Report for the Hearing in Case C-57/89

I — Facts

1. The depositing of dredged material in the Rysumer Nacken

The Rysumer Nacken is situated on the east bank of the mouth of the river Ems and comprises the area between the Campen lighthouse to the north and the Knock pumping station to the south. It forms part of the East Frisian Wattenmeer. The entire region is used by numerous species of birds as a staging post and as a wintering, feeding and breeding area, albeit to varying degrees of intensity.

For some time, considerable quantities of material from dredging operations in the channel of the river Ems have been deposited in the area in question.

2. The costal defence project in the Ley bucht

(a) The geography of the region

The Leyhucht is a bay in the East Frisian Wattenmeer approximately five kilometres in diameter. In common with almost the entire North Sea coast of Lower Saxony, the Leybucht has been surrounded by dykes for centuries because of the danger of flooding caused by storm tides. The Leybucht covers an area of approximately 2800 hectares consisting of 30 hectares of sea water, 1800 hectares of mudflats, 690 hectares of salt meadow and 280 hectares of summer polder.

In the southern corner of the bay is Greetsiel harbour, the principal crab-fishing port on the German North Sea coast. Vessels entering and leaving the harbour pass along the outer channel of Greetsiel. At the northern end of the bay is Leybuchtsiel harbour, used principally by coastguard vessels and pleasure craft.

The Leybucht is the last virtually unspoilt large salt-water bay on the Lower Saxony coast; it has long been a nesting and feeding area and a staging post for various species of waders and aquatic birds, non-migratory as well as migratory. In particular, it is an important breeding area for the avocet.

(b) Legal status of the region

(aa) At national level

The Leybucht was made subject to a special protection scheme by a regulation of the Land of Lower Saxony of 13 December 1985, which entered into force on 1 January 1986 and created the Niedersächsisches Wattenmeer National Park. Paragraph 2 of the regulation provides that in the national park the special character of the nature and the landscape of this region of the Lower Saxony coast is to be preserved and protected, and the natural waterways of the habitats are to be preserved, together with their rich variety of fauna and flora.

Under Paragraph 3 of the regulation, the boundaries of the national park are to be determined by means of the maps appended to the regulation. An asterisk on the map entitled ‘Nationalpark Niedersächsisches Wattenmeer’ draws attention to the following note: ‘Procedure for official approval of proposed works pending. When the procedure has been completed, the decision approving the proposed works will enter into force definitively.’

(bb) At Community level

In a communication to the Commission dated 6 September 1988, the Government of the Federal Republic of Germany gave notice that it had classified the Leybucht as a special protection area for the purposes of Article 4(1) of Directive 79/409/EEC. That communication states as follows:

‘The greater part of the Leybucht comes under protection area I (rest area). The regulation and its annexes are enclosed. The annexes indicate the exact boundaries of the region covered by the protection scheme and of the various individual protection areas... ’

(cc) At international level

The Leybucht is a wetland of international importance, in particular as a habitat for wild fowl, within the meaning of the Convention of Ramsar (Iran) of 2 February 1971. Article 1 of the Convention defines wetlands as areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water which is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres. The Federal Republic of Germany, which ratified the Convention with effect from 25 June 1976, designated the Wattenmeer as a wetland of international importance pursuant to Article 2 of the Convention.

(c) Manner of implementation of the project

One of the urgent tasks provided for in the 1973 general plan for the protection of the Lower Saxony coast was to increase the height and strength of the existing Leybucht dyke so that it could provide protection for the hinterland against even the most violent storms. The plan was implemented by decision approving the proposed works of 25 December 1985 of the Bezirksregierung (district government) of Weser-Ems. Work on the project commenced in early 1986. The final section of the works is due to start in 1991.

With regard to the immediate implementation of the project, the statement of reasons of the decision approving the proposed works emphasizes that there has been an acute need for improved flood defences in the area in question for a long time. Following the extensive reinforcement work carried out over the last two decades, the dykes in the Leybucht, and particularly the Greetsiel dyke, constitute one of the last remaining weak points in the main dyke. The urgency of the dyke reinforcement work is borne out by the increase in the number of high storm tides since 1976.

Under the dyke project, the two navigation channels, namely the outer Norden channel and the Greetsiel channel and, in addition, Leybuchtsiel harbour are in future to be closed. The project also provides for the construction, in the south-western part of the Leybucht, of a reservoir protected by the dyke with locks opening to the sea and a navigation channel providing access to Greetsiel harbour through those locks; in the south-eastern part of the Leybucht the existing dyke is to be strengthened and widened along its present line between Greetsiel and Leybuchtsiel and a drainage canal is to be built behind the new dyke.

The drainage works are designed to keep the Leybucht free of dredging and depositing work in the future and, at the same time, to ensure access to Greetsiel harbour and natural drainage of the land. The construction of the reservoir and a barrage in the south-western part of the bay is necessary in order that the new access channel to Greetsiel harbour can be kept open through the natural removal of silt.

