JUDGMENT OF THE COURT (Fifth Chamber)

25 November 1999 (1)

(Failure by a Member State to fulfil its obligations — Directive 79/409/EEC —Conservation of wild birds — Special protection areas)

In Case C-96/98,

Commission of the European Communities, represented by P. Stancanelli, of itsLegal Service, and O. Couvert-Castéra, a national civil servant on secondment tothe Commission's Legal Service, acting as Agents, with an address for service inLuxembourg at the office of C. Gómez de la Cruz, also of its Legal Service,Wagner Centre, Kirchberg,

applicant,

v

French Republic, represented by K. Rispal-Bellanger, Deputy Director of the LegalAffairs Directorate of the Ministry of Foreign Affairs, and R. Nadal, AssistantForeign Affairs Secretary in that Directorate, acting as Agents, with an address forservice in Luxembourg at the French Embassy, 8B Boulevard Joseph II,

defendant,

APPLICATION for a declaration that, by failing to adopt the special measuresnecessary for the conservation of bird habitats in the Marais Poitevin and by failing

to take the appropriate steps to avoid deterioration of those habitats, the FrenchRepublic has failed to fulfil its obligations under Article 4 of Council Directive79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103,p. 1),

THE COURT (Fifth Chamber),

composed of: L. Sevón, President of the First Chamber, acting for the President ofthe Fifth Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, P. Jann andM. Wathelet, Judges,

Advocate General: N. Fennelly,

Registrar: D. Louterman-Hubeau, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 10 June 1999,

after hearing the Opinion of the Advocate General at the sitting on 8 July 1999,

gives the following

Judgment

1.

    By application lodged at the Court Registry on 3 April 1998, the Commission of theEuropean Communities brought an action under Article 169 of the EC Treaty (nowArticle 226 EC) in which it sought a declaration that, by failing to adopt the specialmeasures necessary for the conservation of bird habitats in the Marais Poitevin('the Poitevin Marsh‘) and by failing to take the appropriate steps to avoiddeterioration of those habitats, the French Republic had failed to fulfil itsobligations under Article 4 of Council Directive 79/409/EEC of 2 April 1979 on theconservation of wild birds (OJ 1979 L 103, p. 1) ('the Birds Directive‘).

2.

    Article 4 of the Birds Directive provides as follows:

'1.    The species mentioned in Annex I shall be the subject of specialconservation measures concerning their habitat in order to ensure their survival andreproduction 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 abackground for evaluations.

Member States shall classify in particular the most suitable territories in numberand size as special protection areas for the conservation of these species, takinginto account their protection requirements in the geographical sea and land areawhere this Directive applies.

2.    Member States shall take similar measures for regularly occurring migratoryspecies not listed in Annex I, bearing in mind their need for protection in thegeographical sea and land area where this Directive applies, as regards theirbreeding, moulting and wintering areas and staging posts along their migrationroutes. To this end, Member States shall pay particular attention to the protectionof wetlands and particularly to wetlands of international importance.

3    ...

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 ofhabitats or any disturbances affecting the birds, in so far as these would besignificant having regard to the objectives of this Article. Outside these protectionareas, Member States shall also strive to avoid pollution or deterioration ofhabitats.‘

3.

    Article 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation ofnatural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) ('the HabitatsDirective‘) provides that the obligations arising under Article 6(2), (3) and (4)thereof 'shall replace any obligations arising under the first sentence of Article 4(4)of Directive 79/409/EEC in respect of areas classified pursuant to Article 4(1) orsimilarly recognised under Article 4(2) thereof, as from the date of implementationof this Directive or the date of classification or recognition by a Member Stateunder Directive 79/409/EEC, where the latter date is later‘.

4.

    Article 6(2), (3) and (4) of the Habitats Directive provides as follows:

'2.    Member States shall take appropriate steps to avoid, in the special areas ofconservation, the deterioration of natural habitats and the habitats of species aswell as disturbance of the species for which the areas have been designated, in sofar as such disturbance could be significant in relation to the objectives of thisDirective.

