Opinion of Mr Advocate General Van Gerven delivered on 5 December 1990

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.