To the north, beyond the new reservoir protected by the dyke, which will face Greetsiel harbour, the strengthened dyke will largely follow the line of the old dyke. Increasing the height and strength of that part of the dyke will result in the displacement of the base of the dyke approximately 50 metres towards the sea. That relocation of the dyke seawards will give rise to the disappearance of approximately 100 hectares of salt meadows. Just outside Leybuchtsiel, the new dyke will be rounded off over a distance of two kilometres; this will mean that it will no longer form virtually a right angle and it will be shorter. The last, approximately 2000 metre, section will curve away from the present line of the dyke.

According to the statement of reasons contained in the decision approving the planned works the strengthening of the dyke on its seaward side will reduce the size of a nesting site favoured by wading birds because of the characteristics of the ground there and hence will result in fewer broods. However, the area of land which will be formed behind the dyke at Neuwesteel will afford the possibility of a stabilization in the population of such birds. The relocation of the dvke mav also affect migratory birds. However, the removal of disturbances which should result from the protection of the sector in question will allow a reduction in the size of the buffer zone between the dyke and the rest areas used by the migratory species.

As far as the Greetsieler Nacken is concerned there will be an overall loss of about 450 hectares of mudflats and foreshore, which is predominantly subject to artificial influences and therefore less varied and less rich from the point of view of plant life than the areas of cruciferous vegetation which have grown up naturally. The disappearance of the mudflats will mean a reduction in feeding possibilities for waders.

The planned dyke will also mean a certain reduction in the zone of sedimentation which is preferred by certain species, in particular the avocet, because of the proximity of nesting and feeding sites, with the result that the avocet population will decline in the sector in question. A large area of grassland of approximately 150 hectares will form within the Leybucht and along the dyke in the form of the strip of meadow land running along its length. However, that area will probably not be able to provide sufficient compensation for the avocets in that sector.

According to the statement of reasons contained in the decision approving the proposed works, the situation is different as regards meadow birds, for example lapwings and black-tailed godwits. Similarly, bird species which use the mudflats as their feeding area, such as the oyster-catcher and the redshank, will probably become established in that sector after they have become accustomed to the high dyke.

Because the Hauener Hooge will be smaller in area, it will not be able to serve as a nesting site, staging post or refuge in the event of flood water to the same extent as it formerly did. However, since there will be no disturbances at this site, in future the population will be larger and consist in particular of birds which otherwise would prefer the area affected by salt water. The complete desalinization will result in a reduction in the number of species and in a partial change in the plant life. As a result, the area in question will be transformed permanently into meadow.

With regard to the strip between the Störtebeker dyke and the trunk road which is behind the dyke, it now has a higher brood density than the areas of salt meadows beyond the dyke: it is heavily used because it affords a combination of a nesting site which is secure from flooding and easy access to the foreshore and mudflats. The future narrower and transformed strip will permanently have a smaller population as far as all species are concerned. In the case of the lapwing and black-tailed godwit the loss could amount to 25% of the present populations, unless the species in question become established in new areas in the Leyhörn or in the Neuwesteel area.

II — The pre-litigation stage of the procedure

1. By letter of 11 May 1987, the Commission invited the Government of the Federal Republic of Germany to submit its observations regarding the depositing of dredged material in the Rysumer Nacken. According to the Commission's letter, the operations in question constituted not only a disturbance in themselves, particularly because of the noise, but also involved a radical transformation of part of the Wattenmeer which had a direct effect on the living conditions of protected species of birds. Since the Commission did not receive a reply to that letter it sent the Government of the Federal Republic of Germany a reasoned opinion by letter of 11 August 1988 in which it stated that, on account of the considerable deterioration caused to that habitat of protected birds, the operations in question were in breach of the obligations flowing from Article 4(4) of the directive. In its reasoned opinion, the Commission also stated that the dredged material deposited contained heavy metals and industrial waste.

2. Following receipt of a complaint, the Commission, by letter of 7 August 1987 giving formal notice, informed the German Government of its objections to the Leybucht dyke project. The Commission did not receive a reply to that letter of formal notice, either, and on 4 July 1988 it issued a reasoned opinion in which it claimed that the German Government had not fulfilled its obligations under Article 4(4) of the directive in so far as it had implemented the construction project in question in a special protection area without adopting the appropriate measures to avoid damaging the habitat of protected birds in that area. By letter of 6 September 1988, the Government of the Federal Republic of Germany informed the Commission of the reasons why it considered that the construction operations ordered by the Land of Lower Saxony were compatible with the provisions of the directive. In the same letter, the German Government gave a number of explanations concerning the impact of those operations on the special protection area in question.

