Opinion of Advocate General Van Gerven delivered on 9 June 1993

1 Original language: Dutch

2 OJ 1979 L 103, p. 1.

3 Declaration of the Council of 22 November 1973 on the programme of action of the European Communities on the environment, OJ 1973 C 112, p. 40.

4 The Limpias, Rada, Escalante, Argoños and Ásón.

5 The species in question are: Gavia arctica, Gavia immer, Phalacrocorax carbo sinensis, Egretta garzetta, Ciconia nigra, Platalea leucorodia, Pandion haliactus, Circus aeruginosus, Porzana parva, Himantopus himamopus, Rccurvirostra avosetta, Pluvialis apricaria, Philomachus pugnax, Sterna caspia, Sterna sandvicensis, Sterna albifrons, Chlidonias niger, Alcedo atthis, Acroccphalus paludicola.

6 The 14 species in question are: Podiceps nigricollis, Ardea cinerea, Numenius phacopus, Numenius arquata, Charadrius hiaticula, Hacmatopus ostralegus, Calidris canuvus, Anas platyrhynchos, Anas penelope, Pluvialis squatarola, Calidris alpina, Tringa ncbularia, Limosa lapponica, Melanina nigra.

7 Cited in footnote 1.

8 Reference is made to paragraphs 2 to 8 of the Report for the I tearing for a fuller account of the pre litigation procedure.

9 For an interpretation of the terms similar measures, see point 27 of my Opinion in Case C-57/89 Commission ν Germany [1991] ECR 903. In the present case, both the Commission and the Spanish Government appear to agree with that interpretation.

10 In its reply of 28 July 1989 to the reasoned opinion deliv cred by the Commission (Annex 11 to the Commission's application instituting the proceedings). Spain still disputed lilis. I Iowevcr, in the defence it is stated that Spain agrees with the principal points made by the Commission's argu ments (p. 17) and it is unambiguously stated in the rejoin der that it agrees with the Commission on the need to clas siíy the Santoña marshes as a special protection area in order to provide satisfactory protection for spoonbill from the Netherlands that use the estuary as a staging post. Moreover, the Spanish Government representative recog ni/cd that need again at the hearing.

11 Case C 57/89 Commission ν Germany [1991] ECU I 883, paragraph 20. The same considerations naturally apply to the similar provision contained in Article 4(2).

12 In footnote 19 to its application instituting the proceedings, the Commission refers only to the calculations of Grimmet and Jones, which suggest that the Santoña marshes arc one of five areas in the northwest of Spain most frequently visited by three species of birds (Anas penelope, Numenius arquata, Numcnius phaeopus). However, the fact that an area is visited by a large number of birds docs not necessarily mean that it is of unique or very particular interest. There may be other areas just as capable of providing a refuge for those birds as the area in which they have been observed.

13 The Court has consistently held in cases brought under Article 169 of the EEC Treaty that the burden of proof rests on the Commission: see, inter alia, judgments in Case 141/87 Commission ν Italy [1989] ECR 943 and Case C-249/88 Commission ν Belgium [1991] ECR I-1275, paragraph 6.

14 OJ 1985 L 302, p. 23.

15 Spain could not claim either — nor is il seeking to in lhe present case — that, for the purpose of implementing the directive on wild birds, the time limit laid down in Article 395 of the Act of Accession is unfair or inappropriate: see Case C-313/89 Commission ν Spain (1991) LCR I-5231 paragraphs 9 to 12.

16 Furthermore, these Spanish measures do not differ from the measures taken by other Member States as much as the Spanish Government would apparently have us believe. It appears from the figures given in Annex II to the Spanish Government's defence, that some Member States have more protection areas (Germany) or have placed more of their territory under special protection (Denmark and Belgium, for example), whilst bearing in mind the relative size of the two countries, the measures taken by Spain arc not significantly more extensive than those taken by Portugal, the other Member State where the directive on wild birds has been applicable since 1986.

17 As the Court held in its judgment of 10 December 1968 in Case 7/68 Commission ν Italian Republic [1968] ECR 423, an action against a Member State for failure to fulfil its obligations, the bringing of which is a matter for the Commission in its entire discretion, is objective in nature (Case 415/85 Commission ν Ireland [1988] ECR 3097, paragraph 9); under the system established by Article 169 of the Treaty, the Commission enjoys a discretionary power as to whether it will bring an action for failure to fulfil obligations and it is not for the Court to judge whether that discretion was wisely exercised (Case C-209/88 Commission ν Italy [1990] ECR I-4313, paragraph 16).

18 It is clear from the actual wording of the second paragraph of Article 169 that a Member State must comply at the latest by the end of the period laid down by the Commission, in the present case one month from 27 June 1989, when the reasoned opinion was communicated. Cf. Case 199/85 Commission ν Italy [1987] ECR 1039, paragraphs 7 to 9, and Case C-200/88 Commission ν Greece [1990] ECR I-4299, paragraph 13.

