EU Law

// Case C-418/04 - Birds Directive Judgment

Failure of a Member State to fulfil obligations – Directive 79/409/EEC – Conservation of wild birds – Articles 4 and 10 – Transposition and application – IBA 2000 – Value – Quality of the data – Criteria – Margin of discretion – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 6 – Transposition and application

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See FIE Press Release on this comprehensive condemnation of Ireland's legislation and practice in relation to the protection of wild birds or  // Read More // for the judgment itself.

JUDGMENT OF THE COURT (Second Chamber)
13 December 2007 (*)

Table of contents

Legal framework
Community legislation
The Birds Directive
The Habitats Directive
National legislation
The European Communities Act
The Wildlife Act
The Birds Regulations
The Habitats Regulations
Pre-litigation procedure and written procedure before the Court
The action
Preliminary observations
The first complaint: inadequate number and size of areas classified as SPAs, contrary to Article 4(1) and (2) of the Birds Directive
Preliminary observations
IBA 2000
The first part of the first complaint
- Arguments of the parties
- Findings of the Court
A - The sites identified in IBA 2000
1. The Cross Lough area
a) Arguments of the parties
b) Findings of the Court
2. The three suitable areas for conservation of the corncrake
a) Arguments of the parties
b) Findings of the Court
B - The birds to be protected in other sites
1. Suitable sites for conservation of the kingfisher
2. Suitable sites for conservation of the corncrake
The second part of the first complaint
- Arguments of the parties
- Findings of the Court
The second complaint: failure to establish the necessary legal protection regime in accordance with Article 4(1) and (2) of the Birds Directive
Arguments of the parties
Findings of the Court
The third complaint: failure to apply the first sentence of Article 4(4) of the Birds Directive to the areas which should have been classified as SPAs
Arguments of the parties
Findings of the Court
The fourth complaint: failure to transpose and apply the second sentence of Article 4(4) of the Birds Directive
Arguments of the parties
Findings of the Court
The fifth complaint: inadequate transposition and application of Article 6(2) to (4) of the Habitats Directive
Preliminary observations
Inadequate transposition and application of Article 6(2) of the Habitats Directive
- Arguments of the parties
- Findings of the Court
Inadequate transposition of Article 6(2) of the Habitats Directive in the field of recreational activities
- Arguments of the parties
- Findings of the Court
Inadequate transposition and application of Article 6(3) and (4) of the Habitats Directive
- Arguments of the parties
- Findings of the Court
The sixth complaint: failure to transpose Article 10 of the Birds Directive
Arguments of the parties
Findings of the Court
Costs
(Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Conservation of wild birds - Articles 4 and 10 - Transposition and application - IBA 2000 - Value - Quality of the data - Criteria - Margin of discretion - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Article 6 - Transposition and application)
In Case C-418/04,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 29 September 2004,
Commission of the European Communities, represented by B. Doherty and M. van Beek, acting as Agents, with an address for service in Luxembourg,
applicant,
v
Ireland, represented by D. O'Hagan, acting as Agent, assisted by E. Cogan, Barrister, and G. Hogan SC,
defendant,
supported by:
Hellenic Republic, represented by E. Skandalou, acting as Agent, with an address for service in Luxembourg,
and
Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,
interveners,
THE COURT (Second Chamber),
composed of C.W.A. Timmermans, President of the Chamber, L. Bay Larsen, R. Schintgen, R. Silva de Lapuerta and P. K?ris (Rapporteur), Judges,
Advocate General: J. Kokott,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 6 July 2006,
after hearing the Opinion of the Advocate General at the sitting on 14 September 2006,
gives the following
Judgment
1 By its application the Commission of the European Communities is seeking a declaration from the Court that, by failing:
- to classify, since 1981, in accordance with Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), as amended by Commission Directive 97/49/EC of 29 July 1997 (OJ 1997 L 223, p. 9) (‘the Birds Directive'), all the most suitable territories in number and size for the species in Annex I to that directive (‘Annex I'), as well as regularly occurring migratory species;
- to establish, since 1981, in accordance with Article 4(1) and (2) of the Birds Directive, the necessary legal protection regime for those territories;
- to ensure that, since 1981, the provisions of the first sentence of Article 4(4) of the Birds Directive are applied to areas requiring classification as special protection areas (‘SPAs') under that directive;
- to transpose and apply the requirements of the second sentence of Article 4(4) of the Birds Directive fully and correctly;
- in respect of classified SPAs under the Birds Directive, to take all the measures necessary to comply with the provisions of 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, in respect of recreational use of all sites intended to be subject to Article 6(2) of that directive, to take all the necessary measures to comply with the provisions of the said Article 6(2); and
- to take all the measures necessary to comply with Article 10 of the Birds Directive;
Ireland has failed to fulfil its obligations under those articles of the said directives.
2 By order of the President of the Court of 17 March 2005, the Hellenic Republic and the Kingdom of Spain were granted leave to intervene in support of the form of order sought by Ireland, which has asked the Court to dismiss the action or, in the alternative, to limit the scope of any order made to the specific issues upon which it finds that Ireland has failed to comply with its obligations under the relevant directives.
Legal framework
Community legislation
The Birds Directive
3 The ninth recital in the preamble to the Birds Directive states that ‘the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds; ... 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; ... such measures must also take account of migratory species and be coordinated with a view to setting up a coherent whole'.
4 According to Article 4 of the Birds Directive:
‘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.
In this connection, account shall be taken of:
(a) species in danger of extinction;
(b) species vulnerable to specific changes in their habitat;
(c) species considered rare because of small populations or restricted local 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, taking into account their protection requirements 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 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.'