3. The letter states as follows:

‘Although it is true that the projected coastal defence measures involve a not inconsiderable reduction in the habitat of the bird species established in the Leybucht to the detriment of that area's function as a breeding area and staging post and also of its function as a feeding area, nevertheless those detrimental effects will be able to be offset to some extent through the provision of new areas. Moreover, the adverse effects will be only temporary as far as some species of birds are concerned, until they accustom themselves to the changed environment and become re-established there. In any event, it is clear that the construction project will not cause the complete loss of any single bird species in the area in question. At worst, it will mean a reduction in the population density. However, the Government of the Federal Republic is convinced that the character of the Leybucht as a unique habitat for its bird species will not be fundamentally changed as a result. Moreover, the significance of the abovementioned detrimental effects will be at least partly offset by the positive effects directly connected with the coastal protection measures. Particularly important in that respect is the fact that, for the first time, the Leybucht will be free of man-made disturbances resulting from dredging, the depositing of dredged materials and the movement of working vessels and pleasure craft. The deposition of silt, which will no longer be affected by the depositing of dredged material, will favour the creation of natural salt meadows and contribute to the expansion of the areas of saltmarsh, which will afford birds a refuge in the event of human disturbance. The fact that peace will be restored to the Leybucht will benefit all the bird life of the area, because it be liable to lead, for example, to greater breeding possibilities.’

III — Procedure before the Court

1. By application lodged at the Court Registry on 28 February 1989, the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that the Federal Republic of Germany has failed to fulfil its obligations concerning the preservation of wild birds in special protection areas under Article 4 of Directive 79/409/EEC. By application lodged on 28 July 1989, the United Kingdom sought leave to intervene in support of the defendant's conclusions.

2. By a separate document, received at the Court Registry on 14 July 1989, the Commission made an application for the adoption of interim measures under Article 186 of the EEC Treaty and Article 83 of the Rules of Procedure in which it asked the Court to order the Federal Republic of Germany to take the necessary measures to suspend dyke construction work in the area of the Leybucht and in particular to refrain for the time being from starting work on the final stage of the construction project until the Court had given its decision on the main application. That application was rejected by order of the President of the Court on 16 August 1989.

3. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, it asked the Commission to set out its objections to the German Government's claim that the Niedersächsiches Wattenmeer National Park ends to the north of the Rysumer Nacken, whilst dredged material is deposited only in Rysumer Nacken South and only as far as the foot of the dyke under construction in the Leybucht. It also asked the Government of the Federal Republic of Germany to produce the figures in its possession showing that, since work started on reinforcing the dyke, the Leybucht's population of breeding birds protected by the directive has increased. The parties complied with the requests within the time allowed.

IV — Conclusions of the parties

The Commission claims that the Court should:

1) declare that, by planning or undertaking the construction of dykes or the depositing of dredged material in the protected areas of the Leybucht and the Rysumer Nacken, contrary to its obligation to take appropriate steps to avoid deterioration of the habitats of protected birds under the combined provisions of the first sentence of Article 4(4) of and Annex I to Directive 79/409/EEC on the conservation of wild birds, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty;

2) order the defendant to pay the costs.

The Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland claim that the Court should:

1) declare the application unfounded;

2) order the Commission to pay the costs.

V — Submissions and arguments of the parties

The depositing of dredged material in the Rysumer Nacken

1. In the Commission's opinion, the operations in question are incompatible with Article 4(4) of the directive. It points to the serious consequences of continuing to deposit dredged material from the channel of the river Ems, which will result in a radical transformation of that part of the Wattenmeer and the disturbance of birds by noise. According to the Commission, the depositing operations are not limited to means involving the least disturbance. The adverse effects of the operations could have been avoided if, instead of carrying out the depositing operations, the project had been confined, for example, to increasing the strength or height of the main dyke. According to the Commission, even if it is assumed that there is a need for depositing operations using dredged materials, it has not been established to what extent it would have been possible to use materials less damaging to the environment than materials which are dredged from a large waterway such as the river Ems, which are often contaminated with heavy metals and other harmful substances.

2. The German Government points out that the Rysumer Nacken has not been designated a special protection area within the meaning of Article 4(4) of the directive and that the Niedersächsisches Wattenmeer National Park ends to the north of that area. The Rysumer Nacken, which has never been protected, consists of two distinct areas, namely Rysumer Nacken North, which contains only mudflats, and Rysumer Nacken South, a site for depositing operations which is already within a dyke. Depositing operations take place only in Rysumer Nacken South. That depositing site is used essentially to maintain the navigation channel of the river Ems. The materials deposited are regularly analysed for harmful substances. Even before the adoption of the directive, namely in 1979, the area in question had been filled to a height of 6.5 metres above sea level and so no longer constitutes a mudflat. Operations consisting of the depositing of sand on the seaward side of the dyke in Rysumer Nacken North were completed in August 1986. They were designed to strengthen the existing dyke between the Campen lighthouse and the connecting dyke. They raised the level of the mudflats in front of the dyke to a height of four metres above sea level at the foot of the dyke, sloping away naturally to the mudflats. No further depositing operations are planned for the seaward side of the dyke. Moreover, the depositing operations did not cause any ecological damage in the area in question. Moreover, even if the Rysumer Nacken were considered to be part of a special protection area, the operations in question satisfy the requirements of Article 4 of the directive, since they were carried out in order to reinforce the existing dyke and protect the coast.

