Case C‑241/08, Commission v France

By its application, the Commission of the European Communities requested the Court to declare that, by failing to adopt all the laws and regulations necessary to transpose correctly Art. 6(2) and (3) of the Habitats Directive (Directive 92/43), France had failed to fulfil its obligations under that directive.

Art. L. 414-1(V) of the French Code de l’environnement (Environmental Code) provided:

‘Natura 2000 sites should be the subject of measures intended to conserved or restore, in a state favourable to their longterm maintenance, the natural habitats and populations of species of wild fauna and flora which had justified the designation of those sites. Natura 2000 sites should also be subject to appropriate preventive measures to avoid deterioration of those natural habitats and disturbances likely significantly to affect those species.

Those measures should be defined in consultation with, inter alia, the local authorities and groupings concerned, and with the representatives of the owners, operators and users of the lands and spaces within the site.

They should take account of economic, social, cultural and defence requirements and of regional and local characteristics. They should be adapted to the specific dangers which threaten those natural habitats and those species. They should not result in human activities being prohibited, where those activities did not have a significant effect on the maintenance or restoration of those natural habitats and those species at a favourable conservation status. Fishing, aquaculture, hunting and other huntingrelated activities practised under the conditions and in the areas authorised by the laws and regulations in force should not constitute activities causing disturbance or having such an effect.

The Commission claimed that, by providing that human activities were prohibited in Natura 2000 sites only if they significantly affected the maintenance or restoration of natural habitats and species at a favourable conservation status,  Art. L. 4141(V) of the Code de l’environnement applied the “significant effect” criterion indifferently both to the deterioration of habitats and the disturbance of species, and was therefore imprecise and less strict than Art. 6(2) of the Habitats Directive. Article 6(2) required the Member States to take appropriate steps to avoid, in the special areas of conservation, first, the deterioration of natural habitats and the habitats of species and, second, the disturbance of species in so far as such disturbance could be significant in relation to the objectives of that directive. In other words, according to the Commission, disturbances of species, which occured most often over a short period of time, might be tolerated up to a certain level, in contrast to the deterioration of habitats, which could be defined as a physical degradation affecting those habitats and which was systematically prohibited because placing a habitat in danger was more serious than disturbing a species.

The Court held that, for the purposes of determining whether the complaint raised by the Commission was well founded, it was incumbent upon the Commission to prove the allegation that an obligation had not been fulfilled. The Court stressed that it was the Commission’s responsibility to place before the Court all the information needed to enable the Court to establish that the obligation had not been fulfilled, and in so doing the Commission might not rely on any presumption (Case C293/07 Commission v Greece [2008]).  

In the present case, however, the Commission merely alleged, in essence, that, in order to ensure a correct transposition of Art. 6(2) of the Habitats Directive, Art. L. 4141(V) of the Code de l’environnement must prohibited all deteriorations, even if they did not have a significant effect. By isolating that provision in that way, and not taking sufficient account of its immediate legislative context, the Commission had, according to the Court, failed to show that the appropriate measures adopted pursuant to Art. L. 4141(V) of that code did not, in fact, allow the deterioration of habitats within the meaning of Art. 6(2) of the Habitats Directive to be avoided.

The Court held that, in those circumstances, it had not been established that Article L. 4141(V) of the Code de l’environnement, considered in its entirety, did not constitute a correct transposition of Art. 6(2) of the Habitats Directive, as alleged in the first complaint.

Activities causing disturbance

The Commission furthermore claims that the fourth sentence of the third subparagraph of Art. L. 4141(V) of the Code de l’environnement, which provided that fishing, aquaculture, hunting and other huntingrelated activities practised under the conditions and in the areas authorised by the laws and regulations in force should not constitut activities causing disturbance or activities having such an effect, did not ensure a clear, precise and complete transposition of Art. 6(2) of the Habitats Directive. Compliance with rules without any assurance that those rules take account of the requirements specific to a particular site could not, a priori, led to the general assertion that those activities caused no disturbance.

 The Court reiterated that Article 6(2) and (3) of the Habitats Directive sought to ensure the same level of protection (see, to that effect, Case C127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004], para. 36, and Case C418/04 Commission v Ireland [2007]). Furthermore, the option of exempting generally certain activities, in accordance with the rules in force, from the need for an assessment of the implications for the site concerned did not comply with that provision. Such an exemption was not such as to guarantee that those activities did not adversely affect the integrity of the protected site (see Case C98/03 Commission v Germany [2006]).

Accordingly, taking into account the similar levels of protection required by Art. 6(2) and 6(3) of the Habitats Directive, Art. L. 4141(V) of the Code de l’environnement by providing generally that certain activities such as fishing or hunting did not cause disturbance, could be regarded as consistent with Art. 6(2) of that directive only if it was ensured that those activities caused no disturbance likely significantly to affect the objectives of the directive.

The Court held that the statement of objectives could not systematically guarantee in all cases that the activities in question would not cause disturbances likely significantly to affect those conservation objectives.

It followed that by providing generally that fishing, aquaculture, hunting and other hunting-related activities practised under the conditions and in the areas authorised by the laws and regulations in force did not constitute activities causing disturbance or having such an affected, France had failed to fulfil its obligations under Art. 6(2) of the Habitats Directive.

Whether failure to examine alternative solutions

The Commission furthermore criticises point 1 of Art. R. 41421(III) of the Code de l’environnement for not requiring the person making the application, in the context of an appropriate assessment of the implications for the site laid down in Art. 6(3) of the Habitats Directive, to provide a description of the various alternative solutions which could be envisaged for carrying out the plan or project. That assessment required, first, that a description be made of the various alternative solutions examined and an analysis of their implications for the site be carried out and, second, that the public authorities, even in the absence of an adverse affected on the integrity of the site, study those alternative solutions before making a decision on the basis of Art. 6(3) of the Habitats Directive.