Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 22 February 2024 (1)
Case C‑66/23
Elliniki Ornithologiki Etaireia (Hellenic Ornithological Society) and Others
v
Ypourgos Esoterikon (Minister for the Interior, Greece) and Others
(Request for a preliminary ruling from the Symvoulio tis Epikrateias (Council of State, Greece))
(Request for a preliminary ruling – Directive 2009/147/EC – Conservation of wild birds – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Special Protection Areas (SPAs) – Protection, conservation and restoration measures – Species covered – Conservation objectives – Priorities)
I. Introduction
1. The Birds Directive (2) requires Member States to establish Special Protection Areas for birds (‘SPAs’). However, which birds must be protected there? That is the question that falls to be answered in the present proceedings.
2. The bird species to be protected by the designation of SPAs are those listed in Annex I to the Birds Directive that are in particular need of protection and all regularly occurring migratory species. The sites to be designated as SPAs are those which are scientifically most suitable for the protection of the species in question.
3. Protection conservation and restoration measures must be established for each site. This request for a preliminary ruling is intended to clarify whether those measures may be confined to the protection of the bird species that were decisive in the designation of the site in question, in other words those for the protection of which the site is most suitable, or whether they must also include other birds listed in Annex I and migratory bird species that occur on that site, too.
II. Legal framework
A. European Union law
1. Birds Directive
4. The Birds Directive currently in force is a codified version of the original Birds Directive. (3) For the purposes of the present proceedings, the two versions are – so far as can be seen – identical.
5. Article 4 of the Birds Directive provides for the designation of Special Protection Areas for birds:
‘1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction 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 a background for evaluations.
Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species in the geographical sea and land area where this Directive applies.
2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
3. …
4. In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.’
2. Habitats Directive
6. The Habitats Directive (4) extends the scope of nature conservation under EU law to other species of fauna and flora and to certain habitat types, and partially incorporates the earlier Birds Directive.
7. Article 3(1) of the Habitats Directive describes the network of European special areas of conservation:
‘A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall 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.
The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to [the Birds Directive].’
8. Article 4(4) of the Habitats Directive governs the designation of special areas of conservation under that directive:
‘Once a site of Community importance has been adopted in accordance with the procedure laid down in paragraph 2, the Member State concerned shall 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. Measures to protect those areas are laid down in Article 6 of the Habitats Directive:
‘1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
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 this 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.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’
10. Article 7 of the Habitats Directive replaces a protective provision of the Birds Directive with certain rules of the Habitats Directive:
‘Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of [the Birds Directive] in respect of [SPAs] classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under [the Birds Directive], where the latter date is later.’
B. Greek law
11. The legislation at issue in the main proceedings is Joint Ministerial Decision No 8353/276/Ε103, (5) which amends Joint Ministerial Decision No 37338/1807/2010. (6)
12. Joint Ministerial Decision No 8353/276/Ε103 includes special conservation measures, provisions, prohibitions, procedures and interventions applicable to all SPAs. It serves as guidance for the exercise of activities within SPAs and includes ‘precautionary measures’ in anticipation of the introduction of a comprehensive framework of protection for each individual SPA, which has yet to be adopted. This is because Greece has not yet established appropriate conservation objectives and conservation measures for each individual SPA, as the applicable national law required at the time when the contested legal act was adopted and continues to require today.
13. The measures adopted under Joint Ministerial Decision No 8353/276/Ε103 are confined to ‘classification species’. These are the bird species for which an SPA is designated following an assessment based on specific scientific – that is to say, ornithological – criteria.
14. The measures provided for in Joint Ministerial Decision No 8353/276/Ε103 were adopted on the basis of a specific scientific study, following consultation with the institutions of the European Union. For the purposes of designating SPAs, that study classified bird species (according to their ecological needs) into groups, identifying (by species or group of species) the threats to them and the general principles governing their protection. In addition, the study assessed the proposed measures for regulating the exercise of certain activities posing a threat to classification species, as well as appropriate management measures in general.