3. According to the United Kingdom, the works in the Rysumer Nacken are not within a special protection area. The Niedersächsisches Wattenmeer National Park ends to the north of the Rysumer Nacken. The dyke protection works, namely the depositing of sand on the seaward side of the dyke, took place outside any special protection area. Rysumer Nacken North and Rysumer Nacken South are distinct areas. The depositing operations carried out in Rysumer Nacken South did not have any effect on the ecological conditions, since the area has been subject to such operations for more than half a century and had ceased to be mudflats long before the directive was adopted. The United Kingdom takes the view that the Commission's contentions are insufficiently precise and unparticularized. They fall well short of establishing that any damage to habitats of birds listed in Annex I to the directive will occur as a result of the works. On no view can they be said to establish significant damage within the meaning of Article 4(4) of the directive.

The coastal defence project in the Leybucht

1. The Commission claims that the dyke-building operations in the Leybucht disturb species of birds which enjoy special projection under the combined provisions of Article 4(1) of the directive and Annex I thereto by damaging their habitat, which is classed as a special protection area. The Commission maintains that the areas referred to in Article 4(1) of the directive are special in so far as specific steps must be taken in their regard in order to avoid any deterioration in relation to birds listed in Annex I. That applies without exception and irrespective of any economic considerations, because Article 4 does not refer to the general considerations mentioned in Article 2 of the directive. The second sentence of Article 4(4) of the directive, which provides that, outside the special protection areas, Member States are required only to strive to avoid disturbance, confirms that the system set up by the directive comprises a graduated system of protective measures. There is no point in classifying certain areas as protected unless they are to be subject to stricter rules than those which apply outside the areas in question. According to the Commission, it appears from the Court's judgment of 8 July 1987 in Case 247/85 (Commission v Belgium [1987] ECR 3029) that Article 2 of the directive does not constitute an autonomous derogation from the general system of protection; rather it shows that the directive takes into consideration, on the one hand, the necessity for effective protection of birds and, on the other hand, the requirements of public health and safety, the economy, ecology, science, farming and recreation. Therefore, when those interests are taken into account they cannot be given the same weight in the context of Article 4 of the directive as in the case of measures coming within Article 3 of the directive. When choosing the most suitable territories and when classifying them as special protection areas, there is no bar to taking into account the interests laid down in Article 2 of the directive. However, as far as the management of areas classified as special protection areas is concerned, Article 4(4) of the directive requires positive measures and precludes any deterioration of the habitats concerned. In the Commission's view, coastal defence measures, such as the strengthening of a dyke, are prohibited if their purpose is not specifically and exclusively to maintain a special protection area and to conserve it against natural deterioration of the bird habitats in accordance with Article 4(4) of the directive. It is possible to envisage exceptions in the case of a threat to human life only on condition that the necessary measures are restricted to those which cause only the minimum necessary deterioration of the special protection area in question. According to the Commission, those conditions have not been fulfilled. The dyke-building in the Leybucht is incompatible with the defendant's obligation to take positive measures in respect of classified habitats. Both the construction work in question and its results involve an interference with a special protection area which is detrimental to the living conditions of protected birds and causes the loss of several hundred hectares of land. Moreover, the construction work at issue entails an appreciable reduction in the ecologically useful surface and a lower population density for some of the species of birds referred to in Annex I to the directive, in particular the avocet. The Commission adds that Article 13 of the directive is not a provision which permits Member States to go back on a level of protection achieved as a result of a measure adopted pursuant to Article 4(1) of the directive. It points out that Article 13 does not limit the obligations of Member States with regard to the maintenance and improvement of the protection of wild birds. The Commission observes that the fact that the directive was adopted on the basis of Article 235 of the Treaty cannot justify a restrictive interpretation of Article 4(4) of the directive. It is clear from the case-law of the Court that the Community is empowered to take legislative action in the field of the environment. The weight to be given to any particular Community objective in a specific legislative measure is a matter for the Community legislature. The Council has attached particularly high importance to the protection of birds in the special protection areas designated by the Member States themselves. Finally, the Commission does not consider it possible to infer from the case-law of the Court any reasons justifying infringements of provisions of Community law on grounds of general interests of Member States. In the Commission's view, the directive itself already strikes a balance between the competing interests to be taken into account and the national authorities may not review that balance or replace it by another, thereby going back on interests which have already been taken into account or using different national interests as a basis.