3.    Any plan or project not directly connected with or necessary to themanagement of the site but likely to have a significant effect thereon, eitherindividually or in combination with other plans or projects, shall be subject toappropriate assessment of its implications for the site in view of the site'sconservation objectives. In the light of the conclusions of the assessment of theimplications for the site and subject to the provisions of paragraph 4, thecompetent national authorities shall agree to the plan or project only after havingascertained 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 inthe absence of alternative solutions, a plan or project must nevertheless be carriedout for imperative reasons of overriding public interest, including those of a socialor economic nature, the Member State shall take all compensatory measuresnecessary to ensure that the overall coherence of Natura 2000 is protected. It shallinform the Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priorityspecies, the only considerations which may be raised are those relating to humanhealth or public safety, to beneficial consequences of primary importance for theenvironment or, further to an opinion from the Commission, to other imperativereasons of overriding public interest.‘

5.

    Member States were required under Article 23(1) of the Habitats Directive to bringinto force the laws, regulations and administrative provisions necessary to complywith the Directive within two years of its notification. Since the Directive wasnotified in June 1992, that period expired in June 1994.

6.

    On 23 December 1992, the Commission sent to the French Government a letterof formal notice in which it raised a complaint of failure to comply with, inter alia,Article 4 of the Birds Directive in regard to the Poitevin Marsh. In that letter theCommission expressed the view, in particular, that the 4 500 or so hectaresclassified in the Poitevin Marsh as a special protection area ('SPA‘) wereinsufficient to satisfy ornithological requirements and that the policy of hydraulicand agricultural management pursued in the Poitevin Marsh had resulted in andcontinued to result in deterioration of habitats. The Commission also pointed outthat the French authorities had failed to adopt the special protection measureswhich would make it possible to ensure the survival and reproduction of theprotected species.

7.

    In its reply of 27 September 1993, the French Government acknowledged theornithological importance of the Poitevin Marsh. It pointed out that the areacovered by SPAs in that region had been increased to 28 693 hectares and alsostated that a new extension was planned. It acknowledged a number of instancesof deterioration in the Poitevin Marsh to which the Commission had referred in itsletter of formal notice. It pointed out, however, that measures had been taken inthe département of Charente-Maritime to avoid pollution and deterioration ofhabitats and disturbance of birds, and that other measures were designed topreserve the Poitevin Marsh.

8.

    By an amending letter of 7 December 1993, the French Government informed theCommission that the total area of the SPAs in the Poitevin Marsh was in fact26 250 hectares.

9.

    By letter of 28 June 1994, the French Ministry of the Environment also forwardedto the Commission an amended map concerning the demarcation of and the areacovered by the 'Marais Poitevin intérieur‘ SPA, together with a letter dated19 April 1994 by which the Ministry of the Environment informed the Prefect ofthe Pays de Loire Region that the land acquired for the A 83 motorway was to beconsidered as excluded from that SPA.

10.

    On 28 November 1995 the Commission issued a reasoned opinion in which it foundthat, by failing to adopt either the special measures necessary to conserve birdhabitats in the Poitevin Marsh or the measures appropriate to prevent deteriorationof those habitats, the French Republic had failed to fulfil its obligations underArticle 4 of the Birds Directive. The Commission stated that the 26 250 hectaresclassified as SPAs represented only one-third of the area of the Poitevin Marshwhich was of ornithological interest and that the protection regime for the SPAshad to satisfy mandatory requirements of bird conservation and could not bechanged in favour of projects for infrastructures, as appeared to be the case in theMarsh. The Commission also pointed out that the entire ecosystem of the PoitevinMarsh had, for several years, been under threat from systematic drainage andintensive cultivation, without appropriate measures having been adopted to preventdeterioration of habitats and disturbance of the species of wild birds intended tobenefit from protection of the area. The Commission also pointed out that theproposed route of the A 83 motorway across the Poitevin Marsh was incompatiblewith the Community provisions.

11.

    By letter of 11 June 1996, the French Government pointed out in particular thata further 3 540 hectares in the département of Charente-Maritime had beenclassified as an SPA and that, because of the drainage and cultivation of themeadows of the Poitevin Marsh, it was no longer possible, except in marginalrespects, to designate new areas under existing environmental circumstances. TheFrench Government also disputed the finding that it had not adopted appropriatemeasures to conserve the habitats of protected species. Finally, it stressed that the

proposed (north) route of the A 83 motorway avoided all contact with an SPA. The problem concerning the network of the A 83 motorway was, it claimed, theresult of a cartographical oversight, because the declaration that this infrastructurewas in the public interest predated the designation of the SPA.