5 Article 10 of the Birds Directive provides:
‘1. Member States shall encourage research and any work required as a basis for the protection, management and use of the population of all species of bird referred to in Article 1.
2. Particular attention shall be paid to research and work on the subjects listed in Annex V. Member States shall send the Commission any information required to enable it to take appropriate measures for the coordination of the research and work referred to in this Article.'
6 The topics of research and work listed in Annex V to the Birds Directive are as follows:
‘(a) National lists of species in danger of extinction or particularly endangered species, taking into account their geographical distribution.
(b) Listing and ecological description of areas particularly important to migratory species on their migratory routes and as wintering and nesting grounds.
(c) Listing of data on the population levels of migratory species as shown by ringing.
(d) Assessing the influence of methods of taking wild birds on population levels.
(e) Developing or refining ecological methods for preventing the type of damage caused by birds.
(f) Determining the role of certain species as indicators of pollution.
(g) Studying the adverse effect of chemical pollution on population levels of bird species.'
The Habitats Directive
7 Article 6 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 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.'
National legislation
The European Communities Act
8 The European Communities Act 1972 empowers ministers to legislate independently of the national Parliament where obligations under Community law so require.
The Wildlife Act
9 Section 11(1) and (3) of the Wildlife Act 1976, as amended by the Wildlife (Amendment) Act 2000 (‘the Wildlife Act'), provides:
‘1. It shall be a function of the Minister to secure the conservation of wildlife and to promote the conservation of biological diversity.
...
3. The Minister may, either directly or in association with or through the agency of another person:
(a) carry out or cause to be carried out research which he considers desirable for the performance of his functions under this Act;
...'
10 Sections 15 to 17 of the Wildlife Act give the competent minister the power to create nature reserves on State-owned land by means of establishment orders. It also gives the minister a power to recognise nature reserves on other land and to designate areas of land as refuges for fauna.
The Birds Regulations
11 The European Communities (Conservation of Wild Birds) Regulations 1985 (‘the Birds Regulations') prohibit the deposit of food, waste and deleterious matter in the SPAs concerned.
The Habitats Regulations
12 The preamble to the European Communities (Natural Habitats) Regulations 1997, as amended by the Wildlife (Amendment) Act 2000 (‘the Habitats Regulations'), states that the regulations were enacted with a view to giving effect to the Habitats Directive in domestic law.
13 Regulation 2 of the Habitats Regulations defines ‘European site' as: (a) a site notified for the purposes of Regulation 4; (b) a site adopted by the Commission as a site of Community importance for the purposes of Article 4(2) of the Habitats Directive, in accordance with the procedure laid down in Article 21 of that directive; (c) a special area of conservation; (d) an area classified pursuant to Article 4(1) and (2) of the Birds Directive.
14 Regulation 4 of those regulations provides:
‘1. The Minister shall cause a copy of the candidate list of European sites or a modified list under Regulation 3(3) to be sent to the Minister for the Environment, the Minister for Agriculture, Food and Forestry, the Minister for the Marine, the Minister for Transport, Energy and Communications, the Commissioners of Public Works in Ireland, the Environmental Protection Agency and to any planning authority within whose functional area the land to which the list relates, or any part of such land, is situated and the Minister shall, where appropriate, consult with all or any of them.
2. (a) The Minister by notice shall notify every owner and occupier of any land mentioned in the candidate list of European sites and any holder of a valid prospecting licence or exploration licence duly issued under any enactment which relates to such land of the proposal to include the land in such a list and to transmit the list to the Commission pursuant to the provisions of the Habitats Directive;
(b) Where the address of any person to whom subparagraph (a) of this paragraph relates cannot be found after reasonable inquiry, notices and maps showing the site concerned shall be displayed in a conspicuous place:
(i) in one or more Garda Síochána stations, local authority offices, local offices of the Department of Social Welfare, local offices of the Department of Agriculture, Food and Forestry and offices of Teagasc which are located within or contiguous to the site concerned, or
(ii) where in any case there is no such station or office so located, in one or more of each such station or office within the vicinity or closest to such site, and
advertisements shall be broadcast on at least one radio station duly broadcasting in the area of the site concerned and be placed in at least one newspaper circulating in that area and every such advertisement shall request any person affected by the candidate list of European sites to contact the Department of Arts, Culture and the Gaeltacht.
...
3. The candidate list of European sites sent by the Minister under paragraph (1) and the notification issued by the Minister under paragraph (2) shall, in respect of each site:
(a) be accompanied by an ordnance map of appropriate scale in the circumstances, upon which is marked the site, so as to identify the land comprising the site to which the notice relates and the boundaries thereof;
(b) indicate the operation or activity which the Minister considers would be likely to alter, damage, destroy or interfere with the integrity of the site;
(c) indicate the habitat type, or types, the site hosts or the species the site hosts and for which the site is proposed to be identified as a site of Community importance;
(d) indicate the procedures by which a person may object.
...'
15 Regulation 5 provides that any person to whom notice is given under Regulation 4(2) has the right to object to the inclusion of the site in the candidate list of European sites, and defines the procedure for deciding on objections.
16 Regulation 7 of the Habitats Regulations provides that the minister may appoint ‘authorised officers' to enter onto land and inspect it.
17 Regulation 9 provides:
‘(1) Not later than six years from the date a site is adopted by the Commission in accordance with the procedure laid down in paragraph 2 of Article 4 of the Habitats Directive the Minister shall designate the site as a special area of conservation and the Minister shall publish, or cause to be published, in the Iris Oifigiúil a copy of every such designation.
...'
18 Regulation 13 is worded as follows:
‘1. The Minister shall establish the conservation measures which the Minister considers appropriate in respect of special areas of conservation designated under Regulation 9 including, if necessary, management plans ... either specifically designated for the sites or integrated into appropriate plans.
