Case C-191/05, Commission v Portugal

The Advocate General delivered his opinion in the case of Commission v Portugal (Case C-191/05) on 23 February 2006. The case concerned an application by the Commission to the European Court of Justice (ECJ) seeking a declaration of the Court that by altering the demarcation of the Moura, Mourão e Barrancos Special Protection Area (SPA), and excluding from it areas providing a habitat for species of wild birds for whose protection that SPA was designated, Portugal had failed to fulfil its obligations under Article 4(1) of the Wild Birds Directive (Directive 79/409/EEC). Article 4(1) of the Directive requires that the species mentioned in Annex I of the Directive are the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution. Where a Member State has designated a SPA in order to achieve such protection, where this is later to be reduced in size, scientific justification must be provided.

The Moura, Mourão e Barrancos Special Protection Area (SPA) was established by the Portuguese Government on 23 September 1999 by the Portuguese Decree No 384-B/99, within which the boundaries of the SPA were laid down in Annex XXIV to the Decree. The Commission argued that by altering the boundaries of the Moura, Mourão e Barrancos SPA by Decree No 141/2002, Portugal was in breach of the Wild Birds Directive, as it had not provided the necessary scientific justification for such action. In reducing the area of the SPA by almost 3000 hectares, and in not providing the necessary scientific justification for such action, the reasons for the reduction of the zone remaining unknown. Following the issue of a Reasoned Opinion by the European Commission to Portugal on 9 July 2004, Portugal responded to the effect that a scientific study regarding the reduction of the SPA would be carried out and an extension of the period was sought until September 2005, in order to allow Portugal to make provision for a new area of the SPA on the basis of a scientific study. However, Portugal still failed to produce the necessary scientific evidence for the reduction in the area of the SPA and as a result the Commission argued that this reduction of the SPA was in breach of Article 4(1) of the Wild Birds Directive.

The Advocate General has therefore delivered his Opinion, stating that the action brought by the Commission is well founded and that the Court should find Portugal to be in breach of Article 4(1) of the Wild Birds Directive. Whether the ECJ follows the Opinion of the Advocate General remains to be seen.

The full opinion can be accessed in a number of European languages here.

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