IN FULL: Gibraltar's British Territorial Waters Case

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ORDER OF THE GENERAL COURT (Seventh Chamber)

24 May 2011 (*)

(Action for annulment – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Decision 2009/95/EC – List of sites of Community importance for the Mediterranean biogeographical region – Inclusion in the site of Community importance called ‘Estrecho oriental’ of an area of the territorial waters of Gibraltar and of an area of the high seas – Partial annulment – Non-severability – Inadmissibility)

In Case T-176/09,

Government of Gibraltar, represented by D. Vaughan QC and M. Llamas, Barrister,

applicant,

supported by

United Kingdom of Great Britain and Northern Ireland, represented by E. Jenkinson and S. Ossowski, acting as Agents, and by D. Wyatt QC and M. Wood, Barrister,

intervener,

v

European Commission, represented by S. Boelaert and D. Recchia, acting as Agents,

defendant,

supported by

Kingdom of Spain, represented by N. Díaz Abad and M. Muñoz Pérez, acting as Agents,

intervener,

APPLICATION for partial annulment of Commission Decision 2009/95/EC of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2009 L 43, p. 393) to the extent that it extends the site called ‘Estrecho oriental’ (ES6120032) to the territorial waters of Gibraltar (both within and outside Site UKGIB0002) and to an area of the high seas,

THE GENERAL COURT (Seventh Chamber),

composed of A. Dittrich, President, I. Wiszniewska-Bia?ecka (Rapporteur) and M. Prek, Judges,

Registrar: E. Coulon,

makes the following

Order

Legal and factual context

1 The aim, under its Article 2(1), of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the Habitats Directive’) is to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. Article 2(2) of the Habitats Directive stipulates that measures taken pursuant to the directive are to be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.

2 According to the sixth recital in the preamble to the Habitats Directive, in order to ensure the restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status, it is necessary to designate special areas of conservation in order to create a coherent European ecological network according to a specified timetable.

3 The first subparagraph of Article 3(1) of the Habitats Directive provides that a coherent European ecological network of special areas of conservation under the title ‘Natura 2000’ is to be set up in order to enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.

4 Annex I to the Habitats Directive lays down the natural habitat types of Community interest whose conservation requires the designation of special areas of conservation. Annex II lays down the animal and plant species of Community interest whose conservation requires the designation of special areas of conservation.

5 Article 4 of the Habitats Directive lays down the procedure for the designation of sites of Community importance. Under Article 1(k) of the Habitats Directive ‘site of Community importance’ is defined as meaning ‘a site which, in the biogeographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II and may also contribute significantly to the coherence of Natura 2000 referred to in Article 3, and/or contributes significantly to the maintenance of biological diversity within the biogeographical region or regions concerned’.

6 Under Article 4(1) of the Habitats Directive, each Member State was required to propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that were native to its territory the sites hosted. That list had to be sent to the Commission of the European Communities, together with information on each site, within three years of notification of the Habitats Directive. That information was to include a map of the site, its name, location, extent and the data yielded by application of the criteria specified in Annex III (Stage 1), and was to be provided in a format established by the Commission in accordance with the procedure laid down in Article 21 of the Habitats Directive.

7 Article 4(2) of the Habitats Directive provides:

‘On the basis of the criteria set out in Annex III (Stage 2) ... the Commission shall establish, in agreement with each Member State, a draft list of sites of Community importance drawn from the Member States’ lists identifying those which [host] one or more priority natural habitat types or priority species.

…

The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.’