15. Joint Ministerial Decision No 8353/276/Ε103 contains not only measures for implementing projects and activities within an SPA under the procedure provided for in the EIA Directive (7) and the Habitats Directive, but also protective measures relating to activities for which no prior environmental authorisation and assessment is required under the aforementioned legal provisions (such as, for example, hunting, land consolidation, forestry, use of poisoned bait, fishing, scientific research, etc.).
16. Taken as a whole, therefore, the aforementioned measures do not prejudge either procedures for the adoption of further SPA protection and management measures by the competent authorities on a case-by-case basis, or – where applicable – the obligation to carry out an assessment of the effects of projects and activities on the environment under the EIA Directive and an appropriate assessment of their implications under Article 6(3) of the Habitats Directive, should these be necessary.
III. Facts and request for a preliminary ruling
17. In the main proceedings, various associations and a large number of individuals are challenging the protection regime laid down in Joint Ministerial Decision No 8353/276/Ε103. They claim inter alia that that decision has incorrectly transposed the Birds Directive into Greek law, inasmuch as it provides for protection measures which apply without distinction to all SPAs but do not protect all of the species listed in Annex I to that directive and the regularly occurring migratory species that occur there.
18. Specifically, the provisions of the contested legal act protect only those species within an SPA which justify its designation as such and do so only in so far as those species fulfil the numerical criteria laid down in the earlier Joint Ministerial Decision No 37338/1807/2010. By contrast, Article 4(1) and (2) of the Birds Directive provides that protection is to be granted on the basis of whether a species is listed in Annex I to that directive. According to the applicants in the main proceedings, therefore, those provisions also infringe the principle of the effective application of the Birds Directive.
19. The dispute is pending before the Symvoulio tis Epikrateias (Council of State, Greece), which has therefore referred the following questions to the Court of Justice:
‘(1) Must Article 4(1) and (2) of Directive [2009/147], read in combination with Article 6(2) to (4) of Directive [92/43], be interpreted as precluding national regulatory provisions, such as those set out in the grounds for the judgment, which provide that measures for the special protection, conservation and restoration of wild bird species and habitats in special protection areas (SPAs) apply only to the “classification species”, that is to say only to the species of wild birds listed in Annex I to Directive [2009/147] and to the regularly occurring migratory birds in each SPA which, combined with the criteria for the classification of SPAs contained in the national legislation, are used as indicators to justify the classification of an area as an SPA?
(2) Is the answer to the preceding question affected by the fact that the measures referred to above for the special protection, conservation and restoration of wild bird species and habitats in special protection areas (SPAs) are, in essence, basic preventive measures to safeguard SPAs (“precautionary safeguards”) that apply horizontally, that is to say, to all SPAs, or by the fact that management plans for each specific SPA setting out the targets and measures needed to achieve or ensure satisfactory conservation of each SPA and the species living within it have not been adopted to date in Greek law?
(3) Is the answer to the two preceding questions affected by the fact that, based on the obligation to assess the environmental effects of projects and activities in accordance with Directive [2011/92] and to carry out an “appropriate assessment” in accordance with Article 6(2) to (4) of Directive [92/43], all the species listed in Annex I to Directive [2009/147] or the regularly occurring migratory birds in each SPA must be recorded as part of the assessment of the environmental effects of each specific planned public or private project?’
20. Written observations have been submitted by two of the applicants in the main proceedings, the Syllogos Diktyo Oikologikon Organoseon Aigaiou (Network Association of the Environmental Organisations of the Aegean; ‘the Network Association’) and the Perivallontikos Syllogos Rethymnou (Rethymno Environmental Association; ‘the Environmental Association’), the Hellenic Republic, the Kingdom of the Netherlands, Poland and the European Commission. The hearing of 18 January 2024, requested by the Czech Republic, was attended by this Member State and the other parties mentioned, except Poland.
IV. Legal assessment
21. This request for a preliminary ruling seeks to clarify whether a Member State may restrict measures for the protection, conservation and restoration of wild bird species and habitats in SPAs to those species the occurrence of which was decisive in the designation of the site in the question as an SPA. The applicants in the main proceedings claim that that protection should also be extended to other bird species worthy of protection that occur in SPAs.