2. The Minister shall establish the administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I to the Habitats Directive and the species in Annex II to that Directive present on the sites.
3. The Minister shall take the appropriate steps to avoid, in the special areas of conservation designated under Regulation 9, 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 the Habitats Directive.'
19 According to Regulation 14 of the Habitats Regulations:
‘1. A person shall not carry out, cause to be carried out or continue to carry out, on any land included in a special area of conservation or a site placed on a list in accordance with Chapter I of this Part an operation or activity mentioned in a notice issued under Regulation 4(2) unless the operation or activity is carried out, or caused or permitted to be carried out or continued to be carried out, by the owner, occupier or user of the land and:
(a) one of them has given the Minister written notice of a proposal to carry out the operation, or activity, specifying its nature and the land on which it is proposed to carry it out, and
(b) one of the conditions specified in paragraph (2) is fulfilled.
2. The conditions referred to in paragraph (1) are as follows:
(a) that the operation or activity is carried out with the written consent of the Minister, or
(b) that the operation or activity is carried out in accordance with the terms of a management agreement provided for under Regulation 12.
3. A person who, without reasonable excuse, contravenes paragraph (1) shall be guilty of an offence.
4. The provisions of this Regulation shall not apply to an operation or activity to which Regulation 15(2) relates.'
20 Regulation 15(1) provides that, where an application to the Irish authorities for consent under Regulation 14 relates to a proposed activity which is likely to have a significant effect on the site, those authorities are to assess the implications for the site in view of that site's conservation objectives. Regulation 15(2) further provides that, where the proposed activity has already been authorised under other legislation, the competent minister under whose authority the authorisation was issued is to assess that activity and, where appropriate, modify or revoke the authorisation in question.
21 Regulation 16 states that if, in the light of the assessment under Regulation 15, the proposed activity would harm the site, the activity must not be allowed. There is, however, an exception for ‘imperative reasons of overriding public interest'.
22 Regulation 17 provides:
‘1. Where the Minister considers that an operation or activity is being carried out or may be carried out on:
(a) a site placed on a list in accordance with Chapter I of this Part, or
(b) a site where consultation has been initiated in accordance with Article 5 of the Habitats Directive, or
(c) a European site,
which is neither directly connected with nor necessary to the management of such sites but likely to have a significant effect thereon either individually or in combination with other operations or activities the Minister shall ensure that an appropriate assessment of the implications for the site in view of the site's conservation objectives is undertaken.
2. An environmental impact assessment in respect of a proposed operation or activity shall be an appropriate assessment for the purposes of this Regulation.
3. If the Minister, having regard to the conclusions of the assessment undertaken under paragraph (1), is of the opinion that the operation or activity will adversely affect the integrity of the site concerned, the Minister shall make application to a court of competent jurisdiction to prohibit the continuance of the operation or activity.
4. An application to a court of competent jurisdiction for a prohibition under this Regulation shall be in a summary manner and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate having regard to paragraph 4 of Article 6 of the Habitats Directive and to the overall requirement of safeguarding the integrity of the site concerned and ensuring that the overall coherence of Natura 2000 is protected.
5. For the purposes of this section "a court of competent jurisdiction" means either a Judge of the Circuit Court within whose Circuit the lands or part of the lands concerned are situated or the High Court.'
23 Regulation 18 is worded as follows:
‘1. Where an operation or activity is being carried out, or is proposed to be carried out, on any land that is not within:
(a) a site placed on a list in accordance with Chapter I of this Part, or
(b) a site where consultation has been initiated in accordance with Article 5 of the Habitats Directive, or
(c) a European site,
and is liable to have an adverse effect on the integrity of the site concerned either alone or in combination with other operations or activities the Minister shall ensure that an appropriate assessment of the implications for the site in view of the site's conservation objectives is undertaken.
2. Having regard to the conclusions of the assessment undertaken under paragraph (1) the provisions of paragraphs (2) to (5) of Regulation 17 shall apply.'
24 Regulation 34 provides:
‘The provisions of Regulations 4, 5, 7, 13, 14, 15 and 16 shall, where appropriate, apply with any necessary modifications to areas classified pursuant to paragraph 1 and 2 of Article 4 of the Birds Directive.'
25 Regulation 35 is worded as follows:
‘The Minister shall:
(a) promote education and general information on the need to protect species of wild flora and fauna and to conserve their habitats and natural habitats;
(b) encourage the necessary research and scientific work for the purpose of meeting the requirements of Article 11 of the Habitats Directive with particular attention to scientific work necessary for the implementation of Articles 4 and 10 of that Directive;
(c) supply information, where appropriate, for the purpose of proper co-ordination of research carried out at Member State and Community level to other Member States and the Commission.'
Pre-litigation procedure and written procedure before the Court
26 After receiving complaints, the Commission initiated two sets of infringement proceedings against Ireland and sent it, between 11 November 1998 and 18 April 2002, four letters of formal notice relating, first, to a failure fully and correctly to transpose and apply the Birds and Habitats Directives and, secondly, to specific infringements concerning damage caused to habitats by recreational users.
27 As the explanations provided by the Irish authorities in their replies were not considered to be satisfactory, and following bilateral meetings between Ireland and the Commission, the latter sent Ireland, on 24 October 2001, a reasoned opinion and, on 11 July 2003, an additional reasoned opinion and a reasoned opinion concerning recreational activities.
28 As it took the view that the arguments put forward by Ireland in its replies to the reasoned opinions were not wholly satisfactory and, accordingly, that there was a continuing failure on Ireland's part to comply with a number of its obligations under the Birds and Habitats Directives, the Commission decided to bring the present action.
