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COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION 3

to the case before the Court, that mechanical cockle fishing caused long-

term and possibly irreversible damage to ecologically vulnerable areas and

that the quota set was too high in relation to the feeding needs of seabirds

including oystercatchers.

On 23 December 1999 the Deputy Minister gave a decision dismissing

the objection as unfounded since much of the Wadden Sea was closed to

mechanical cockle fishing; at all events, in the absence of empirical

evidence, it was not established that the effects of such fishing were

irreversible. The estimated quantities of cockles in 1999 were such that

there was no need to reserve them all for seabirds that year, the less so since

they could feed on protected mussel banks as well.

The Wadden Sea Society appealed against this decision to the

Administrative Jurisdiction Division of the Council of State (Afdeling

Bestuursrechtspraak van de Raad van State).

On 7 July 2000 the Deputy Minister granted a licence to the applicant

association entitling its members collectively to a total catch of up to

9,775 tons of cockle meat from the Wadden Sea over a period of

approximately three and a half months in the autumn of that year.

On 30 July 2000 the Wadden Sea Society lodged an objection, again

acting in its own name and on behalf of the Netherlands Society for the

Protection of Birds. They largely restated the grounds of their objection of

11 August 1999. A serious reduction in the numbers of eider ducks and

oystercatchers had been noted in recent years, presumably as a result of the

partial destruction of their feeding grounds. In addition, the Minister’s

decision was incompatible with Article 6 of Council Directive 92/43/EEC

of 21 May 1992 on the conservation of natural habitats and of wild fauna

and flora (the “Habitats Directive” – see below) which required a stricter

review of the likely environmental effects than the applicable domestic

legislation.

On 19 February 2001 the Deputy Minister dismissed the objection as

unfounded. He dismissed the argument that the environmental impact

review was incompatible with the Habitats Directive, since in his view the

review under the applicable domestic legislation was equivalent in scope

and was based on the latest available scientific information. Grounds for

serious concern about irreversible environmental harm had not been

established, nor had the reality of any threat to the feeding base of eider

ducks and oystercatchers.

The Wadden Sea Society lodged an appeal against this dismissal also.

3. Proceedings in the Administrative Jurisdiction Division of the

Council of State

The Administrative Jurisdiction Division joined the cases and held a

hearing on 20 November 2001. The applicant association appeared as an

interested party.

4 COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION

On 27 March 2002 the Administrative Jurisdiction Division gave its

decision.

It rejected the arguments of the appellant non-governmental

organisations in so far as they called into question the Deputy Minister’s

assessment of the likelihood of harm to the Wadden Sea environment and

wildlife. It accepted, however, that questions arose with regard to the

interpretation and application of the Nature Conservation Act in the light of

binding substantive standards of European Community law, in particular the

Habitats Directive. The need therefore arose to seek a preliminary ruling of

the Court of Justice of the European Communities (ECJ) under Article 234

of the Treaty establishing the European Community (“the EC Treaty” – see

below).

The questions submitted to the ECJ were the following:

“1. (a) Are the words ‘plan or project’ in Article 6(3) of Council Directive

92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna

and flora to be interpreted as also covering an activity which has already been carried

on for many years but for which an authorisation is in principle granted each year for

a limited period, with a fresh assessment being carried out on each occasion as to

whether, and if so in which sections of the area, the activity may be carried on?

(b) If the answer to Question 1(a) is in the negative, must the relevant activity be

regarded as a ‘plan or project’ if the intensity of this activity has increased over the

years or an increase in it is made possible by the authorisations?

2. (a) If it follows from the answer to Question 1 that there is a ‘plan or project’

within the meaning of Article 6(3) of the Habitats Directive, is Article 6(3) of the

Habitats Directive to be regarded as a special application of the rules in Article 6(2) or

as a provision with a separate, independent purpose in the sense that, for example:

(i) Article 6(2) relates to existing use and Article 6(3) to new plans or projects, or

(ii) Article 6(2) relates to management measures and Article 6(3) to other decisions,

or

(iii) Article 6(3) relates to plans or projects and Article 6(2) to other activities?

(b) If Article 6(3) of the Habitats Directive is to be regarded as a special application

of the rules in Article 6(2), can the two subparagraphs be applicable cumulatively?