22. The first question is intended to ascertain how Member States are to adopt such measures in accordance with the relevant provisions of EU law. The second question relates to the specific situation in Greece, which has hitherto adopted such measures not for each individual SPA but only for all SPAs collectively. The third question seeks to clarify whether it is sufficient for other bird species worthy of protection to be taken into account as part of environmental assessments of plans and projects.
A. Question 1 – the adoption of protection, conservation and restoration measures in SPAs in accordance with the Birds Directive
23. The first question goes to the nub of the request for a preliminary ruling. Under the Birds Directive, must protection, conservation and restoration measures be adopted in an SPA only for the bird species for which that SPA was designated as such, or also for other species worthy of protection that occur there? This question arises against the background of the rules on the identification of SPAs (see in this regard Section 1) and is to be answered by reference to the rules on protection measures in SPAs (see in this regard Section 2).
1. The identification of SPAs
24. Article 4 of the Birds Directive provides for a regime which affords enhanced protection in particular to the species listed in Annex I and migratory species. This is justified by the fact that these are (in the case of the species listed in Annex I) the most endangered species and (in the case of migratory species) the species constituting a common heritage of the European Union. (8)
25. In accordance with Article 4(1) of the Birds Directive, Member States are to classify in particular the most suitable territories in number and size as SPAs. In accordance with Article 4(2), they are to take similar measures for regularly occurring migratory species not listed in Annex I, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. Those territories are to be identified by reference to ornithological criteria. (9)
26. Each SPA is therefore characterised by certain bird species listed in Annex I for the conservation of which the site in question is the most suitable and/or by certain migratory species for the conservation of which it is the most suitable breeding, moulting or wintering area or the most suitable staging post along a migration route. The Greek legislation at issue establishes certain protection, conservation and restoration measures for those species and their habitats.
27. It is nonetheless possible that an SPA may also host other species worthy of protection, that is to say other species listed in Annex I to the Birds Directive or other migratory species for the conservation of which the SPA is suitable but not the most suitable. Although such occurrences were not decisive in the designation of the SPA, the applicants in the main proceedings and the Commission take the view that the protection, conservation and restoration measures adopted must also be extended to these other species worthy of protection and their habitats.
28. The Czech Republic counters the foregoing by arguing that those other species worthy of protection are already adequately protected in the SPAs specifically designated for them. The other Member States participating in these proceedings incline to that view but at the same time do not entirely rule out the notion that other species worthy of protection may qualify for protection in other SPAs.
2. The rules governing protection measures in SPAs
29. The extent to which those two views are correct can be gleaned from the rules governing protection measures in SPAs. These were originally laid down only in paragraphs 1, 2 and the first sentence of paragraph 4 of Article 4 of the Birds Directive. While paragraphs 1 and 2 of Article 4 still apply, the first sentence of paragraph 4 of Article 4 of the Birds Directive was, however, replaced by Article 6(2) to (4) of the Habitats Directive.
30. An overall view of the rules contained in the two directives leads to the conclusion that, when adopting protection measures and setting conservation objectives for SPAs, Member States must also take into account other species worthy of protection that occur there, but must establish priorities when doing so.
31. To demonstrate this, I shall examine first the original rules, some of which are still applicable (see in this regard Subsection (a)), and then the rules governing SPAs that were introduced later by the Habitats Directive (see in this regard Subsection (b)). Although those later rules appear at first sight to militate against an obligation to protect other species worthy of protection, it is clear in the light of other rules laid down in the Habitats Directive with respect to the conservation areas created under it that the Habitats Directive too requires, in principle, that other species worthy of protection be taken into account. However, the Habitats Directive obliges Member States to prioritise protection measures (see in this regard Subsection (c)). Although that notion is not so clearly expressed in the still applicable provisions of the Birds Directive, it must nonetheless, through interpretation, be applied there too (see in this regard Subsection (d)). Finally, I shall show that this system of protection is consistent with the objectives of the Birds Directive (see in this regard Subsection (e)).
