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	Číslo (Kód CELEX): Number (CELEX Code):		61995J0044

	Název: Title:		ECJ Judgement of 11 July 1996 Case C-44/95 Regina v Secretary of State for the Environment Preliminary Ruling [1996] ECR I-3805 "Regina"

	Publikace: Publication:

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		· APAS Case-435/92 APAS v Préfets de Maine-et-Loire and de la Loire Atlantique [1994] ECR I-67)


	Plný text: Fulltext:		Ne

Fakta:
On 15 December 1993, the Secretary of State decided to designate the Medway Estuary and Marshes as a Special Protection Area (SPA) in the sense of Art. 4 (1) of the Council Directive 79/409/EEC (Birds Directive).
Of 2/4/1979 on the conservation of wild birds (OJ 1979 L 103, p. 1)
This is an area of wetland of international importance on the north coast of Kent which is used by several rare bird species as a breeding and wintering area and as a staging post during migration. At the same time, the Secretary of State decided to exclude from it an adjoining area of inter-tidal mudflat of about 22 hectares known as Lappel Bank which shares several of the ornithological qualities of the area as a whole. The exclusion was motivated on the ground that Lappel Bank is the only area into which the Port of Sheerness, the fifth largest in the UK for cargo and freight handling, and can realistically envisage expanding. The Port, which is also a significant employer in an area with a serious unemployment problem, plans to extend facilities in several sectors in order to maintain its international competitiveness. The Royal Society for the Protection of Birds (RSPB) challenges the exclusion of Lappel Bank from the SPA
The protection of wild bird species and the designation of SPAs is governed by the following provisions: Art. 2 of the Birds Directive provides that Member States are to take all necessary measures to maintain the population of wild birds at an adequate level, while taking account of economic and recreational requirements. Art. 3 mandates Member States, having regard to the requirements mentioned in Art. 2, to take all necessary measures to preserve, maintain or re-establish a sufficient diversity and area of habitats or all the protected species. Pursuant to Art. 4 (1), the certain rare species mentioned in an annex are to be the subject of special conservation measures, such as the designation of the most suitable territories in terms of number and size as SPAs. According to Art. 4 (2), Member States shall take similar measures for regularly occuring migratory species not listed in the annex. Finally, according to Art. 4 (4), Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds inside and outside the protection areas. The obligations of Art. 4 (4) were subsequently replaced by Arts. 6 (2), (3) and (4) of the Council Directive 92/43/EEC (Habitats Directive).
Of 21 May 1991 on the conservation of the natural habitats of wild fauna and flora (OJ 1992 L 206, p. 7)
These provisions widened the range of grounds on which it may be justified to encroach on SPAs already designated as such, by expressly including social and economic reasons.
The House of Lords, dealing with the case on appeal, referred to the ECJ two questions on the interpretation of Arts. 2 and 4 of the Birds Directive:
1) Is a Member State entitled to take account of social and economic considerations as mentioned in Art. 2 of the Birds Directive in the classification and/or defining the boundaries of a SPA?
2) If the answer is negative, may a Member State nevertheless take account of economic considerations in so far as they amount to a general interest superior to the Directive's ecological objective or to imperative reasons of overriding public interest within the meaning of Art. 6 (4) of the "Habitats Directive"?

Názor soudu a komentář:
As to the first question, the Court holds that, unlike Art. 3, Art. 4 provides only for ornithological measures and does not refer to the criteria mentioned in Art. 2 which include economic rationales. This reflects the conceptual difference between both provisions, according to which Member States shall protect in general all birds referred to in the directive in general (Art. 3), whereas specific and further-reaching obligations exist with regard to endangered species listed in the Annex and migratory species not listed (Art. 4). Therefore, it is not tenable to read the economic exception referred to in Art. 3 into Art. 4 as well. Furthermore, Art. 2 does not constitute an autonomous derogation from the Directive's general system of protection either (APAS ). As a result, a Member State is not authorised to take take account of Art. 2 economic requirements when designating an SPA and defining its boundaries.
In respect of the first part of the second question, the Court first points to earlier jurisprudence (Case C-57/89 Commission v Germany [1991] ECR I-883) according to which a Member State may, in the context of Art. 4 (4) Birds Directive, reduce the extent of a SPA only on exceptional grounds which do however not include economic requirements. Second, referring to the Santona Marshes case (Case C-355/90 Commission v Spain [1993] ECR I-4221, para. 19), the Court confirms that the provision of Art. 4 is exhaustive, leaving no space for the consideration of economic rationales derived from other Community law provisions or principles. Therefore, while explicitly leaving open the question whether superior general interest consideration may be invoked in a decision not to design a SPA at all, the Court states that those criteria cannot be relied upon when defining the boundaries of such an area.
As regards the second part of the second question, the Court holds that while Art. Art. 6 (4) of the Habitats Directive has, following the Leybucht Dykes case where the point in issue was the reduction of an area already classified, widened the range of ground justifying encroachment upon SPAs by expressly including therein social and economic reasons, this provision only refers to
changes to existing SPAs
, not to the designation of such an area at an earlier stage. Therefore, a Member State is allowed, following the procedure set out in Art. 6 (4) Habitats Directive, to go back on the decision classifying an SPA by reducing its extent, but not to define its boundaries in function of economic rationales.
The result of this judgement is not convincing. A Member State which envisages the designation of an SPA, but wants to limit its extent, would be constrained to first design a SPA encompassing a maximum surface and then try to limit its extent in accordance with the procedure set forth in the Habitat Directive. Since this solution is hardly practicable, it might be more tempting for a State not to designate a certain area worth protection as an SPA at all. Art. 4, whereafter a State shall provide for the designation of the most suitable territories in terms of number and size as SPAs, leaves the State with wide discretion in respect of the selection of particular areas. In addition, the ECJ has explicitly left open whether a State may refrain from designating a specific area as a SPA by drawing on economic rationales. Finally it seems to be politically barely possible to impose such a decision on a State.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):