8 Annex III to the Habitats Directive sets out the criteria to be used by the Commission for the assessment of the Community importance of the sites included on the Member States’ lists in respect of Stage 2:

‘The assessment of the Community importance of … sites on Member States’ lists, i.e. their contribution to maintaining or re-establishing, at a favourable conservation status, a natural habitat in Annex I or a species in Annex II and/or to the coherence of Natura 2000 will take account of the following criteria:

(a) relative value of the site at national level;

(b) geographical situation of the site in relation to migration routes of species in Annex II and whether it belongs to a continuous ecosystem situated on both sides of one or more internal Community frontiers;

(c) total area of the site;

(d) number of natural habitat types in Annex I and species in Annex II present on the site;

(e) global ecological value of the site for the biogeographical regions concerned and/or for the whole of the territory referred to in Article 2, as regards both the characteristic or unique aspect of its features and the way they are combined.’

9 Article 4(4) of the Habitats Directive provides that once a site of Community importance has been adopted in accordance with the procedure laid down in Article 4(2), the Member State concerned is to designate that site as a special area of conservation as soon as possible and within six years at most, establishing priorities in the light of the importance of the sites for the maintenance or restoration, at a favourable conservation status, of a natural habitat type in Annex I or a species in Annex II and for the coherence of Natura 2000, and in the light of the threats of degradation or destruction to which those sites are exposed.

10 Under Article 4(5) of the Habitats Directive, as soon as a site is placed on the list of sites of Community importance established by the Commission it is to be subject to the provisions of Article 6(2) to (4). Article 6 of the Habitats Directive provides for the necessary measures which the Member States must take to protect special conservation areas.

11 On 19 July 2006, the Commission adopted, on the basis of the third subparagraph of Article 4(2) of the Habitats Directive, Decision 2006/613/EC adopting, pursuant to the Habitats Directive, the list of sites of Community importance for the Mediterranean biogeographical region (OJ 2006 L 259, p. 1). That list, in Annex 1 to Decision 2006/613, included, among others, the site called ‘Southern Waters of Gibraltar’, under reference UKGIB0002, proposed by the United Kingdom of Great Britain and Northern Ireland (‘Site UKGIB0002’).

12 On 28 March 2008, the Commission adopted Decision 2008/335/EC adopting, pursuant to the Habitats Directive, a first updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2008 L 123, p. 76). Article 2 of that decision repealed Decision 2006/613 and, therefore, the initial list adopted by it. Site UKGIB0002 continued to be included in the first updated list of sites of Community importance established in the Annex to Decision 2008/335.

13 On 12 December 2008, the Commission adopted Decision 2009/95/EC adopting, pursuant to the Habitats Directive, a second updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2009 L 43, p. 393). Article 2 of that decision repealed Decision 2008/335 and, therefore, the first updated list adopted by it. The second updated list of sites of Community importance established in the Annex to Decision 2009/95 again included Site UKGIB0002, and, for the first time, a site called ‘Estrecho oriental’, under reference ES6120032, proposed by the Kingdom of Spain (‘Site ES6120032’).

Procedure

14 The Government of Gibraltar (‘the applicant’) brought the present action by application lodged at the Registry of the Court of First Instance (now ‘the General Court’) on 6 May 2009.

15 By separate document, lodged at the Court Registry on the same day, the applicant applied for the case to be decided under an expedited procedure pursuant to Article 76a of the Rules of Procedure of the General Court. In its observations of 20 May 2009 on the application for the expedited procedure, the Commission stated that it opposed that application.

16 The First Chamber of the General Court dismissed the application for the expedited procedure by decision of 4 June 2009.

17 By separate document, lodged at the Court Registry on 16 July 2009, the Commission applied, under Article 114 of the Rules of Procedure, for a decision on admissibility. The applicant lodged its observations on that application on 24 August 2009.

18 By document lodged at the Court Registry on 7 August 2009, the United Kingdom sought leave to intervene in the present proceedings in support of the applicant. By document lodged at the Court Registry on 14 August 2009, the Kingdom of Spain applied for leave to intervene in the present proceedings in support of the Commission. By order of 16 October 2009, the President of the First Chamber of the Court granted those two applications for leave to intervene.

19 The United Kingdom and the Kingdom of Spain lodged their statements in intervention, confined to the issue of admissibility, on 5 and 7 January 2010 respectively.

