities in the area concerned may be reconciled with the objective of conservation or restoration of natural habitats and wild fauna and flora, and drawing the necessary consequences as regards setting up an SAC.
Conclusion
59. I therefore propose that the court rule as follows:
Article 2(3) 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 precluding a member state from taking account of economic, social and cultural requirements, or regional and local characteristics when deciding which sites to propose to the Commission or when defining the boundaries of those sites under Article 4(1) of that directive.
The following judgment of the Petit Plenum was delivered.
1. By order of 21 July 1998, received at the court on 16 October 1998, the Queen’s Bench Division (Divisional Court) of the High Court of Justice of England and Wales referred to the court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a question on the interpretation of Articles 2(3) and 4(1) 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 at p7, hereinafter the Habitats Directive).
2. The question arose in proceedings brought by First Corporate Shipping Ltd (hereinafter FCS) for judicial review of the act by which the Secretary of State for the Environment, Transport and the Regions indicated that he was minded to propose the Severn Estuary to the Commission of the European Communities as a site eligible for designation as a special area of conservation (SAC) under Article 4(1) of the Habitats Directive.
Community legislation
3. According to Article 2 of the Habitats Directive:
1. The aim of this Directive shall be to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the member states to which the Treaty applies.
2. 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.
3. Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics.
4. Article 4 of the Habitats Directive states:
1. On the basis of the criteria set out in Annex III (Stage 1) and 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. For animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction. For aquatic species which range over wide areas, such sites will be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction. 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
2. On the basis of the criteria set out in Annex III (Stage 2) and in the framework both of each of the five biogeographical regions referred to in Article 1(c)(iii) and of the whole of the territory referred to in Article 2(1), the Commission shall establish, in agreement with each member state, a draft list of sites of Community importance drawn from the member states’ lists identifying those which host one or more priority natural habitat types or priority species.
Member states whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be applied more flexibly in selecting all the sites of Community importance in their territory.
The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.
3. The list referred to in paragraph 2 shall be established within six years of the notification of this Directive.
4. Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the member state concerned shall designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.
5. As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article 6(2), (3) and (4).
5. Annex III to the Habitats Directive reads as follows:
Criteria for selecting sites eligible for identification as sites of Community importance and designation as special areas of conservation
Stage 1: Assessment at national level of the relative importance of sites for each natural habitat type in Annex I and each species in Annex II (including priority natural habitat types and priority species)
A. Site assessment criteria for a given natural habitat type in Annex 1
(a) Degree of representivity of the natural habitat type on the site.
(b) Area of the site covered by the natural habitat type in relation to the total area covered by that natural habitat type within national territory.
(c) Degree of conservation of the structure and functions of the natural habitat type concerned and restoration possibilities.
(d) Global assessment of the value of the site for conservation of the natural habitat type concerned.
B. Site assessment criteria for a given species in Annex II
(a) Size and density of the population of the species present on the site in relation to the populations present within national territory.
(b) Degree of conservation of the features of the habitat which are
(c) Degree of isolation of the population present on the site in relation to the natural range of the species.
(d) Global assessment of the value of the site for conservation of the species concerned.
C. On the basis of these criteria, member states will classify the sites which they propose on the national list as sites eligible for identification as sites of Community importance according to their relative value for the conservation of each natural habitat type in Annex I or each species in Annex II.
D. That list will show the sites containing the priority natural habitat types and priority species selected by the member states on the basis of the criteria in A and B above.
…
6. Article 6(2), (3) and (4) of the Habitats Directive provides:
2. Member states shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the member state shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
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.
Main proceedings and the question referred for a preliminary ruling
7. FCS is the statutory port authority for the port of Bristol on the Severn Estuary, and owns considerable land in the neighbourhood of the port. Since acquiring the port, FCS has invested, in partnership with other undertakings, nearly £220m in capital in developing its facilities. It employs 495 permanent full-time employees. The number of workers employed at the port, including FCS’s own
8. The Secretary of State indicated that he was minded to propose the Severn Estuary to the Commission as a site eligible for designation as an SAC under Article 4(1) of the Habitats Directive, most of the intertidal part of the estuary having already been classified as a special protection area under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103 at p1). FCS thereupon applied to the Queen’s Bench Division (Divisional Court) of the High Court of Justice of England and Wales for leave to apply for judicial review.
9. FCS submitted before that court that Article 2(3) of the Habitats Directive obliged the Secretary of State to take account of economic, social and cultural requirements when deciding which sites should be proposed to the Commission pursuant to Article 4(1) of that directive.
10. The Secretary of State contended that, in the light of the court’s reasoning in R v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds Case C-44/95 [1996] ECR I-3805, he could not take economic, social and cultural requirements into account when deciding which sites should be proposed to the Commission pursuant to Article 4(1) of the Habitats Directive.
