ORDER OF THE GENERAL COURT (Seventh Chamber)
24 May 2011 (*)
(Action for annulment – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Decision 2010/45/EU – List of sites of Community importance for the Mediterranean biogeographical region – Measure not open to challenge – Measure merely confirmatory – Inadmissibility)
In Case T‑115/10,
United Kingdom of Great Britain and Northern Ireland, represented by S. Ossowski, acting as Agent, and by D. Wyatt QC and M. Wood, Barrister,
applicant,
v
European Commission, represented by S. Boelaert and D. Recchia, acting as Agents,
defendant,
APPLICATION for partial annulment of Commission Decision 2010/45/EU of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2010 L 30, p. 322) to the extent that it lists the site called ‘Estrecho oriental’ (under reference ES6120032) as a site of Community importance for the Mediterranean biogeographical region,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka (Rapporteur) and M. Prek, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal and factual context
1 The aim, under its Article 2(1), of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the Habitats Directive’) is to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member Sates to which the Treaty applies. Article 2(2) of the Habitats Directive stipulates that measures taken pursuant to the directive are to be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.
2 According to the sixth recital in the preamble to the Habitats Directive, in order to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status, it is necessary to designate special areas of conservation in order to create a coherent European ecological network according to a specified timetable.
3 The first subparagraph of Article 3(1) of the Habitats Directive provides that a coherent European ecological network of special areas of conservation under the title ‘Natura 2000’ is to be set up in order to enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.
4 Annex I to the Habitats Directive lays down the natural habitat types of Community interest whose conservation requires the designation of special areas of conservation. Annex II lays down the animal and plant species of Community interest whose conservation requires the designation of special areas of conservation.
5 Article 4 of the Habitats Directive lays down the procedure for the designation of sites of Community importance. Under Article 1(k) of the Habitats Directive ‘site of Community importance’ is defined as meaning ‘a site which, in the biogeographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II and may also contribute significantly to the coherence of Natura 2000 referred to in Article 3, and/or contributes significantly to the maintenance of biological diversity within the biogeographical region or regions concerned’.
6 Under Article 4(1) of the Habitats Directive, each Member State was required to propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that were native to its territory the sites hosted. That list had to be sent to the Commission of the European Communities, together with information on each site, within three years of notification of the Habitats Directive. That information was to include a map of the site, its name, location, extent and the data yielded by application of the criteria specified in Annex III (Stage 1), and was to be provided in a format established by the Commission in accordance with the procedure laid down in Article 21 of the Habitats Directive.
7 Under Article 4(2) of the Habitats Directive, the Commission is to establish, on the basis of the criteria set out in Annex III to that directive, in agreement with each Member State, a draft list of sites of Community importance drawn from the Member States’ lists identifying those which host one or more priority natural habitat types or priority species. The list of sites of Community importance is to be adopted by the Commission in accordance with the procedure laid down in Article 21 of the Habitats Directive.
8 Article 4(4) of the Habitats Directive provides that once a site of Community importance has been adopted in accordance with the procedure laid down in Article 4(2), the Member State concerned is to designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.
9 Under Article 4(5) of the Habitats Directive, as soon as a site is placed on the list of sites of Community importance established by the Commission it is to be subject to the provisions of Article 6(2) to (4). Article 6 of the Habitats Directive provides for the necessary measures which the Member States must take to protect special conservation areas.
10 On 19 July 2006, the Commission adopted, on the basis of the third subparagraph of Article 4(2) of the Habitats Directive, Decision 2006/613/EC adopting, pursuant to the Habitats Directive, the list of sites of Community importance for the Mediterranean biogeographical region (OJ 2006 L 259, p. 1). That list, in Annex 1 to Decision 2006/613, included, among others, the site called ‘Southern Waters of Gibraltar’, under reference UKGIB0002, proposed by the United Kingdom of Great Britain and Northern Ireland (‘Site UKGIB0002’).
11 On 28 March 2008, the Commission adopted Decision 2008/335/EC adopting, pursuant to the Habitats Directive, a first updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2008 L 123, p. 76). That decision repealed and replaced Decision 2006/613. Site UKGIB0002 continued to be included in the first updated list of sites of Community importance established in the Annex to Decision 2008/335.