29 Given the close connection between the two cases, the Commission decided to join both infringements in a single set of proceedings before the Court.
The action
30 In support of its application, the Commission relies on six complaints concerning the failure of Ireland to comply with a number of obligations imposed on it by Articles 4(1), (2) and (4) and 10 of the Birds Directive and by Article 6(2) to (4) of the Habitats Directive.
Preliminary observations
31 Under Article 18(1) of the Birds Directive the Member States were required to comply with that directive within two years of its notification. Accordingly, the period within which Ireland was required to transpose the Birds Directive into national law expired on 6 April 1981.
32 Under Article 23(1) of the Habitats Directive the Member States were required to comply with that directive within two years of its notification. Accordingly, the period within which Ireland was required to transpose the Habitats Directive into national law expired on 10 June 1994.
33 It is not disputed that, in the present case, the date of expiry of the period laid down in the reasoned opinions must be set at 11 September 2003.
The first complaint: inadequate number and size of areas classified as SPAs, contrary to Article 4(1) and (2) of the Birds Directive
34 The Commission claims that Ireland has failed, since 1981, to classify, in accordance with Article 4(1) and (2) of the Birds Directive, all the most suitable areas in number and size for the conservation of the species referred to in Annex I as well as regularly occurring migratory species not listed in that annex. There are two aspects to the first complaint. The Commission states, firstly, that there has been a failure to make any classification in respect of certain sites and, secondly, that there has been a failure to make a complete classification of other sites.
35 Ireland denies the alleged failure to comply with its obligations. It states that when it informs the Commission of its intentions regarding SPA classification, it does so as part of the cooperation and consultation between the Member States, as provided for by the Birds and Habitats Directives. Moreover, when it informs the Commission that research is being carried out, it does not follow that the present SPA network is inadequate or that Ireland has failed to fulfil its obligations under the Birds Directive.
Preliminary observations
36 The Court notes, as a preliminary point, that, according to its settled case-law, Article 4(1) and (2) of the Birds Directive requires the Member States to classify as SPAs the territories meeting the ornithological criteria specified by those provisions (Case C 378/01 Commission v Italy [2003] ECR I 2857, paragraph 14 and case-law cited).
37 Secondly, Member States are obliged to classify as SPAs all the sites which, in accordance with the ornithological criteria, appear to be the most suitable for conservation of the species in question (Case C 3/96 Commission v Netherlands [1998] ECR I 3031, paragraph 62).
38 Thirdly, the obligation imposed on Member States to classify sites as SPAs cannot be avoided by the adoption of other special conservation measures (see, to that effect, Commission v Netherlands, paragraph 55).
39 Fourthly and lastly, although Member States do have a certain margin of discretion with regard to the choice of SPAs, the classification of those areas is nevertheless subject exclusively to the ornithological criteria determined by the Birds Directive (see, to that effect, Case C 355/90 Commission v Spain [1993] ECR I 4221, paragraph 26). The economic requirements mentioned in Article 2 of that directive may therefore not be taken into account when selecting an SPA and defining its boundaries (Commission v Netherlands, paragraph 59 and case-law cited).
IBA 2000
40 In support of its complaint the Commission refers, inter alia, to the judgment in Commission v Netherlands, in which the Court took account of the Inventory of Important Bird Areas in the European Community, published in 1989 (‘IBA 89'), finding that, although it was not legally binding on the Member States concerned, it could, by reason of its scientific value in that case, be used by the Court as a basis of reference for assessing the extent to which a Member State had complied with its obligation to classify SPAs. According to the Commission, a similar inventory is under consideration in the present case.
41 Ireland disagrees with the Commission on certain aspects of the Review of Ireland's Important Bird Areas, drawn up in 1999 in the context of a European census and published in 2000 (‘IBA 2000'). It argues that neither the existence of such a list alone nor the existence of such disagreement is evidence of a failure on Ireland's part to comply with its obligations under the Birds Directive.
42 The Hellenic Republic and the Kingdom of Spain take the view that IBA 2000 is deficient and therefore cannot be attributed the same value as IBA 1989.
43 The Greek and Spanish Governments contend that IBA 2000 differs from IBA 89 on a number of points. In their view, IBA 2000 contains scientific data which may well provide a reference attesting to the existence of species in each territory, but which are merely indicative and general in nature in terms of the size of the population of the various species and boundaries and, therefore, the size of the areas to be classified as SPAs. IBA 2000, by contrast, does not contain scientific information sufficient to enable a delimitation of areas important for bird conservation to be made with certainty, it includes areas which are too large and of limited ornithological interest and the list of areas should be updated in accordance with the most recent scientific analysis. Accordingly, the content of the list in question cannot be used in the present case to draw certain conclusions as to the populations and exact boundaries of the SPAs.
44 The Hellenic Republic and the Kingdom of Spain infer therefrom that IBA 2000 is not a sufficient or unique basis on which to establish that Ireland has failed to fulfil its obligations, as alleged by the Commission.
45 Since the merits of the first complaint depend in large measure on whether the discrepancy between IBA 2000 and the SPAs actually classified by Ireland establishes that that Member State has not fulfilled its obligation to classify sites as SPAs to a sufficient degree, it is appropriate to consider whether IBA 2000 carries scientific value comparable to that of IBA 89 and whether it may thus be used as a reference to appraise the alleged failure to fulfil obligations.
46 It must be borne in mind 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 (Case C 191/05 Commission v Portugal [2006] ECR I 6853, paragraph 9 and case-law cited). Furthermore, it is clear from the ninth recital in the preamble to that directive that the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. The Member States are therefore required to adopt the measures necessary for the conservation of those species (Case C 235/04 Commission v Spain [2007] ECR I-0000, paragraph 23).