2. The Government of the Federal Republic of Germany observes that the information concerning the Leybucht which was sent to the Commission pursuant to Article 4(3) of the directive excludes the new line of the dyke and the areas located on the landward side of the dyke from the special protection area. It states that the boundaries of the area in question are defined in the regulation creating the Niedersächsisches Wattenmeer National Park in such a way that the protected area extends only to the foot of the dyke, in the form it will have once the construction work has been completed. A special protection area within the meaning of Article 4(1) of the directive is created not by means of a declaration to that effect by the Member State vis-à-vis the Commission, but solely by means of a national law or regulation. That view is supported by the fact that the wording of the provision in question does not indicate how and vis-à-vis whom classification as a special protection area is to be effected. The German Government points out that in the Council Resolution of 2 April 1979 concerning Directive 79/409/EEC (Official Journal 1979 C 103, p. 6) the Commission is not regarded as the addressee of a declaration classifying an area under Article 4(1) of the directive, but as a body responsible for collecting information and coordination for the purposes of Articles 12 and 18 of the directive. It is clear from the resolution that in adopting the directive the Council assumed that other measures were necessary, particularly with regard to the organization and administration of the special protection zones and considered that the directive — that is to say, Article 4 — did not yet regulate in a concrete manner the substance of the Member States' duties in special protection areas. In any event, neither the determination of those areas nor the definition of the necessary protection measures falls within the Commission's remit. The German Government claims that there is no obligation to include the new line of the dyke and the area located on the landward side of the dyke in the Leybucht — an area which is necessary for the drainage of the land within the dyke and for access to Greetsiel harbour — in the regulation creating the Niedersächsisches Wattenmeer National Park or to classify that land as a special protection area under Article 4(1) of the directive. The designation of special protection areas may take account of general interests other than the public interest in the conservation of birds. The Member States' general duty to protect wild birds is coupled with derogations in respect of the public interests listed in Anieles 2 and 3 of the directive. The Member States must therefore assess those interests both when choosing special protection areas and when determining the necessary measures in those areas. However, when the line of the dyke in the Leybucht was chosen, only vital public interests were taken into account, namely the requirements of the safety of the dyke, drainage, and maintenance of access to Greetsiel harbour. With regard to the environmental impact on the area of the works at issue, the German Government claims that the Leybucht dyke project does not significantly affect the conservation of birds contrary to Article 4(4) of the directive. The German Government takes the view that the Commission has not provided any concrete evidence in support of its claim that the decision approving the planned works gave precedence to the interests of agriculture, fisheries and tourism over the interest of the conservation of birds. On the contrary, all those economic interests were subordinated to the requirements of nature conservation. According to the German Government, it is clear from the decision approving the planned works that the sole purpose of the measures planned was to secure the safety of the dyke and the protection of the coast. The very fierce storms in 1953, 1962 and 1976 showed that the existing dykes were no longer strong enough or high enough to protect the land and its inhabitants. Since storm tides have become much higher in recent decades, the German Government claims that it has become an urgent necessity to increase the height and strength of the dykes so that they can protect the inhabitants of the area even against the most violent storms. The German Government maintains that it is clear from the decision approving the proposed works that during the planning stage of the dyke project the competent authorities of Lower Saxony subjected all bird conservation requirements to comprehensive examination and balanced those requirements against the requirements of coastal protection and the safety of the dyke. There was no other solution which fulfilled those safety requirements and the dyke project could not have been further curtailed if it was still to fulfil its function. Consequently, the project's interference with the eco-system of the Leybucht and the temporary disturbances caused by the construction of the dyke are limited to the essential minimum. The line of the dyke constitutes the smallest possible interference for bird life in the Leybucht. Apart from the protection of the coastal population against storm tides, account is taken only of the need to ensure drainage of the interior and to keep open the channel between Greetsiel harbour and the open sea for the Greetsiel cutter fleet. Transferring the task of draining the land inside the dyke from the outer Norden channel to the new drainage canal and Leyhörn reservoir will result in an improvement in the ecological conditions of the area. Once the construction work has been completed there will no longer be either any shipping movements in the outer Norden channel and Greetsiel Channel or the constant dredging operations which have hitherto been necessary in order to stop the two navigation channels which cross the Leybucht in the direction of Norderley from silting up. Moreover, the German Government claims that the reconstruction of the dyke could not leave out of account the drainage of large areas of land behind the dyke which are