OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 18 February 2016 (1)
Case C‑504/14
European Commission
v
Hellenic Republic
(Nature conservation — Directive 92/43/EEC — Conservation of natural habitats and of wild species — Occurrence of the Caretta caretta sea turtle in Kyparissia Bay — ‘Kyparissia Sand Dunes’ Site of Community importance — Protection of species)
I – Introduction
1. While the Court was confronted with an almost catastrophic population conservation status when it delivered its decision on the European hamster in French Alsace, (2) the present case concerns a more pleasing situation. In recent years, the beaches of Kyparissia Bay on the west coast of the Peloponnese have become the most important breeding site for the Caretta caretta sea turtle in the European Union following a steady increase in the number of its nests. (3) That development may also be one of the reasons why, in 2015, the International Union for Conservation of Nature and Natural Resources (IUCN) assessed the Mediterranean sea turtle population as being of ‘least concern’, the lowest threat level in its rating system. (4)
2. One can only congratulate Greece and the non-governmental organisations (NGOs) that have been committed to the protection of sea turtles for over 20 years on these successes.
3. Nevertheless, further conservation measures are being called for, not only by the Commission, in the light of the Habitats Directive, (5) but also by the Standing Committee of the Convention on the Conservation of European Wildlife and Natural Habitats. (6) (7) So far as concerns the protection of species, the Commission’s criticism is directed, first, at the protective provisions specifically prescribed and, secondly, at the protective measures actually necessary. Since the beaches in question are all part of a special area of conservation under the Habitats Directive, the Commission considers that the provisions on the protection of sites have also been infringed, in terms of both particular plans and projects and the general prohibition on deterioration.
4. Despite the positive overall picture, there is, in my opinion, some justification for the Commission’s criticism. The competent Greek authorities have been permitting numerous activities on that site that are detrimental both to the breeding of the sea turtles and to the protected dune habitat types. These include, in particular, not only certain tourism-related uses of the beaches and certain roads and paths, but also fishing and house building.
II – Legal context
5. The Habitats Directive provides for the designation of special areas of conservation, known as sites of Community importance, with a view to protecting particular habitat types (Annex I to the directive) and several species of fauna and flora (Annex II).
6. Annex I sets out, inter alia, different dune habitat types and Annex II refers to the Caretta caretta sea turtle. The latter is even defined as a ‘priority’ species, that is to say as being particularly worthy of protection.
7. Article 4(5) of the Habitats Directive governs the temporal application of the provisions on the protection of sites:
‘As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article 6(2), (3) and (4)’.
8. In 2006, on a proposal from Greece, the Commission placed the site ‘Kyparissia Sand Dunes’ (‘Θίνες Κυπαρισσίας’), under number GR2550005, on the list of sites of Community importance provided for in Article 4 of the Habitats Directive. (8) Greece declared that site a special area of conservation by Law No 3937/2011.
9. The protection of sites is provided for in Article 6(2) to (4) as follows:
‘(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of that directive.
(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained 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 in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
…’
10. In addition to provisions on the protection of sites, the Habitats Directive contains, in the case of certain species of fauna and flora listed in Annex IV, including the Caretta caretta sea turtle, specific prohibitions on the protection of species which are laid down in Article 12:
‘(1) Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting:
(a) …;
(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;
(c) …;
(d) deterioration or destruction of breeding sites or resting places.’
III – Facts, pre-litigation procedure and forms of order sought
11. At Kyparissia Bay there is a sand beach of approximately 80 km in length which runs in a relatively straight line from north to south. Some 20 km of that beach form part of the ‘Kyparissia Sand Dunes’ special area of conservation.
12. The special area of conservation comprises a strip of land, some 300 to 600 metres wide, running inland from the sea. This begins as a sand beach the rear section of which turns into habitat type 2110, embryonic shifting dunes. In places, that beach abuts on habitat type 2260, Cisto-Lavenduletalia dune sclerophyllous scrubs. The area to the south of Vounaki, behind the beach and the embryonic shifting dunes, even hosts two occurrences of priority dune habitat types, namely 2270*, wooded dunes with Pinus pinea and/or Pinus pinaster, and 2250*, coastal dunes with Juniperus spp. Finally, the area behind the beach is also home to occurrences of habitat type 9540, Mediterranean pine forests with endemic Mesogean pines, which extends over a surface area almost equal to that of all the dune habitat types combined, as well as, to a somewhat lesser extent in the area adjoining Vounaki, of habitat type 5210, arborescent matorral with Juniperus spp. (9)
13. The present case primarily concerns a 10-km-long section between the towns of Elea and Kalo Nero. According to the standard data form for that site, (10) that section hosts one of the principal Mediterranean breeding beaches of the Caretta caretta sea turtle. Indeed, it is common ground between the parties that this is now their most important breeding beach.
14. The NGOs committed to the sea turtles’ protection object to various activities taking place on those beaches and have therefore lodged a complaint against Greece with the Commission.
15. Following informal contacts with the Greek authorities, on 28 October 2011, the Commission invited Greece to comment on the alleged infringement of Articles 6 and 12 of the Habitats Directive. Despite having received further information from Greece, the Commission continued to take the view that there had been an infringement of those provisions and sent a reasoned opinion to Greece on 1 October 2012. In that reasoned opinion, it set a final deadline for terminating the infringements which expired on 1 December 2012.
16. Since the additional answers provided by Greece did not convince the Commission either, the latter brought the present action on 12 November 2014.
