Opinion of Mr Advocate General Léger delivered on 9 January 2003. # Commission of the European Communities v Italian Republic. # Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Conservation of natural habitats - Wild fauna and flora. # Case C-143/02.

Opinion of the Advocate-General

1. By the present action, the Commission of the European Communities asks the Court to declare that the Italian Republic has failed to fulfil its obligations under Articles 5, 6 and 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (2) ( "the directive" ).

2. The Commission alleges that the Italian Republic has adopted rules (3) which:

─ confine the application of the environmental impact assessment procedure to a number of listed projects instead of extending it to all projects referred to in Article 6(3) of the directive, that is to "[a]ny ... project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon" ;

─ do not require the competent national authorities to take appropriate steps in respect of special protection areas to avoid the deterioration of natural habitats and of the habitats of species for which those areas were designated or disturbance of those species, contrary to Article 7 of the directive, and

─ lastly, do not require the competent national authorities to adopt the conservation measures referred to above in respect of areas which do not appear in a national list but are considered by the Commission to be of Community importance during the consultation period between the national authorities and the Commission and pending a Council decision, contrary to Article 5(4) of the directive.

3. In its defence, the Italian Republic does not deny the merits of the complaints alleged against it. It states in that regard that the situation in question is linked to other difficulties associated with the text of the transposing decree which gave rise to a series of problems in its application, such as the lack of penalties, the failure to set out the procedures for carrying out the assessment, the impact of projects on sites and the identification of the authorities competent to issue the requisite authorisations. Consequently, the Italian Republic refers to a draft presidential decree intended to amend and supplement the decree in issue and which would put an end to the failure. The adoption procedure for that draft presidential decree is at an advanced stage but has now encountered a delicate constitutional problem concerning the identification of the authorities competent to act in the matter. In those circumstances, the Italian Republic asks the Commission to stay its action for failure to fulfil obligations.

4. I consider that the Court should declare that there has been a failure to fulfil the obligations in question.

5. According to settled case-law, the Court considers that in proceedings instituted on the basis of Article 226 EC, the question whether there has been a failure to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion. (4) In the present case, it is apparent from the contents of the file that, at that time, the Italian Republic had not adopted all the laws, regulations and administrative measures necessary to comply with the directive.

6. Furthermore, the Court has repeatedly held that a Member State may not plead provisions, practices or situations in its internal legal order in order to justify a failure to comply with the obligations and time-limits laid down in a directive. (5)

7. Finally, according to settled case-law, the Court considers that, under the system instituted by Article 226 EC, the Commission has a discretion to bring an action for failure to fulfil obligations and it is not for the Court to assess whether it was appropriate to exercise that discretion. (6) That also applies to a stay of proceedings for a declaration of failure to fulfil obligations which have already been instituted. Consequently, since the Commission did not consent to a stay of the present proceedings, as suggested by the Italian Republic, the Court should declare that there has been a failure to fulfil the obligations in question.

8. Consequently, I propose that the Court should uphold the action brought by the Commission and:

(1) declare that the Italian Republic has failed to fulfil its obligations under Articles 5, 6 and 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora in that it adopted rules which:

─ confine the application of the environmental impact assessment procedure to a number of listed projects instead of extending it to all projects not directly connected with or necessary to the management of the site but likely to have a significant effect thereon;

─ do not require the competent national authorities to take appropriate steps in respect of special protection areas to avoid the deterioration of natural habitats and of the habitats of species for which those areas were designated, and

─ do not require the competent national authorities to adopt the temporary conservation measures referred to above in respect of areas which do not appear in a national list but are considered by the Commission to be of Community importance;

(2) order the Italian Republic to pay the costs.

(1) .

(2) OJ 1992 L 206, p. 7.

(3) Presidential Decree No 357 of 8 September 1997 (GURI No 248 of 23 October 1997).

(4) See, inter alia , Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13; Case C-133/94 Commission v Belgium [1996] ECR I-2323, paragraph 17; and Case C-383/00 Commission v Germany [2002] ECR I-4219, paragraph 16.

(5) See, inter alia , Case C-238/95 Commission v Italy [1996] ECR I-1451, paragraph 7; Case C-236/99 Commission v Belgium [2000] ECR I-5657, paragraph 23; and Commission v Germany , cited above at footnote 4, paragraph 18.

(6) See, inter alia , Commission v Greece , cited above at footnote 4, paragraph 9; Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 20; and Case C-471/98 Commission v Belgium [2002] ECR I-9681.