OPINION OF ADVOCATE GENERAL. KOKOTT delivered on 14 September

OPINION OF MRS KOKOTT CASE C-334/04 OPINION OF ADVOCATE GENERAL KOKOTT delivered on 14 September 2006 1 I Introduction 1. By these proceedings the Commission is bringing an action against a further Member State on account of the inadequacy of areas classified as special protection areas for birds ('SPAs') in accordance with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds 2 ('the Birds Directive'). The Court has already delivered judgment against the Netherlands, 3 France, 4 Finland 5 and Italy 6 for similar infringements. Proceedings are also pending against Spain 7 and Ireland. 8 The Commission is preparing another case against Portugal. 9 2. The central issue in each of these cases is the evidence that the relevant Member State has not yet classified as special protection areas all areas requiring classification as such. In the present case the Commission bases its claim on the data on Greece contained in a list of important bird areas in Europe which was published in the year 2000 by the non-governmental organisation BirdLife International, an international umbrella organisation for national organisations for the protection of birds ( IBA 2000'; IBA stands for Important Bird Area or Important Bird Areas). 10 Greece replies, in 1 Original language: German. 2 - OJ 1979 L 103, p. 1. 3 - Case C-3/96 [1998] ECR I-3031. 4 Case C-202/01 [2002] ECR I-11019. 5 - Case C-240/00 [2003] ECR I-2187. 6 Case С-378/01 [2003] ECR I-2857. 7 See my Opinion delivered today in Case С-235/04. 8 See my Opinion delivered today in Case С-418/04. 9 Commission press release IP/05/45 of 14 January 2005. 10 Heath, M.F. & M.I. Evans, Important Bird Areas in Europe. Priority sites for conservation. Volume 2: Southern Europe, BirdLife Conservation Series No 8, Volume II, Cambridge (2000), p. 261 et seq. I - 9218

COMMISSION v GREECE essence, that this list must be examined and that more time is required to do so. (c) species considered rare because of small populations or restricted local distribution; II Legal background (d) other species requiring particular attention for reasons of the specific nature of their habitat. 3. Article 4(1) and (2) of the Birds Directive determines which areas the Member States are to classify as SPAs, while Article 4(3) governs the information on classification to be sent to the Commission: Trends and variations in population levels shall be taken into account as a background for evaluations. '(1) The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution. In this connection, account shall be taken of: Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies. (a) species in danger of extinction; (b) species vulnerable to specific changes in their habitat; (2) Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along I - 9219

OPINION OF MRS KOKOTT CASE C-334/04 their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance. 5. Under the second subparagraph of Article 3(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora 1 1 ('the Habitats Directive'), the 'Natura 2000' network set up by this directive is also to include the SPAs classified by the Member States pursuant to the Birds Directive. (3) Member States shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 above form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this Directive applies.' III Pre-litigation procedure and forms of order sought 4. The ninth recital in the preamble to the Birds Directive explains this rule: '... the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds;... certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution;... such measures must also take account of migratory species and be coordinated with a view to setting up a coherent whole'. 6. On 21 December 2001 the Commission invited the Greek Government to submit observations pursuant to Article 226 EC (letter of formal notice). The Commission complained that Greece had classified too few areas as SPAs in accordance with Article 4 of the Birds Directive. The Commission relied on IBA 2000 as evidence of the inadequacy of areas classified as SPAs. In relation to Greece this list contains 186 areas which were to be classified as SPAs, covering an area of some 33 200 square kilometres, or 25.2% of Greece's land area. 11 OJ 1992 L 206, p. 7. I - 9220

