Report for the Hearing in Case C-57/89

I — Facts

1. The depositing of dredged material in the Rysumer Nacken

The Rysumer Nacken is situated on the east bank of the mouth of the river Ems and comprises the area between the Campen lighthouse to the north and the Knock pumping station to the south. It forms part of the East Frisian Wattenmeer. The entire region is used by numerous species of birds as a staging post and as a wintering, feeding and breeding area, albeit to varying degrees of intensity.

For some time, considerable quantities of material from dredging operations in the channel of the river Ems have been deposited in the area in question.

2. The costal defence project in the Ley bucht

(a) The geography of the region

The Leyhucht is a bay in the East Frisian Wattenmeer approximately five kilometres in diameter. In common with almost the entire North Sea coast of Lower Saxony, the Leybucht has been surrounded by dykes for centuries because of the danger of flooding caused by storm tides. The Leybucht covers an area of approximately 2800 hectares consisting of 30 hectares of sea water, 1800 hectares of mudflats, 690 hectares of salt meadow and 280 hectares of summer polder.

In the southern corner of the bay is Greetsiel harbour, the principal crab-fishing port on the German North Sea coast. Vessels entering and leaving the harbour pass along the outer channel of Greetsiel. At the northern end of the bay is Leybuchtsiel harbour, used principally by coastguard vessels and pleasure craft.

The Leybucht is the last virtually unspoilt large salt-water bay on the Lower Saxony coast; it has long been a nesting and feeding area and a staging post for various species of waders and aquatic birds, non-migratory as well as migratory. In particular, it is an important breeding area for the avocet.

(b) Legal status of the region

(aa) At national level

The Leybucht was made subject to a special protection scheme by a regulation of the Land of Lower Saxony of 13 December 1985, which entered into force on 1 January 1986 and created the Niedersächsisches Wattenmeer National Park. Paragraph 2 of the regulation provides that in the national park the special character of the nature and the landscape of this region of the Lower Saxony coast is to be preserved and protected, and the natural waterways of the habitats are to be preserved, together with their rich variety of fauna and flora.

Under Paragraph 3 of the regulation, the boundaries of the national park are to be determined by means of the maps appended to the regulation. An asterisk on the map entitled Nationalpark Niedersächsisches Wattenmeer draws attention to the following note: Procedure for official approval of proposed works pending. When the procedure has been completed, the decision approving the proposed works will enter into force definitively.

(bb) At Community level

In a communication to the Commission dated 6 September 1988, the Government of the Federal Republic of Germany gave notice that it had classified the Leybucht as a special protection area for the purposes of Article 4(1) of Directive 79/409/EEC. That communication states as follows:

(cc) At international level

The Leybucht is a wetland of international importance, in particular as a habitat for wild fowl, within the meaning of the Convention of Ramsar (Iran) of 2 February 1971. Article 1 of the Convention defines wetlands as areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water which is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres. The Federal Republic of Germany, which ratified the Convention with effect from 25 June 1976, designated the Wattenmeer as a wetland of international importance pursuant to Article 2 of the Convention.

(c) Manner of implementation of the project

One of the urgent tasks provided for in the 1973 general plan for the protection of the Lower Saxony coast was to increase the height and strength of the existing Leybucht dyke so that it could provide protection for the hinterland against even the most violent storms. The plan was implemented by decision approving the proposed works of 25 December 1985 of the Bezirksregierung (district government) of Weser-Ems. Work on the project commenced in early 1986. The final section of the works is due to start in 1991.

With regard to the immediate implementation of the project, the statement of reasons of the decision approving the proposed works emphasizes that there has been an acute need for improved flood defences in the area in question for a long time. Following the extensive reinforcement work carried out over the last two decades, the dykes in the Leybucht, and particularly the Greetsiel dyke, constitute one of the last remaining weak points in the main dyke. The urgency of the dyke reinforcement work is borne out by the increase in the number of high storm tides since 1976.

