Case C-6/04 Commission v United Kingdom of Great Britain and Northern Ireland
An Opinion was recently issued by the Advocate General (AG) in Case C-6/04 Commission v UK.The case concerned alleged breaches of the Habitats Directive (Directive 92/43/EC), alleging failure to transpose Articles 6(2), 6(3), 6(4), 11, 12(1)(d), 12(4), 14(2), 15 and 16 of the Directive, as well as failure to introduce legal provisions applying the Habitats Directive beyond the territorial waters of the UK.
The AG found that Article 6(2) had not been adequately transposed in Gibraltar.
This requires measures to be taken to avoid the deterioration of a site, and while the National Protection Ordinance (NPO) in Gibraltar allowed competent authorities to enter into site management agreements with owners or occupiers, this did not relate to the objective of avoiding deterioration, nor did it specify what measures could be taken, and was therefore regarded as inadequately transposed.
In respect of Articles 6(3) and (4), the UK rules were found not to apply the procedure in Article 6(3) to all water abstraction proposals, and instead only those defined in advance as potentially damaging for the relevant site fell within the procedure.
Similar arguments in respect of reviews of existing planning rights in Gibraltar were rejected as while the rules in Gibraltar did not contain an obligation to review existing planning rights, there was a power to review which corresponded to the objectives of the Directive.
Further breaches of the Directive were found to have occurred in respect of Articles 11, 12 and 14, in respect of the monitoring obligations of the Member States contained within these.
While the UK claimed that certain agencies carried out these functions, the Directive provisions were found not to have been transposed at all in the UK.
Another aspect of Article 12 was found to have been breached in respect of the provisions in Gibraltar, as by only prohibiting the deliberate damage or destruction of breeding sites and resting places of species, transposition of Article 12(1)(d) of the Directive had been limited to deliberate and intentional acts, and therefore the effects of neglect had not been covered.
Other Directive provisions which were found to have been inadequately transposed included Articles 12(2), 13(1), 15, and 16.
Finally, the Advocate General was of the opinion that the Habitats Directive is also to be transposed in respect of areas outside territorial waters, in so far as the Member States or the Community exercises sovereign rights there.
The UK admitted that it has limited it application of the Directive provisions to territorial waters though appropriate rules were enacted for the oil industry in 2001 and further provisions are currently being prepared.
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