Germany not doing enough to protect conservation areas: Case C-98/03, Commission v Germany

The Advocate General delivered his opinion in the case of Commission v Germany on 24 November 2005. The case was brought against the Federal Republic of Germany back in February 2003, concerning alleged breaches of the Habitats Directive (Directive 92/43/EC).

The Commission was seeking a declaration of the Court to the effect that Germany had failed in its obligations under the Directive, by not providing for the duty to carry out an assessment of the implications in the case of certain projects outside special areas of conservation, as referred to in Article 4(1) of the Directive, which pursuant to Article 6(3) and (4) of the directive are to be subject to such an assessment irrespective of whether those projects are likely to have a significant effect on an area of special conservation.

The Commission further alleged that Germany was in breach of the Directive by authorising emissions in a special area of conservation, by derogating from the scope of the provisions concerning the protection of species in the case of certain non-deliberate effects on protected animals, by failing to ensure compliance with the criteria for derogation set out in Article 16 of the directive in the case of certain activities which are supposed to be compatible with conservation of an area, by retaining provisions on the application of pesticides which do not take sufficient account of the protection of species, and by failing to notify fishery catch legislation and/or to ensure that such legislation contains adequate bans on fishing.

While the German government put forward numerous arguments in respect of the allegations, including arguments regarding the interpretation of “project” for the purposes of the alleged breach of Articles 6(3) and (4), and submissions to the effect that the Commissions interpretation of Article 12(1)(d) was excessively rigorous and contrary to the principle of proportionality, the Advocate General was of the view that the allegations of the Commission were well-founded and therefore requests the Court to find Germany in breach of Articles 6(3), 6(4), 12, 13 and 16 of the Habitats Directive.

Whether Germany will be formally condemned for the above breaches of European law will depend on the judgement of the European Court of Justice and whether they do indeed follow the recommendation of the Advocate General.

The case is not yet available in English but can be accessed at the following link and should shortly be available in English:

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