3. (a) Is Article 6(3) of the Habitats Directive to be interpreted as meaning that there

is a ‘plan or project’ once a particular activity is likely to have an effect on the site

concerned (and an ‘appropriate assessment’ must then be carried out to ascertain

whether or not the effect is ‘significant’) or does this provision mean that an

‘appropriate assessment’ has to be carried out only where there is a (sufficient)

likelihood that a ‘plan or project’ will have a significant effect?

(b) On the basis of which criteria must it be determined whether or not a plan or

project within the meaning of Article 6(3) of the Habitats Directive not directly

connected with or necessary to the management of the site is likely to have a

significant effect thereon, either individually or in combination with other plans or

projects?

4. (a) When Article 6(3) of the Habitats Directive is applied, on the basis of which

criteria must it be determined whether or not there are ‘appropriate steps’ within the

COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION 5

meaning of Article 6(2) or an ‘appropriate assessment’, within the meaning of Article

6(3), in connection with the certainty required before agreeing to a plan or project?

(b) Do the terms ‘appropriate steps’ or ‘appropriate assessment’ have independent

meaning or, in assessing these terms, is account also to be taken of Article 174(2) EC

and in particular the precautionary principle referred to therein?

(c) If account must be taken of the precautionary principle referred to in Article

174(2) EC, does that mean that a particular activity, such as the cockle fishing in

question, can be authorised where there is no obvious doubt as to the absence of a

possible significant effect or is that permissible only where there is no doubt as to the

absence of such an effect or where the absence can be ascertained?

5. Do Article 6(2) or Article 6(3) of the Habitats Directive have direct effect in the

sense that individuals may rely on them in national courts and those courts must

provide the protection afforded to individuals by the direct effect of Community law,

as was held inter alia in Case C-312/93 Peterbroeck [1995] ECR I-4599?”

4. Proceedings in the ECJ

The Wadden Sea Society, the Netherlands Society for the Protection of

Birds, the applicant association, the respondent Government and the

European Commission all submitted observations to the ECJ. Following

proceedings in writing, the ECJ held an oral hearing on 18 November 2003.

On 29 January 2004 the Advocate General’s advisory opinion was read

out in public. Its conclusion was the following:

“152. I propose that the Court [i.e. the ECJ] answer the questions referred for a

preliminary ruling by the Raad van State as follows:

(1) The words ‘plan and project’ in Article 6(3) of Council Directive 92/43/EEC of

21 May 1992 on the conservation of natural habitats and of wild fauna and flora also

cover an activity which has already been carried on for many years but for which an

authorisation is in principle granted each year for a limited period.

(2) Article 6(3) of Directive 92/43 lays down the procedure for authorising plans

and projects which do not affect the integrity of protection sites, whereas Article 6(2)

thereof lays down permanent obligations irrespective of the authorisation of plans and

projects, namely to avoid deterioration and disturbance which could be significant in

relation to the objectives of the directive.

(3) An appropriate assessment is always necessary where reasonable doubt exists as

to the absence of significant adverse effects. Any effect on the conservation objectives

has a significant effect on the site concerned.

(4) An appropriate assessment must

– precede agreement to a plan or project,

– take account of cumulative effects, and

– document all adverse effects on conservation objectives.

The competent authorities may agree to a plan or project only where, having

considered all the relevant information, in particular the appropriate assessment, they

are certain that the integrity of the site concerned will not be adversely affected. This

presupposes that the competent authorities are satisfied that there is no reasonable

doubt as to the absence of such adverse effects.

6 COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION

Where Article 6(2) of Directive 92/43 applies to the authorisation of a scheme such

authorisation must, in substantive terms, provide the same standard of protection as

authorisation granted pursuant to Article 6(3) of the habitats directive.

(5) Individuals may rely on Article 6(3) of Directive 92/43 is so far as avenues of

legal redress against measures infringing the abovementioned provisions are available

to them under national law. They may, under the same conditions, rely on Article 6(2)

of Directive 92/43 in so far as error of assessment is claimed. An indirect burden on

citizens which does not encroach on legal positions protected by Community law does

not preclude the recognised (vertical) binding of State authorities to directly

applicable directives.”

This concluded the oral proceedings.

In a letter of 11 February 2004 the applicant association requested

permission to submit a written response to the Advocate General’s advisory

opinion in writing; in the alternative, an order for the reopening of the oral

proceedings; and in the further alternative, some other opportunity to revisit

the advisory opinion.