Substance

12.

    The Commission complains, first, that the French Republic failed to classify asufficiently large area in the Poitevin Marsh as SPAs, second, that it failed to confera sufficient legal status on the SPAs classified, third, that it failed to take theappropriate steps to avoid deterioration of the Poitevin Marsh, and, fourth, that itdeclassified part of a classified SPA in order to allow construction of a section ofmotorway.

The extent of the SPAs

13.

    The Commission points out that the Poitevin Marsh, which consists of variousnatural environments favourable to ensuring the conservation of many bird specieslisted in Annex I to the Birds Directive as well as a significant number of migratoryspecies, is an area of outstanding ornithological interest at both Community andinternational level. The classification of 26 250 hectares of the Poitevin Marsh asSPAs fails, in the Commission's submission, to meet the French Republic'sobligations under Article 4(1) and (2) of the Birds Directive. 77 900 hectares ofthe Poitevin Marsh were recognised by the French authorities in 1994 asconstituting an important area for bird conservation (zone importante pour laconservation des oiseaux, hereinafter 'ZICO‘). In addition, 57 830 hectares of thePoitevin Marsh were included in the European ornithological inventory entitled'Important Bird Areas in Europe‘ published in 1989 ('the IBA‘). According tothe Commission, the entire ZICO of the Poitevin Marsh or, at the very least, theentire area featuring in the IBA inventory should be classified as an SPA.

14.

    The French Government contends that, in April 1996, the total area of the sites inthe Poitevin Marsh classified as SPAs was 33 742 hectares. It maintains that sucha classification already satisfied in large measure the Community obligationsdevolving on the French Republic. The French Government does not, however,deny that it is desirable to classify more of the territory of the Poitevin Marsh asSPAs. It points out in this regard that it intends in the near future to notify thefurther classification of almost 15 000 hectares considered relevant both in the lightof ornithological criteria and at the operational level. The French Governmentstates that a study by the Bird Protection League dated November 1998 shows thatthe SPAs in the Poitevin Marsh which have already been classified and those areaswhich are to be classified shortly will, by reason of their ornithological interest,make it possible to preserve in its entirety the reproduction habitat of the wild

birds present in the Poitevin Marsh. The French Republic is thus in a position tomeet in full its Community obligations under the Birds Directive.

15.

    It should first be observed that it is common ground that the Poitevin Marsh is anatural area of very great ornithological value for many bird species covered byArticle 4(1) and (2) of the Birds Directive and that the French Government doesnot, in substance, deny that the area of land in the Poitevin Marsh classified asSPAs is inadequate in the light of Article 4 of the Birds Directive.

16.

    Accordingly, without its being necessary to address the question as to the area overwhich the SPAs in the Poitevin Marsh ought to extend in order for the obligationsunder the Birds Directive to be satisfied, it must be held that the French Republicfailed, within the prescribed period, to classify as SPAs, within the meaning ofArticle 4(1) and (2) of the Birds Directive, a sufficient area in the Poitevin Marsh. The Commission's application must for that reason be upheld on that point.

The legal status of the protection of the SPAs already classified

17.

    The Commission submits that those areas of the Poitevin Marsh which the FrenchRepublic has classified as SPAs do not have a legal status such as to guaranteeprotection of habitats and the survival and reproduction of the protected species. In particular, the agri-environmental measures and Law No 97-3 of 3 January 1992on Water (JORF (Official Journal of the French Republic), 4 January 1992, p. 187,hereinafter 'the Law on Water‘), to which the French Government refers, do notmake it possible to ensure the effective protection of bird life required by Article4 of the Birds Directive. So far as the other measures mentioned by the FrenchGovernment are concerned, these, the Commission argues, were adopted late.

18.