below sea-level and which, precisely in the event of a storm tide, would be exposed to the risk of additional flooding from the landward side. Thus, in the long-term the improvement of the dyke and of the drainage which is its necessary corollary will have a beneficial effect on the population of protected birds, since the centre of the Leybucht will no longer be disturbed. According to the German Government, only two necessities imposed by the natural configuration of the Leybucht had to be taken into account, namely the necessary drainage of approximately 35000 hectares of hinterland, a very large part of which is below sea level, and continued access to the sea for Greetsiel harbour and its fishing fleet. As large areas of the land behind the dyke are below sea level it was necessary to ensure that it could be properly drained also after the dyke had been rebuilt. The German Government maintains that, from the point of view of nature conservation, the project is extremely beneficial for the Leybucht. The new line of the dyke and the new canal planned on its landward side mean that it will no longer be necessary to carry out constant dredging of the two channels in the Leybucht. In the past, those dredging operations, together with the shipping which has hitherto passed along the Greetsiel channel, did not allow the eco-system of the bay any peace. Once the dyke has been reconstructed and the present navigation channels abandoned, those disturbances will belong once and for all to the past. The German Government admits that the implementation of the dyke-building project may entail certain disturbances for the bird population of the Leybucht. However, the most recent findings show that there has been no major disturbance so far, in particular for the avocet. The most recent checks show that the avocet has scarcely been disturbed by the dyke-building work carried out at Leyhörn on the barrage and the reservoir, even though that is the largest building site of the entire project. In 1989 several nesting pairs established themselves for the first time to the west and east of the reservoir, some in the immediate vicinity of the access road to the building site, which is used by heavy lorries. With regard to the condition of the ground in question, the German Government considers that the natural silting-up which will occur in future in the Leybucht will give rise to the appearance of new, natural salt meadows and to the expansion of areas of cruciferous vegetation. According to findings made by experts, in the longer term it may even be expected that an area similar to that which exists at present will emerge and that there will be an increase in the population of meadow birds as a result of the planned measures. According to the German Government, there is no alternative to the project. It is not possible to widen the dyke on the landward side because the trunk road behind the dyke limits the space available and the drainage canal, whose distance from the dyke has already been reduced to the minimum commensurate with safety, must run, for technical reasons, between the trunk road and the dyke. It would be impossible to do without the drainage canal completely, not only because of the need for optimum drainage of approximately 35000 hectares of land but also because it would involve serious ecological disadvantages: it would mean totally foregoing all the ecological improvements planned for the Leybucht, namely the abandonment of the two navigation channels and the restoration of peace in the area thanks to the disappearance of shipping and the cessation of all dredging operations. From the point of view of the law, the German Government considers that Article 4(1) of the directive does not refer specifically to special protection areas but to the entire national territory of the Member States. Articles 2 and 3 of the directive concern all species of birds, whilst Article 4(1) of the directive concerns only those listed in Annex I. If the special duty of protection which is laid down in Article 4(1) of the directive applies not only to special protection areas but to the entire national territory of the Member States, it cannot be claimed that the Community legislature intended that duty of protection to be of an absolute nature. The German Government claims that there is nothing in Article 4 of the directive to suggest that the general rules set out in Articles 2 and 3 are not to be applied. According to the rules of systematic interpretation, the public interests mentioned in the provisions in question must be taken into account when interpreting Article 4 of the directive. As far as the management of special protection areas is concerned, the German Government claims that the provisions of the directive require a balance to be struck between the various public interests at stake. Consequently, Article 4 of the directive constitutes only a very general statement of objectives and necessitates an extremely complex assessment of the most varied facts and circumstances. Choosing a special protection area in itself requires considerable scientific work. Therefore the Member States must have a considerable margin of discretion in striking a balance between the various factual elements and in assessing them from the biological point of view so that all the relevant scientific findings can be taken into account. According to the German Government, that interpretation of the directive is confirmed in two ways by Article 4(4). First, the second sentence of Article 4(4) provides that outside protection areas, Member States are to strive to avoid pollution or deterioration of habitats. Consequently, even the special duty laid down in Article 4(1) as regards the conservation of wild birds listed in Annex I is not intended to impose an absolute duty on the Member States. That must apply a fortiori to the general conservation duty under Articles 2 and 3 of the directive with regard to bird species not listed in Annex I. Secondly, even in special protection areas the Member States are only under a strict duty when, according to the