17. The European Commission claims that the Court should:
(a) declare that the Hellenic Republic has failed to fulfil its obligations under
– Article 6(2) and (3) of the Habitats Directive by
(aa) failing to take appropriate steps to avoid the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which that area was designated and
(bb) permitting (without carrying out an appropriate assessment of the implications, as laid down in Article 6(3)) activities which are likely to have a significant effect on the site at issue, either individually or in combination with other plans or projects, reducing or destroying the nesting area of the priority species Caretta caretta, which is present there, causing disturbance to the species concerned and, ultimately, reducing and destroying the sand dune habitats 2110, 2220 and the priority habitat 2250; and
– Article 12(1)(b) and (d) of that directive, by failing to take the requisite steps to establish and implement an effective system of strict protection for the sea turtle Caretta caretta (a priority species) in Kyparissia Bay in a way which avoids any disturbance of the species concerned during its breeding period and any activity which can cause deterioration or destruction of its breeding sites;
(b) order the Hellenic Republic to pay the costs.
18. The Hellenic Republic contends that the Court should:
(a) dismiss the action;
(b) order the Commission to pay the costs.
19. First of all, the Commission and Greece each presented their observations in two written pleadings. Following the conclusion of the written procedure on 29 April 2015, the Commission, on 16 June 2015, sought leave to adduce new evidence, namely the Greek Council of State’s report 32/2015 concerning a draft presidential decree on the designation of a regional park in Kyparissia Bay.
20. Finally, the parties presented oral argument on 13 January 2016.
IV – Legal analysis
21. The Commission accuses Greece of having failed to fulfil its obligations under the Habitats Directive in relation to the protection of sites and the protection of species in the area of the ‘Kyparissia Sand Dunes’ site. Departing from the sequence of the Commission’s line of argument, I shall consider the protection of sites first because this provides a context in which all of the adverse effects alleged by the Commission can be taken into account, while the protection of species concerns only the Caretta caretta sea turtle.
22. Both pleas in law are governed by the principle that the question of whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in that Member State at the time when the deadline laid down in the reasoned opinion expired, namely 1 December 2012. Any changes which have occurred since then cannot be taken into account by the Court. (11)
23. First, however, we should consider the admissibility of the evidence which the Commission submitted retrospectively.
A – The admissibility of the report submitted retrospectively
24. Under the first and second sentences of Article 128(2) of the Rules of Procedure, the parties may, exceptionally, produce or offer further evidence after the close of the written procedure. They must give reasons for the delay in submitting such evidence.
25. The report on the draft presidential decree on the protection of several sites in Kyparissia Bay, which the Commission submitted retrospectively on 16 June 2015, was produced by the Greek Council of State. The report looks, inter alia, at threats to the ‘Kyparissia Sand Dunes’ site.
26. The report includes a statement that it was issued on 8 April 2015. A handwritten notice of approval of 15 April 2015 is discernible on the copy submitted to the Court by the Commission. Finally, Greece referred to the opinion contained in that report in its rejoinder lodged at the Court on 29 April 2015.
27. The Commission argues, without contradiction, that it did not become aware of that report until after the written procedure had closed. That argument is plausible in the light of the foregoing. It must be assumed that the Commission became aware of the report’s existence no later than the point at which the rejoinder was lodged. It then had to obtain that document and assess its importance for the present proceedings. The Commission’s argument is therefore sufficient to justify the fact that it did not submit the report until 16 June 2015. Furthermore, the consideration of that evidence has not caused a delay in the proceedings in the present case.
28. Greece raises the objection that the report contains no new material and that its consideration is ruled out for the further reason that it was delivered during an ongoing procedure for the enactment of a presidential decree.
29. I am unconvinced by both arguments.
30. What material the report contains and whether that material is new are questions to be answered as part of the report’s assessment. However, the admissibility of that evidence cannot be determined by reference to the answers to those questions. Furthermore, the report confirms some of the complaints raised by the Commission, in particular as regards the increasing pressure on the special area of conservation.
31. Neither is the evidentiary value of the report called into question by the fact that it was issued during an unfinished procedure. That fact might call for a different assessment if this were a draft report that still required final approval. That is not the situation here, however. On that basis, the Court has already relied on a similar report in the past. (12)
32. It is also important to note that neither the importance of the pre-litigation procedure prior to the proceedings for failure to fulfil obligations nor the material time limit for the assessment of an infringement, 1 December 2012, makes it impossible to take that report into account. After all, although it cannot extend the subject matter of the proceedings either temporally or substantively, it is capable in principle of substantiating allegations made by the Commission which do form part of the subject matter of the case.
33. I therefore propose that the Court should admit the report as evidence.
B – Protection of sites
34. In accordance with Article 4(5) of the Habitats Directive, a site is to be protected in the manner laid down in Article 6(2) to (4) as soon as it has been proposed by the Member State and placed on the list of special areas of conservation by the Commission. In the case of the site in question in the present case, the ‘Kyparissia Sand Dunes’, the protective provisions have therefore applied since 19 July 2006, the date on which the corresponding Commission Decision was notified. (13)
35. The Commission alleges infringement of the general prohibition on deterioration under Article 6(2) of the Habitats Directive (see section 1 below) and the obligation under Article 6(3) to carry out an assessment of the implications for the site of certain plans and projects (see section 2 below).
1. Article 6(2) of the Habitats Directive
36. The Commission levels against Greece the criticism that a number of activities taking place on the beach between Elea and Kalo Nero in Kyparissia Bay are incompatible with the prohibition on deterioration under Article 6(2) of the Habitats Directive. Since the Commission objects to a large number of different activities, I shall first give a general account of the requirements of the prohibition on deterioration, then describe the threats specifically affecting the Caretta caretta sea turtle on its breeding beaches and finally consider the various criticisms raised by the Commission.
