Opinion of Mr Advocate General Van Gerven

Mr President,

Members of the Court,

1. Introduction

1. In this case the Commission seeks a declaration that by carrying out works detrimental to a habitat area designated as a special protection area, the Leybucht, contrary to Article 4(4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (hereinafter: the directive), the Federal Republic of Germany has failed to comply with its obligations under the Treaty.

2. The Court has already had to decide a number of cases concerning compliance with the obligations arising out of the abovementioned directive. These cases, however, have dealt essentially with the obligations in relation to the protection of birds themselves. In this case we are concerned for the first time with the provisions of the directive aimed at the protection of the habitat of certain bird species.

2. Legal background

2.1. The provisions of Directive 79/409/EEC

3. Article 2 of the directive provides that the Member States must take the requisite measures to maintain the population of the bird species concerned by the directive — that is to say, all species of naturally occurring birds in the wild state in the European territory of the Member States — at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements.

4. Articles 3 and 4 of the directive contain provisions governing the protection and maintenance of habitats. Article 3(1) provides that the Member States must take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all the species of birds referred to. It is expressly provided that the Member States must take into account the requirements referred to in Article 2.

5. Whereas Article 3 concerns the habitats of all bird species covered by the directive, Article 4 lays down a number of measures regarding the habitats of specific bird species. Article 4(1) concerns the habitats of the species mentioned in Annex I. The first subparagraph provides that the Member States must take special conservation measures concerning those habitats in order to ensure the survival and reproduction of the species concerned where they now occur [in the Dutch language text]. The second and third subparagraphs lay down a number of criteria in that respect.

6. Article 4(3) requires the Member States to send the Commission all relevant information to enable it to take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 form a coherent whole. That provision must be read in conjunction with the Council Resolution of 2 April 1979. In that resolution the Council asks the Member States to notify the Commission within 24 months of (a) the special protection areas which they have classified under Article 4; (b) the areas which they have or intend to have designated as wetlands of international importance; (c) the areas other than wetlands already classified according to national legislation, similar to those described in Article 4 and subject to comparable protection measures. The Council also takes note of the Commission's intention to submit appropriate proposals regarding the criteria for the determination, selection, organization and methods of administration of the special protection areas. At the hearing the Commission confirmed that the relevant proposals are still under consideration.

7. The Commission's complaint in this case concerns failure to implement Article 4(4). The first sentence requires the Member States to

2.2 International conventions

(a) The Paris Convention

8. A first convention expressing concern for the habitats of wild bird species is the International Convention for the Protection of Birds, signed in Paris on 18 October 1950. Article 11 of the convention provides as follows:

(b) The Ramsar Convention

9. The provisions of the directive on habitat are very similar to the rules laid down by the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, signed on 2 February 1971 in Ramsar (Iran).

(c) The Berne Convention

10. The authors of the directive undoubtedly took account of the work in the Council of Europe which led to the signature of the Berne Convention on 19 September 1979. Like the directive, this convention seeks to ensure the conservation of a number of species of wild animals by means of provisions for the protection of habitats on the one hand and the protection of species on the other.

(d) The Bonn Convention

11. The authors of the directive were certainly also aware of the work which led to the signature of the Bonn Convention. That convention contains useful definitions which clarify a number of terms used in Directive 79/409 (see footnotes 7 and 8). For the rest, the influence of this convention on the directive is less evident, and therefore I shall not discuss it in detail.