first sentence of Article 4(4), the disturbances affecting the birds have a significant impact on the classified habitats. In the alternative, that is to say assuming that the project at issue does have a significant impact on ecological conditions in the Leybucht, the German Government invokes Article 13 of the directive. That article cannot be interpreted as prohibiting any actual deterioration in the actual situation, but only any deterioration of the conservation standards in force when the directive was adopted. Consequently, where the Member States adopted conservation measures going beyond what was required at the time when the directive entered into force, those conservation measures might be reduced by subsequent national rules. The German Government argues that it cannot be right that, in special protection areas, coastal protection measures are also prohibited in principle if they are not specifically and exclusively intended for the maintenance of a special protection area and that exceptions may be envisaged only in exceptional circumstances. On the contrary, measures intended to safeguard the vital interests of the inhabitants of the coast, such as measures relating to dyke safety, drainage of the hinterland below sea level and access to the open sea for a harbour, are permissible even in special protection areas in so far as the extent of the adverse effect on those areas and on the bird species living there is limited to that which is unavoidable. In the view of the German Government, the duty of protection provided for in the first sentence of Article 4(4) of the directive is not absolute in the sense that only positive measures for the protection of birds are permissible in the areas in question and not measures intended to protect other vital public interests. To make the conservation of birds an absolute duty in that way would not only be incompatible with the wording and purpose of the directive but also with superior principles of Community law. It is true that in special protection areas general economic interests such as those of tourism, industry and agriculture must give way to the requirements of bird conservation. However, even in special protection areas, measures which are unavoidable in order to protect vital public interests may be taken. Thus, the measures necessary for coastal protection take precedence over bird conservation, even in special protection areas within the meaning of Article 4(1) of the directive. The prohibition laid down in Article 4(4) can never take precedence over the protection of human life. The German Government observes that the wording of Article 4(4) does not impose on the Member States an obligation to avoid any harm to bird life in general, but simply lays down the aim of the measures. Although the first sentence of Article 4(4) requires Member States to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting birds, those measures must necessarily be directed against third parties, in other words against private persons, since the majority of disturbances affecting birds in special protection areas are caused by individuals. On that interpretation, the first sentence of Article 4(4) of the directive does not refer to measures adopted or authorized by the State. With regard to the relationship between paragraphs (1) and (4) of Article 4 of the directive, the German Government maintains that if the decision whether to classify an area as a special protection area is subject to the public interests referred to in Article 2 of the directive, a fortiori this must be the case as regards the obligations incumbent on the Member States in connection with the management of those areas. If their duty in respect of special protection areas were absolute, the Member States would be extremely reluctant to classify areas as special protection areas. The legal tradition of the Member States recognizes a wide variety of special protection areas, which precludes any uniform concept in that field. Not only are the rules applicable to such areas different, but also numerous Member States have differing classes of special protection area governed by rights of intervention which vary from one class to another. It therefore cannot be assumed that the directive seeks to establish conservation duties in special protection areas which go beyond the common national tradition of the Member States in the field of nature conservation. Finally, the German Government points out that the directive was adopted on the basis of Article 235 of the Treaty, that is to say, before the entry into force of Articles 130r to 130t of the Treaty in which protection of the environment is laid down as one of the Community's objectives. Consequently, the Community legislature could only take account of the protection of wildlife in connection with the economic objectives referred to in Article 2 of the Treaty. Therefore, the Community's competence did not extend to granting absolute priority — even over the vital public interests of the Member States — to the conservation of birds. In any event, the Community legislature could not have intended Article 4(4) of the directive to be interpreted as not giving priority to the protection of human life. The German Government considers that under a fundamental principle of primary Community law, expressed in particular in Article 36 of the Treaty and in the case-law of the Court relating to imperative requirements, the protection of human health and life and public security in principle take precedence over Community provisions relating to the establishment of the Common Market, provided that the measures adopted to that end are necessary for the protection of imperative public interests and comply with the principle of proportionality. Consequently, Article 4(4) of the directive cannot be interpreted as meaning that the conservation of birds completely supplants the other interests of the inhabitants of special protection areas and neighbouring areas which are covered by the concept of improvement in the standard of living set out in Anule 2 of the Treaty.