COMMISSION v GREECE 7. Subsequently, Greece sent the Commission further information on the areas which had already been classified as SPAs. Thus, the Commission had information on 100 areas classified as SPAs. The Greek authorities announced 40 further SPAs. 11. The Commission claims that that Court should: 1. declare that, 8. On 19 December 2002 the Commission sent the Greek Government a reasoned opinion setting out the same complaint. by classifying as special protection areas (SPAs) territories the number and overall size of which fall clearly short of the number and overall size of territories fulfilling the preconditions for classification as special protection areas within the meaning of Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, 9. On 20 February 2003 the Permanent Representation of the Hellenic Republic sent the Commission information on 40 further SPAs and changes to the boundaries of 10 existing SPAs. The now 151 SPAs cover an area of 13 703 square kilometres, of which 13 136 square kilometres, or 10% of Greece's land area, are land and 567 square kilometres are sea. 12 10. However, the Commission was not satisfied with this progress and therefore brought an action on 2 August 2004. 12 Figures according to the Commission's Natura Barometer, as of June 2006, europa.eu.int/comm/environment/nature/ nature_conservation/useful_info/barometer/barometer.htm. by designating SPAs of a size clearly smaller than the corresponding IBA 2000 territories which fulfil the preconditions for classification as SPAs, by failing to designate SPAs for many species of birds included in Annex I to Directive 79/409 or by having classified as SPAs areas where the species in question are insufficiently represented, by failing to designate SPAs for many migratory species or by classifying as SPAs areas where the species at issue are insufficiently represented, I - 9221

OPINION OF MRS KOKOTT CASE C-334/04 the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409; IV Assessment 2. order the Hellenic Republic to pay the costs. 14. The Commission complains that Greece has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive. 12. The Hellenic Republic contends that the Court should: A Extent of the examination 1. dismiss the action brought by the Commission, and 15. The application is made up of four pleas: Greece has clearly classified too few areas as SPAs, the areas classified as SPAs are of a smaller size than they should be, no or too few areas have classified as SPAs for many species of birds listed in Annex I, and the same is true of many regularly occurring migratory species. However, these pleas need not be fully examined in detail. 2. order the Commission to pay the costs. 13. The Kingdom of Spain, the Portuguese Republic, the French Republic and the Republic of Finland have intervened in these proceedings in support of Greece. 16. In any event, the forms of order sought be the Commission must be dismissed in so far as it seeks a declaration that Greece has classified no areas for many species of bird listed in Annex I and many migratory species not listed therein. The Commission names only one bird included in Annex I, namely Kruepers nuthatch (Sitta krueperi), and no I - 9222

COMMISSION v GREECE migratory birds in relation to which no area has been classified. 13 On the contrary, Greece has expressly accepted the Commissions complaint in respect of this species. Minister of the Environment numbered 125310/578 of 11 February 2003, that is to say within the period set by the Commission. 17. More extensive acceptance by the classification of new areas cannot unlike in a number of similar cases 14 be established. Such classification would have to be regarded as acceptance at most if it occurred after the period laid down in the reasoned opinion, since the infringement must exist at that time in order to provide grounds for the action. 15 On the assumption that the date on the covering letter attached to the reasoned opinion is the same as the date on which it was received by the Permanent Representation, the period laid down in the reasoned opinion ended two months after 19 December 2002, that is to say on 19 February 2003. According to the uncontested information provided by Greece, the final areas were designated SPAs by a document of the 13 Although at the hearing the Commission submitted that no area had been classified also in relation to the lesser kestrel, this species occurs 'regularly', for example in the 'Dionisiades islands' SPA which is 100% identical to the corresponding IBA 192 (see IBA 2000 Volume II, p. 329). 14 See the judgments in Commission v France (cited in footnote 4, paragraph 19 et seq.), Commission v Finland (cited in footnote 5, paragraph 28 et seq.) and Commission v Italy (cited in footnote 6, paragraph 16) and my Opinion delivered today in Case C-235/04 Commission v Spain, point 26 et seq. 15 Case C-173/01 Commission v Greece [2002] ECR I-6129, paragraph 7; Case C-114/02 Commission v France [2003] ECR I-3783, paragraph 9; and Case C-221/04 Commission v Spain [2004] ECR I-4515, paragraph 23. 18. However, in the proceedings before the Court Greece has expressly accepted that it did not classify sufficient areas as SPAs for other species mentioned in Annex I, namely the long-legged buzzard (Buteo rufinus), the lesser kestrel (Falco naumanni), and the cinereous bunting [Emberiza ciner acea). It states that preparations are under way for the classification of 10 new areas for these species. Consequently, Greece has partially accepted the first plea inadequacy of areas classified as SPAs and the third plea inadequacy of areas classified as SPAs for certain species listed in Annex I. 19. However, the Commission clearly expects other areas to be classified and refers to a further eight species listed in Annex I in relation to which insufficient areas have been classified as SPAs. Therefore, these pleas must also be examined. This applies a fortiori to the second plea the inadequate definition of the boundaries of SPAs within IBA territories and the fourth plea the insufficient coverage of migratory birds in the SPAs. 20. All four pleas must be examined in this regard. This can be a joint examination. I - 9223