On 28 April 2004 the ECJ gave an order containing the following

1

reasoning :

“5. To begin with, PO Kokkelvisserij [the applicant association] indicates that the

positions taken in that Opinion are wrong both as to the facts and in law. In support of

its primary and further alternative requests PO Kokkelvisserij invokes the right to

adversarial proceedings in accordance with the European Convention for the

Protection of Human Rights and Fundamental Freedoms, signed in Rome on

4 November 1950 (hereafter ‘the Convention’), as construed by the European Court of

Human Rights. The alternative request is based on Article 61 of the Rules of

Procedure. PO Kokkelvisserij states that it would run counter to the proper ordering of

the proceedings to set out the merits of its objections against the Advocate General’s

opinion in its letter of 11 February 2004.

6. It should be recalled that the Statute of the Court of Justice and the Court’s Rules

of Procedure do not provide for any possibility for parties to submit observations in

reply to the Opinion of the Advocate General (see the decision of 4 February 2000,

Emesa Sugar, C-17/98, [2000] ECR (European Court Reports) I-665, point 2). This

circumstance however does not violate a party’s right to adversarial proceedings

flowing from Article 6 § 1 of the Convention as construed by the European Court of

Human Rights (see the above-mentioned Emesa Sugar decision, points 3-16).

7. PO Kokkelvisserij’s request to submit written remarks in reply to the Opinion of

the Advocate General, or to be granted the opportunity otherwise to revisit the

advisory opinion, must therefore be denied.

8. In view of the purpose of adversarial proceedings, which is to prevent the Court

from being influenced by arguments to which parties have not been able to respond,

the Court may, ex proprio motu or at the suggestion of the Advocate General or at the

request of the parties as the case may be, reopen the oral proceedings pursuant to

Article 61 of the Rules of Procedure if it considers that it has been insufficiently

informed or if the case must be decided on the the basis of an argument that has not

1 Translation by the Registry. Official ECJ versions of this order exist in Dutch and French

only. COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION 7

been discussed by the parties (see the above-mentioned Emesa Sugar decision,

point 18).

9. In the instant case PO Kokkelvisserij’s request contains no precise information

which makes it appear either useful or necessary to reopen the proceedings.

10. PO Kokkelvisserij’s request for reopening of the oral proceedings must

therefore be dismissed.”

On 7 September 2004 the ECJ delivered its judgment. The preliminary

ruling which it contained was in the following terms:

“1. Mechanical cockle fishing which has been carried on for many years but for

which a licence is granted annually for a limited period, with each licence entailing a

new assessment both of the possibility of carrying on that activity and of the site

where it may be carried on, falls within the concept of ‘plan’ or ‘project’ within the

meaning of Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the

conservation of natural habitats and of wild fauna and flora.

2. Article 6(3) of Directive 92/43 establishes a procedure intended to ensure, by

means of a preliminary examination, that a plan or project which is not directly

connected with or necessary to the management of the site concerned but likely to

have a significant effect on it is authorised only to the extent that it will not adversely

affect the integrity of that site, while Article 6(2) of that directive establishes an

obligation of general protection consisting in avoiding deterioration and disturbances

which could have significant effects in the light of the Directive’s objectives, and

cannot be applicable concomitantly with Article 6(3).

3. (a) The first sentence of Article 6(3) of Directive 92/43 must be interpreted as

meaning that any plan or project not directly connected with or necessary to the

management of the site is to be subject to an appropriate assessment of its

implications for the site in view of the site’s conservation objectives if it cannot be

excluded, on the basis of objective information, that it will have a significant effect on

that site, either individually or in combination with other plans or projects.

(b) Pursuant to the first sentence of Article 6(3) of Directive 92/43, where a plan or

project not directly connected with or necessary to the management of a site is likely

to undermine the site’s conservation objectives, it must be considered likely to have a

significant effect on that site. The assessment of that risk must be made in the light

inter alia of the characteristics and specific environmental conditions of the site

concerned by such a plan or project.

4. Under Article 6(3) of Directive 92/43, an appropriate assessment of the

implications for the site concerned of the plan or project implies that, prior to its

approval, all the aspects of the plan or project which can, by themselves or in

combination with other plans or projects, affect the site’s conservation objectives must

be identified in the light of the best scientific knowledge in the field. The competent

national authorities, taking account of the appropriate assessment of the implications

of mechanical cockle fishing for the site concerned in the light of the site’s

conservation objectives, are to authorise such an activity only if they have made

certain that it will not adversely affect the integrity of that site. That is the case where

no reasonable scientific doubt remains as to the absence of such effects.