20 By document lodged at the Court Registry on 25 January 2010, the applicant sought leave to amend the form of order it seeks so as to cover Commission Decision 2010/45/EU of 22 December 2009 adopting, pursuant to the Habitats Directive, a third updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2010 L 30, p. 322), which repealed and replaced Decision 2009/95. The Commission and the Kingdom of Spain lodged their observations on that application within the time-limit laid down.

21 On 16 March 2010, the Commission lodged its observations on the statements in intervention lodged by the United Kingdom and the Kingdom of Spain. On 17 March 2010, the applicant lodged its observations on the Kingdom of Spain’s statement in intervention.

22 By way of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court’s First Chamber, on 26 May 2010, asked the parties a question to which they replied within the time-limit laid down.

23 By document lodged at the Court Registry on 13 April 2011, the applicant sought leave to amend the form of order it seeks so as to cover also Commission Decision 2011/85/EU of 10 January 2011 adopting, pursuant to the Habitats Directive, a fourth updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2011 L 40, p. 206), which repeals and replaces Decision 2010/45. The Commission and the Kingdom of Spain lodged their observations on that application within the time-limit laid down.

24 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was therefore also assigned.

Forms of order sought by the parties

25 In the application, the applicant claims that the Court should:

– annul Decision 2009/95 to the extent that it extends Site ES6120032 to the territorial waters of Gibraltar (both within and outside Site UKGIB0002) and to an area of the high seas;

– order the Commission to pay the applicant’s legal and other costs and expenses in relation to these proceedings.

26 In its plea of inadmissibility, the Commission claims that the Court should:

– dismiss the action as inadmissible;

– order the applicant to bear its own costs and to pay those of the Commission.

27 In its observations on the plea of inadmissibility, the applicant contends that the Court should:

– dismiss the Commission’s plea of inadmissibility;

– alternatively, reserve its decision on admissibility for the final judgment and prescribe new time-limits for the further steps in the proceedings;

– in either case, order that this case be given priority in accordance with Article 55(2) of the Rules of Procedure;

– order the Commission to pay the costs.

28 In its statement in intervention, the United Kingdom claims that the Court should:

– reject the Commission’s plea of inadmissibility;

– alternatively, reserve its decision on admissibility to final judgment.

29 In its statement in intervention, the Kingdom of Spain contends that the Court should:

– dismiss the action as inadmissible;

– order the applicant to pay the costs.

Law

30 Under Article 113 of its Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action, and is to give its decision in that respect in accordance with Article 114(3) and (4) of those Rules.

31 Since the conditions of admissibility of an action under Article 230 EC are a matter of public policy, the General Court may examine them of its own motion. Its power of review is not limited to the pleas of inadmissibility put forward by the parties (Case T-55/99 CETM v Commission [2000] ECR II-3207, paragraph 21; see also, to that effect, Case 294/83 ‘Les Verts’ v Parliament [1986] ECR 1339, paragraph 19).

32 The General Court is not, therefore, confined to the Commission’s pleas in law in its objection of inadmissibility and may, in this case, decide, of its own motion, whether the contested provisions are severable from the remainder of Decision 2009/95.

33 In the present case, the General Court considers that it has sufficient information from the documents produced and the explanations provided by the parties during the written procedure. Since the case file contains all the evidence needed to give a ruling and the parties have been heard, the Court considers that it is unnecessary to open the oral procedure.

34 It must be recalled, as follows from settled case-law, that partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act. The Court of Justice has, likewise, repeatedly held that the requirement of severability was not satisfied where the partial annulment would have the effect of altering the substance of that act (see Case C-540/03 Parliament v Council [2006] ECR I-5769, paragraphs 27 and 28 and the case-law cited).

35 It should also be noted that Article 4 of the Habitats Directive established a procedure, in several stages, for the designation of a site as a site of Community importance and its inclusion in the Annex to Decision 2009/95.