OPINION OF MRS KOKOTT CASE C-334/04 Although the pleas are based on two different provisions of the Birds Directive, that is to say Article 4(1) and (2), these provisions relate to the same obligation, that is to say to classify areas as SPAs. In substantive terms the Commission bases all four pleas on the Greek part of the IBA 2000 inventory of areas and ultimately merely illustrates the extent to which the Greek classification of areas as SPAs falls short of this inventory. 23. Under Article 4(2) Member States are to take similar measures for regularly occurring migratory species not listed in Annex I as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States are to pay particular attention to the protection of wetlands and particularly to wetlands of international importance. B Legal bases for the obligation to classify areas as SPAs 24. It is apparent, in particular, from Article 4(3) of the Birds Directive and the ninth recital in the preamble thereto, that the SPAs are intended to form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where the directive applies. 21. The legal bases for the obligation to classify areas as SPAs are not disputed between the parties. 22. Pursuant to the fourth subparagraph of Article 4(1) of the Birds Directive, Member States are to classify the most suitable territories in number and size as special protection areas (SPAs) for the conservation of the species mentioned in Annex I, taking into account their protection requirements in the geographical sea and land area where the directive applies. It is not possible to avoid this obligation by adopting other special conservation measures. 16 25. It is settled case-law that although Member States do have a certain margin of discretion with regard to the choice of special protection areas, a decision on the classification and delimitation of those areas must nevertheless be made solely on the basis of the ornithological criteria determined by the directive. Other considerations, particularly those of an economic or social nature, may play no role in the classification of the area. 17 16 Commission v Netherlands (cited in footnote 3, paragraph 55 et seq.). 17 Case C-355/90 Commission v Spain 'Santoña Marshes' [1993] ECR I-4221, paragraph 26; Case C-44/95 Royal Society for the Protection of Birds 'Lappel Bank' [1996] ECR I-3805, paragraph 26; and Commission v Netherlands (cited in footnote 3, paragraph 59 et seq.). I - 9224

COMMISSION v GREECE 26. Since, on accession, Greece had not agreed on a transitional period for the transposition of the Birds Directive, the directive applied to Greece as from the date of accession, namely 1 January 1981, in the same way as it did to the existing Member States. As the two-year transposition period was still running on that date, Greece was required to fulfil the obligation to classify areas as SPAs by the time the transposition period expired on 6 April 1981. 18 28. This numerical assessment of the differences between IBA 2000 and the Greek classification is difficult to understand in part. If the Commission s figures for coverage of 75% and 50% of the IBA territories are added to the number of territories in relation to which no area has been classified as an SPA, a figure of 202 territories is obtained, but IBA 2000 lists only 186 territories in relation to Greece. Therefore, some territories would appear to have been counted twice. C Evidence of the inadequacy of the classification of areas as SPAs 27. The Commission bases its area-specific complaints on the fact that IBA 2000 refers to 186 areas in relation to Greece. Only 141 of these areas have been classified fully or partially as SPAs. In total only 40% of the territories referred to in IBA 2000 have been classified. In the case of 67 IBA territories more than 75% of the area has been classified and in the case of 90 IBA territories over 50% has been classified. 45 IBA territories are not covered by any classifications at all. Consequently, Greece has clearly not fulfilled its obligation to classify areas as SPAs. 18 Santoña Marshes (cited in footnote 17, paragraph 11). 29. In spite of these ambiguities the Commissions basic line of argument is clear. The Greek classification of areas as SPAs covers only part of the list of territories in IBA 2000. 45 IBAs are not covered by SPAs and overall the Greek SPAs cover 40% of the area of the IBAs. In this regard, the majority of the IBA territories would appear to be less than 75% covered. Only in the case of the remaining 67 territories, which are over 75% covered, does the Commission appear to consider that the coverage is adequate. 30. The Commission also refers to 12 species of bird listed in Annex I in relation to which the important sites mentioned in IBA 2000 have not been classified, or not classified in full, as SPAs. Many IBA territories are also very important for migra I - 9225