(a) The rules of the Birds Directive
32. Paragraphs 1 and 2 of Article 4 continue to apply to SPAs along with certain rules of the Habitats Directive.
33. In accordance with the first sentence of Article 4(1), the species mentioned in Annex I are to be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution. The species listed in Annex I are the most endangered. (10) According to the criteria set out in Article 4(1)(a) to (d), they include species in danger of extinction, species vulnerable to specific changes in their habitat, rare species and other species requiring particular attention. In accordance with the fourth sentence of Article 4(1), the special conservation measures for those species are to include in particular the classification of SPAs.
34. Article 4(2) of the Birds Directive provides that Member States are to take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection, as regards their breeding, moulting and wintering areas and staging posts along their migration routes.
35. The Court of Justice has inferred from this that Member States have an obligation to provide SPAs with a protected legal status that is capable of ensuring that the requirements laid down in Article 4(1) and (2) of the Birds Directive are met. (11) In this connection, the protection of SPAs may not be limited to avoiding harmful human effects but must also include positive measures to preserve or improve the status of the area, as the case may be. (12)
36. As regards those protection requirements, the wording of Article 4(1) and (2) of the Birds Directive and the case-law established on the basis of it do not differentiate according to whether the SPA in question was designated for the protected bird species or whether protected species occur there as other species worthy of protection.
37. The first sentence of Article 4(4) of the Birds Directive, which is now no longer applicable to designated SPAs, does not draw such a distinction either. This requires Member States to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting birds in SPAs, in so far as these would be significant having regard to the objectives of that article.
38. Thus, according to their wording, the original rules of protection also covered other species worthy of protection that occur in SPAs.
(b) The applicable provisions of the Habitats Directive
39. In accordance with Article 7 of the Habitats Directive, however, obligations arising under Article 6(2), (3) and (4) of the Habitats Directive have now replaced those previously arising under the first sentence of Article 4(4) of the Birds Directive.
40. While the Birds Directive, as the first piece of EU nature conservation legislation, is still confined to the protection of birds, it was supplemented in 1992 by the Habitats Directive, which provides for the designation of conservation areas for other species of fauna and flora, and for certain habitat types, too. According to Article 3 of the Habitats Directive, those conservation areas and the SPAs provided for in the Birds Directive form a coherent European network of special areas of conservation under the title ‘Natura 2000’. Although the respective protection regimes pursue comparable objectives, they do differ in certain regards.
41. Article 6(3) and (4) of the Habitats Directive concerns the authorisation of plans and projects likely to have an effect on Natura 2000 sites. Those rules are not of direct interest as regards protection, conservation and restoration measures in SPAs, which are established irrespective of plans and projects.
42. Of more importance is the prohibition of deterioration laid down in Article 6(2) of the Habitats Directive. Under that provision, after all, the protection regime from which Natura 2000 sites benefits must also ensure that the deterioration of natural habitats and the habitats of species, and any significant disturbance of species, are avoided there. However, that provision expressly applies only to the species for which the areas have been designated.
43. One could, like Poland and the Czech Republic, construe that wording as meaning that protection under Article 6(2) of the Habitats Directive covers only those bird species that were decisive in the designation of an SPA. (13) That interpretation would be consistent with the assessment that protection under Article 6(2), (3) and (4) of the Habitats Directive is less extensive than that which the first sentence of Article 4(4) of the Birds Directive originally granted. (14)
44. The fact is, however, that, under Article 6(2) of the Habitats Directive, it is not only the impairment of such species (and habitat types) as were decisive in the designation of a Natura 2000 site which must be prevented, but also and above all any impairment of the conservation objectives of that site. Those objectives are expressly protected under Article 6(3) (and (4)) of the Habitats Directive, (15) which is intended to ensure the same level of protection as Article 6(2). (16) Consequently, the level of protection provided for by Article 6(2) must also be determined by reference to the conservation objectives pursued by the Natura 2000 site in question. When it comes to establishing conservation objectives, however, it is important also to take into account other species worthy of protection that occur in an SPA.
(c) Establishment of conservation objectives under the Habitats Directive
45. It is true that conservation objectives can be inferred from certain items of information available on a site, such as from the [Natura 2000] Standard Data Form, (17) the format of which has been established by the Commission. (18) In principle, however, they require separate definition.
