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C 124/4 EN Official Journal of the European Union 24.5.

2003

Action brought on 28 February 2003 by the Commission Pleas in law and main arguments
of the European Communities against the Federal Repub-
lic of Germany
— Provisions designed to transpose Article 6(3) of the
directive are to be evaluated in terms of whether they
(Case C-98/03) require an assessment of the implications in the case of
all projects likely to have a significant effect on special
areas of conservation. Whether a particular effect may be
(2003/C 124/07) significant cannot be decided solely by reference to
the project, but only by taking into consideration the
conservation aims of each individual area of conservation
which may be affected and the nature and extent of
the habitats and species present in each individual
An action against the Federal Republic of Germany was area. However, the definition of ‘projects’ contained in
brought before the Court of Justice of the European Communi- Paragraph 10(1)(11)(b) and (c) of the Bundesnaturschutz-
ties on 28 February 2003 by the Commission of the European gesetz (Federal Law on Nature Conservation) does not
Communities, represented by Ulrich Wölker, Legal Adviser of take into account areas of conservation. Even if theoretical
the Commission of the European Communities, with an evidence is produced to show that, despite the restrictions
address for service in Luxembourg. contained in the definition, all conceivable projects likely
to have a significant effect on special areas of conservation
are in fact covered, there would still be no guarantee that
projects with atypical effects of, in principle, a less
The applicant claims that the Court should:
apparent nature would be covered if they were likely to
be significant in an actual individual case. In particular,
1. Declare that small habitats containing unusual species may react much
more sensitively to influences than may be anticipated
by provisions concerning projects, which standardise
— by not providing for the duty to carry out an categories.
assessment of the implications in the case of certain
projects outside special areas of conservation, as
referred to in Article 4(1) of Council Directive 92/
43/EEC ( 1) of 21 May 1992 on the conservation of — It is contrary to Article 6(3) and (4) of the directive for
natural habitats and of wild fauna and flora, which regard not to be had to pollution by noxious substances
pursuant to Article 6(3) and (4) of the directive are outside a (not clearly defined) area where the effects of a
to be subject to such an assessment irrespective of project are felt, which is the position under Paragraph 36
whether those projects are likely to have a significant of the Bundesnaturschutzgesetz.
effect on an area of special conservation;

— by authorising emissions in a special area of conser- — Restricting the protection of sites where animals nest,
vation, irrespective of whether they are likely to breed, live or find refuge to cases where there are
have a significant effect on that area; deliberate effects (Paragraph 43(4) of the Bundesnatur-
schutzgesetz) is not consistent with Article 12(1)(d) of
the directive, the clear wording of which indicates that
— by derogating from the scope of the provisions intention is not necessary in the context of the prohibition
concerning the protection of species in the case of concerning deterioration or destruction of breeding sites
certain non-deliberate effects on protected animals; or resting places.

— by failing to ensure compliance with the criteria for


derogation set out in Article 16 of the directive in — Paragraph 43(4) of the Bundesnaturschutzgesetz also
the case of certain activities which are supposed to provides for derogations from the provisions concerning
be compatible with conservation of an area; the protection of species in favour of intervention or
measures already authorised, without taking into account
the fact that at the time of authorisation it may not yet
— by retaining provisions on the application of pesti-
have been known that a protected species is affected.
cides which do not take sufficient account of the
protection of species;

— by failing to notify fishery catch legislation and/or


(1 ) OJ L 206 of 22.7.1992, p. 7.
to ensure that such legislation contains adequate
bans on fishing, the Federal Republic of Germany
has failed to fulfil its obligations under the directive.

2. Order the Federal Republic of Germany to pay the costs.