(a) The criterion laid down in Article 6(2) of the Habitats Directive
37. An activity is consistent with Article 6(2) of the Habitats Directive only if it is ensured that it causes no disturbance likely significantly to affect the objectives of that directive, in particular its conservation objectives. (14) In proceedings for failure to fulfil obligations, a complaint of failure to fulfil obligations under Article 6(2) will therefore be well founded only if the Commission demonstrates to a sufficient legal standard that the Member State has not taken the appropriate protective measures to prevent the operational activities of projects — in so far as these took place after the protection area concerned had been designated — from giving rise to deterioration of the habitats of the species concerned and disturbances of those species likely to have significant effects having regard to that directive’s objective of ensuring the conservation of that species. (15)
38. However, in order to establish that there has been a failure to fulfil obligations under Article 6(2) of the Habitats Directive, the Commission does not have to prove a cause-and-effect relationship between the operation of a project and significant disturbance of the species at issue. Rather, it is sufficient for the Commission to establish that there is a probability or risk that that operation might cause significant disturbance of that species. (16)
39. Although the Court has applied the criterion of probability or risk only for the purposes of examining significant disturbances to species, there is no obvious reason why it cannot also be used to examine the other type of adverse effect provided for in Article 6(2) of the Habitats Directive, namely the deterioration of protected habitats.
40. After all, the reason for that criterion lies in the fact that the preliminary assessment of a project under Article 6(3) of the Habitats Directive is also subject to the existence of such a risk. (17) In that case, authorisation is possible only where either the assessment shows that the site as such is not adversely affected or the project is justified under Article 6(4). This will depend on both the protected species and the protected habitats. Since the provisions of Article 6(2) and (3) are intended to guarantee the same level of protection, (18) the same criterion must also be used for the purposes of establishing a failure to fulfil obligations under Article 6(2).
41. However, the establishment of a failure to fulfil obligations by reference to that criterion does not necessarily provide definitive proof that a measure — such as the operation of projects — is impermissible. On the contrary, any proof so established can be rebutted by an appropriate assessment of the effects on the site or the measure may be justified under Article 6(4) of the Habitats Directive. (19)
(b) The threats to the Caretta caretta sea turtle on its breading beaches
42. The breeding behaviour of the Caretta caretta sea turtle is a matter of common ground between the parties. Once it has reached breeding maturity at approximately 20 years of age, it returns every 2 to 3 years to the beach where it hatched in order to lay eggs. In Greece, the laying season starts at the end of May and finishes at the end of August. The turtle comes out of the water at night and searches for the driest part of the beach, where it digs a hole 40 to 60 centimetres deep and lays an average of 120 eggs. Two months later, the eggs hatch and the baby turtles then crawl onto the sand and crawl towards the sea.
43. Egg laying and the hatching of baby sea turtles in particular are sensitive to disturbance, such as from noise or light. Baby sea turtles are very vulnerable and a large number of them die before they can reproduce. Particularly when hatching at night, they are clearly prone to being attracted by landside lighting, which deflects them from their route to the sea. It is also important to prevent measures that detract from the beach’s suitability as a breeding ground, such as construction work. (20)
44. Since the number of Caretta caretta sea turtle nests on the beaches at issue has increased in recent years, Greece takes the view that the animal is adequately protected.
45. However, the Commission rightly counters that argument by making the point that the egg laying observed today matches the breeding success of 20 years ago and is therefore founded on the protective measures applied at that time. Furthermore, the IUCN too qualifies its favourable assessment of the Mediterranean sea turtle population with a similar reservation. (21)
46. It should also be noted that, according to reports by the NGO Achelon, the breeding success in evidence today appears to be heavily dependent on active protection measures, such as the marking of nests or the construction of protective shields. However, such measures are only stopgaps. The obligations laid down in the Habitats Directive with respect to the conservation of protected species, on the other hand, are primarily intended to prevent disturbances and adverse effects, so that the turtles can breed in their natural environment without human assistance.
47. What is more, the increase in the number of nests says nothing about any adverse effects on other protected interests on the site, such as the dune habitat types.
48. Accordingly, the Court regularly dismisses as immaterial the argument of lack of evidence of damage where there are clear infringements of protection obligations. (22)
49. It is therefore necessary to examine the individual activities complained of.
(c) Activities complained of
50. The presentation of this plea in law is severely hampered by the fact that the Commission addresses the same issues at various points in the application and, by way of evidence, often makes very general reference to extensive annexes and to photographs in those annexes the reproductions of some of which are extremely poor. However, since Greece is clearly well acquainted with the allegations, its defence is not impaired. Furthermore, this submission relates to the protection of the EU’s common natural heritage (23) against irreparable damage. What is more, a reading of the documents before the Court, achievable with a reasonable degree of effort, shows that some of the heads of complaint do indeed call into question the effectiveness of the site’s protection. For that reason, the Court too should consider this submission, notwithstanding the deficiencies of the application in this regard.
i) House building on the site
– Projects authorised in Agiannakis and Vounaki
51. The Commission alleges that, on the site, houses were constructed in Agiannakis in 2006 and 2010 and that, in Vounaki, consent was given in 2012 for a further three holiday homes (24) constructed after 2013.
52. Greece does not dispute that argument and even concedes that, under Greek law, planning consents already granted may continue to be implemented.