46. Although the obligation to establish conservation objectives is not expressly provided for in the Habitats Directive, it is nonetheless presupposed by Article 4(4) and Article 6(1) thereof. (19)
47. Article 4(4) of the Habitats Directive requires Member States, when designating special areas of conservation, to establish 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. Establishing those priorities implies that those conservation objectives have been set in advance. (20) For, in establishing priorities, the competent authorities decide on the relative value they attach to each individual conservation objective. If conservation objectives were not set until later, however, it would necessarily be impossible for previously established priorities to take them into account.
48. In addition, Article 6(1) of the Habitats Directive provides that Member States are to establish the necessary conservation measures corresponding to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the site. (21)
49. The determination of ecological requirements also (necessarily) (22) presupposes that the conservation objectives have already been established. (23) Although of a scientific nature, those requirements relate to specific natural assets which are defined by the conservation objectives.
50. As the Netherlands recognises, the conservation measures provided for in Article 6(1) of the Habitats Directive, unlike the protection provided for in Article 6(2) thereof, are expressly not confined to the species and habitats for which the conservation area in question was designated, but are to be directed at all of the species and habitat types listed in the annexes thereto which occur on that site. (24) This implies that, in principle, the conservation objectives also include species and habitat types which occur on the sites concerned but were not decisive in their designation.
51. This does not necessarily mean that conservation objectives and conservation measures must benefit all species and habitat types present without distinction. Rather, Member States must – as already mentioned – establish priorities, in accordance with Article 4(4) of the Habitats Directive. (25)
52. Those priorities will by definition relate first and foremost to the species and habitats for which the sites were designated. Where rare or vulnerable species and habitats occur in the area, however, the protection thereof may supplement the protection on the sites that were specifically designated for them. The extent to which the contribution of such supplementary protection to the overall objectives of the Habitats Directive justifies measures is to be taken into account in the establishment of priorities.
53. Consequently, Article 6(2) of the Habitats Directive is likewise not necessarily confined to the protection of species and habitat types which were decisive in the designation of a conservation area under the Habitats Directive, but must also include other species and habitat types that occur there, in so far as these are the subject of the conservation measures adopted.
(d) Establishment of conservation objectives under the Birds Directive
54. The foregoing considerations concerning the establishment of conservation objectives for conservation areas under the Habitats Directive cannot be directly transposed to SPAs under the Birds Directive because Article 4(4) and Article 6(1) of the Habitats Directive are not applicable to SPAs. As mentioned, (26) SPAs continue to be governed instead by Article 4(1) and (2) of the Birds Directive. Although the latter protection obligations are worded in less precise terms, they are in practice intended to ensure protection in SPAs equivalent to that afforded by Article 4(4) and Article 6(1) of the Habitats Directive. (27) Consequently, the protection status enjoyed by SPAs must also include conservation objectives. (28)
55. The establishment of priorities is likewise already provided for in Article 4(1) and (2) of the Birds Directive, inasmuch as measures must be taken in the light of the requirements of protecting the species in question. Those requirements are dictated by the specific situation obtaining in the SPA concerned. (29)
56. In practical terms, this means that the competent authorities must determine which bird species worthy of protection occur in an SPA, what contribution those species make to the objectives of the Birds Directive and what risks and threats they are exposed to. The conservation objectives to be pursued in SPAs, and the conservation measures necessary to achieve those objectives, must be developed on that basis. In that context, the competent authorities may prioritise certain conservation objectives over others and concentrate the resources available accordingly. At the same time, they can avoid wasting such resources on less effective protection measures, which is what the Czech Republic in particular wishes to ensure.
57. The fact that an SPA is the most suitable site for the protection of certain bird species must as a rule be reflected in those priorities, since it was with a view to the conservation of those species that that site was designated. (30)
58. However, the occurrence of other species worthy of protection in SPAs must not be neglected wholesale either. Rather, a decision to refrain from adopting, or to restrict the adoption of, conservation objectives and conservation measures in relation to other species worthy of protection that occur in an SPA calls for a careful assessment of the significance of those occurrences to the conservation of those species which must also be reflected in the reasons for the respective priorities of the species concerned.