    The French Government contends that the agri-environmental measures are in factcontracts concluded between the State and farmers which are designed to developenvironmentally-conscious farming methods, in particular by limiting the use ofnitrogen-based fertilisers and the frequency of mowings and reapings. Thesecontracts contribute to the maintenance of extensive farming and make it possibleto avoid the ploughing-up of wet meadows and drainage and hydraulicmodifications, thus ensuring the maintenance of wetlands and natural bird habitats. The French Government also submits that, to the extent to which it protectswetlands, the Law on Water contributes directly to the conservation of wild birds. Finally, it points out that the three prefectorial decrees on biotope protectionconcerning the Marais doux de Charente-Maritime, the Terrées du Pain Béni andthe Pointe de l'Aiguillon were adopted on 7 October 1997, 29 December 1997 and12 February 1998 respectively, and that 2 300 hectares in the Baie de l'Aiguillonwere classified as a nature reserve in July 1996.

19.

    In this connection, it is settled case-law that the question whether a Member Statehas failed to fulfil its obligations must be determined by reference to the situationprevailing in that State at the end of the period laid down in the reasoned opinion(see, in particular, Case C-60/96 Commission v France [1997] ECR I-3827,paragraph 15, and Case C-166/97 Commission v France [1999] ECR I-1719,paragraph 18).

20.

    The three prefectorial decrees on biotope protection and the creation of the naturereserve in the Baie de l'Aiguillon mentioned in paragraph 18 of the presentjudgment were adopted after the two-month period laid down in the reasonedopinion of 28 November 1995 had expired.

21.

    Those measures should therefore not be taken into consideration for the purposesof the present infringement proceedings.

22.

    With regard to the other measures which, according to the French Government, areintended to provide the SPAs with a sufficient protection regime, it must be bornein mind that, according to the Court's case-law, Article 4(1) and (2) of the BirdsDirective requires the Member States to provide SPAs with a legal protectionregime that is capable, in particular, of ensuring both the survival and reproductionof the bird species listed in Annex I to the Directive and the breeding, moultingand wintering of migratory species not listed in Annex I which are, nevertheless,regular visitors (see, to this effect, Case C-355/90 Commission v Spain [1993] ECRI-4221, paragraphs 28 to 32, and Case C-166/97 Commission v France, cited above,paragraph 21).

23.

    As Article 2 of the Law on Water makes clear, that legislation is intended toachieve a balanced management of water resources, designed to ensure, inparticular, the conservation of aquatic ecosystems, wet sites and wetlands,protection against all pollution and the restoration of the quality of surface andunderground water and marine territorial waters, proper respect for water as aneconomic resource, in such a way as to meet or reconcile requirements relating tohealth, public health, public safety, the provision of public drinking water, thepreservation and free flow of water, flood protection, protection of agriculture,fisheries and sea-farming, fresh-water fishing, industry, energy protection, transport,tourism, recreation and water sports, as well as all other lawfully-pursued humanactivities.

24.

    Under Article 10(II) of the Law on Water, installations, works and activitiesinvolving the removal of surface or underground water, whether replaced or not,alterations to the level or method of disposal of water or overflows, waste outflows,or direct or indirect waste water, continuous or occasional, even non-polluting, aredefined in the nomenclature drawn up by decree of the Conseil d'État followingconsultation with the National Water Board, and subject to authorisation ordeclaration depending on the danger which they pose and the serious nature of theeffects which they may have on water resources and aquatic ecosystems.

25.

    Even if it were to be assumed that the SPAs classified consist entirely of wetlandsand that the Law on Water enables water resources in these areas to be preservedin an efficient manner, the fact still remains that, to the extent to which it includesonly provisions relating to water management, that Law is not in itself such as toensure sufficient protection for the purposes of Article 4(1) and (2) of the BirdsDirective.

26.

    So far as the agri-environmental measures are concerned, it must be held, as theCommission has argued and as the Advocate General has pointed out in paragraph26 of his Opinion, that these are voluntary and purely hortatory in nature inrelation to farmers working holdings in the Poitevin Marsh.

27.

    Those measures cannot therefore, in any event, be capable of supplementingeffectively the protection regime for the classified SPAs.

28.

    It must for that reason be held that, by failing to adopt measures conferring asufficient legal protection regime on the SPAs classified in the Poitevin Marsh, theFrench Republic has failed to fulfil its obligations under Article 4(1) and (2) of theBirds Directive. The Commission's application must therefore also be upheld onthis point.