5. Where a national court is called on to ascertain the lawfulness of an authorisation

for a plan or project within the meaning of Article 6(3) of Directive 92/43, it can

determine whether the limits on the discretion of the competent national authorities set

by that provision have been complied with, even though it has not been transposed

8 COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION

into the legal order of the Member State concerned despite the expiry of the time-limit

laid down for that purpose.”

5. The eventual decision of the Administrative Jurisdiction Division

The Administrative Jurisdiction Division of the Council of State allowed

the participants in the proceedings before it to respond in writing to the

judgment of the ECJ. It held a further hearing on 11 November 2004 at

which the Wadden Sea Society, the Netherlands Society for the Protection

of Birds, the Deputy Minister and the applicant association were

represented.

The applicant association argued that the ECJ had acted ultra vires by

finding as a matter of fact that mechanical cockle fishing in the Wadden Sea

was to be considered a “plan” or a “project” within the meaning of

Article 6(3) of the Habitats Directive; moreover, that finding had been based

on an incorrect factual assessment. It further argued that the judgment of the

ECJ should be disapplied, having been delivered following proceedings that

violated Article 6 § 1 of the Convention.

On 22 December 2004 the Administrative Jurisdiction Division gave

judgment. It rejected the argument that the ECJ had acted ultra vires and

found that the applicant association had not established that the ECJ had

based its judgment on facts other than those presented in the Administrative

Jurisdiction Division’s own judgment of 27 March 2002. Finding it

established, in the absence of scientific evidence to the contrary, that the

impact of mechanical cockle fishing on natural habitat appeared likely to be

“significant”, it annulled the cockle-fishing licences issued to the applicant

association on the ground that they contravened Article 6(3) of the Habitats

Directive.

As far as the Court is aware, mechanical cockle fishing in the

Netherlands waters of the Wadden Sea has ceased entirely since then.

B. Relevant European Community law and practice

1. The EC treaty

Provisions of the EC treaty relevant to the case are the following:

Article 220

“The Court of Justice and the Court of First Instance, each within its jurisdiction,

shall ensure that in the interpretation and application of this Treaty the law is

observed.

In addition, judicial panels may be attached to the Court of First Instance under the

conditions laid down in Article 225a in order to exercise, in certain specific areas, the

judicial competence laid down in this Treaty.”

COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION 9

Article 221

“The Court of Justice shall consist of one judge per Member State.

The Court of Justice shall sit in chambers or in a Grand Chamber, in accordance

with the rules laid down for that purpose in the Statute of the Court of Justice.

When provided for in the Statute, the Court of Justice may also sit as a full Court.”

Article 222

“The Court of Justice shall be assisted by eight Advocates-General. Should the

Court of Justice so request, the Council, acting unanimously, may increase the number

of Advocates-General.

It shall be the duty of the Advocate-General, acting with complete impartiality and

independence, to make, in open court, reasoned submissions on cases which, in

accordance with the Statute of the Court of Justice, require his involvement.”

Article 223

“The Judges and Advocates-General of the Court of Justice shall be chosen from

persons whose independence is beyond doubt and who possess the qualifications

required for appointment to the highest judicial offices in their respective countries or

who are jurisconsults of recognised competence; they shall be appointed by common

accord of the governments of the Member States for a term of six years.

Every three years there shall be a partial replacement of the Judges and Advocates-

General, in accordance with the conditions laid down in the Statute of the Court of

Justice.

The Judges shall elect the President of the Court of Justice from among their number

for a term of three years. He may be re-elected.

Retiring Judges and Advocates-General may be reappointed. ...”

Article 234

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning

(a) the interpretation of this Treaty;

(b) the validity and interpretation of acts of the institutions of the Community and

of the ECB;

...

Where such a question is raised before any court or tribunal of a Member State, that

court or tribunal may, if it considers that a decision on the question is necessary to

enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a

Member State, against whose decisions there is no judicial remedy under national law,

that court or tribunal shall bring the matter before the Court of Justice.”

Article 281

“The Community shall have legal personality.”