47 For that purpose, the updating of scientific data is necessary to determine the situation of the most endangered species and the species constituting the common heritage of the Community in order to classify the most suitable areas as SPAs. It is therefore necessary to use the most up-to-date scientific data available at the end of the period laid down in the reasoned opinion (Case C-235/04 Commission v Spain, paragraph 24).
48 In that regard, it should be borne in mind that the national inventories, including IBA 2000 prepared by BirdLife International, revised the initial Europe-wide study carried out in IBA 89 by presenting more specific and up-to-date scientific data. IBA 2000 states that that inventory lists 48 new sites in Ireland in comparison with IBA 89.
49 As noted by the Advocate General in point 20 of her Opinion, the areas listed in both inventories result from the application of specific criteria to information on the presence of birds. The criteria of IBA 2000 are largely the same as those of IBA 89. It follows that the increase in the number and territory of the areas stems essentially from better knowledge of the presence of birds.
50 Ireland maintains that the Commission is wrong to argue that IBA 2000 is not exhaustive. It adds that IBA 2000 is merely a reference for establishing correctly a network of areas of importance for the conservation of birds and that other ornithological studies may serve as a basis for the classification of the most suitable areas for the conservation of certain bird species.
51 That lack of completeness, as pointed out by the Advocate General in point 25 of her Opinion, does not undermine the probative value of IBA 2000. The situation would be different if Ireland had adduced scientific evidence tending in particular to show that the obligations flowing from Article 4(1) and (2) of the Birds Directive could be satisfied by classifying as SPAs sites other than those appearing in that inventory and covering a smaller total area (see Commission v Italy, paragraph 18).
52 In view of the scientific nature of IBA 89 and of the absence of any scientific evidence adduced by a Member State tending in particular to show that the obligations flowing from Article 4(1) and (2) of the Birds Directive could be satisfied by classifying as SPAs sites other than those appearing in that inventory and covering a smaller total area, the Court has held that that inventory, although not legally binding, could be used by the Court as a basis of reference for assessing whether a Member State has classified a sufficient number and size of areas as SPAs for the purposes of the abovementioned provisions of that directive (Case C 235/04 Commission v Spain, paragraph 26 and case-law cited).
53 In the present case, it is common ground that Ireland has not put forward any other ornithological criteria which are objectively verifiable, as compared with those used in IBA 2000, to serve as a basis for a different classification; nor has it presented a complete national inventory contradicting IBA 2000, established according to scientific methods and designating all the most suitable areas with a view to classification as SPAs.
54 The Court accordingly finds that IBA 2000 provides an up-to-date inventory of the areas of importance for the conservation of birds in Ireland which, in the absence of scientific evidence to the contrary, provides a point of reference which makes it possible to assess whether that Member State has classified as SPAs sufficient areas of territory in terms of number and size to provide protection to all the species of birds listed in Annex I and also to migratory species not listed in that annex.
55 This finding cannot be affected by the Spanish Government's argument that the various non-governmental organisations involved in bird conservation chose to modify unilaterally the previous inventory concerning the various Member States, without any competent State environmental body having supervised that process or having guaranteed the accuracy and correctness of the data contained therein.
56 The Court finds in that regard, firstly, that IBA 2000 was published by BirdLife International, an association of national organisations for the protection of birds which had already been involved in drawing up IBA 89 under the designation of the International Council for Bird Preservation. The Eurogroup for the Conservation of Birds, which was also involved at that time, was an ad hoc group of experts of that council. Consequently, BirdLife International provides continuity in respect of the work on the area inventories, as noted by the Advocate General in point 22 of her Opinion.
57 Secondly, it is common ground that the IBA 2000 chapter on Ireland was drawn up in collaboration with Dúchas, the heritage service of the Department of Arts, Heritage, Gaeltacht and the Islands (now National Parks and Wildlife Service of the Department of the Environment, Heritage and Local Government) (‘National Parks and Wildlife'). That part of the inventory was drawn up with the help of high-level Irish ornithological experts and is based mostly on available data on numbers and distribution of birds and on studies carried out with the financial support of the competent authorities. The list of scientific references shows, moreover, that the experts relied largely on studies published and carried out with the participation of scientists from the competent conservation authorities.
58 At the hearing, Ireland maintained its position that the nature of a Member State's obligation in the light of Article 4(1) of the Birds Directive and the recitals in the preamble thereto must be assessed at European level and not in the light of the territory of the Member State concerned alone. It is thus possible that a specific area may be eligible but may not be the most suitable area for classification as an SPA.
59 Yet even if, as Ireland correctly points out, the Member States' obligation under Article 4(1) of that directive concerns only the classification of the most suitable areas for the conservation of birds and it is possible that areas which, in the light of species protection requirements, would in fact be suitable for such conservation never become classified as SPAs, it nevertheless follows from Article 4(1) of the Birds Directive, as interpreted by the Court, that, if species mentioned in Annex I occur on the territory of a Member State, it is obliged inter alia to define SPAs for them (see Commission v Netherlands, paragraph 56 and case-law cited).
60 As noted by the Advocate General in point 32 of her Opinion, in the Member States in which these species occur relatively frequently, the SPAs ensure above all that large sections of the overall population are conserved. However, SPAs are also necessary where these species are rather rare. In that case the SPAs help the geographical distribution of the species.
61 Indeed, if each Member State could escape the obligation to classify SPAs to ensure protection of the species listed in Annex I and present on its territory on the sole ground that there were numerous other sites in other Member States which were much more appropriate for the conservation of those same species, the objective of creating a coherent network of SPAs, as referred to in Article 4(3) of the Birds Directive, might not be achieved (see, by analogy, Commission v Netherlands, paragraph 58).