2.3. Related Community provisions

12. Directive 79/409 served as the model for a proposal for a directive on the protection of natural habitats in general (of both fauna and flora) which the Commission submitted to the Council in 1988. According to that proposal, the Member States are to designate areas which correspond to certain criteria as special protection areas. They are to do so in accordance with a timetable to be laid down in the directive. Article 7(1) of the proposal governs the measures which the Member States are to take to avoid pollution or deterioration of habitats and other disturbances affecting fauna and flora, in terms identical to those of Article 4(4) of Directive 79/409. In contrast to that directive, the proposal specifies the measures which the Member States are expected in particular to take:

13. Finally, mention should also be made of Council Directive 85/337/EEC of 17 June 1985 on the assessment of the effects of certain public and private projects on the environment. That directive is based on the view that the best environmental policy consists in preventing the creation of pollution or nuisances at source rather than subsequently trying to counteract their effects (first recital in the preamble). In that perspective, the directive provides that certain large projects must be made subject to an environmental impact assessment and that the results of that assessment must be made available so that the public can express their views. The abovementioned proposal for a directive on habitats seeks an amendment of Directive 85/337 in order to ensure that all projects which may have an influence on the situation in the special protection areas are made subject tc an environmental impact assessment.

3. The geographical and ecological characteristics of the Leybucht

14. The Leybucht is an area of about 2800 hectares in the Land of Lower Saxony. The Report for the Hearing gives an exact description of its situation and its geographical and ecological characteristics. It is apparent therefrom that the area is of particular importance as habitat for certain bird species mentioned in Annex I to the directive, and that is not disputed by the parties.

4. The legal status of the Leybucht

4.1. National

15. The Leybucht is part of the Niedersächsisches Wattenmeer National Park, which is designated in a regulation of 13 December 1985 of the Land of Lower Saxony (hereinafter referred to as the protection regulation) as a protected area. The Leybucht represents about 1% of the protected area, which covers a total of about 240000 hectares. Article 3 of the protection regulation defines its boundaries by reference to attached topographic maps. As a general criterion it is assumed that the area is bounded on the landward side by the seaward side of the dyke. On one of the attached maps which indicates the precise boundaries of the area there is an asterisk next to the Leybucht drawing attention to the following note:

4.2. International

16. Under the Ramsar Convention Germany has designated the Ostfriesisches Wattenmeer, in which the Leybucht is situated, as a wetland of international importance.

4.3. Community

17. At the time of the Commission's letter of formal notice (7 August 1987) the Federal Republic of Germany had not yet informed the Commission that the Leybucht formed part of a protected area. In a letter of 26 September 1983 the German Government had informed the Commission that 48 areas in the Land of Lower Saxony were under consideration as special protection areas. One of them was the Ostfriesisches Wattenmeer mit Dollart area, to which both the Leybucht and the Rysumer Nacken belong geographically. With regard to the Leybucht the Commission considered, however, that the German Government had not, by that letter, designated that area as a special protection area in accordance with the directive. The first complaint stated in the reasoned opinion (4 July 1988) is accordingly the failure to designate that area as a special protection area. In a letter of 6 September 1988 the German Government informed the Commission that the Leybucht came under the protective scheme established by the regulation of 13 December 1985 of the Land of Lower Saxony. That letter states that the boundaries of the protection area are defined in detail by the maps attached to the regulation. In the Commission's application lodged at the Court Registry on 28 February 1989 the failure to designate the Leybucht as a special protection area is no longer raised as a ground of complaint against the Federal Republic of Germany.

5. The works in the Leybucht

18. The dyke project, as approved by the Bezirksregierung Weser-Ems in its planning decision of 25 September 1985, is described in some detail in the Report for the Hearing. I think it is useful here to draw attention in particular to two aspects of the project, that is to say the loss of protected area that the works entail and the compensatory measures provided for.

19. The completion of the project entails a loss of protected area essentially in three places. The greatest loss (about 450 hectares) is in the Greetsieler Nacken, where the nose of the dyke is to be built. This is mainly an area of wet sands which are an important feeding area for birds but cannot normally be regarded as a nesting area. However, the building of the nose of the dyke will also result in the loss of part of the Hauener Hooge which has an important role as a nesting, rest and refuge area for birds. A second cause of loss of protected area is the decision to build the new dyke for the protection of the Leybucht polder parallel to the existing dyke but 50 metres seawards. That will result in the loss of valuable salt marshes over a length of more than two kilometres. Finally, there is a further loss of protected area as a result of the decision to round off the line of the dyke over a distance of about two kilometres in the area of Leybuchtsiel. Here again there is a loss of valuable salt marshes over an area estimated by the German Government during the interlocutory proceedings as about 45 hectares.