The deterioration of the Poitevin Marsh

29.

    The Commission maintains that the natural habitats of wild birds have suffereddeterioration throughout the Poitevin Marsh. It points out in this connection thatthe natural meadows, which form the most important habitat for the conservationof wild birds in the Poitevin Marsh and which covered an area of 55 450 hectaresin 1973, had an area of some 26 750 hectares in 1990, with approximately 28 700hectares being placed under cultivation during the intervening period. With a viewto facilitating agricultural activity, drainage was carried out, wetlands werereclaimed and ditches filled in.

30.

    According to the Commission, one of the important direct consequences of thereduction of wetlands has been the appreciable fall in certain bird populations suchas wintering ducks and black-tailed godwits in the SPA of the Baie de l'Aiguillon.

31.

    The Commission points out that it had found, in its reasoned opinion, that theFrench Republic had not adopted the measures necessary to prevent deteriorationof the Poitevin Marsh in regard to both the areas already classified as SPAs andthose which were to be so classified, thereby failing to fulfil its obligations underArticle 4 of the Birds Directive.

32.

    According to the French Government, the preservation of the Poitevin Marsh isdirectly linked to the conditions under which the wetlands are used and,

consequently, to an agricultural context which has, over the last number of years,been particularly marked by the reduction in the extensive breeding of cattle, whichis best suited to making proper use of such areas. The French Government thusacknowledges that the protection regime for the area has not always been effective. However, it argues that the responsibility for the reduction in the wetlands restsprimarily with the common agricultural policy ('CAP‘) and not solely with theFrench authorities.

33.

    Agri-environmental aid, the French Government submits, requires a considerablefinancial effort on the part of the State, whereas even aid for intensive agriculture,aid which is often more substantial, is financed entirely by the Community budgetunder the CAP. This difference in manner of implementation between theEuropean policies on intensive agriculture and those supporting environmentallyfriendly agriculture lies, in the French Government's submission, behind thedifficulties in conserving the Poitevin Marsh. Thus, the Community aid package foragriculture, which does not favour breeders, runs contrary to the policy ofsafeguarding wetlands.

34.

    The French Government does, however, point out that, while wetlands werefrequently placed under cultivation up to 1990, this trend practically ceased at thebeginning of the 1990s, owing in particular to the implementation of agri-environmental measures.

35.

    It should first be pointed out in this regard that the first sentence of Article 4(4)of the Birds Directive, in both its original version and as amended by the HabitatsDirective, requires Member States to take appropriate steps to avoid, inter alia,deterioration of habitats in the SPAs classified pursuant to Article 4(1).

36.

    It is settled case-law that, in proceedings under Article 169 of the Treaty for failureto fulfil an obligation, it is incumbent on the Commission to prove that theobligation has not been fulfilled and to place before the Court the informationnecessary to enable it to determine whether that is so (see, inter alia, Case 96/81Commission v Netherlands [1982] ECR 1791, paragraph 6, and Case C-166/97Commission v France, cited above, paragraph 40).

37.

    The Court must therefore consider whether there is sufficient evidence before itfor a finding that the French Republic has failed, contrary to the first sentence ofArticle 4(4) of the Birds Directive, to adopt the measures necessary to avoiddeterioration of those areas of the Poitevin Marsh already classified as SPAs.

38.

    It is common ground that, at the expiry of the period laid down in the reasonedopinion, the French authorities had classified the Baie de l'Aiguillon, the Pointed'Arçay and the Marais Poitevin intérieur as SPAs.

39.

    It is clear from an examination of, inter alia, the French Government's response of11 June 1996 to the reasoned opinion, the reasoned opinion itself, and the maps

placed on the case-file that the nature reserve of Saint-Denis du Payré and thecommon land of Poiré-sur-Velluire, which form part of the Marais Poitevinintérieur SPA, are at present drying out. So far as the SPAs of the Baie del'Aiguillon and the Pointe d'Arçay are concerned, the documents before the Courtshow that marine-farming construction and embankment works have been extendedin those areas, thereby disturbing bird life. Furthermore, the study by the BirdProtection League mentioned in paragraph 14 of this judgment indicates that theaverage population of wintering ducks in the Baie de l'Aiguillon and the Pointed'Arçay has fallen from 67 845 for the period 1977-1986 to 16 551 for the period1987-1996.