62 The Greek Government submits that the obligation on Ireland, within the framework of cooperation with the competent Commission departments, and the timetable which Ireland set for delimiting new SPAs and extending existing SPAs must be taken into account, as that Member State must verify the content of IBA 2000 for the suppose of being able to determine areas of importance for the conservation of birds and classification as SPAs.
63 The Court finds on this point that, although any classification presupposes that the competent authorities are convinced, based on the best scientific knowledge available, that the site in question is among the most suitable areas for the protection of birds (see, to that effect, Case C 60/05 WWF Italia and Others [2006] ECR I 5083, paragraph 27), that does not however mean that the obligation to classify does not, as a rule, arise so long as those authorities have not completed their evaluation and check of the new scientific knowledge.
64 On the contrary, as the Court has held previously, faithful transposition becomes particularly important in the case of the Birds Directive, where management of the common heritage is entrusted to the Member States in their respective territories (see Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9, and Case C 38/99 Commission v France [2000] ECR I 10941, paragraph 53).
65 In view of the fact that the obligation to classify the most suitable areas for species conservation as SPAs has been in place for Ireland since 6 April 1981, Ireland's request for an additional period in which to assess the best scientific source available cannot succeed, as that request is not compatible with the objectives pursued by the Birds Directive or with the responsibility which that directive imposes on the Member States to manage the common heritage on their territory.
66 Moreover, as has just been held in paragraph 47 of this judgment, it is necessary to use the most up-to-date scientific data available at the end of the period laid down in the reasoned opinion.
67 It follows from all the foregoing that, in the absence of scientific studies capable of rebutting the results of IBA 2000, that inventory is the most up-to-date and accurate reference for identifying the most suitable sites in number and in size for the conservation of the species listed in Annex I and for the regularly occurring migratory species not listed in that annex.
The first part of the first complaint
- Arguments of the parties
68 The Commission acknowledged, during the pre-litigation procedure, that Ireland had classified a relatively high number of sites as SPAs. It takes the view, however, that other areas also should have been thus classified. After noting that IBA 2000 listed a total of 140 areas of importance for the conservation of birds covering an area of 4 309 km², or approximately 6% of Ireland's total land area (approximately 60% of those areas are coastal areas, in line with the fact that Ireland has 7 100 km of coast; internal waters account for another 20%), the Commission maintains that 42 of those areas had not been classified as SPAs. It its view, even if all of those areas were to be classified as SPAs, Ireland's SPA network would still suffer from shortcomings with regard to a number of bird species referred to in Annex I and regularly occurring migratory species because they are not entirely covered by the classification made in IBA 2000.
69 It further observes that, in terms of territorial coverage, Ireland's SPA network is the second smallest of the group of 15 Member States prior to enlargement in 2004. The level of territorial coverage of Ireland's SPA network has in fact already been surpassed by several of the 10 new Member States.
70 Lastly, the Commission notes that, during the pre-litigation procedure, the Irish authorities proposed a timetable for the classification, re classification and extension of a certain number of sites. In reality that timetable has not been adhered to and Ireland has not made or notified any classification.
71 After stating that it is well aware that its obligation to classify appropriate areas for species conservation follows from the Birds Directive and not from IBA 2000, Ireland replies that the overall research work for extending, if necessary, Ireland's SPA network is currently being carried out and should be completed soon.
72 Ireland adds, however, that the kingfisher (Alcedo athis) is the least appropriate species for an attempt at conservation using SPA classification and that there is good reason for not classifying other SPAs for the corncrake (Crex crex). Ireland adds that it may lawfully deem the Cross Lough area not to be one of the most suitable territories for classification on the basis of information available to it.
- Findings of the Court

A - The sites identified in IBA 2000
73 The Court finds, as a preliminary point, that the Commission acknowledged, in its additional reasoned opinion, that there was en error in Table 1 in its reasoned opinion notified on 24 October 2001 concerning the Bull and Cow Rocks site, already classified as an SPA, and that, consequently, that site no longer forms part of the subject-matter of the present action.
74 According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, inter alia, Case C 282/02 Commission v Ireland [2005] ECR I 4653, paragraph 40).
75 In the present case, it is clear from the indications given as to the abovementioned grounds for failure to fulfil obligations that Ireland does not dispute the allegation that it had not classified 42 of the 140 sites identified in IBA 2000 as SPAs within the period laid down in the additional reasoned opinion notified on 11 July 2003.
76 In the light of what has been stated in paragraph 67 of this judgment, the mere fact that Ireland has embarked upon an extensive SPA classification and re-classification programme cannot justify the failure to classify the sites identified in IBA 2000 as SPAs.
77 By contrast, the interest in classifying the Cross Lough area, as well as the three sites suitable for conservation of the corncrake, namely Falcarragh to Min an Chladaigh, Malin Head and the Fanad Head Peninsula, is the subject of a detailed challenge by Ireland.
78 Accordingly, the Commission's action must be upheld in respect of 38 of the 42 sites identified in IBA 2000 and it is appropriate to examine the merits of the action in respect of the four sites the ornithological interest of which is specifically challenged by Ireland.
1. The Cross Lough area
a) Arguments of the parties
79 The Commission has referred to the Cross Lough area for two reasons. Firstly, Ireland has specifically challenged the need to classify that area as an SPA, even though it was, up to quite recently, an important breeding ground for the sandwich tern (Sterna sandvicensis). Secondly, the failure to classify the area in a timely manner was likely to have a negative impact on the protection of the species.