20. However, the project is not entirely detrimental from the ecological point of view. The German Government has emphasized that the completion of the project will permit the closure of the two channels crossing the Leybucht, which until now were regularly dredged. Disruptive dredging work will thus no longer be necessary in the future, and the dredged material will no longer need to be dumped elsewhere in the area. The German Government does not exclude the possibility that in those circumstances seals may once again establish themselves in the Leybucht. In the planning decision of 25 September 1985 it is further expressly provided that the areas situated in the nose of the dyke will be protected. The dyke which previously protected the area of the Hauener Hooge will be opened, so that an area of about 100 hectares will once again become tidal, permitting the formation of valuable salt marshes. Finally, the planning decision states that the pits on the landward side from which clay was taken to strengthen the dyke will not be filled in, but will be declared a protection area.

6. The Commission's complaints

21. The Commission's complaints are based on the interpretation it gives to Article 4(4) of the directive. It takes the view that that provision expressly requires the Member States to take positive protective measures but also implicitly prohibits them from making the existing situation worse. That interpretation, it says, is supported by the second sentence of Article 4(4), which relates to pollution and deterioration of habitats outside protection areas. Outside protection areas only some effort on the part of Member States is required, whereas strict measures are necessary within those areas. The Commission does accept the possibility of operations in protective areas where these are for the benefit of habitats. Otherwise, the Commission recognizes only one exception: intervention where human life is in danger, and on condition that the measures taken are such as to entail the least possible deterioration of the protected area.

7. The defence of the German Government

22. The defence of the German Government, which is supported by the United Kingdom, can be summarized as follows:

8. Assessment

8.1. Preliminary remarks

23. I should like to state right away that in my view the defence submission concerning the situation of the dyke — whether just inside or just outside the area designated as a protection area — is not relevant to the assessment of the Commission's complaints. Even if the new line of the dyke is just outside the protected area, it is nevertheless clear that the works carried out on the edge of the area had, and may still have, a disruptive effect within the area. Furthermore, that submission does not refute the Commission's complaint that as a result of the new line taken by the dyke a considerable part of an area designated as a protection area no longer forms part of it.

24. In my view there are two main problems of interpretation. First of all, may a Member State reduce the extent of an area designated as a protection area, and if so, under what conditions? Secondly, may a Member State carry out works which damage an area designated as a protection area and disturb the birds in that area, and if so, under what conditions? Initially I shall examine those two questions separately, since I think the legal basis for each is different. However, I shall close that examination with the conclusion that the criteria of assessment are the same for both questions. On the basis of those criteria, finally, I shall examine whether the completion of the dyke project is contrary to the provisions of the directive.

8.2. Criteria of assessment in relation to the reduction of the designated area

25. The Commission takes the view that the construction of the dyke project is contrary to Article 4(4) of the directive since it will result in a significant reduction in the extent of an area designated as a protection area. It proceeds on the basis that the term deteriorationcovers the hypothesis of a reduction in area. That point of view seems to me to be wrong. In my view Article 4(4) of the directive is intended to ensure the quality of the living conditions of the birds in protection areas. It is the fourth subparagraph of Article 4(1) and, as regards migratory birds, Article 4(2) of the directive that determine what areas must be designated as protection areas, their number and their size. It is thus in the light of the latter provisions that I shall further examine the complaint concerning the curtailment of the protection area.

26. The fourth subparagraph of Article 4(1) of the directive requires the Member States to designate certain habitat areas of bird species mentioned in Annex I as protection areas. My understanding of the provision is that the Member States need not so designate all areas where there are suitable living conditions for the species concerned. They must so designate the most suitable areas of their territory, in other words the areas of their territory in which the most suitable living conditions for those bird species are present. In addition, the areas designated must be sufficient in number and in size to ensure the conservation of the species concerned.

