The case concerned a dredging contract on reclaimed land in the port of Monfalcone which had been awarded to an Italian company by the local authority. However, the authority later annulled the contract on the grounds that the land had been proposed to the Commission as a site of Community importance under the 1992 habitats Directive, and the project would therefore require an environmental assessment.
The company argued that since the site had not yet been classified by the Commission, the protective measures under the Directive did not apply.
A lower administrative court in Italy disagreed, arguing that the only way to give effect to the conservation goals of the Directive was to ensure that the measures applied following the proposed classification.
The ECJ noted that under the Directive the regime for the protection of Special Areas of Conservation applied to sites selected as of Community importance was adopted by the Commission under the procedures in the Directive.
In its view, to argue that the full protective measures applied as soon as a site was notified to the Commission as containing priority natural habitat types or species implied that the Commission had no discretion in the matter and was bound to classify all sites proposed by Member States as being of Community importance. This did not accord with the wording of the Directive.
However, this did not mean that sites considered eligible by Member States were devoid of protection before the Commission had reached its decision. The court noted the general objectives of conservation of natural habitats and wild fauna and flora contained in the preambles to the Directive. In its view, if a site was not protected from the moment that a Member State proposed it to the Commission for classification, these objectives could be jeopardised.
"It is apparent, therefore, that in the case of sites eligible for identification as sites of Community importance that are mentioned on the national lists transmitted to the Commission and may include in particular sites hosting priority natural habitat types or priority species, the Member States are, by virtue of the Directive, required to take protective measures appropriate for the purpose of safeguarding that ecological interest."
However, the ECJ studiously avoided spelling out the details of these safeguard measures, and in the present case it will be left to the Italian court to decide whether the steps taken by the national authority were appropriate.
Certainly, the ECJ appears to reject the idea that the actual procedures contained in the Directive would necessarily apply. It appears similar to the position of a country that has signed but not yet ratified an international convention - the state is not actually bound by the provisions of the convention, but is nevertheless subject to a duty under international law not to take steps that would jeopardise its objectives.
It is unfortunate that the ECJ did not take the opportunity to review its case law concerning the protection of eligible sites which had not yet been designated, and develop a set of more coherent principles for them.
Certainly in its case law concerning Special Protection Areas under the Directive on conservation of wild birds, the court has held that, where a Member State has failed in its duty to designate such a site, the protective measures still apply to the site.
Nevertheless, in a 2000 decision concerning a potential SPA, it held that during the interim period before proper designation a Member State could not take advantage of the more flexible regime concerning projects of public importance that might damage the site permitted under the Directive - a rather bizarre result which implies that a site that has not been properly classified had better protection than one that has been.
In the 2003 Bown case, the Court of Appeal provided a valuable analysis of the designation procedures as they applied in the UK (ENDS Report 344, pp 62-63 ), and was critical of their apparent lack of transparency.
Nevertheless, it noted that Planning Policy Guidance 9 issued by the Government advised that for the purpose of considering development proposals, potential designated areas included in a list sent to the Commission should be treated by planning authorities in the same way as fully classified sites. This approach is consistent with the present ruling of the ECJ.
Richard Macrory, Professor of Environmental Law, University College, London