OPINION OF MRS KOKOTT CASE C-334/04 tory birds not mentioned in Annex I but in relation to which areas must be classified as SPAs under Article 4(2) of the Birds Directive. 33. Consequently, the success of the application turns on whether the difference between IBA 2000 and the Greek classifications demonstrates that Greece has failed adequately to meet its obligation to classify areas as SPAs. 31. In this respect too the Commissions submission is not free of contradictions and ambiguities. As Greece correctly emphasises, in relation to Bonellis eagle (Hieraaetus fasciatus) the Commission refers to two of the IBA territories, that are most important but not covered adequately by SPAs, which according to IBA 2000 were not included in the inventory in relation to this species in accordance with the criteria relating to areas eligible for classification. Although the possibility cannot be excluded that there are now more recent findings showing that these areas are particularly important for this species and must therefore be classified, 19 the Commission provides no information in this respect. 34. An inventory of areas such as IBA 2000 can provide substantial evidence that a Member State has failed adequately to meet its obligation to classify areas as SPAs. The Court held that in view of the scientific value of IBA 89, and of the absence of any scientific evidence to show that the obligations flowing from Article 4(1) and (2) of the Directive could be satisfied by classifying as SPAs sites other than those appearing in that inventory and covering a smaller total area, that inventory, although not legally binding on the Member State concerned, can be used by the Court as a basis of reference for assessing whether that Member State has classified a sufficient number and area of territories as SPAs for the purposes of the abovementioned provisions of the Directive. 20 32. However, in this regard too these deficiencies do not undermine the basis of the application. Essentially, the Commissions arguments in relation to these species too are based on the differences between IBA 2000 and the Greek classifications. 35. IBA 89 is an inventory, submitted in 1989, of areas which are of great importance for the conservation of wild birds in the Community. That inventory was prepared 19 Case C-209/04 Commission v Austria 'Lauteracher Ried' [2006] ECR I-2755, paragraph 44. 20 Commission v Netherlands (cited in footnote 3, paragraphs 68 to 70) and Commission v Italy (cited in footnote 6, paragraph 18). I - 9226

COMMISSION v GREECE for the competent Directorate-General of the Commission by the Eurogroup for the Conservation of Birds and Habitats in conjunction with the International Council of Bird Preservation and in cooperation with Commission experts. 21 36. IBA 2000 is a more recent inventory. In relation to Greece it lists substantially more IBAs in terms of number and territories than IBA 89. Whether the new inventory is suitable as evidence in the abovementioned sense depends on whether or not it is of a scientific quality comparable to that of its predecessor. indirectly, responsible in this respect also for IBA 2000. On the other hand, the Commission was hardly able to monitor the collection of data in the case of IBA 89 since it could not verify the existence and extent of each individual bird presence indicated. The Commission is obviously satisfied of the scientific value of this inventory since it is pursing, on the basis thereof, several cases on account of the inadequacy of areas classified as SPAs. Consequently, in this regard too there is no significant difference between IBA 89 and IBA 2000. 37. The areas listed in both inventories result from the application of specific criteria to information on the presence of birds. The criteria of IBA 2000 are largely the same as those of IBA 89. The increase in the number and territory of the areas stems essentially from better knowledge of the presence of birds. 38. The Commissions involvement in IBA 89 consisted almost exclusively in monitoring the ornithologists' work on the criteria. Since for the most part the criteria continue to be applied, the Commission is, at least 39. The Kingdom of Spain, which is intervening in support of Greece, objects to the fact that IBA 2000 was drawn up by nongovernmental organisations. This is true, but it does not undermine the scientific quality of it. 22 It was published by BirdLife International, an association of national organisations for the protection of birds, which was involved in IBA 89 under the designation of the International Council for Bird Preservation. The Eurogroup for the Conservation of Birds, which was also involved at that time, was an ad hoc group of experts of this Council. The collection of data for the Greek part of IBA 2000 is based on contributions from a large number of ornithologists. Many of them are members of the EOE, the Greek society for the protection of birds, which supports the Greek Government in the 21 Commission v Netherlands (cited in footnote 3, paragraph 68). 22 For further details in this respect, and in particular in respect of the Spanish part of IBA 2000, see my Opinion delivered today in Case C-235/04 Commission v Spain, point 47 et seq. I - 9227