27. Article 4(2) of the directive makes separate provision for migratory birds which are not listed in Annex I but regularly occur on the territory of the Member State in question. That provision is poorly drafted and thus difficult to understand. The question arises inter alia whether the similar measures referred to in that provision include the obligation to designate special protection areas in accordance with the fourth subparagraph of Article 4(1). If paragraph 2 is read in conjunction with paragraphs 3 and 4 (which speak of the protection areas referred to in paragraph 2) it must be concluded that the obligation laid down in the fourth subparagraph of Article 4(1) applies mutatis mutandis to the habitat areas of migratory birds referred to in paragraph 2.

28. The Commission acknowledges that the directive leaves the Member States some discretion in the choice of the areas to be designated. It observes in particular that in designating those areas the Member States may take into account inter alia the economic interests referred to in Article 2 of the directive. That discretion is also reflected in the Resolution of 2 April 1979, in which the Council takes note of the Commission's intention to submit proposals regarding inter alia the determination and selection of the special protection areas. The fact that the Commission intends to make proposals but has not yet done so (see above, point 6) shows, I think, that in the meantime it is for the Member States to decide what protection areas to designate, and a fortiori what their precise boundaries are.

29. This case, however, is concerned not with the discretion of the Member States in the designation of the boundaries of a protection area but with their discretion to change — more specifically, reduce — the extent of an area previously designated as a protection area. To what extent are the boundaries of an area designated by the Member State itself as a protection area sacrosanct? That seems to me to be one of the fundamental questions in this case that the parties have not fully examined.

30. The answer to the question raised above must therefore be that the reduction in extent of an area designated as a protected area is permitted only on mandatory grounds arising from a general interest which is more important than the environmental interest at which the directive is aimed or the economic and recreational interests referred to in Article 2 of the directive. Support for that point of view is to be found in the Ramsar Convention, on which the provisions of the directive on habitat are in part based. That convention gives the parties the right to restrict or even delete the boundaries of designated areas, but only in furtherance of urgent national interests. The convention adds that the parties must consider their international responsibilities. They must also as far as possible compensate for any loss of part of the designated areas.

31. In my view a general and abstract description of the interests which may, in accordance with the proposed interpretation, justify a boundary correction is neither desirable not necessary. There can be no doubt that the reasons put forward by the German Government in order to justify the dyke works in the Leybucht — in particular the reinforcement of the dyke in order to protect the people living behind it — must be regarded as a compelling reason arising from a general interest which is more important than the interest in the conservation of birds. Nor, indeed, does the Commission deny that work which is necessary exclusively on grounds of dyke safety may be carried out in a protection area. Its claim is that the details of the dyke project in question, in particular the line taken by the new dyke, are not necessary on grounds of dyke safety. In its view that result could also have been achieved with less loss of protected area.

8.3. The criteria of assessment as regards deterioration and disturbances in a protection area

32. The Commission takes the view that the works carried out in accordance with the planning decision are contrary to Article 4(4) of the directive on the ground that they cause deterioration in living conditions in the Leybucht and disturb the birds present there. The Commission correctly bases that claim on Article 4(4), which indicates the protection measures which the Member States must take as regards the areas designated as protection areas in accordance with Article 4(1) or (2).

33. Here again I should like to begin by rejecting an argument to which the United Kingdom in particular attached considerable importance. It concerns the interpretation which it ascribes to the provision in the first sentence of Article 4(4), according to which the Member States must take steps against pollution, deterioration and disturbances in so far as these would be significant having regard to the objectives of this article. According to the United Kingdom the word significant in that provision must be assessed in the light of the objective set out in Article 4(1) of the directive, that is to say in relation to the survival and reproduction of the species concerned. In so far as the planned works do not endanger the survival and reproduction of the bird species present in the Leybucht, they are not, according to the United Kingdom, contrary to the directive.