59. In this regard, an initial indication is provided by the classification of the occurrence concerned in the standard data form for the site in question. This calls for an evaluation of the population concerned in relation to the populations present within national territory. (31) As the Commission explains, an evaluation of A, B or C shows that the population is to some extent significant and, therefore, in principle merits protection. If the population of a species is evaluated only as D, it is not significant and, therefore (at least if the assessment is correct), does not as a rule require protection measures.
60. As the Netherlands recognises, other species worthy of protection which are listed in Annex I to the Birds Directive warrant special attention if their populations are given a higher evaluation (A, B or C), since these are the most endangered species. (32) It therefore seems fundamentally doubtful whether it is permissible to exclude them from protection measures in SPAs in whose designation they are not decisive but in which they nonetheless occur.
61. Furthermore, the Network Association rightly notes that certain species are not concentrated in particular areas but live by nature in isolation. In the case of such species, the differences between SPAs which are most suitable for their conservation and other SPAs in which they also occur are small. The Network Association thus notes that the occurrence of the Bonelli’s eagle (Hieraaetus fasciatus) in each of the ten SPAs which Greece has designated for that species is exactly as large as, if not smaller than, in the 81 other SPAs in which it occurs only as another species worthy of protection. In the case of the lesser spotted eagle (Aquila pomarina), too, most of the total population occurs, according to the Network Association, in SPAs which were not specifically designated for that species. It can hardly be said, therefore, that such species are already adequately protected in the areas most suitable for their protection. Rather, there would have to be strong reasons to exclude them from the protection measures adopted in all of the other areas in which they occur as other species worthy of protection.
62. This is particularly true in so far as the Network Association refers to bird species listed in Annex I or regularly occurring migratory species which occur in SPAs but for which no SPAs at all, or fewer than those necessary, have been designated. (33) It is true that the question whether Greece has adequately fulfilled its obligation to designate SPAs for these species does not have to be answered in the present case. Nonetheless, species with no or too few SPAs of their own would seem to require protection at least as other species worthy of such in SPAs in which they occur. Otherwise, after all, such species would be inadequately protected or not protected at all in Greece.
63. The Netherlands submits, however, that certain migratory bird species in particular, such as the chiffchaff (Phylloscopus collybita), the robin (Erithacus rubecula), the blackbird (Turdus merula) and the jackdaw (Corvus monedula), may also regularly occur in SPAs but are not endangered and are widespread irrespective of SPAs. In the case of species such as these, it should indeed be sufficient as a rule to restrict protection measures to the SPAs that were specifically designated for them, since that is where they occur in particularly high concentrations during certain periods of their life or migration cycle.
64. Finally, the establishment of conservation objectives and priorities in this way also allows for the appropriate reconciliation of conflicting objectives. (34)
65. In the context of the measures provided for in Article 4(1) and (2) of the Birds Directive, it therefore follows logically in principle that account must be taken of all bird species worthy of protection and their habitats that occur in an SPA, but also that priorities must be established in relation to their protection.
(e) The objectives of the protection regime
66. That interpretation is consistent with the objectives set out in Article 4 of the Birds Directive.
67. In accordance with the first sentence of Article 4(1) of the Birds Directive, conservation measures must ensure the survival and reproduction of the species mentioned in Annex I in their area of distribution. That area of distribution is not confined to the SPAs most suitable for the protection of individual species but also extends in particular to other SPAs in which those species occur.
68. The same objective must apply in the case of other migratory bird species, since Article 4(2) of the Birds Directive requires Member States to take similar measures for those species.
69. So it is that, in accordance with the second sentence of Article 4(4) of the Birds Directive, which remains applicable, Member States are to strive to avoid pollution or deterioration of habitats even outside SPAs. In any event, they would not be discharging that task or pursuing the overarching objective set out in Article 4 if they were to allow the habitats of other species worthy of protection within an SPA for which that SPA was not designated to deteriorate for no particular reason.