80 The Commission states that, according to the information available to it, the disappearance of the sandwich tern colony, which, according to IBA 89, had been present in the area since 1937, can be traced to predatory activity on the part of the American mink (Mustela vison) and that no measures were ever put in place to protect the colony. According to the Commission, with appropriate restoration measures, the sandwich tern might resettle this important long-standing breeding ground. Ireland should not be allowed to benefit from the fact that it failed to ensure classification and protection of the Cross Lough area in a timely manner.
81 Ireland states that the Commission has failed to provide scientific substantiation for its assertion that Ireland is required to classify as an SPA an area which is no longer of interest to the species in question and is no longer an important area for bird conservation but to which birds, after having bred and even though they have moved, might return. Although the Commission might be right in believing that, according to its information, the Cross Lough (or any other) area might be recolonised by the sandwich tern and enjoy the protection of classification as an SPA, it has not succeeded in establishing that that area would be one of the most suitable for the conservation of the species in question. Ireland adds that the Commission has not proven that the disappearance of the sandwich tern colony was caused by the predatory activity of the American mink in that area.
b) Findings of the Court
82 It is common ground that the Cross Lough area was identified in both IBA 89 and IBA 2000 as being one of the most suitable areas for conservation of the sandwich tern, a species referred to in Annex I, according to the ornithological criteria drawn up in 1984 and 1995 respectively. It must accordingly be held that the area has featured among the most suitable areas for conservation of that species since 6 April 1981. Consequently, pursuant to the case-law resulting from the judgment in Commission v Netherlands, paragraph 62, Ireland should have classified that area as an SPA.
83 As noted by the Advocate General in point 58 of her Opinion, that classification obligation does not necessarily cease to apply if the area is no longer most suitable.
84 According to settled case-law, areas which have not been classified as SPAs but should have been so classified continue to fall under the regime governed by the first sentence of Article 4(4) of the Birds Directive, since otherwise the protection objectives of that directive, as expressed in the ninth recital in the preamble thereto, could not be achieved (see Case C-355/90 Commission v Spain, paragraph 22, and Case C 374/98 Commission v France [2000] ECR I 10799, paragraphs 47 and 57).
85 It follows that Ireland ought, at the very least, to have adopted appropriate measures pursuant to the first sentence of Article 4(4) of the Birds Directive in order to avoid pollution or deterioration of the habitats in the Cross Lough area or any disturbances affecting the sandwich tern, in so far as those disturbances may have been significant with regard to the objectives of that article.
86 In the present case, having failed to take such measures for that area, Ireland has not provided proof that the area would no longer be suitable even if protection measures had been taken (see, to that effect, Case C 191/05 Commission v Portugal, paragraphs 13 and 14).
87 Moreover, according to the results of scientific studies and observations submitted by the Commission during the proceedings, which have not been disputed by Ireland, protection measures were possible. Relying on two articles written by an Irish naturalist, the Commission explained the predatory effect of the American mink on the nests of ground-breeding sandwich terns and, referring to recent observations carried out in an area of County Donegal, showed that management (trapping of minks) reduced the problems of predators and that most of the local population of sandwich terns always nest in the same area.
88 Relying on the aforementioned observations, not disputed by Ireland, which confirm the potential for recolonisation of areas by the sandwich tern, the Commission adds that there is a genuine chance that the sandwich tern may resettle in the area. It adds that the species must have a number of nesting sites within one area, not all of which are necessarily used in a given breeding season.
89 In those circumstances, the Court finds that the action is well-founded in respect of the Cross Lough area.
2. The three suitable areas for conservation of the corncrake
a) Arguments of the parties
90 The Commission states that the corncrake is the only bird species endangered at world level which is present in Ireland. Its population has declined sharply in recent years and it is now to be found only in limited pockets. Only a much reduced population now survives in Ireland, a fact which justifies a high level of site protection.
91 In its view, a Member State may not validly rely on the low number and vulnerability of a corncrake population to justify a failure to classify the most suitable areas for the conservation of that species. In its reply, the Commission adds that the successful conservation and management of core areas are essential for the corncrake to recover and expand from its current, precarious population.
92 Ireland, for its part, contends that any further designation of SPAs must be considered in the context of available species information (which is extensive) and the positive species conservation steps taken by the National Parks and Wildlife Service. The application of the term ‘globally endangered' to the corncrake is no longer valid in the light of available species information and it is therefore misleading to describe it as such. The use of the relevant land is changing substantially. The insistence by the Commission that other areas suitable for conversation of the corncrake must be classified as SPAs is misguided and is in any event not supported by adequate evidence.
93 After observing that there is indeed a small and unpredictable distribution of corncrakes outside current SPAs, Ireland goes on to state that it is the unpredictability, not the precariousness, of a site's occupation by corncrakes which presents the difficulty. In other words, sound ornithological criteria, and not speculation, should form the basis for classification.
b) Findings of the Court
94 Although new studies on the presence of the corncrake in Europe have changed its classification category, the fact remains that the ‘near threatened' category in which it is currently classified, as much as the ‘vulnerable' category in which it was classified previously, meets the conditions for identification of areas of importance for the conservation of birds according to the C.1 criterion used in IBA 2000. This also does not affect the application of the C.6 criterion used in that same inventory. The sites identified in IBA 2000 accordingly cannot be called into question.
95 This finding cannot be rebutted by Ireland's argument that the requirements of the Birds Directive are met with regard to the needs of the corncrake by designating as SPAs the lands used by a significant proportion of the corncrake population through the State funding of the Corncrake Grant Scheme, which involves funding for three fieldworkers, administration costs and payments to farmers, funding and facilitating research and the inclusion of a corncrake tier in the latest Rural Environment Protection Scheme.