34. Nor does the very broad interpretation given by the Commission to Article 4(4) of the directive seem to me to be correct. I think its submission that that provision prohibits as a matter of principle every act resulting in pollution, deterioration, or disturbance goes too far. Article 4(4) goes on from Article 4(1) and (2), which require Member States to designate special protection areas. In speaking of appropriate steps to avoid pollution or deterioration [or disturbances] ... in respect of the protection areas, Article 4(4) is, I think, referring in particular to an obligation on the part of the Member States to establish general rules for the protection in those areas of the quality of the living conditions of birds, so that they can live and reproduce in the most suitable circumstances. The proposal for a habitat directive reflects the same approach. In Article 7(2) of that proposal consideration of the appropriate protection status to be given to habitat areas is indicated as an initial measure in preventing the pollution or deterioration of habitat. The establishment of such general rules for the protection of the most suitable conditions of living and reproduction need not necessarily prohibit all pollution, deterioration or disturbance in any circumstances.

35. It is thus for the Member States to lay down a system of protection for the areas designated by them. Unlike the provisions of the directive concerning the introduction of a system of protection for birds themselves (Article 5 et seq.), Article 4(4) contains no indication of concrete measures to be taken by the Member States. It appears from the Council Resolution of 2 April 1979 that the Commission intended to submit appropriate proposals, but it has not yet done so (see above, point 6). In those circumstances it is for the Member States, taking full account of the environmental interest with which the directive is concerned, to determine what specific measures must be taken to ensure the most suitable living conditions in the designated areas and to prevent pollution, deterioration and disturbances which would significantly affect those circumstances. It cannot, I think, be inferred from the directive that they must necessarily prohibit all deleterious action in the whole area.

36. In this case the Land of Lower Saxony adopted a regulation for the protection of the Nationalpark Niedersächsisches Wattenmeer, of which the Leybucht is pan. The Commission has not claimed that the provisions of that regulation go beyond the discretion retained by the Member States, in spite of the fact that the regulation permits activities resulting in disturbance or deterioration in some areas. The planning decision approved by the Bezirksregierung Weser-Ems on 25 September 1985 also modified the established protection system by permitting works on the edge of the protected area. A problem thus arises here similar to that discussed above (points 29 to 31) in connection with the reduction in extent of a protected area: does the directive permit the modification, harmful to birds, of a system of protection drawn up by the Member State within its discretion, and if so, under what conditions?

8.4 Can the works be justified?

37. The German Government has submitted that the reinforcement of the dyke was necessary for the protection of the people living behind the dyke — that is to say, as indicated above (point 31), quite clearly a compelling reason arising from a higher general interest than that with which the directive is concerned — and that that was the only reason for the initiation of the project. The Commission does not dispute that. It complains, however, that in determining the new line of the dyke the Federal Government took into account not solely considerations of safety but also the interests of fishing and agriculture. More specifically, the planning decision is, it says, contrary to the directive because, owing to the fact that those other interests were taken into account, the loss in area is greater than is strictly necessary on grounds of safety.

38. Before dealing with that submission I should like briefly to discuss the evidence put forward by the Commission in support of it. Neither in its application nor in its reply did the Commission put forward an alternative plan. Only at the hearing did it argue that the desired level of safety for the population could be achieved by reinforcement of the existing dyke instead of the construction of a new dyke further towards the sea.

39. The Commission's submission is based on the view that Article 4 of the directive does not permit Member States to take economic interests into account in drawing up projects which may affect an area designated as a protection area.

40. It should be emphasized in this connection that the German Government has submitted a detailed planning decision from which it appears that the decision on the dyke project was proceeded by a lengthy public procedure. In an initial stage a large number of organizations and associations, including a number of nature protection associations, were consulted concerning the works to be carried out. The project was then made public and the plans were made available for public consultation. More than 300 objections to the project were submitted, a large number of them concerning the effects of the project on the fauna to be protected in the Leybucht. After balancing of the interests involved and investigation of alternatives those objections were answered one by one in the planning decision. The German Government thus in fact submitted the project to an environmental impact assessment.