53. Construction projects such as these have a direct adverse effect on the dune habitat types present in the special area of conservation in which they are carried out. Furthermore, those projects and the use of the buildings so constructed constitute a serious threat of disturbance, from noise or light, for example, to the breeding of the Caretta caretta sea turtle. The fact, cited by Greece, that there has been relatively little construction in the area of the protected site up until now does not preclude that adverse effect.
54. Consequently, Greece should in principle have taken steps to prevent those interventions in the special area of conservation, in accordance with Article 6(2) of the Habitats Directive.
55. So far as concerns the houses constructed in 2006, however, it is to be noted that the site in question has been under protection only since 19 July 2006. Since the Commission does not say precisely when those houses were built, the latter constitute an infringement of Article 6(2) of the Habitats Directive only to the extent of the consent for their use.
56. Construction activity after 2013 does not form part of the subject matter of the present proceedings, since it took place after the expiry of the deadline laid down in the reasoned opinion.
57. It cannot automatically be ruled out that Greek measures to prevent any further adverse effects were precluded at least in part by legal certainty. It is true that that principle cannot justify planning consent issued in breach of the site protection scheme. However, since the Commission does not specify when the consents were given, the latter may have been issued, and indeed, in the case of the houses built in 2006, must be assumed to have been issued, before the system of protection became applicable to the site in question, that is to say before 19 July 2006. (25)
58. However, as the Court recently reaffirmed, even if that were the case, measures implementing those consents would be subject to Article 6(2) of the Habitats Directive in so far they were adopted after 19 July 2006. (26) It is true that the implementation of a lawful consent might be justified by legal certainty, in application, mutatis mutandis, of Article 6(4) of the Habitats Directive. (27) However, the prerequisite for such a justification would be a review of the compatibility of the relevant construction project with the conservation objectives of the protected site as a basis for carrying out the weighing up of interests necessary. (28)
59. Consequently, since Greece neither prevented the aforementioned houses from being constructed or used, nor demonstrated that those projects were justified, that Member State infringed Article 6(2) of the Habitats Directive.
– The planned construction of 50 luxury residences between Agiannakis and Elea and four residences in Elea
60. The Commission also objects to a project for the construction of 50 luxury residences on the beach between Agiannakis and Elea.
61. It must be assumed that such a project would also adversely affect dune habitats, cause significant disturbance to the sea turtle and thus be incompatible with Article 6(2) of the Habitats Directive. If the Greek authorities had authorised or tolerated that project, this too could constitute an infringement of the prohibition on deterioration.
62. However, the Commission has not claimed that such an infringement has been committed.
63. In its pleadings, it alleges only one infringement in relation to that project, namely that initial construction measures have already been carried out. In Greece’s uncontested submission, however, the commencement of construction activities prior to the issue of planning consent is prohibited. The Commission should therefore have shown that Greece did not adequately implement that prohibition. It did not do so, however. Accordingly, the action must be dismissed in this regard.
64. The same is true to the extent that the Commission submits that the construction of four residences in Elea ‘is to be authorised’. An alleged intention that is currently precluded by a suspension of all consent proceedings which Greece has shown to be in place is not in itself capable of infringing the prohibition on deterioration.
– Intermediate conclusion
65. Consequently, Greece failed to fulfil obligations under Article 6(2) of the Habitats Directive in the special area of conservation by granting consent for the construction of houses in Agiannakis in 2010 and for the use of other houses built in 2006, and maintained the consent granted in respect of three houses in Vounaki.
ii) The development of thoroughfares and roads
66. The Commission further objects to a number of roads, namely the opening of five new thoroughfares to the beach, a new road connecting Kalo Nero with Elea that runs parallel to the beach alongside an existing railway line, a road behind the beach at Kalo Nero which, it claims, is used as a car park and camp site, and the asphalting of existing roads and thoroughfares.
– The construction of five thoroughfares leading to the beach
67. The Commission recognises that the Greek authorities have declared the new thoroughfares to be unlawful and have called both for the thoroughfares to be closed and for the areas affected to be restored to their original condition. However, it considers this to be insufficient.
68. Greece submits in its defence that the thoroughfares leading to the beach have existed since the early 1970s and, moreover, that their existence was provided for by law at that time. However, a joint report produced by a number of Greek authorities shows that there is no evidence of any of the five thoroughfares having existed prior to 2009, that at least three of those thoroughfares are inconsistent with the original provisions for their construction, and that, at that time, provision was made for only four thoroughfares, not five. (29)
69. The same report confirms, however, that those thoroughfares were constructed by a private undertaking fined for doing so. (30) It would appear from Greece’s submissions that the fines so imposed are still the subject of legal proceedings.
70. Since those thoroughfares were not built, authorised or tolerated by the Greek authorities, Greece cannot be accused of having constructed them. Furthermore, since their legality has yet to be determined by the courts, Greece also cannot (yet) be called upon to remove them.
71. However, the Commission rightly maintains that Greece does not prevent the use of those thoroughfares.
72. Greece disregards the fact that the prohibition on deterioration is not confined to the prohibition of new damaging activities. Rather, it also requires that the Member State take appropriate steps to prevent those activities from producing deteriorations of the habitat of the species in question and disturbances of that species likely to have significant effects having regard to the objective of that directive in ensuring the conservation of that species. (31)
73. Greece should therefore have ensured that the use of the paths cannot cause significant disturbance to the sea turtle or adversely affect the sand dunes. However, it did not fulfil that obligation.
