Reports of Cases

Report s of C ases OPINION OF ADVOCATE GENERAL KOKOTT delivered on 18 February 2016 1 Case C-504/14 European Commission v Hellenic Republic (Nature conservation — Directive 92/43/EEC — Conservation of natural habitats and of wild species — Occurrence of the Caretta caretta sea turtle in Kyparissia Bay — ‘Kyparissia Sand Dunes’ Site of Community importance — Protection of species) I – Introduction 1. While the Court was confronted with an almost catastrophic population conservation status when it delivered its decision on the European hamster in French Alsace, 2 the present case concerns a more pleasing situation. In recent years, the beaches of Kyparissia Bay on the west coast of the Peloponnese have become the most important breeding site for the Caretta caretta sea turtle in the European Union following a steady increase in the number of its nests. 3 That development may also be one of the reasons why, in 2015, the International Union for Conservation of Nature and Natural Resources ‘ ’ (IUCN) assessed the Mediterranean sea turtle population as being of least concern , the lowest threat 4 level in its rating system. 2. One can only congratulate Greece and the non-governmental organisations (NGOs) that have been committed to the protection of sea turtles for over 20 years on these successes. 3. Nevertheless, further conservation measures are being called for, not only by the Commission, in the 5 light of the Habitats Directive, but also by the Standing Committee of the Convention on the 6 7 Conservation of European Wildlife and Natural Habitats. So far as concerns the protection of species, the Commission’s criticism is directed, first, at the protective provisions specifically prescribed 1 — Original language: German. 2 — See my Opinion in Commission v France (C-383/09, EU:C:2011:23, points 73 to 76) (‘Cricetus cricetus’) and, on the very limited progress since then, the French Government’s 2015 report to the Standing Committee of the Berne Convention, T-PVS/Files (2015) 46. 3 — See the 2015 report by the NGO Archelon to the Standing Committee of the Berne Convention, T-PVS/Files (2015) 53, p. 4. 4 — http://www.iucnredlist.org/details/83644804/0. 5 — Council Directive 92/43/EEC of 21. 05. 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) in the version of Council Directive 2006/105/EC of 20.11.2006 (OJ 2006 L 363, p. 368). 6 — Published on 19 September 1979 in Bern, European Treaty Series No 104; see also OJ 1982 L 38, p. 3. 7 — On the Standing Committee’s position, see its Recommendation No 174 (2014) on the Conservation of the Loggerhead Sea Turtle (Caretta caretta) and of Sand Dunes and other Coastal Habitats in Southern Kyparissia Bay (Natura 2000 — GR 2550005 ‘Thynes Kyparissias’, Peloponnesos, Greece). EN ECLI:EU:C:2016:105 1 OPINION OF MRS KOKOTT — CASE C 504/14 COMMISSION v GREECE and, secondly, at the protective measures actually necessary. Since the beaches in question are all part of a special area of conservation under the Habitats Directive, the Commission considers that the provisions on the protection of sites have also been infringed, in terms of both particular plans and projects and the general prohibition on deterioration. 4. Despite the positive overall picture, there is, in my opinion, some justification for the Commission’s criticism. The competent Greek authorities have been permitting numerous activities on that site that are detrimental both to the breeding of the sea turtles and to the protected dune habitat types. These include, in particular, not only certain tourism-related uses of the beaches and certain roads and paths, but also fishing and house building. II – Legal context 5. The Habitats Directive provides for the designation of special areas of conservation, known as sites of Community importance, with a view to protecting particular habitat types (Annex I to the directive) and several species of fauna and flora (Annex II). 6. Annex I sets out, inter alia, different dune habitat types and Annex II refers to the Caretta caretta sea turtle. The latter is even defined as a ‘priority’ species, that is to say as being particularly worthy of protection. 7. Article 4(5) of the Habitats Directive governs the temporal application of the provisions on the protection of sites: ‘As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article 6(2), (3) and (4)’. 8. In 2006, on a proposal from Greece, the Commission placed the site ‘Kyparissia Sand Dunes’ (‘Θίνες Κυπαρισσίας’ ), under number GR2550005, on the list of sites of Community importance provided for 8 in Article 4 of the Habitats Directive. Greece declared that site a special area of conservation by Law No 3937/2011. 9. The protection of sites is provided for in Article 6(2) to (4) as follows: ‘(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of that directive. (3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. 8 — Commission Decision 2006/613/EC of 19 July 2006 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Mediterranean biogeographical region (OJ 2006 L 259, p. 1). 2 ECLI:EU:C:2016:105 OPINION OF MRS KOKOTT — CASE C 504/14 COMMISSION v GREECE (4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. …’ 10. In addition to provisions on the protection of sites, the Habitats Directive contains, in the case of certain species of fauna and flora listed in Annex IV, including the Caretta caretta sea turtle, specific prohibitions on the protection of species which are laid down in Article 12: ‘(1) Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting: (a) …; (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; (c) …; (d) deterioration or destruction of breeding sites or resting places.’ III – Facts, pre-litigation procedure and forms of order sought 11. At Kyparissia Bay there is a sand beach of approximately 80 km in length which runs in a relatively ‘ ’ straight line from north to south. Some 20 km of that beach form part of the Kyparissia Sand Dunes special area of conservation. 12. The special area of conservation comprises a strip of land, some 300 to 600 metres wide, running inland from the sea. This begins as a sand beach the rear section of which turns into habitat type 2110, embryonic shifting dunes. In places, that beach abuts on habitat type 2260, Cisto-Lavenduletalia dune sclerophyllous scrubs. The area to the south of Vounaki, behind the beach and the embryonic shifting dunes, even hosts two occurrences of priority dune habitat types, namely 2270*, wooded dunes with Pinus pinea and/or Pinus pinaster, and 2250*, coastal dunes with Juniperus spp. Finally, the area behind the beach is also home to occurrences of habitat type 9540, Mediterranean pine forests with endemic Mesogean pines, which extends over a surface area almost equal to that of all the dune habitat types combined, as well as, to a somewhat lesser extent in the area adjoining Vounaki, of 9 habitat type 5210, arborescent matorral with Juniperus spp. 13. The present case primarily concerns a 10-km-long section between the towns of Elea and Kalo 10 Nero. According to the standard data form for that site, that section hosts one of the principal Mediterranean breeding beaches of the Caretta caretta sea turtle. Indeed, it is common ground between the parties that this is now their most important breeding beach. 14. The NGOs committed to the sea turtles‘ protection object to various activities taking place on those beaches and have therefore lodged a complaint against Greece with the Commission. 9 — According to mapping carried out July 2014, Annex 1(1) to the defence. 10 — http://natura2000.eea.europa.eu/Natura2000/SDF.aspx?site=GR2550005. ECLI:EU:C:2016:105 3 OPINION OF MRS KOKOTT — CASE C 504/14 COMMISSION v GREECE 15. Following informal contacts with the Greek authorities, on 28 October 2011, the Commission invited Greece to comment on the alleged infringement of Articles 6 and 12 of the Habitats Directive. Despite having received further information from Greece, the Commission continued to take the view that there had been an infringement of those provisions and sent a reasoned opinion to Greece on 1 October 2012.

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