41. Those interests must be balanced against the encroachment on a valuable ecological area over some 450 hectares in Greetsieler Nacken, where the nose of the dyke is to be built (the area within the nose of the dyke remains protected; in addition, it will be possible once again to transform an area of some 100 hectares in the Hauener Hooge into rare salt marshes), on valuable salt marshes as a result of the movement of the dyke 50 metres outwards opposite the Leybucht polder and on valuable salt marshes over an area of about 45 hectares as a result of the rounding of the corner of the dyke (a question which, according to a statement of the German Government at the hearing, is still under examination). The ecological characteristics of about a quarter of the Leybucht are thus altered by the implementation of the planning decision. That alteration does not mean, however, that that quarter of the area is completely lost as habitat for wild birds, as is confirmed by the figures submitted by the German Government, which track the population of a number of bird species present in the Leybucht since the beginning of the works. No decline in the bird population present in the Leybucht can be perceived from those figures. In addition, the implementation of the planning decision is also associated with compensating measures (see above, point 20), in particular the discontinuation of dredging work in the two channels which cross the Leybucht.

42. Although it is not for the Commission, or indeed the Court, in deciding whether an application under Article 169 of the EEC Treaty is well founded, to put themselves in the place of the German authorities, they are required to examine whether those authorities, in balancing environmental and other interests, took adequate account of the environmental interest with which the directive is concerned and whether those authorities thus remained within the discretion which they retain under the directive.

9. The order for costs in relation to the claim concerning the works in Rysumer Nacken

43. In the introduction I have already mentioned that the Commission has discontinued its claim as regards the works in the Rysumer Nacken. It has nevertheless asked for costs against the Federal Republic of Germany as regards this part of its application. The German Government, conversely, has asked that the Commission be ordered to pay the costs.

44. The submission that those arguments are new seems to me to be only partly true. In its defence the German Government expressly stated that the southern part of the Rysumer Nacken was not designated as a protection area. However, only in its rejoinder did the German Government object that the northern part was not a special protection area (in the defence it had stated the opposite) and that in addition landfill operations were no longer being carried out there.

Conclusion

45. To sum up, I propose that the Court dismiss the application and order the Commission to pay the costs, including those of the intervener.

1 Original language: Dutch.

2 OJ 1979 L 103, p. 1.

3 Case C-334/89 Commission v Haly, now pending before the Court, also concerns protection of the habitat of certain bird species. In that case, however, the questions of interpretation are not so sharply defined as in this.

4 See the first report of the Commission on the state of environmental protection in the Community, 1977, p 199.

5 See the third recital in the preamble to Directive 79/409.

6 That provision corresponds almost word for word to Article 2 of the Convention on the conservation of European wildlife and natural habitats signed at Berne on 19 September 1979, that is to say some five months after the adoption of Directive 79/409, and was subsequently approved on behalf of the EEC by a decision of the Council of 3 December 1981 (OJ 1982 L 38, p. 1).

7 See, for the first occasion, the judgment in Case 247/85 Commission v Belgium [1987] ECR 3029, at paragraph 8).

8 The directive does not define the term habitat. In the Convention on the conservation of migratory species of wild animals, signed in Bonn on 23 June 1979, that is to say some three months after the adoption of Directive 79/409, and subsequently approved on behalf of the EEC by a Council Decision of 24 June 1982 (OJ 1982 L 210, p. 10), the term habitat is defined in Article I(l)(g) as: any area in the range of a migratory species which contains suitable living conditions for that species.