12 On 12 December 2008, the Commission adopted Decision 2009/95/EC adopting, pursuant to the Habitats Directive, a second updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2009 L 43, p. 393). That decision repealed and replaced Decision 2008/335. The second updated list of sites of Community importance established in the Annex to Decision 2009/95 again included Site UKGIB0002 and, for the first time, a site called ‘Estrecho oriental’, under reference ES6120032, proposed by the Kingdom of Spain (‘Site ES6120032’). Decision 2009/95 was notified to the United Kingdom on 16 December 2008.
13 On 22 December 2009, the Commission adopted Decision 2010/45/EU adopting, pursuant to the Habitats Directive, a third updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2010 L 30, p. 322). That decision repealed and replaced Decision 2009/95. Site UKGIB0002 and Site ES6120032 are still included in the third updated list of sites of Community importance established in the Annex to Decision 2010/45.
Procedure
14 The United Kingdom brought the present action by application lodged at the Registry of the Court of First Instance (now ‘the General Court’) on 4 March 2010.
15 By separate document, lodged at the Court Registry on 25 May 2010, the Commission brought an application, under Article 114 of the Rules of Procedure of the General Court, for a decision on admissibility. The applicant lodged its observations on that application on 8 July 2010.
16 By document lodged at the Court Registry on 25 May 2010, the Kingdom of Spain applied for leave to intervene in the present proceedings in support of the Commission.
17 By document lodged at the Court Registry on 11 March 2011, the United Kingdom sought leave to amend the form of order it seeks so as to cover Commission Decision 2011/85/EU of 10 January 2011 adopting, pursuant to the Habitats Directive, a fourth updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2011 L 40, p. 206), which repealed and replaced Decision 2010/45. The Commission lodged its observations on that application within the time-limit laid down.
Forms of order sought by the parties
18 In the application, the United Kingdom claims that the Court should:
– annul Decision 2010/45 to the extent that it lists Site ES6120032 as a site of Community importance;
– order the Commission to pay the costs.
19 In its plea of inadmissibility, the Commission claims that the Court should:
– dismiss the action as inadmissible;
– order the United Kingdom to pay the costs.
20 In its observations on the plea of inadmissibility, the United Kingdom contends that the Court should dismiss it or reserve its decision to the final judgment.
Law
21 Under Article 114(1) of the Rules of Procedure, if a party so requests, the General Court may make a decision on admissibility without considering the substance. Under Article 114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral. In the present case, the Court considers that the documents before it provide sufficient information to enable it to rule upon the Commission’s application without opening the oral procedure.
22 In its plea of inadmissibility, the Commission claims that the action for partial annulment of Decision 2010/45 in so far as the listing of Site ES6120032 as a site of Community importance is concerned should be dismissed as inadmissible. The Commission submits that, regarding the listing of Site ES6120032 as a site of Community importance, Decision 2010/45 merely confirms Decision 2009/95, which had not been challenged by the United Kingdom within the prescribed time-limit. It adds that no reconsideration of the listing of Site ES6120032 in the list of sites of Community importance took place before the adoption of Decision 2010/45, in the absence of new facts.
23 The United Kingdom submits that, at the meeting of the Habitats Committee on 15 October 2009 at which the Commission proposed the amendment of Decision 2009/95, it opposed the inclusion of Site ES6120032 in the third updated list of sites of Community importance. Thus, the inclusion of Site ES6120032 in Decision 2010/45 was effected following a reconsideration based on substantial new facts and that such inclusion cannot be regarded as a merely confirmatory measure.
24 The United Kingdom submits that its opposition to the inclusion of Site ES6120032 in the third updated list of sites of Community importance was based on the existence of a new substantial fact, namely that Site ES6120032 overlaps Site UKGIB0002, which was previously included in the list of sites of Community importance by Decision 2006/613, and the territorial waters of Gibraltar. That fact came to the knowledge of the United Kingdom, and of the other Member States except the Kingdom of Spain, more than two months after the adoption of Decision 2009/95, which included Site ES6120032 for the first time in the list of sites of Community importance, that is to say after the expiry of the time-limit for bringing an action against Decision 2009/95 had expired. According to the United Kingdom, that fact altered the circumstances and conditions which governed the adoption of the first inclusion of Site ES6120032 in the list of sites of Community importance.