74. Since those roads and paths facilitate the access of motor vehicles to the beach, they constitute a significant risk of disturbance to the sea turtles, in particular from noise and light during egg-laying and the hatching of young. They also increase the risk of vehicles driving on the beach. In some circumstances, this can lead directly to the death of sea turtles. At the very least, the sand is compacted, which makes it difficult or even impossible for the sea turtles to dig their nests. Even wheel tracks in the sand can present obstacles that prevent newly hatched juveniles from reaching the sea unharmed.
75. Where the end points of thoroughfares cut across dune habitat types, they bring about the immediate loss of areas protected under EU law. Even where they already existed at the time when the site in question was designated as a special area of conservation, it is reasonable to assume that the unregulated parking of beach visitors’ cars at the ends and on the verges of thoroughfares causes further damage to the dunes. (32) Driving on the beach can also adversely affect dune habitats. (33) Furthermore, such thoroughfares facilitate illegal camping on the dunes, which can cause further damage. (34)
76. Greece cannot rebut those complaints by a general reference to ongoing court proceedings. For, notwithstanding such proceedings, it must in principle be possible to take provisional measures to protect the site, such as by restricting the use of the thoroughfares.
77. However, there is nothing to indicate that Greece endeavoured to introduce such protective measures or that, for reasons relating to EU law or for practical reasons, such measures are not possible.
78. To this extent, the action is therefore well founded in this regard.
– The road between Kalo Nero and Elea
79. Greece maintains that the road link between Kalo Nero and Elea that runs alongside the existing railway line is a long way from the beach and has nothing to do with the thoroughfares. I understand this to mean that Greece assumes responsibility for that road but considers it to be compatible with the prohibition on deterioration.
80. However, it is common ground that the road is located inside the special area of conservation. A map submitted by Greece (35) shows that, while the road does not come into contact with the beach, it does come into contact with various protected habitat types. Furthermore, the thoroughfares leading to the beach branch off from that road, meaning that that road is also part of the thoroughfare network. It therefore entails at the very least the probability or risk that the special area of conservation will be adversely affected.
81. In order to avoid a ruling against it in this regard, Greece should have rebutted that complaint by the Commission. To that end, it could, for example, have pleaded that it conducted an appropriate assessment of that road’s implications for the site which shows that the road in question does not adversely affect the site. However, this was not the case.
82. Consequently, the action is well founded in this regard too.
– Asphalting of certain roads and paths
83. Greece further submits that the fact that certain roads and paths have been asphalted does not facilitate access to the beach, but simply reduces dust and noise. However, that argument is unconvincing. Even if those sand paths cannot be said to affect any protected habitat type and are not in the direct vicinity of the sea turtles’ potential nesting sites, surfacing sand paths facilitates their use and, therefore, access to the beach. Consequently, the upgrading of those paths increased the risk of disturbance to the sea turtle and deterioration of the dunes.
– Intermediate conclusion
84. In short, Greece failed to fulfil its obligations under Article 6(2) of the Habitats Directive by
– not restricting the use of paths in the special area of conservation in such a way as to prevent any adverse effects on the site and any significant disturbances to the Caretta caretta sea turtle during breeding;
– building, or at least authorising, in the special area of conservation, a road link between Kalo Nero and Elea that runs parallel to the railway line between those two localities; and
– authorising the asphalting of paths in the special area of conservation.
iii) Wild camping
85. The Commission further complains that there are regular occurrences of ‘wild camping’, often in camper vans, in a pine forest on the dunes of the beach at Elea. That practice is problematic primarily from the point of view of the conservation of dune and forest habitats, but it also increases the risk of campers disturbing the sea turtles on the beach at night.
86. While Greece is at pains to point out that ‘wild camping’ is strictly prohibited, it concedes that this is a long-standing practice. However, it maintains that, since 2013, the areas in question have been patrolled and the situation has therefore improved significantly.
87. Greece thus implicitly recognises that, up until the material time, namely 1 December 2012, the prohibition on ‘wild camping’ in Elea was not being adequately enforced.
88. Greece therefore failed to fulfil its obligations under Article 6(2) of the Habitats Directive by not adequately enforcing the prohibition on ‘wild camping’ within the special area of conservation.
iv) The operation of beach bars
89. The Commission further complains that, between Elea and Kalo Nero, at least three beach bars were in operation, particularly at night. Their operation caused a disturbance, in the form of light and noise, to the sea turtles during egg-laying and posed a risk to newly hatched juveniles.
90. Greece submits only that, in the years 2013 and 2014, that is to say not until after the expiry of the material deadline, the operation of beach bars was prohibited, and that beach bars were no longer in operation thereafter either. That Member State thus implicitly accepts that, previously, that is to say prior to the expiry of the deadline, disturbances to sea turtles from the operation of beach bars was not adequately prevented.
91. Greece therefore failed to fulfil its obligations under Article 6(2) of the Habitats Directive by not adequately restricting the operation of beach bars on the breeding beaches of the Caretta caretta sea turtle in the special area of conservation.
v) Use of the beach
92. A further criticism expressed by the Commission concerns the presence of beach furniture, in particular umbrellas and sunbeds left on the beach overnight by hirers, and wood-covered walkways on the beach. These, it submits, reduce the space for nests and get in the way of the sea turtles.
93. Greece implicitly accepts that criticism by confining its submission to the assertion that, since 2013, that is to say after the expiry of the relevant deadline, the hiring-out of umbrellas and sunbeds has been kept separate from the breeding beaches at Kalo Nero.
94. Greece therefore failed to fulfil its obligations under Article 6(2) of the Habitats Directive by not adequately restricting the hiring-out of beach furniture or the laying of wood-covered walkways on the breeding beaches of the Caretta caretta sea turtle in the special area of conservation.
vi) Use of heavy vehicles for beach cleaning
95. The Commission also objects to the occasional use of heavy vehicles for beach cleaning. This compacts the sand and could destroy eggs.