9 It appears from the other language versions of the directive that the phrase where they now occur must be understood as meaning in their area of distribution The directive does not define this last term It is. however, defined in the Bonn Convention, cited m the previous footnote, at Article l(l)(f) all the areas of land or water that a migratorv species inhabits, stavs in temporarily, crosses or overflies at any time on us normal migration route [Translator's note the term so defined in the English version of the Bonn Convention is range ]

10 In the French version this last condition, that is to say that the Member States must take into account the protection requirements of the bird species, is omitted

11 OJ 1979 C 103, p. 6

12 United Nations Treaty Series Volume 638, p. 185.

13 United Nations Treaty Series Volume 996, p. 245.

14 In 1974 the Commission recommended that the Member States adhere to the Ramsar and Paris Conventions, in so far as they had not yet done so. See Commission Recommendation 75/66/EEC of 20 December 1974 to Member States concerning the protection of birds and their habitats (OJ 1975 L 21, p. 24).

15 Sec the Council Resolution of 17 May 1977 on the continuation and implementation of a European Community policy and action programme on the environment (OJ 1977 C 139, p. 1), to which reference is made in the first recital in the preamble to Directive 79/409 and which speaks (in paragraph 159) of proposals for the protection and management of certain wetlands taking due account of the work carried out ... wuhm international organizations such as the Council of Europe

16 Proposal for a Council directive on the protection of natural and semi-natural habitats and of wild fauna and flora, submitted by the Commission to the Council on 16 August 1988 (OJ 1988 C 247, p. 3).

17 OJ 1985 L 175, p. 40.

18 Niedersachsisches Gesetz- tinti Verordnungiblatt No 48 of 21 December 1985, p. 533

19 Previously the Leybucht had come under a protection scheme established by a regulation of 9 June 1981 of the Bezirksregierung Weser-Ems (Amtsbl. Reg.-Bez. Weser-Ems No 25 of 26 June 1981, p 543)

20 Whether an administrative decision such as this planning decision can amend the protection regulation and whether the planning decision was already in force when the dyke works were commenced are questions of national law into which the Court need not inquire.

21 The Ramsar Convention came into force for the Federal Republic of Germany on 25 June 1976 (see the notice of 16 July 1976, BGBL. II, p. 1265). When it deposited its instrument of ratification the Federal Republic of Germany made a declaration to the effect that it assumes that the provisions of the convention do not affect measures for the protection of the population from flooding.

22 Oddly enough the Commission did not take the same view as regards the Rysumer Nacken (see below, point 44).

23 The two other terms used in Article 4(4) of the directive, pollution and disturbance, cannot in any event cover that hypothesis

24 In the proposal for a habitat directive the term degradation is defined as follows (Article 3(c)). the reduction of [the] most characteristic elements [of the habitat] without any change of category

25 Compare the proposal for a habitat directive, which seeks to ensure that within a period of two years the Member States classify the ten most important habitat areas in the Community for the conservation of threatened species (the 100 most important within a period of eight years).

26 That discretion exists not only in relation to the habitat of birds referred to Article 4(1) but also in relation to the wetlands of international importance for migratory birds referred to in Article 4(2). Article 6 of the proposal for a habitat directive refleccs the same approach. In that provision the Commission assumes that areas designated by the Member States in the context of the Ramsar Convention need not necessarily be designated as special protection areas under Directive 79/409.

27 See the repon of lhe Commission mentioned in footnote 3, above, at p. 199.

28 In the Resolution of 17 May 1977, already referred to in footnote 14, the Council takes note (paragraph 6) of the determination of the Member States to ensure that the present quality of environmental areas will not deteriorate, particularly in view of the often irreversible or practically irreversible nature of some pollution.

29 See the Commission's Recommendation that the Member States accede to the Ramsar Convention, referred to in footnote 13, which dates from before Directive 79/409, and the Resolution of the Council of 17 May 1977, referred to in footnote 14, which speaks of possible future proposals, building on the convention, for the protection of wetlands in the Community, taking into account the work carried out in international organizations (paragraphs 154 to 159).

30 See the abovementioned Resolution of 17 May 1977, in which the Council describes the aim of Community environmental policy as follows: to improve the setting and quality of life and the surroundings and living conditions of the peoples of the Community (paragraph 11).

31 See inter alia the judgment in Case 54/87 Commission v Italy [1989] ECR 385, at paragraph 20.