40.

    It follows that the French Republic has failed in its obligation to take appropriatemeasures to avoid deterioration of the areas in the Poitevin Marsh classified asSPAs, in breach of the first sentence of Article 4(4) of the Birds Directive. As forthe French Government's argument that Community aid measures for agricultureare disadvantageous to agriculture compatible with the conservation requirementslaid down by the Birds Directive, it should be pointed out that, even assuming thatthis were the case and a certain lack of consistency between the various Communitypolicies were thus shown to exist, this still could not authorise a Member State toavoid its obligations under that directive, in particular under the first sentence ofArticle 4(4) thereof.

41.

    Second, it must be pointed out that, according to the Court's case-law, the firstsentence of Article 4(4) of the Birds Directive requires Member States to takeappropriate steps to avoid, inter alia, deterioration of habitats in the areas whichare most suitable for the conservation of wild birds, even where the areas inquestion have not been classified as SPAs, provided that they should have been soclassified (see, to this effect, Case C-355/90 Commission v Spain, cited above,paragraph 22, and Case C-166/97 Commission v France, cited above, paragraph 38).

42.

    It follows, with regard to those areas which have not been classified as SPAs, thatany infringement of the first sentence of Article 4(4) of the Birds Directivepresupposes that the areas in question are among the most suitable territories innumber and size for the conservation of protected species, within the meaning ofthe fourth subparagraph of Article 4(1) (see Case C-166/97 Commission v France,cited above, paragraph 39), and that these areas have suffered deterioration.

43.

    It is thus necessary to consider whether the Court has sufficient evidence before itto find that the French Republic has failed, contrary to the first sentence of Article4(4) of the Birds Directive, to adopt the measures necessary to avoid deteriorationof those areas in the Poitevin Marsh which should have been classified as SPAs.

44.

    It must be pointed out that there is nothing on the case-file to establish that all ofthe areas in the Poitevin Marsh which should have been classified as SPAs havesuffered deterioration within the meaning of the first sentence of Article 4(4) of the

Birds Directive. In particular, the fact that approximately 28 700 hectares ofwetlands in the Poitevin Marsh were placed under cultivation between 1973 and1990 does not constitute conclusive evidence in this regard. There is nothing tosuggest, in any event, that these wetlands include all the areas in the PoitevinMarsh which should have been classified as SPAs. Furthermore, it appears that anunspecified portion of these wetlands was placed under cultivation before the BirdsDirective entered into force.

45.

    It is clear, however, from an examination of, in particular, the French Government'sreply of 11 June 1996 to the reasoned opinion, the reasoned opinion itself, theCommission's letter of formal notice, the French Government's reply of27 September 1993, and the maps placed on the case-file that a number of areassuitable for classification as SPAs, such as, in particular, the common lands ofVouillé, Vix and Ille d'Elle, had been destroyed by the time the two-month periodlaid down in the reasoned opinion expired.

46.

    It follows that the French Republic did not take the measures necessary to avoiddeterioration of some, but not all, areas in the Poitevin Marsh which should havebeen classified as SPAs, and thereby failed to meet its obligations under the firstsentence of Article 4(4) of the Birds Directive.

47.

    This plea in law must accordingly be upheld to the extent indicated in thepreceding paragraph.

The declassification of part of the Marais Poitevin intérieur SPA

48.

    The Commission notes that the French authorities approved the project for themotorway link between Sainte-Hermine and Oulmes by decree of 19 October 1993. This project, the Commission claims, led the French authorities, by decision of19 April 1994 notified to the Commission on 28 June 1994, to declassify a portionof the Marais Poitevin intérieur SPA, corresponding to a 300-metre wide strip atthe point where the motorway was to cut across the SPA at Auzay.

49.

    According to the Commission, this declassification of the SPA in question not onlyresults in a reduction in its surface area but will also disturb birds in the region byreason of the completion of works and the isolation of the remainder of the SPAeast of the project towards Fontenay-le-Comte, which will be cut off entirely fromthe SPA by the motorway.

50.