96. Greece explains that the rules on beach use which have been in force since mid-2013 prohibit the use of vehicles for beach cleaning during the sea turtles’ breeding period. However, the sand can be compacted, not least by the use of such vehicles, outside the breeding period.
97. Nevertheless, this plea must be rejected because Greece contends, without contradiction, this was a one-off incident that occurred long before the first invitation to submit comments. The Commission therefore does not provide sufficient evidence to show that, at the time when the deadline laid down in the reasoned opinion expired, further steps to prevent such cleaning measures were necessary.
vii) Light pollution
98. In the Kalo Nero area in particular, the Commission complains about disturbances to the sea turtles from light emanating from beach-front restaurants, hotels and boutiques, as well as from street lighting. Newly hatched turtles in particular are deflected from their path to the sea, although adult turtles too are disturbed during egg-laying.
99. Greece submits in its defence that much of the lighting has been in place for a long time, and announces that measures to prevent such disturbances will be taken in future.
100. Much as with the paths near the beach, it is the case here too that Member States must take appropriate steps to prevent disturbances arising from existing activities. (36) Since such steps have so far only been announced, the action is well founded in this regard too.
101. Greece therefore failed to fulfil its obligations under Article 6(2) of the Habitats Directive by not adequately restricting light pollution on the breeding beaches of the Caretta caretta sea turtle in the special area of conservation.
viii) Removal of sand between Agiannakis and Elea
102. The Commission also alleges that Greece authorised the removal of sand between Agiannakis and Elea. However, Greece denies having done so. Since the Commission provides no further clarification of its allegation, the action must be dismissed in this regard.
ix) Extended agricultural use of the dunes
103. The extended agricultural use of the dunes makes up a further allegation by the Commission.
104. Greece submits, however, that agricultural usage is more likely to have decreased over the last 20 years. The Council of State’s report, too, refers only to the fact that agricultural usage in the special area of conservation has been maintained; it does not say that it has been extended. (37)
105. The only evidence which the Commission adduces in support of its allegation is a photograph from the reasoned opinion, and it is not clear from this what the photograph is supposed to show. The Commission is not therefore able to rebut Greece’s submission. For that reason, the action must be dismissed in this regard too.
106. The Commission also criticises the fact that the dunes between Elea and Agiannakis were ploughed between 20 February and 3 March 2013. However, this did not occur until after the expiry of the deadline set by the Commission and is therefore immaterial to the present case.
107. Furthermore, the Commission’s argument that the presence of sheep on the beach represents a threat to the sea turtle does not seem very plausible. Greece argues convincingly that the sheep in question cannot be indicative of sheep farming because there are no plants growing on the beach that the sheep could eat. It must rather be assumed that the sheep photographed(38) were being taken from one pasture to another via the beach. It is unlikely that the sheep could have harmed the turtles’ eggs at a depth of up to 50 cm.
x) Offshore disturbances
108. Finally, the Commission also criticises the authorisation of fishing activities in the waters off the beach. It relies in this regard on reports by the NGO Archelon to the effect that local fishermen regularly set gillnets, measuring several hundred metres in length, on the beach itself, positioning them at right angles to the shore and leaving them overnight. Furthermore, it is not uncommon for larger ships, at the beginning of egg-laying in May and towards the end of the hatching season in October, to engage in trawl net fishing at distances as close as one kilometre to the beach, even though a distance of at least one and a half nautical miles is prescribed. Radar surveillance ensures that such infringements are identified and penalised, although the penalties do not constitute a deterrent. (39)
109. According to the Commission, there is a significant risk that sea turtles on their way to lay eggs or on their way back from doing so could get caught up in the nets and drown.
110. Greece, on the other hand, maintains that little fishing takes place. The risk is very limited, particularly since dead sea turtles that are washed ashore exhibit no injuries consistent with net entanglement. If sea turtles get caught up in the nets, the fishermen immediately set them free.
111. However, I am not persuaded by Greece’s arguments.
112. The submission concerning the scale of fishing is far too general and does not address Archelon’s specific claims.
113. Greece does not deny the practices complained of as such.
114. It goes without saying that net fishing at close proximity to the beach poses a significant risk to sea turtles, as they are concentrated there during egg-laying. For that reason, local gillnet fishing on the beach itself is particularly unacceptable.
115. However, trawl net fishing at somewhat greater distances also poses a threat to sea turtles. Furthermore, the penalties for excessive coastal proximity do not appear to be sufficient to prevent that threat to sea turtles.
116. Greece therefore failed to fulfil its obligations under Article 6(2) of the Habitats Directive by not adequately restricting fishing off the breeding beaches of the Caretta caretta sea turtle in the special area of conservation.
117. Furthermore, the Commission also objects to the use of leisure craft and pedalos off the beach. However, the non-specifically cited reports by the NGO Archelon contain no information on the matter. To that extent, the action must therefore be dismissed.
xi) Intermediate conclusion
118. In short, Greece failed to fulfil its obligations under Article 6(2) of the Habitats Directive in the special area of conservation by
– authorising the building of houses in Agiannakis in 2010 and the use of other houses built in 2006 and maintaining the consent granted in respect of three houses in Vounaki;
– not restricting the use of paths in such a way as to prevent adverse effects on the site and significant disturbances to the Caretta caretta sea turtle during breeding, building, or at least authorising, a road link between Kalo Nero and Elea that runs parallel to the railway line, and authorising the asphalting of paths;
– not adequately enforcing the prohibition of ‘wild camping’;
– not adequately restricting the operation of beach bars on the breeding beaches of the Caretta caretta sea turtle;
– not adequately restricting the hiring-out of beach furniture or the laying of wood-covered walkways on the breeding beaches of the Caretta caretta sea turtle;
– not adequately restricting light pollution on the breeding beaches of the Caretta caretta sea turtle; and
– not adequately restricting fishing off the breeding beaches of the Caretta caretta sea turtle.