OPINION OF MRS KOKOTT CASE C-334/04 identification and delimitation of potential SPAs. The recognition that the authors of the Greek part enjoy is demonstrated in particular by the fact that the Greek State, through the Ministry of the Environment, promoted the drawing up of the inventory. 23 In addition, the Netherlands, via its embassy in Greece, and the Royal Society for the Protection of Birds, a British organisation for the protection of birds, also supported the work. 40. Therefore, the IBA 89 and IBA 2000 inventories are comparable in terms of their scientific quality. Since it is based on more up-to-date data, IBA 2000 constitutes the better scientific source and therefore deserves to be given preference. show that the obligations flowing from Article 4(1) and (2) of the Birds Directive could be satisfied by classifying as SPAs fewer and/or smaller areas. 42. In support of Greece Finland submits that in order to invalidate a complaint alleging inadequacy of areas classified as SPAs the Member States are not required to prove in relation to each individual area not classified as an SPA that it is not among the most suitable areas. That would impose a disproportionate burden. Rather, the general scientific evidence that sufficient areas have been classified is sufficient. However, in the present case this submission is irrelevant since Greece does not furnish evidence of adequate classification either in general or in relation to each individual area. 43. Therefore, in principle the Commission has proven the complaint. 41. As the Commission, Finland, France and Portugal in particular point out, the inventory is not binding per se and can be invalidated by better scientific knowledge. However, the Greek Government does not question the overall scientific quality of IBA 2000 or provide any scientific evidence to 23 IBA 2000, Volume II, p. 274. 44. However, the Greek Government submits that before the territories referred to in IBA 2000 can be classified as SPAs they have to be subject to a scientific examination. Although IBA is a useful reference, it does have its deficiencies, in particular as regards the delimitation of boundaries. This examination had been concluded in relation to 10 areas. In its rejoinder Greece stated that the I - 9228

COMMISSION v GREECE conclusion had been reached that 62.96% of the corresponding IBA territories covering a total area of 305 146 hectares had to be classified as SPAs (the percentage varies between 37% and 111.49%, depending on the site). In relation to 69 IBA territories the examination is still under way. In this connection, Greece has also begun to modify the criteria for identifying and delimiting potential SPAs. 47. By this submission Greece principally seeks to demonstrate that where new scientific findings are published the Commission must give the Member States sufficient time to examine these findings and then draw the necessary conclusions. In respect of this submission it is supported by France, Portugal and Spain. 45. It may easily be the case that these efforts will result in a list of areas classified as SPAs which, from a scientific point of view, is on a par with IBA 2000 or even of better ornithological quality. If this were the case, IBA would be undermined as evidence of the inadequacy of areas classified as SPAs. However, at present and on the basis of the Greek Governments submission such a situation cannot be established since the scientific investigations have not been completed or submitted to the Court. 48. These arguments are based on a correct consideration, namely that the Member States bear sole responsibility for the classification of SPAs. They cannot relinquish their responsibility by simply adopting and implementing the findings of other bodies, including those of organisations for the protection of birds. Rather, for an area to be classified it must number among the most suitable areas for the protection of birds, as viewed by the competent authorities on the basis of the best available scientific facts. 24 46. Nor can Greece use these figures to question the substantive quality of IBA 2000, in particular with regard to the definition of boundaries. For that purpose too, the submission would be insufficiently substantiated to enable the Court to carry out an examination. 49. However, it does not follow that the obligation to classify does not apply in general where the competent authorities have failed fully to examine and verify new scientific findings. Rather, it should be recalled that the obligation to classify has existed since the expiry of the period for 24 See Case C-157/89 Commission v Italy 'hunting periods' [1991] ECR I-57, paragraph 15, and Case C-60/05 WWF Italia and Others [2006] ECR I-5083, paragraph 27. I - 9229