11. In those circumstances, the High Court of Justice stayed proceedings and referred the following question to the court for a preliminary ruling:
Is a member state entitled or obliged to take account of the considerations laid down in Article 2(3) of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p7), namely, economic, social and cultural requirements and regional and local characteristics, when deciding which sites to propose to the Commission pursuant to Article 4(1) of that Directive and/or in defining the boundaries of such sites?
Question referred for a preliminary ruling
12. It should be noted that the question of interpretation referred for a preliminary ruling relates only to stage 1 of the procedure for classifying natural sites as SACs laid down by Article 4(1) of the Habitats Directive.
13. Under that provision, on the basis of the criteria set out in Annex III (stage 1), together with relevant scientific information, each member state is to propose and transmit to the Commission a list of sites, indicating which natural habitat types in Annex I and native species in Annex II are to be found there.
14. Annex III to the Habitats Directive, which deals with the criteria for selecting sites eligible for identification as sites of Community importance and designation as SACs, sets out, as regards stage 1, criteria for the assessment at national level of the relative importance of sites for each natural habitat type in Annex I and each species in Annex II.
15. Those assessment criteria are defined exclusively in relation to the objective of conserving the natural habitats or the wild fauna and flora listed in Annexes I and II respectively.
16. It follows that Article 4(1) of the Habitats Directive does not provide for requirements other than those relating to the conservation of natural habitats and of wild fauna and flora to be taken into account when defining the boundaries of sites to be proposed to the Commission as eligible for identification as sites of Community importance.
17. FCS submits that identifying and defining the boundaries of the sites to be notified to the Commission with a view to designation as SACs, as required by Article 4(1) of the Habitats Directive, constitutes a measure taken pursuant to the Directive within the meaning of Article 2(3). It follows that Article 2(3) imposes an obligation upon a member state to take account of economic, social and cultural requirements, and regional and local characteristics, when it applies the criteria in Annex III to the directive when drawing up the list of sites to be transmitted to the Commission.
18. According to the Finnish government, it is open to a member state, when proposing its list of sites to the Commission, to take account of economic, social and cultural requirements, and regional and local characteristics, provided that it does not compromise realisation of the Habitats Directive’s nature protection objectives. The government observes that there may, for example, be such a large number of sites eligible to be considered of Community importance within the territory of a member state, that that state is entitled to exclude some of them from its list of proposed sites without jeopardising realisation of those objectives.
19. It should be noted that the first subparagraph of Article 3(1) of the Habitats Directive provides for the setting up of a coherent European ecological network of SACs, to be known as Natura 2000, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, to enable them to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.
20. Moreover, Article 4 of the Habitats Directive sets out the procedure for classifying natural sites as SACs, divided into several stages with corresponding legal effects, which is intended, in particular, to enable the Natura 2000 network to be realised, as provided for by Article 3(2) of the Directive.
21. In particular, the first subparagraph of Article 4(2) prescribes that the Commission is to establish, on the basis of the lists drawn up by the member states, and in agreement with each member state, a draft list of sites of Community importance.
22. To produce a draft list of sites of Community importance capable of leading to the creation of a coherent European ecological network of SACs, the Commission must have available an exhaustive list of the sites that, at national level, have an ecological interest that is relevant from the point of view of the Habitats Directive’s objective of conservation of natural habitats and wild fauna and flora. To that end, the list is drawn up on the basis of the criteria laid down in Annex III (stage 1) to the Directive.
23.Only in that way is it possible to realise the objective, in the first subparagraph of Article 3(1) of the Habitats Directive, of maintaining or
24. In particular, if the member states could take account of economic, social and cultural requirements and regional and local characteristics when selecting and defining the boundaries of the sites to be included in the list that, pursuant to Article 4(1) of the Habitats Directive, they must draw up and transmit to the Commission, the Commission could not be sure of having available an exhaustive list of sites eligible as SACs, with the risk that the objective of bringing them together into a coherent European ecological network might not be achieved.
25. The answer to the national court’s question must therefore be that, on a proper construction of Article 4(1) of the Habitats Directive, a member state may not take account of economic, social and cultural requirements, or regional and local characteristics, as mentioned in Article 2(3) of that Directive, when selecting and defining the boundaries of the sites to be proposed to the Commission as eligible for identification as sites of Community importance.
Costs
26. The costs incurred by the United Kingdom and Finnish governments and by the Commission, which have submitted observations to the court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On these grounds, the court, in answer to the question referred to it by the Queen’s Bench Division (Divisional Court) of the High Court of Justice of England and Wales by order of 21 July 1998, hereby rules:
on a proper construction of Article 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, a member state may not take account of economic, social and cultural requirements or regional and local characteristics, as mentioned in Article 2(3) of that Directive, when selecting and defining the boundaries of the sites to be proposed to the Commission as eligible for identification as sites of Community importance.