2. Assessment of the implications for the site
119. The Commission further alleges that Greece did not subject certain activities to an appropriate assessment of their implications for the site in accordance with Article 6(3) of the Habitats Directive. That provision establishes an assessment procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site. (40)
120. While there is no doubt that the activities referred to in Section IV.B.1(c) have taken place since the prohibition on deterioration under Article 6(2) of the Habitats Directive became applicable, that is to say since 19 July 2006, (41) an infringement of the obligation to carry out an appropriate assessment of the implications for the site under Article 6(3) presupposes that the Greek authorities authorised the activity in question after that date. Alternatively, the Commission might also be objecting to the fact that certain activities can be carried out without any authorisation despite the fact that, by their nature, they require an assessment of their implications for the site. (42)
121. However, so far as concerns most of the measures complained of, the Commission has nothing to say on the two points raised above. In particular, it tends not to mention the timing of any authorisations given. Indeed, for the most part, it does not even indicate whether authorisation was granted at all.
122. Only in the case of the project for the construction of three holiday homes in Vouinaki is it apparent from the documents before the Court that authorisation was given in 2012. (43) As stated above, that project could lead to dune site losses and disturbances to the Caretta caretta sea turtle. Authorisation would therefore have been subject to an appropriate assessment of the project’s implications for the site.
123. Greece therefore failed to fulfil its obligations under Article 6(3) of the Habitats Directive by authorising the construction of three holiday homes on the ‘Kyparissia Sand Dunes’ site in Vounaki in 2012 without subjecting that project to an appropriate assessment of the compatibility of its implications with the conservation objectives for that site. The action must otherwise be dismissed in this regard.
C – The protection of species
124. The Commission alleges that Greece failed to fulfil its obligations under Article 12(1)(b) and (d) of the Habitats Directive by not taking the requisite measures to establish and apply an effective system of strict protection for the Caretta caretta sea turtle in Kyparissia Bay such as to prevent any disturbance to that species during its breeding period and any activity capable of causing deterioration or destruction of its breeding sites is prevented.
125. Under Article 12(1) of the Habitats Directive, Member States must take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration (Article 12(1)(b)) and any deterioration or destruction of breeding sites or resting places (Article 12(1)(d)). These requirements have been applicable since the end of the period for the transposition of the Habitats Directive, that is to say since 1994.
126. Such a system of strict protection must enable the effective avoidance of any deliberate disturbance of these species, particularly during the period of breeding, and of the deterioration or destruction of breeding sites of the species referred to in Annex IV(a) to the Habitats Directive. (44) As regards the condition of ‘deliberateness’, the Court has held that it can be met only if it is proven that the author of the act intended to generate an adverse effect prohibited under Article 12(1) of the Habitats Directive on a protected species or, at the very least, accepted the possibility of such an adverse effect. (45)
127. The transposition of that obligation requires the Member States not only to adopt a comprehensive legislative framework but also to implement concrete and specific protection measures. (46) Those preventive measures must be coherent and coordinated. (47)
128. Both the comprehensive legislative framework and the coherent and coordinated preventive protection measures must be consistent with the specific needs of the Caretta caretta sea turtle during its breeding. It should therefore be recalled that egg laying and the hatching of young turtles in particular are sensitive to specific disturbances — for example, from noise or light. Newly hatched turtles are very vulnerable and a large number of them die before they can reproduce. Particularly when hatching at night, they are clearly prone to being attracted by landside lighting, which deflects them from their run to the sea. It is also important to prevent measures that detract from the beach’s suitability as a breeding ground, such as construction work. (48)
1. The comprehensive legislative framework
129. The Commission complains, first, that there is no comprehensive legislative framework, relying in essence on the fact that Greece recognised the incompleteness of that framework in the pre-litigation procedure.
130. Greece takes issue with that submission, citing in this regard a large number of provisions that are intended to contribute towards the protection of the Caretta caretta sea turtle. A presidential decree that is currently in preparation is intended only to bring together and consolidate the existing provisions.
131. While the Commission considers that Greece thus contradicts its submission in the pre-litigation procedure, the passages which the Commission cites show only that Greece saw certain advantages in adopting additional provisions, but not that Greece considered these indispensable.
132. The success of the action is thus conditional upon proof of the existence of gaps in the Greek legislation. Unfortunately, however, the Commission confines itself to demonstrating that certain provisions are insufficient or too general. However, that submission does not show that there are gaps in the legislation cited by Greece taken as a whole.
133. Nevertheless, a comprehensive examination of the substance of the dispute shows that there were gaps in the Greek legislation, at least at the material time. This follows from the sea turtles’ needs, the previously established protection-related infringements of the prohibition on deterioration laid down in Article 6(2) of the Habitats Directive, and more recent Greek provisions.
134. It would be a relatively simple matter to ensure the necessary protection by completely closing the beaches at issue from May to October and, furthermore, by preventing projects that could have a lasting adverse effect on them, such as, for example, building projects or sand removal.