OPINION OF MRS KOKOTT CASE C-334/04 transposing the Birds Directive, that is to say, since 6 April 1981 in the case of Greece. 25 Moreover, the obligation to classify is not limited by the state of scientific knowledge at any given time. 26 50. This obligation included a further requirement, namely to identify the most suitable areas. Therefore, Article 10 of the Birds Directive, in conjunction with Annex V thereto, calls on the Member States to support the necessary research and work. Consequently, by 1981 Greece ought itself to have carried out a comprehensive scientific survey of the presence of birds in its territory and classified the resulting areas as SPAs. Had it fulfilled this obligation in full, either IBA 2000 would contain only SPAs or Greece would easily be able to reject any further calls for the classification of areas as SPAs. Further requirements to classify can arise only if the presence of birds alters. In the present case no party has claimed that this has occurred. 51. To grant Greece now a further period within which to examine the best available scientific source would be tantamount to attaching to the classification of areas as SPAs a condition which is not laid down in Article 4 of the Birds Directive, namely the furnishing of proof by third parties that there are still unprotected areas which should be classified. However, such a condition would run counter not only to the wording of the provisions but also to the objectives of the Birds Directive and the responsibility, laid down therein, of the Member States and not third parties for the common (natural) heritage in their territory. 27 Therefore, the need to examine IBA 2000 cannot justify the failure to classify areas as SPAs. 52. Greece further submits that the programme for examining the areas was agreed with the Commission. If it thereby intends to raise an objection to block the application, Greece should at least set out in detail which agreements were reached with the Commission and the extent to which they preclude the application. The mere fact that the Commission and a Member State discuss measures to put an end to a complaint alleging infringement of Community law cannot, in any event, prevent the Commission from making an application. Rather, the principle of cooperation in good faith 25 See point 26 above. 26 Lauteracher Ried (cited in footnote 19, paragraph 44). 27 Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9, and Case C-38/99 Commission v France [2000] ECR I-10941, paragraph 53. I - 9230

COMMISSION v GREECE requires that the Commission help the Member States at all times, that is to say before, during and after the proceedings before the Court, to ensure that the requirements of Community law are satisfied. understand that both these areas were selected in accordance with Ramsar criterion 2, 29 that is to say precisely on account of their importance to the two species referred to. 30 Since the Commission does not contradict the ornithological grounds put forward the lack of importance of the areas not covered in relation to the two species this argument must be deemed to have been conceded and consequently must be accepted. 53. As a further illustration of the inadequacy of the areas classified as SPAs, the Commission refers to various unclassified wetlands which are eligible for designation as wetlands of international importance under the Ramsar Convention and which are also referred to in IBA 2000. 2 8 Greece announces an examination of some of these areas, but does not consequently invalidate the Commissions complaint. However, in relation to five individual areas Greece raises objections. 54. In the case of IBA No 45 'Lake Vergoritis and Lake Petron' only the section classified in relation to the pygmy cormorant (Phalacrocorax pygmeus) is of importance and therefore that area has to be classified. The same applies to IBA No 91 'Lakes Trichonida and Lysimachia' which involves protection of the ferruginous duck [Ay thy a nyroca). In response the Commission states that important wetlands are not protected in relation to specific species but rather in their entirety. However, the Commission thus fails to 28 In this respect see BirdLife International (2001) Important Bird Areas and potential Ramsar Sites in Europe. BirdLife International, Wageningen, The Netherlands. 55. According to Greece, within IBA No 166 'Mount Dikios, Cape Louros, Lake Psalidi, and Alykť the two lakes have been classified. Furthermore, this IBA consists of mountains rather than wetlands. This objection is well founded. IBA 2000 describes the areas as forested mountain with two lakes. 31 However, the designation of the area is due not only to the presence of the wetland but in particular to its importance as a breeding area and staging post for birds of prey. Accordingly, and contrary to the Commissions submission BirdLife further- 29 BirdLife International (2001) (cited in footnote 28, p. 50). 30 A wetland is internationally important if it supports vulnerable, endangered, or critically endangered species or threatened ecological communities. See BirdLife International (2001) (cited in footnote 28, p. 2). 31 IBA 2000, Volume II, p. 323. I - 9231