    That declassification, the Commission argues, therefore amounts to a failure tofulfil the obligations which applied at the time and which follow from Article 4(4)of the Birds Directive, as interpreted by the Court in its judgments in Case C-57/89Commission v Germany [1991] ECR I-883, paragraphs 20 to 22, and in CaseC-355/90 Commission v Spain, cited above, paragraph 35.

51.

    In reply, the French Government states that the Sainte-Hermine to Oulmesmotorway link did not involve declassification of the Marais Poitevin intérieur SPA. The classification of that area as an SPA dates from November 1993 and is thussubsequent both to the studies conducted for realising that motorway project andto the decree declaring the works necessary to complete it to be of public utilityand urgent. The route finally chosen avoided all areas which the FrenchGovernment intended to classify as SPAs.

52.

    The French Government explains that, as the result of a mistake, a 300-metre widearea was included in the Marais Poitevin intérieur SPA when it was notified to theCommission in November 1993. The French authorities notified the Commissionof this mistake as soon as they became aware of it. Thus, what is involved here isnot a declassification but rather the correction of a mistake in notified information,since the area in question had not been selected for classification as an SPA.

53.

    It should be noted in this regard that, for a complaint of infringement of Article4(4) of the Birds Directive by reason of the declassification, through a reduction insize, of a portion of an area which has been classified as an SPA to be upheld, itis necessary, in any event, for the area in question to have been part of theclassified SPA.

54.

    In the present case, it is, first of all, common ground that the decree declaringconstruction work on the Sainte-Hermine to Oulmes section to be of public utilityand urgent and detailing the compatibility of the land use in the municipalitiesaffected was adopted on 19 October 1993 and was preceded by public inquiries andstudies, including an impact assessment pursuant to Council Directive 85/337/EECof 27 June 1985 on the assessment of the effects of certain public and privateprojects on the environment (OJ 1985 L 175, p. 40). Second, the statement by theFrench Government that the Marais Poitevin intérieur SPA was designated inNovember 1993 is confirmed by the Commission's reasoned opinion.

55.

    In those circumstances, it is evident, as the French Government submits, that thestrip of land earmarked for construction of the motorway was mistakenly referredto as forming part of the Marais Poitevin intérieur SPA at the time when that SPAwas notified to the Commission and that the declaration by the Minister for theEnvironment in his letter of 19 April 1994 to the Prefect of the Pays de LoireRegion, to the effect that 'the land acquired for the motorway ... must ... beregarded as being excluded from the SPA‘, did not involve a reduction in thesurface area of the SPA classified but simply the rectification of an error in theparticulars forwarded to the Commission.

56.

    It follows that the complaint alleging infringement of Article 4(4) of the BirdsDirective by reason of the declassification of part of the Marais Poitevin intérieurSPA through a reduction in its surface area must be rejected.

57.

    In light of the foregoing, it must be held that, by failing, within the prescribedperiod, to classify a sufficient area in the Poitevin Marsh as SPAs, by failing toadopt measures conferring a sufficient legal status on the SPAs classified in thePoitevin Marsh, and by failing to adopt appropriate measures to avoid deteriorationof the sites in the Poitevin Marsh classified as SPAs and of certain of those whichshould have been so classified, the French Republic has failed to fulfil itsobligations under Article 4 of the Birds Directive.

58.

    The remainder of the application must be dismissed.

Costs

59.

    Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs. Since the French Republic has been unsuccessful in allessential respects, it must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber),

hereby:

1.    Declares that, by failing, within the prescribed period, to classify asufficient area in the Poitevin Marsh as special protection areas, by failingto adopt measures conferring a sufficient legal status on the specialprotection areas classified in the Poitevin Marsh, and by failing to adoptappropriate measures to avoid deterioration of the sites in the PoitevinMarsh classified as special protection areas and of certain of those whichshould have been so classified, the French Republic has failed to fulfil itsobligations under Article 4 of Council Directive 79/409/EEC of 2 April 1979on the conservation of wild birds;

2.    Dismisses the remainder of the application;

3.    Orders the French Republic to pay the costs.

SevónGulmann Puissochet Jann Wathelet

Delivered in open court in Luxembourg on 25 November 1999.

R. Grass

D.A.O. Edward

Registrar

President of the Fifth Chamber

1: Language of the case: French.