135. Another possibility, of course, is to combine one of the ways in which the beaches are used, in particular tourism, with sea turtle protection, which is clearly what Greece is attempting to do. However, this requires significantly more complex legislation setting out in detail which activities are permitted or prohibited there. (49)
136. Moreover, Greece has since adopted such legislation, in the form of ministerial orders on the prevention of planning consents and the use of beaches. However, regardless of whether the provisions laid down there do indeed complete the legislative framework or still contain gaps, they are not capable of rebutting the complaints raised by the Commission. This is because they were not adopted until May and July 2013, that is to say after the expiry of the relevant deadline. Since such legislation was still lacking on 1 December 2012, the legal framework was incomplete at that time.
137. Furthermore, measures requiring regular renewal are not capable of establishing a comprehensive legislative framework. This is because there is always the risk that, at some stage, they will not be renewed on time. (50)
138. In addition, it is clear from the established infringements of the prohibition on deterioration under Article 6(2) of the Habitats Directive that Greece did not adopt effective provisions to restrict the use of the thoroughfares to the beach and the use of lighting in the vicinity of the beach to such an extent as to prevent any disturbance of the sea turtles during egg laying and the hatching of young.
139. That conclusion is confirmed by the Council of State’s report, which notes that Greece’s obligations under EU law urgently require it to introduce consolidated legislation on the protection of the site. (51)
140. Greece therefore failed to fulfil its obligations under Article 12(1)(b) and (d) of the Habitats Directive by not adopting a comprehensive legislative framework to protect the Caretta caretta sea turtle in the ‘Kyparissia Sand Dunes’ special area of conservation.
2. Specific protective measures
141. In addition to an incomplete legislative framework, the Commission also complains that the specific protective measures adopted are inadequate.
142. To that extent, all of the failures to fulfil obligations under Article 6(2) of the Habitats Directive which have already been established also constitute infringements of the prohibition on disturbance under Article 12(1)(b). This is because they all entail disturbances to the Caretta caretta sea turtle. In the light of the Court’s case-law, (52) those disturbances were also deliberate. After all, the beaches’ importance for the breeding of the sea turtle is well known locally. Consequently, the disturbance arising from each activity was at least tolerated.
143. The differences in the temporal application of Article 6(2) and Article 12(1)(b) of the Habitats Directive can be seen in the example of the new houses built in 2006. While there is no discernible infringement of Article 6(2) in relation to those measures because it remains unclear whether the houses were built before or after that provision became applicable, (53) Article 12 had been applicable since 1994. The construction of those houses therefore infringed the prohibition on disturbance of the Caretta caretta sea turtle.
144. The establishment of those infringements shows that the specific protective measures are not yet adequate and that, to that extent, Greece infringed Article 12(1)(b) of the Habitats Directive.
145. It has not, however, been proved that all of those activities gave rise to deterioration of breeding and resting sites. After all, the Commission has not demonstrated any effect on the beach areas where the Caretta caretta sea turtle builds its nests. To that extent, therefore, there is no discernible infringement of Article 12(1)(d).
V – Costs
146. Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, where each party succeeds on some and fails on other heads, Article 138(3) provides that each party is to bear its own costs. While Greece has been largely unsuccessful, certain important pleas in law raised by the Commission have not been upheld or have been upheld only in part. Each party should therefore bear its own costs.
VI – Conclusion
147. I therefore propose that the Court should:
(1) admit as evidence the Greek Council of State’s report of 8 April 2015, submitted by the Commission on 16 June 2015;
(2) declare that the Hellenic Republic failed to fulfil its obligations under Article 6(2) and Article 12(1)(b) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora on the site ‘Kyparissia Sand Dunes’ (‘Θίνες Κυπαρισσίας’, Natura 2000 code GR2550005) by
– granting consent for the construction of houses in Agiannakis in 2010 and for the use of other houses built in 2006, and maintaining the consent granted in respect of three houses in Vounaki;
– not restricting the use of paths in such a way as to prevent any adverse effects on the site and any significant disturbances to the Caretta caretta sea turtle during breeding, building, or at least authorising, a road link between Kalo Nero and Elea that runs parallel to the railway line in the special area of conservation, and authorising the asphalting of paths in the special area of conservation;
– not adequately enforcing the prohibition on wild camping;
– not adequately restricting the operation of beach bars on the breeding beaches of the Caretta caretta sea turtle;
– not adequately restricting the hiring-out of beach furniture and the laying of wood-covered walkways on the breeding beaches of the Caretta caretta sea turtle;
– not adequately restricting light pollution on the breeding beaches of the Caretta caretta sea turtle; and
– not adequately restricting fishing off the breeding beaches of the Caretta caretta sea turtle;
(3) declare that the Hellenic Republic failed to fulfil its obligations under Article 6(3) of Directive 92/43 by granting consent for three holiday homes in Vounaki on the ‘Kyparissia Sand Dunes’ site in 2012 without first subjecting that project to an appropriate assessment of the compatibility of its implications with the conservation objectives for that site;
(4) declare that the Hellenic Republic failed to fulfil its obligations under Article 12(1)(b) of Directive 92/43 by granting consent for construction measures in Agiannakis in 2006 in the vicinity of the breeding beaches of the Caretta caretta sea turtle;
(5) declare that the Hellenic Republic failed to fulfil its obligations under Article 12(1)(b) and (d) of Directive 92/43 by not adopting a comprehensive legislative framework to protect the Caretta caretta sea turtle in the ‘Kyparissia Sand Dunes’ special area of conservation;
(6) dismiss the action as to the remainder;
(7) order the European Commission and the Hellenic Republic to bear their own costs.