10 COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION

2. The Statute of the ECJ

The Statute of the ECJ is in the form of a Protocol to the EC Treaty. As

relevant to the case before the Court, it provides as follows:

Article 2

“Before taking up his duties each Judge shall, in open court, take an oath to perform

his duties impartially and conscientiously and to preserve the secrecy of the

deliberations of the Court. Article 3

The Judges shall be immune from legal proceedings. After they have ceased to hold

office, they shall continue to enjoy immunity in respect of acts performed by them in

their official capacity, including words spoken or written.

The Court, sitting as a full Court, may waive the immunity.

Where immunity has been waived and criminal proceedings are instituted against a

Judge, he shall be tried, in any of the Member States, only by the court competent to

judge the members of the highest national judiciary.

Articles 12 to 15 and Article 18 of the Protocol on the privileges and immunities of

the European Communities shall apply to the Judges, Advocates-General, Registrar

and Assistant Rapporteurs of the Court, without prejudice to the provisions relating to

immunity from legal proceedings of Judges which are set out in the preceding

paragraphs.” Article 4

“The Judges may not hold any political or administrative office.

They may not engage in any occupation, whether gainful or not, unless exemption is

exceptionally granted by the Council.

When taking up their duties, they shall give a solemn undertaking that, both during

and after their term of office, they will respect the obligations arising therefrom, in

particular the duty to behave with integrity and discretion as regards the acceptance,

after they have ceased to hold office, of certain appointments or benefits.

Any doubt on this point shall be settled by decision of the Court.”

Article 5

“Apart from normal replacement, or death, the duties of a Judge shall end when he

resigns.

Where a Judge resigns, his letter of resignation shall be addressed to the President of

the Court for transmission to the President of the Council. Upon this notification a

vacancy shall arise on the bench.

Save where Article 6 applies, a Judge shall continue to hold office until his

successor takes up his duties.” Article 6

“A Judge may be deprived of his office or of his right to a pension or other benefits

in its stead only if, in the unanimous opinion of the Judges and Advocates-General of

COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE

KOKKELVISSERIJ U.A. v. THE NETHERLANDS DECISION 11

the Court, he no longer fulfils the requisite conditions or meets the obligations arising

from his office. The Judge concerned shall not take part in any such deliberations.

The Registrar of the Court shall communicate the decision of the Court to the

President of the European Parliament and to the President of the Commission and

shall notify it to the President of the Council.

In the case of a decision depriving a Judge of his office, a vacancy shall arise on the

bench upon this latter notification.” Article 7

“A Judge who is to replace a member of the Court whose term of office has not

expired shall be appointed for the remainder of his predecessor’s term.”

Article 8

“The provisions of Articles 2 to 7 shall apply to the Advocates-General.”

Article 18

“No Judge or Advocate-General may take part in the disposal of any case in which

he has previously taken part as agent or adviser or has acted for one of the parties, or

in which he has been called upon to pronounce as a member of a court or tribunal, of a

commission of inquiry or in any other capacity.

If, for some special reason, any Judge or Advocate-General considers that he should

not take part in the judgment or examination of a particular case, he shall so inform

the President. If, for some special reason, the President considers that any Judge or

Advocate-General should not sit or make submissions in a particular case, he shall

notify him accordingly.

Any difficulty arising as to the application of this article shall be settled by decision

of the Court. ...” Article 20

“The procedure before the Court shall consist of two parts: written and oral.

The written procedure shall consist of the communication to the parties ... of

applications, statements of case, defences and observations, and of replies, if any, as

well as of all papers and documents in support or of certified copies of them.

...

The oral procedure shall consist of the reading of the report presented by a Judge

acting as Rapporteur, the hearing by the Court of agents, advisers and lawyers and of

the submissions of the Advocate-General, as well as the hearing, if any, of witnesses

and experts.

Where it considers that the case raises no new point of law, the Court may decide,

after hearing the Advocate-General, that the case shall be determined without a

submission from the Advocate-General.”

Article 23

“In the cases governed ... by Article 234 of the EC Treaty ... the decision of the

court or tribunal of a Member State which suspends its proceedings and refers a case

to the Court shall be notified to the Court by the court or tribunal concerned. The


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo di una sentenza della Corte dei Diritti Umani di Strasburgo emessa nel 2005. I temi affrontati sono i seguenti: pesca di zizzania nel mare di Wadden, specie protette, norme comuni per la pesca e la protezione dell'ambiente marino.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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