Under the dyke project, the two navigation channels, namely the outer Norden channel and the Greetsiel channel and, in addition, Leybuchtsiel harbour are in future to be closed. The project also provides for the construction, in the south-western part of the Leybucht, of a reservoir protected by the dyke with locks opening to the sea and a navigation channel providing access to Greetsiel harbour through those locks; in the south-eastern part of the Leybucht the existing dyke is to be strengthened and widened along its present line between Greetsiel and Leybuchtsiel and a drainage canal is to be built behind the new dyke.

The drainage works are designed to keep the Leybucht free of dredging and depositing work in the future and, at the same time, to ensure access to Greetsiel harbour and natural drainage of the land. The construction of the reservoir and a barrage in the south-western part of the bay is necessary in order that the new access channel to Greetsiel harbour can be kept open through the natural removal of silt.

To the north, beyond the new reservoir protected by the dyke, which will face Greetsiel harbour, the strengthened dyke will largely follow the line of the old dyke. Increasing the height and strength of that part of the dyke will result in the displacement of the base of the dyke approximately 50 metres towards the sea. That relocation of the dyke seawards will give rise to the disappearance of approximately 100 hectares of salt meadows. Just outside Leybuchtsiel, the new dyke will be rounded off over a distance of two kilometres; this will mean that it will no longer form virtually a right angle and it will be shorter. The last, approximately 2000 metre, section will curve away from the present line of the dyke.

According to the statement of reasons contained in the decision approving the planned works the strengthening of the dyke on its seaward side will reduce the size of a nesting site favoured by wading birds because of the characteristics of the ground there and hence will result in fewer broods. However, the area of land which will be formed behind the dyke at Neuwesteel will afford the possibility of a stabilization in the population of such birds. The relocation of the dvke mav also affect migratory birds. However, the removal of disturbances which should result from the protection of the sector in question will allow a reduction in the size of the buffer zone between the dyke and the rest areas used by the migratory species.

As far as the Greetsieler Nacken is concerned there will be an overall loss of about 450 hectares of mudflats and foreshore, which is predominantly subject to artificial influences and therefore less varied and less rich from the point of view of plant life than the areas of cruciferous vegetation which have grown up naturally. The disappearance of the mudflats will mean a reduction in feeding possibilities for waders.

The planned dyke will also mean a certain reduction in the zone of sedimentation which is preferred by certain species, in particular the avocet, because of the proximity of nesting and feeding sites, with the result that the avocet population will decline in the sector in question. A large area of grassland of approximately 150 hectares will form within the Leybucht and along the dyke in the form of the strip of meadow land running along its length. However, that area will probably not be able to provide sufficient compensation for the avocets in that sector.

According to the statement of reasons contained in the decision approving the proposed works, the situation is different as regards meadow birds, for example lapwings and black-tailed godwits. Similarly, bird species which use the mudflats as their feeding area, such as the oyster-catcher and the redshank, will probably become established in that sector after they have become accustomed to the high dyke.

Because the Hauener Hooge will be smaller in area, it will not be able to serve as a nesting site, staging post or refuge in the event of flood water to the same extent as it formerly did. However, since there will be no disturbances at this site, in future the population will be larger and consist in particular of birds which otherwise would prefer the area affected by salt water. The complete desalinization will result in a reduction in the number of species and in a partial change in the plant life. As a result, the area in question will be transformed permanently into meadow.

With regard to the strip between the Störtebeker dyke and the trunk road which is behind the dyke, it now has a higher brood density than the areas of salt meadows beyond the dyke: it is heavily used because it affords a combination of a nesting site which is secure from flooding and easy access to the foreshore and mudflats. The future narrower and transformed strip will permanently have a smaller population as far as all species are concerned. In the case of the lapwing and black-tailed godwit the loss could amount to 25% of the present populations, unless the species in question become established in new areas in the Leyhörn or in the Neuwesteel area.

II — The pre-litigation stage of the procedure

1. By letter of 11 May 1987, the Commission invited the Government of the Federal Republic of Germany to submit its observations regarding the depositing of dredged material in the Rysumer Nacken. According to the Commission's letter, the operations in question constituted not only a disturbance in themselves, particularly because of the noise, but also involved a radical transformation of part of the Wattenmeer which had a direct effect on the living conditions of protected species of birds.