25 According to settled case-law, an action for annulment brought against a decision which merely confirms an earlier decision which has not been challenged in good time is inadmissible. A decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any re-examination of the situation of the addressee of the earlier measure (orders of the General Court in Case T-84/97 BEUC v Commission [1998] ECR II-795, paragraph 52, and Case T-308/02 SGL Carbon v Commission [2004] ECR II‑1363, paragraph 51).
26 In this case, it is not disputed that Site ES6120032 was listed for the first time as a site of Community importance in Decision 2009/95 adopting the second updated list of sites of Community importance. That site was then re-listed identically as a site of Community importance in Decision 2010/45.
27 Thus, the contested provision of Decision 2010/45 had already appeared in the earlier Decision 2009/95. Therefore, as regards the designation of Site ES6120032 as a site of Community importance, Decision 2010/45 contains no new factor.
28 Nor is it disputed that Decision 2009/95 was notified to the United Kingdom on 16 December 2008 or that the time-limit for bringing an action for its annulment expired without the United Kingdom doing so.
29 However, the confirmatory or other nature of a measure cannot be determined solely with reference to its content as compared with that of the previous decision which it confirms. The nature of the contested measure must also be appraised in the light of the nature of the request to which it constitutes a reply (see Case T‑186/98 Inpesca v Commission [2001] ECR II‑557, paragraph 45 and the case-law cited, and SGL Carbon v Commission, paragraph 52).
30 In particular, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision. The existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive (Inpesca v Commission, paragraphs 46 and 47; see SGL Carbon v Commission, paragraph 53 and the case-law cited).
31 Having regard to that case-law, the Court must examine whether, as the United Kingdom submits, the overlapping of Site ES6120032 and Site UKGIB0002 constitutes a substantial new fact which led to the reconsideration of Decision 2009/95 and to the designation, in Decision 2010/45, of Site ES6120032 as a site of Community importance.
32 As regards the existence of a new fact, Site ES6120032 and Site UKGIB0002 had already been listed in Decision 2009/95 adopting the second updated list of sites of Community importance. Thus, the overlapping of those two sites of Community importance already existed in Decision 2009/95 and cannot be regarded as a new fact subsequent to the adoption of that decision.
33 Moreover, in its observations on the plea of inadmissibility, the United Kingdom submits that that overlapping invalidated the original inclusion of Site ES6120032 in the second updated list of sites of Community importance in Decision 2009/95 and its current inclusion in the third updated list of sites of Community importance in Decision 2010/45. It also contends that both the original and the current inclusion of Site ES6120032 are incompatible with the Habitats Directive. Therefore, since the United Kingdom submits that the overlapping of Site ES6120032 and Site UKGIB0002 already invalidated the first designation of Site ES6120032 in Decision 2009/95, it cannot, at the same time, contend that such overlapping constitutes a new fact which occurred between the adoption of Decision 2009/95 and Decision 2010/45.
34 Moreover, it cannot be accepted that neither the United Kingdom nor the Commission could not have had prior knowledge of the overlapping of Site ES6120032 and Site UKGIB0002 when Decision 2009/95 was adopted (see, to that effect, Inpesca v Commission, paragraph 50, and SGL Carbon v Commission, paragraph 57).
35 In that regard, in so far as the United Kingdom is concerned, it admits in its application that, in October 2008, the members of the Habitats Committee were sent the list of sites for the Mediterranean biogeographical region including the sites proposed by all the Member States concerned and that it did not check the details of the other Member States’ sites or, in particular, those of the sites proposed by the Kingdom of Spain. In addition, the draft of the second updated list of sites of Community importance was submitted for its opinion, under Article 21 of the Habitats Directive, to the Habitats Committee, composed of the Member States’ representatives in December 2008.
36 The draft list of sites of Community importance on which the Habitats Committee gives its opinion includes, at least, the information in the decision to be adopted by the Commission, namely the site’s reference code, its name, area and geographical coordinates. At the Habitats Committee’s meeting in December 2008, the draft of the second list of sites of Community importance including Site ES6120032 was approved unanimously by the Member States’ representatives, as stated by the Commission at the Habitats Committee’s meeting on 15 October 2009. The United Kingdom’s representative was duly informed of the draft Commission decision for the purpose of the Habitats Committee’s meeting in December 2008, was present at that meeting and voted in favour of the adoption of the second updated list of sites of Community importance.
