Notice for the OJ

 

Action brought on 9 January 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland.

(Case C-6/04)

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 9 January 2004 by the Commission of the European Communities, represented by L. Flynn and M. van Beek, acting as agents, with an address for service in Luxembourg.

The Applicant claims that the Court should:

declare that, by failing to correctly transpose the requirements of Council Directive 92/43/EEC¹ on the conservation of natural habitats and of wild fauna and flora, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive; and

order the United Kingdom to pay the costs.

Pleas in law and main arguments:

Article 6(2)

Whilst the United Kingdom has adopted provisions implementing this provision with regard to controlling potentially disturbing operations, there are not provisions for all parts of the United Kingdom which enable the competent authority to take steps to avoid the deterioration of a site. The Commission considers that the United Kingdom has therefore failed to fully implement Article 6(2) of the Directive to protect a designated site from deterioration due to neglect or inactivity rather than a potentially damaging operation.

Article 6(3) and 6(4)

Article 6(3) of the Directive concerns plans or projects likely to have a significant effect on a site, for which a two-fold test is introduced. Such plans or projects must be assessed for adverse effects on the integrity of the site following public consultation. Article 6(4) then requires compensatory measures to be taken under certain circumstances. The Commission considers that the United Kingdom legislation does not properly transpose these provisions in three specific regards. National legislation is indequate with regard to water abstraction plans and projects, land use plans and, in respect of Gibraltar, the review of existing planning rights.

Articles 11 and 14(2)

Article 11 of the Directive imposes a requirement on Member States to undertake surveillance of the conservation status of priority habitats or priority species. The United Kingdom has not specifically transposed this obligation. Until this provision is transposed, and this duty is clearly assigned to the competent authorities, the Commission is unable to establish whether such surveillance is carried out. The same point arises in Article 14(2) of the Directive, which requires that where measures are deemed necessary, they shall include continuation of the surveillance provided for in Article 11 of the Directive.

Article 12(1)(d)

The transposing legislation for Great Britain and for Northern Ireland fails to provide for the obligation to take requisite measures to establish a system of strict protection prohibiting the deterioration of breeding sites or resting places as required by Article 12(1)(d) of the Directive.

Furthermore, with regard to Gibraltar, the enforcement powers foreseen in the NPO 1991 are inadequate to ensure the protection required by Article 12(1) of the Directive.

Article 12(4)

Article 12(4) requires the monitoring of incidental capture and killing. The United Kingdom's transposing measures contain no provisions requiring the establishment of such a monitoring system. In the absence of further information, the Commission is unable to establish whether such monitoring is carried out.

Article 13(1)

Article 13(1) of the Directive requires the prohibition of the keeping, transport and sales or exchange and offering for sale or exchange of specimens of plant species taken from the wild, except for those taken legally before this Directive was implemented. Once again, the Commission considers that the national measures transposing this prohibition fail to comply with the temporal limitation on that defence.

Article 15

Article 15 of the Directive, which requires the introduction of a general prohibition on indiscriminate capture and killing has been implemented by regulation 41 of the C(NH)R 1994, regulation 36(2) of the C(NH)R(NI)1995 and section 17V(2) of the NPO 1991. These provisions make it an offence to use any of the means of capture and killing listed in Annex VI(a) and Annex VI(b) of the Directive. The Commission considers that this transposition method fails to incorporate a general prohibition as is required by Article 15.

Article 16

Article 16(1) of the Directive permits derogations from the prohibitions under Articles 12, 13, 14 and 15(a) and (b) of the Directive in certain circumstances. Such derogations are subject to two pre-conditions in the opening paragraph of Article 16(1), namely that there is no satisfactory alternative and that the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. The Commission considers that the national measures providing for these derogations do not adequately transpose these pre-conditions.

Application of the Directive beyond territorial waters

The Commission considers that the Directive applies beyond the territorial waters. Specifically, the United Kingdom has failed to transpose the obligations to designate special areas of conservation under Article 4 of the Directive and to provide species protection under Article 12 of the Directive inasmuch as the transposing legislation does not apply beyond the United Kingdom's territorial waters.

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¹ - of 21 May 1992 (OJ 1992 L 206, p. 7).