2. Following receipt of a complaint, the Commission, by letter of 7 August 1987 giving formal notice, informed the German Government of its objections to the Leybucht dyke project. The Commission did not receive a reply to that letter of formal notice, either, and on 4 July 1988 it issued a reasoned opinion in which it claimed that the German Government had not fulfilled its obligations under Article 4(4) of the directive in so far as it had implemented the construction project in question in a special protection area without adopting the appropriate measures to avoid damaging the habitat of protected birds in that area.

3. The letter states as follows:

III — Procedure before the Court

1. By application lodged at the Court Registry on 28 February 1989, the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that the Federal Republic of Germany has failed to fulfil its obligations concerning the preservation of wild birds in special protection areas under Article 4 of Directive 79/409/EEC. By application lodged on 28 July 1989, the United Kingdom sought leave to intervene in support of the defendant's conclusions.

2. By a separate document, received at the Court Registry on 14 July 1989, the Commission made an application for the adoption of interim measures under Article 186 of the EEC Treaty and Article 83 of the Rules of Procedure in which it asked the Court to order the Federal Republic of Germany to take the necessary measures to suspend dyke construction work in the area of the Leybucht and in particular to refrain for the time being from starting work on the final stage of the construction project until the Court had given its decision on the main application. That application was rejected by order of the President of the Court on 16 August 1989.

3. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, it asked the Commission to set out its objections to the German Government's claim that the Niedersächsiches Wattenmeer National Park ends to the north of the Rysumer Nacken, whilst dredged material is deposited only in Rysumer Nacken South and only as far as the foot of the dyke under construction in the Leybucht. It also asked the Government of the Federal Republic of Germany to produce the figures in its possession showing that, since work started on reinforcing the dyke, the Leybucht's population of breeding birds protected by the directive has increased. The parties complied with the requests within the time allowed.

IV — Conclusions of the parties

The Commission claims that the Court should:

The Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland claim that the Court should:

V — Submissions and arguments of the parties

The depositing of dredged material in the Rysumer Nacken

1. In the Commission's opinion, the operations in question are incompatible with Article 4(4) of the directive. It points to the serious consequences of continuing to deposit dredged material from the channel of the river Ems, which will result in a radical transformation of that part of the Wattenmeer and the disturbance of birds by noise.

2. The German Government points out that the Rysumer Nacken has not been designated a special protection area within the meaning of Article 4(4) of the directive and that the Niedersächsisches Wattenmeer National Park ends to the north of that area. The Rysumer Nacken, which has never been protected, consists of two distinct areas, namely Rysumer Nacken North, which contains only mudflats, and Rysumer Nacken South, a site for depositing operations which is already within a dyke.

3. According to the United Kingdom, the works in the Rysumer Nacken are not within a special protection area. The Niedersächsisches Wattenmeer National Park ends to the north of the Rysumer Nacken. The dyke protection works, namely the depositing of sand on the seaward side of the dyke, took place outside any special protection area.

The coastal defence project in the Leybucht

1. The Commission claims that the dyke-building operations in the Leybucht disturb species of birds which enjoy special projection under the combined provisions of Article 4(1) of the directive and Annex I thereto by damaging their habitat, which is classed as a special protection area.

2. The Government of the Federal Republic of Germany observes that the information concerning the Leybucht which was sent to the Commission pursuant to Article 4(3) of the directive excludes the new line of the dyke and the areas located on the landward side of the dyke from the special protection area. It states that the boundaries of the area in question are defined in the regulation creating the Niedersächsisches Wattenmeer National Park in such a way that the protected area extends only to the foot of the dyke, in the form it will have once the construction work has been completed.

3. The United Kingdom considers that the boundaries of the special protection area, winch consists of the Niedersächsisches Wattenmeer National Park, do not encompass within them the dyke improvement work in the Leybucht. According to the regulation setting up the national park, the boundary of the National Park extends only to the foot of the dyke as it will be after the work is completed. The new course of the dyke together with the area to the landward side of it were therefore excluded from the special protection area.

1 Language of the case: German