70. What is more, protection measures which disregard the ecological needs of other species worthy of protection in SPAs would not fulfil the minimum requirements of the precautionary principle and the principle that preventive action should be taken. (35) After all, potential risks and known threats to these species would be accepted wholesale and without further consideration. Those principles, however, form part of the foundations of the high level of protection pursued by EU policy on the environment, in accordance with the first subparagraph of Article 191(2) TFEU. They must therefore be taken into account in particular in the interpretation of the Habitats Directive and the Birds Directive. (36)
3. Interim conclusion
71. Article 4(1) and (2) of the Birds Directive therefore requires Member States to establish for each SPA individual conservation objectives and conservation measures for all occurring bird species listed in Annex I and regularly occurring migratory species and their habitats. In so doing, Member States must establish priorities and, in that context, may concentrate the conservation objectives and conservation measures on certain species and their habitats.
B. Question 2 – the horizontal establishment of protection, conservation and restoration measures for all SPAs
72. The second question is intended to clarify the significance of the fact that the Greek protection measures apply without distinction to all SPAs.
73. That situation is not provided for in the Birds Directive. The foregoing considerations show rather that protection measures must in principle be tailored to the ecological requirements of individual SPAs. The Greek measures, however, are individualised only in so far as they are intended to benefit the bird species that are decisive in the designation of the SPA concerned. The specific situations obtaining in SPAs and, in particular, the needs of other species worthy of protection are otherwise not taken into account.
74. It also follows from the foregoing considerations, however, that, in principle, both the bird species for which an SPA was designated and other bird species that occur there merit protection. Priorities may be established and precedence may be given to certain species and their habitats only in the setting of conservation objectives and the adoption of conservation measures for the sites in question. What is more, this approach alone is consistent with the precautionary principle and the principle that preventive action should be taken.
75. However, if a Member State has not yet set any conservation objectives or adopted any conservation measures for a particular SPA, it has not yet established any priorities either. Neither can it develop those priorities for the entire national territory, since, if it did, it would fail to take adequately into account the specific situation in each individual SPA. This is very clearly illustrated by the fact that the Greek rules at issue disregard the ecological needs of other species worthy of protection that occur in SPAs.
76. In accordance with Article 4(1) and (2) of the Birds Directive, therefore, protection, conservation and restoration measures applicable without distinction to all SPAs in a Member State, which are by definition incapable of containing adequate prioritisation, must be applied both for the benefit of the bird species for which the SPA in question was designated and for the benefit of other bird species listed in Annex I to the Birds Directive that occur there and other migratory bird species regularly occurring there.
C. Question 3 – Environmental assessments
77. By the third question, the Symvoulio tis Epikrateias (Council of State) wishes to ascertain whether an obligation to take into account both the bird species for which an SPA was designated and other bird species worthy of protection that occur there in the environmental assessments of projects under the EIA Directive or of plans and projects under the Habitats Directive operates in any way to alter the obligation to protect both groups of birds through the adoption of protection, conservation and restoration measures.
78. The answer to this question follows from the subject matter of each of the bodies of legislation concerned. While environmental assessments must be carried out in the case of plans and projects, the request for a preliminary ruling states that the protection, conservation and restoration measures at issue are primarily concerned with activities that do not require an environmental assessment. The two measures thus complement each other but are not each capable of closing the gaps in the other.
79. The obligation to carry out environmental assessments of projects under the EIA Directive and the Habitats Directive does not therefore have any bearing on the scope of the obligations under Article 4(1) and (2) of the Birds Directive.
V. Conclusion
80. I therefore propose that the Court of Justice’s answer to the request for a preliminary ruling should be as follows:
(1) Article 4(1) and (2) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds requires Member States to establish for each special protection area individual conservation objectives and conservation measures in relation to all occurring bird species listed in Annex I and regularly occurring migratory species and their habitats. In so doing, Member States must establish priorities and, in that context, may concentrate the conservation objectives and conservation measures on certain species and their habitats.
(2) In accordance with Article 4(1) and (2) of Directive 2009/147, protection, conservation and restoration measures applicable without distinction to all special protection areas in a Member State, which are by definition incapable of containing adequate prioritisation, must be applied both for the benefit of the bird species for which the special protection area in question was designated and for the benefit of other bird species listed in Annex I to the Directive which occur in that area and other migratory bird species which regularly occur there.
(3) The obligation to carry out environmental assessments of projects under Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora has no bearing on the scope of the obligations arising under Article 4(1) and (2) of Directive 2009/147.