37 As regards the Commission, it is apparent from Recitals 7 to 9 in the preamble to Decision 2009/95 that the Commission drew up a draft list of sites of Community importance on the basis of the lists of sites proposed by Member States accompanied by information on each site. That information included the most recent and definitive map of the site transmitted by the Member States concerned, the name, location and extent of the site, and the data yielded by application of the criteria specified in Annex III to the Habitats Directive.
38 Accordingly, the overlapping of Site ES6120032 and Site UKGIB0002 in Decision 2009/95 cannot be regarded as a new fact.
39 Consequently, the designation of Site ES6120032 in Decision 2010/45 adopting the third updated list of sites of Community importance cannot be regarded as the result of a reconsideration of Decision 2009/95 on the basis of new facts.
40 In addition, the United Kingdom became aware of the content of Decision 2009/95 and the location of Site ES6120032 at the latest when it was notified of Decision 2009/95, that is on 16 December 2008. After that date, the United Kingdom could not claim to be unaware of the content of Decision 2009/95 or of the overlapping of Site ES6120032 and Site UKGIB0002.
41 It is clear from the case-law cited in paragraph 30 above that a measure cannot be regarded as merely confirmatory if it constitutes the reply to a request for reconsideration of a previous decision based on substantial new facts. Since those requirements relating to the facts on which the request for reconsideration is made are cumulative, it is sufficient to hold, in order to find that a measure is not merely confirmatory, that one of the requirements is not satisfied without it being necessary to consider the other.
42 In this case, therefore, since the overlapping of Site ES6120032 and Site UKGIB0002, upon which the United Kingdom relies, does not constitute a new fact, there is no need to consider whether it constitutes a substantial fact.
43 It follows from all the foregoing that, as regards the designation of Site ES6120032 in the list of sites of Community importance, Decision 2010/45 must be held to be merely confirmatory of Decision 2009/95.
44 Consequently, the head of claim for annulment of Decision 2010/45 to the extent that it lists Site ES6120032 as a site of Community importance is inadmissible.
45 As regards the United Kingdom’s application to amend the form of order it seeks so as to cover Decision 2011/85, since the present action was brought Decision 2010/45 has been repealed and replaced by Decision 2011/85.
46 In that regard, it is true that, where a decision is, during proceedings, replaced by another decision with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law. It would not be in the interests of the due administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application (see the order of 18 November 2005 in Case T-299/04 Selmani v Council and Commission, not published in the ECR, paragraph 68 and the case-law cited).
47 However, according to settled case-law, the admissibility of an action must be judged by reference to the situation prevailing when it was brought (see the order in Selmani v Council and Commission, paragraph 69 and the case-law cited).
48 It follows that an applicant may only amend his pleadings in response to supervening events in the course of proceedings if his application for annulment of the act originally contested was itself admissible when that application was lodged (see the order in Selmani v Council and Commission, paragraph 70 and the case-law cited).
49 In this case, it has already been held that, on the date the present action was brought, the United Kingdom’s claim for partial annulment of Decision 2010/45 was inadmissible.
50 It follows that the United Kingdom’s claim for annulment of ‘Decision 2010/45/EU to the extent that it lists Site ES6120032 as a site of Community importance’ is inadmissible and that it is not appropriate to allow the United Kingdom to amend the form of order it seeks as regards the adoption of Decision 2011/85.
51 Consequently, the action must be dismissed as inadmissible.
52 Since the present action is inadmissible and the Court is making an order in the form sought by the defendant, there is no need to rule on the Kingdom of Spain’s application for leave to intervene.
Costs
53 Under Article 87(2) 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. Since the United Kingdom has been unsuccessful, it must be ordered to pay the costs as applied for by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. The United Kingdom of Great Britain and Northern Ireland shall pay the costs.
3. There is no need to rule on the Kingdom of Spain’s application for leave to intervene.
Luxembourg, 24 May 2011.