3. The United Kingdom considers that the boundaries of the special protection area, winch consists of the Niedersächsisches Wattenmeer National Park, do not encompass within them the dyke improvement work in the Leybucht. According to the regulation setting up the national park, the boundary of the National Park extends only to the foot of the dyke as it will be after the work is completed. The new course of the dyke together with the area to the landward side of it were therefore excluded from the special protection area. If, however, it should be considered that the areas in question are part of a special protection area, the United Kingdom argues that Article 4(4) of the directive stipulates that any deterioration must be ‘significant’ having regard to the objectives of the aniele. The United Kingdom points out that the directive provides no definition of the word ‘significant’, save that it is to be construed in the light of the objectives of the aniele, which are stated in Article 4(1). Thus it appears that in order to be ‘significant’ the deterioration must be such as to threaten the survival or reproduction of protected species within their area of distribution. In the United Kingdom's view, the material supplied by the Commission would not be sufficient to enable the Coun to be satisfied that the projects implemented in the Leybucht involve a ‘significant’ deterioration in the sense in which the word ‘significant’ must be understood. The United Kingdom emphasizes the importance of the evidence supplied by the defendant which shows that, far from resulting in pollution of the habitats in the Leybucht area, the projected works will significantly improve the ecological conditions there for the benefit of all species. It considers that the Commission has not established that the habitats of protected birds are effected significantly within the meaning of Article 4(4) of the directive. The Commission simply asserts that certain Annex I birds inhabit the Leybucht and that the construction measures will reduce the ecologically useful surfaces available to the species in question, resulting in a reduction in their population densities. The United Kingdom points out that as a result of the project the present constant dredging of the two outer channels in the Leybucht will be no longer necessary and shipping from Greetsiel harbour will no longer pass through the channel in the middle of the Leybucht. The siting of the reservoir and lock at the southern end of the bay will serve to keep the heart of the Leybucht clear of dredging and shipping operations and thus restore peace to the area, thereby benefiting the bird population. Thus, in future the Leybucht will continue to silt up naturally, which will lead to the formation of new salt flats. The nesting opportunities of all the species of birds living there will be increased and the population of meadow birds may even increase. In the United Kingdom's submission, it is legitimate, indeed appropriate, when assessing whether a particular project will cause deterioration to habitats and whether any such deterioration will be significant, to have regard to whether compensatory ecological improvements will result from the works, and what their effects will be upon the objectives of Article 4. In the event that the Court should consider that the sites on which the projects are carried out are within a special protection area and that ‘significant’ pollution, deterioration or disturbance affecting Annex I or migratory species of birds is caused thereby, the United Kingdom contests the Commission's interpretation of Article 4(4) of the directive. It maintains that not only would the Commission's interpretation of Article 4(4) lead to unforeseen and unacceptable results but it would be inimical to one of the main purposes of the directive, which is to encourage the classification of special protection areas. The United Kingdom considers, in relation to the classification of areas as special protection areas under Article 4(1) of the directive, that the Member States have a considerable discretion and in particular that they are entitled to take into account the general public interests referred to in Article 2 of the directive, namely ecological, scientific, cultural, economic and recreational requirements. According to the United Kingdom, a different interpretation of Article 4(4) of the directive would be most unfortunate, for in those circumstances Member States could only give effect to important public interests at the pre-classification stage, in other words when deciding whether to classify an area as a special protection area. However, the purposes of the directive are best served if Member States are able to take important public interests into account both at the pre-and the post-classification stages. In this way, the Member States have the maximum encouragement to classify. The United Kingdom submits that Article 4(4) of the directive does not preclude consideration of all factors except human life. Account can be taken of other important public interest considerations, including those referred to in Article 2 of the directive. The United Kingdom takes the view that it is clear from a consideration of the directive that its provisions represent not a series of separate and differently graded duties, but an interlinked whole. Article 2 and Article 3(1) set out in general terms the duties owed in respect of all the species referred to in Annex I. The United Kingdom observes that in respect of Annex I species the specific ways in which the duties are to be performed have been spelt out in some detail in view of the vulnerable nature of these birds. In their case, and in the case of certain migratory species, the duties laid down in Article 4 of the directive are merely fleshed-out versions of the measures referred to in Article 3(2)(a) and (b) of the directive. Moreover, Article 3(2)(b) makes no distinction between ecological needs inside and outside protection zones. This is also reflected in the last sentence of Article 4(4). Putting it another way, the ‘special conservation measures’ required by Article 4 to be taken in respect of Annex I birds are nothing more than specific manifestations of the ‘requisite measures’ required by Article 2 and Article 3(1) of the directive. The United Kingdom also maintains that if the intention of the Community legislature had been to impose a conservation duty of an absolute nature it would have made its intention clear and unequivocal in the wording of Article 4(4) of the directive. In fact the words used in that article are not apt to impose such a duty. The use of words such as ‘appropriate’ and ‘avoid’ import a margin of discretion consistent with the ability to take into account considerations such as those in Article 2. It adds that the Council would not have imposed a duty upon the Member States to take positive steps in the context of the protection of birds without them having any right to take into account for example the costs of various possible measures or other economic implications. The United Kingdom points out that the directive is based upon Article 235 of the Treaty and that it was adopted before the amendment of the EEC Treaty by the Single European Act and therefore before Article 25 of that Act added a new title on Community action on the environment, which is contained in Articles 130r to 130t of the Treaty. It is inconceivable that a directive concerning the conservation of wild birds could impose a duty which excluded all considerations of national or local public interests including economic interests. In the opinion of the United Kingdom, that interpretation of Article 4(4) of the directive is confirmed by the case-law of the Court on the nature and effect of Article 2 of the directive. According to the United Kingdom, it is evident from the Court's judgments of 8 July 1987 in Case 247/85 Commission v Belgium [1987] ECR 3029, and in Case 262/85 Commission v Italy [1987] ECR 3073, that the factors referred to in Article 2, whilst not amounting to derogations, are nevertheless relevant considerations to be balanced against the protection of birds in the context of the directive. Finally, the United Kingdom emphasizes the principle of proportionality. It points out that special protection areas can cover very considerable areas of land with large numbers of inhabitants living on or around the land. It would be absurd if a Member State, in deciding pursuant to Article 4(4) what were ‘appropriate’ steps to take in respect of a special protection area, could only have regard to the interests of the birds. In particular it would be very surprising if the Member State was prevented from even taking into account the well-being and interests of those of its citizens who lived in the area. Not only is such an interpretation of Article 4(4) entirely at variance with the preamble and substantive provisions of the directive, but it would be disproportionate in regard to the aims of the directive.

M. Díez de Velasco

Judge-Rapporteur

1 Language of the case: German