96 As evidenced by the case-law referred to in paragraphs 37 to 39 of this judgment, such conservation measures cannot be considered to be sufficient.
97 Ireland's argument that the distribution of corncrakes outside current SPAs is small and unpredictable must also be rejected.
98 The Commission submitted, without being contradicted by Ireland on the point, ornithological publications indicating that, between 1999 and 2001, an average of 39% of the corncrake population present on Irish territory was outside SPAs and that, between 2002 and 2004, that figure was closer to 50%.
99 Ireland's argument that major changes have affected the distribution of the species over short periods (less than 10 years), and that it would be premature to recommend classification of other areas as SPAs as long as the situation has not stabilised, must also be rejected.
100 It is clear in this regard that there has been a sufficiently stable presence of the corncrake in the sites in question over brief periods. Ireland has not disputed that, according to the results of a study carried out by BirdWatch Ireland and submitted by the Commission, in the period from 1993 to 2001, the reduced presence of the corncrake in the area of Falcarragh to Min an Chladaigh accounted for 8% of its population in Ireland, in Malin Head 4% of the population in Ireland, and on the Fanad Head Peninsula 3% of the population in Ireland. According to the same source, the figures are similar for the period 2002 to 2004.
101 As to Ireland's argument that the goodwill and cooperation of landowners is conducive to the success of future conservation schemes and the application of protective instruments, the Court observes that, even if that were the case, that fact does not release a Member State from its obligations under Article 4 of the Birds Directive.
102 In those circumstances, the Court finds that the action is also well-founded in respect of the sites of Falcarragh to Min an Chladaigh, Malin Head and the Fanad Head Peninsula.
B - The birds to be protected in other sites
103 The Commission submits that for the red-throated diver (Gavia stellata), the hen harrier (Circus cyaneus), the merlin (Falco columbarius), the peregrine falcon (Falco peregrinus), the golden plover (Pluvialis apricaria), the corncrake, the kingfisher, the white-fronted goose (Greenland race) (Anser albifrons flavirostris) and the short-eared owl (Asio flammeus), protected species referred to in Annex I, and also for the lapwing (Vanellus vanellus), the redshank (Tringa totanus), the snipe (Gallinago gallinago), the curlew (Numenius arquata) and the dunlin (Calidris alpina), regularly occurring migratory species, the areas of importance for the conservation of birds identified in IBA 2000 clearly do not offer a sufficient set of sites in number and in size to satisfy the conservation needs of those species.
104 Ireland states that studies have been carried out on six of the nine abovementioned species included in Annex I as well as on the dunlin, a regularly occurring migratory species. The completion of that work henceforth allows for the identification of sites which may be classified as SPAs for the conservation of the red-throated diver, the hen harrier, the merlin, the golden plover and the dunlin. During the pre-litigation procedure, Ireland stated that the SPAs which will be proposed for the conservation of the hen harrier would also allow for conservation of the short-eared owl. Moreover, at the current time, the golden plover is already a ‘qualifying interest' in three classified SPAs and the merlin is a ‘qualifying interest' at four sites with a multi-species interest. The peregrine falcon is likely to be a qualifying species in most of the SPAs concerning the red-billed chough (Pyrrhocorax pyrrhocorax).
105 Although Ireland provides evidence of a number of partial initiatives, these had not been completed at the end of the period laid down in the additional reasoned opinion notified on 11 July 2003. Since the question whether there has been a failure to fulfil obligations must be examined solely on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion, the Court finds that, in the light of the information referred to in the preceding paragraph of this judgment, Ireland has failed to fulfil its obligations in respect of the designation of SPAs to ensure the conservation of the red-throated diver, the hen harrier, the merlin, the peregrine falcon, the golden plover and the short-eared owl, species referred to in Annex I, and the protection of the dunlin, a regularly occurring migratory species not listed in Annex I. The complaint is also well-founded on this point.
106 Furthermore, it does not appear that the Commission, which has the burden of proof in proceedings for failure to fulfil obligations (Case C 288/02 Commission v Greece [2004] ECR I-10071, paragraph 35 and case-law cited), has succeeded in demonstrating to the requisite legal standard that Ireland has failed to fulfil its obligations in respect of the designation of SPAs to ensure the conservation of the white-fronted goose (Greenland race), a species referred to in Annex I, and the protection of the lapwing, the redshank, the snipe and the curlew, regularly occurring migratory species not listed in Annex I. Consequently, the complaint is not well-founded on this point.
107 As regards the kingfisher and the corncrake, Ireland disputes the need to classify other sites as SPAs for their conservation.
1. Suitable sites for conservation of the kingfisher
108 The Commission takes the view that the Irish SPA network should include a representative set of river corridors that could be used by the kingfisher. Ireland, however, has taken no steps towards classifying the most suitable territories for the conservation of the kingfisher and does not even know the current population of the species.
109 Ireland considers that a species as widely dispersed as the kingfisher is the least appropriate of the dispersed species to attempt to conserve through SPA classification. This conclusion is based on available information including two ‘breeding atlases' compiled between 1988 and 1991. Although the current population of the kingfisher is not known, it is understood that BirdWatch Ireland intends to carry out a survey. In the event that the survey shows a more significant kingfisher population, the Irish authorities would reconsider the matter of the creation of SPAs for the purpose of kingfisher conservation in the future.
110 As has just been pointed out in paragraph 59 of this judgment, it is clear from Article 4(1) of the Birds Directive, as interpreted by the Court, that if species listed in Annex I occur on the territory of a Member State, it is obliged to define SPAs for them. It follows that Ireland ought to have identified the most suitable territories for conservation of the kingfisher and classified them as SPAs.
111 It follows that