OPINION OF MRS KOKOTT CASE C-334/04 more does not designate this area a potential Ramsar area. 32 However, it does not therefore follow that this area did not have to be classified as an SPA. in relation to all species that the classification of further species is planned or under consideration as part of the examination of IBA 2000. Consequently, this line of argument too is accepted. 56. In relation to two other areas Greece submits that the excluded areas have no importance to birds. The Commission contradicts this submission since no scientific grounds have been presented to it. Since Greece has also failed to present any relevant arguments in the proceedings before the Court, this objection must be dismissed as unsubstantiated. 59. Finally, Greece, with the support of France, contests the complaint that the classification clearly falls short of IBA 2000. In Commission v Netherlands the Court based a similar finding on the fact that in that case less than half the IBAs had been classified. 33 By contrast, Greece has fully or partially classified 141 out of 186 IBAs. 57. Since the objections raised by Greece are well founded in relation to only three of 11 areas and one of these areas is eligible for classification as a normal SPA in accordance with IBA 2000, they do not undermine this argument which the Commission puts forward by way of illustration. 58. The Commission also refers to a number of species of birds which are not sufficiently covered. The Greek Government contradicts this submission in terms of detail but states 60. However, Greece fails to appreciate the importance that the Court attaches to the word clearly in this context. This is more obvious in the case against Italy in which the Court held that a large number and area of 32 BirdLife International (2001) (cited in footnote 28, p. 50). 33 Commission v Netherlands (cited in footnote 3, paragraphs 63 and 72, in conjunction with paragraph 40 et seq.). I - 9232

COMMISSION v GREECE the sites listed in the IBA Inventory 89' had not been classified as SPAs. 34 not limited to particular isolated cases, but rather cover an adequate number of areas and a sufficient amount of territory to justify the declaration sought. 61. The need to describe the classification shortcomings as such is evident from the fact that the Commission does not merely object to individual cases, but complains about Greece's administrative practice as a whole. The Court emphasises that for administrative practice to be inconsistent with Community law it must be, to some degree, of a consistent and general nature. 35 In exactly the same way, the finding that a Member State has failed to fulfil its obligation to classify areas as SPAs overall and not only in relation to specific areas cannot be based on particular isolated cases. 63. In this respect the application must consequently be granted. V Costs 62. In the present case the Commission submits that Greece has classified as SPAs only 40% of the areas to be protected. Greece has not undermined this complaint. Furthermore, although 151 of the 186 IB As have been classified as SPAs, the Greek Government considers that it is necessary to examine 69 areas and to classify 10 as SPAs. Consequently, the classification shortfalls are 64. Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied for by the successful party. Since the Commission has applied for costs and the Hellenic Republic is largely unsuccessful, it must be ordered to pay the costs. 34 Commission v Italy (cited in footnote 6, paragraph 18). 35 Case C-387/99 Commission v Germany [2004] ECR I-3751, paragraph 42; Case C-494/01 Commission v Ireland [2005] ECR I-3331, paragraph 28; Case C-287/03 Commission v Belgium [2005] ECR I-3761, paragraph 29; and Case C-441/02 Commission v Germany [2006] ECR I-3449, paragraph 50. 65. Pursuant to Article 69(4) of the Rules of Procedure, the Kingdom of Spain, the Portuguese Republic, the French Republic and the Republic of Finland shall bear the costs resulting from their respective interventions. I - 9233

OPINION OF MRS KOKOTT CASE C-334/04 VI Conclusion 66. I therefore propose that the Court should declare that: (1) The Hellenic Republic failed to fulfil its obligations under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, by failing to classify as special protection areas (SPAs) territories the number and overall size of which fall clearly short of the number and overall size of territories fulfilling the preconditions for classification as special protection areas within the meaning of Article 4(1) of the Directive, to designate SPAs of a size clearly smaller than the corresponding IBA 2000 territories which fulfil the preconditions for classification as SPAs, to designate SPAs in relation to the species Kruepers nuthatch (Sitta krueperi); I - 9234 in relation to the species European shag (Phalacrocorax aristotelis), Lämmergeier (Gypaetus barbatus), cinereous vulture (Aegypius monachus), lesser spotted eagle (Aquila pomarina), imperial eagle (Aquila heliaca), long-legged buzzard (Buteo rufinus), Bonellis eagle (Hieraaetus fasciatus), lesser kestrel (Falco naumanni), Eleonoras falcon (Falco eleonora), banner falcon (Falco biarmicus) and cinereous bunting (Emberiza cineracea), to classify as SPAs areas where the species concerned are insufficiently represented.

COMMISSION v GREECE (2) The remainder of the application is dismissed. (3) The Hellenic Republic shall pay the costs. (4) The Kingdom of Spain, the Portuguese Republic, the French Republic, and the Republic of Finland shall bear their own respective costs. I - 9235