19 Cantabrian Official Gazette, 22 May 1987, p. 1449.

20 Cantabrian Official Gazette, 12 April 1991, p. 1262.

21 Spanish Official Gazette No 77, 30 March 1992, p. 10681.

22 See, i nter alta. Case 291/84 Commission ν Netherlands [1987] ECR 3483, point 1 of the operative part and cf. at 3498 and Case C 200/88 Commission ν Greece, cited in footnote 17, paragraph 13.

23 On the other hand, the obligation laid down in the last sen tence of Article 4(4), m respect of areas outside the special protection areas, is less extensive than the obligations within such areas. In the areas outside. Member States arc merely required to strive to avoid pollution or deterjo ration (not disturbances affecting the birds).

24 [1991] ECR I TO.

25 Ibid., section 33.

26 In its application instituting the proceedings before the Court, the Commission claimed that the figures in question showed that the number of birds had decreased. The Spanish Government replied that, in its opinion, the figures showed on the contrary that there had been an increase. The Commission did not repeat its initial allegation in its reply. A cursory examination of the figures reveals no clear evidence either way. Thus, a count made in 1989 showed more spoonbill in the spring than in 1988, but not more than in 1987. In the autumn, there were fewer than in 1988, but not fewer than in 1987. Moreover, the figures for recent years appear to be more reliable than those for earlier years (partly because they are based on more frequent counts), so that any comparison is difficult.

27 Cited in footnote 10.

28 Ibid., paragraphs 18 and 20; the Court thus concurred with the Commission's view that reduction is a form of deterioration within the meaning of Article 4(4), rather than the view I took at the time, that such a reduction should be assessed in the light of Article 4(1) and (2): sec section 25 of my Opinion, cited in footnote 8.

29 Case C-57/89, cited above, paragraphs 20, 21 and 22.

30 Ibid., paragraphs 23 and 24.

31 Ibid., paragraphs 25 and 26.

32 Case 42/82 Commission ν France [1983] ECR 1013, point 1 of the operative part; see also p. 1040.

33 It must be shown, in particular, that that species of birds is affected, since it is on their account that the Santoña marshes ought to have been classified as a special protection area (see sections 10 and 11 above), hence the applicability of Article 4(4) (see section 2 above).

34 Joined Cases 24 and 97/80 R Commission v France [1980] ECR 1319, paragraphs 10, 11 and 12. It should also be borne in mind that a judgment by the Court may be of interest as establishing the basis of a responsibility that a Member State can incur as a result of its default, as regards other Member States, the Community or private parties (judgment in Case 39/72 Commission v Italy [1973] ECR 101, paragraph 11.

35 That reply, dated 28 July 1989, is reproduced in Annex 11 to the Commission's application instituting the proceedings. The relevant passages for present purposes arc to be found on pages 5 and 6.

36 If in its reply the Member State to which the reasoned opinion is addressed has undertaken to remedy the alleged failure, it is for the Commission to show that, despite that undertaking, the failure persists: see the judgment cited in the next footnote, paragraph 15, at 4367.

37 Judgment in Case 298/86 Commission ν Belgium [1988] ECR 4343, paragraph 10.

38 The Commission's claim was based mainly on the loss of part of the marshes and the cutting off of certain areas. It was concerned, in particular, with the establishment of industries within the marshland: see section 30.

39 I reter in particular 10 the maps m Annexes 2 and 3 to the reply, which show the routes followed and the rest and feeding, arcas used by the spoonbill and other birds, and also the location of the various works at issue.

40 Letter of 28 July 1989, cited in footnote 9, p. 7, paragraph 5.

41 Commission application, p. 18.

42 Annex 4 to the reply.

43 It is nol clear from the documents before the Court exactly when the works in connection with this road started. In any case, after a break — attributable, I assume, to the Commis sion's observations to the Spanish Government — they were resumed or continued definitively in February 1989. The new road was opened to traffic in July 1990.

44 Another road that already existed, from Santoña to Cícero, had been closed because it ran right across the marshes. The Spanish Government and the Commission arc both agreed that, in any case, re-opening that road is not an option.

45 Sec section 14 above.

46 Judgment in Case C S7/89 Commission ν Germany, para graph 22, quoted in section 25 above.

47 It was stated at the hearing and the Spanish Government representative was unable to refute the allegation that some oi these buildings had not been put up until after the road at issue had been completed.

48 See footnotes 31 and 36.

49 Sec judgment in Casc C 57/89 Commssion v Germany. quoted in the text of this Opinion at footnote 30.

50 See Case 42/82 Commission v France, cited in point 27.

51 The measure in question, according lo the Commission, is Council Directive 76/464/EKC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (OJ 1976 L 129, p. 23).

52 It is true that the evidence produced by the Commission as to the effects of such discharges is less detailed than its cvi dence on some of the other facts at issue. On the other hand, the Spanish Government has not in any way denied the existence, the gravity and the effects of the discharges in question

53 Sec point 32 above, on the industrial estates at Laredo and Colindres, point 37 on the in-filling works at Escalante, point 40 on the Montchano quarry and point 52 on the tipping of solid waste.