36 First, under Article 4(1) of the Habitats Directive, it was for each Member State to propose a list of sites to the Commission and to send it certain information on each site. That information included a map of the site, its name, location and extent and data on the natural habitats in Annex I and species in Annex II which the site hosted.

37 Secondly, as regards the inclusion of a site as a site of Community importance, Annex III to the Habitats Directive provides that the Commission is to assess the Community importance of a site included on the national lists having regard to several criteria including, among others, the total area of the site and the number of natural habitat types in Annex I and species in Annex II present on the site.

38 In this case, the applicant seeks the partial annulment of Decision 2009/95 to the extent that it extends Site ES6120032 to the territorial waters of Gibraltar (both within and outside Site UKGIB0002) and to an area of the high seas. As the applicant made clear in its observations in response to the Court’s question, its action does not seek annulment of the inclusion of all of Site ES6120032 but its annulment only to the extent that it would extend the site geographically to areas which are not within Spanish territory. It stated that none of the arguments invoked in its application can be interpreted as referring to Site ES6120032 to the extent that it covers areas within Spanish territory.

39 The partial annulment of Decision 2009/95 as sought by the applicant, that is to say ‘to the extent that it extends [Site] ES6120032 to … Gibraltar territorial waters (both within and outside [Site] UKGIB0002) and to an area of the high seas’, would necessitate the alteration of the area of Site ES6120032, its location and geographical coordinates as stated in the Annex to Decision 2009/95. Thus, the applicant’s application for partial annulment of that decision would require the Court to redefine the geographical limits of Site ES6120032.

40 The partial annulment of Decision 2009/95, as sought by the applicant, would alter Site ES6120032 entirely and would, therefore, alter the substance of Decision 2009/95. In addition, there is no evidence that a new delimitation of Site ES6120032 would satisfy the criteria laid down in Annex III to the Habitats Directive for classification as a site of Community importance.

41 It must therefore be held that the elements of Decision 2009/95 which are sought to be annulled concerning the territorial waters of Gibraltar (both within and outside Site UKGIB0002) and an area of the high seas included in Site ES6120032, are manifestly not severable from the remainder of Decision 2009/95.

42 Consequently, in the light of the case-law cited in paragraph 33 above, since the elements, annulment of which is sought, are not severable from the remainder of the act, partial annulment as claimed by the applicant is not possible.

43 Moreover, contrary to the United Kingdom’s submission in its observations in response to the Court’s question, it is not possible for the Court to interpret the applicant’s claim for relief as seeking the annulment of the inclusion of Site ES6120032 in its entirety.

44 Indeed, since it would be ultra vires for the Community Court before which an action for annulment has been brought to rule ultra petita, the scope of the annulment which it pronounces may not go further than that sought by the applicant (Joined Cases T-90/07 P and T-99/07 P Belgium and Commission v Genette [2008] ECR II-3859, paragraph 72; see also, to that effect, Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraph 52 and the case-law cited; and Case C-240/03 P Comunità montana della Valnerina v Commission [2006] ECR I-731, paragraph 43).

45 It follows from all the foregoing that the head of claim for partial annulment of Decision 2009/95 to the extent that it extends Site ES6120032 to the territorial waters of Gibraltar (both within and outside Site UKGIB0002) and to an area of the high seas is inadmissible.

46 As regards the applicant’s applications to amend the form of order it seeks so as to cover Decision 2010/45 and then Decision 2011/85, since the present action was brought Decision 2009/95 has been repealed and replaced by Decision 2010/45, which has itself been repealed and replaced by Decision 2011/85.

47 In that regard, it is true that, where a decision is, during the proceedings, replaced by another decision with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law. It would not be in the interests of the due administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application (see the order of 18 November 2005 in Case T-299/04 Selmani v Council and Commission, not published in the ECR, paragraph 68 and the case-law cited).

48 However, according to settled case-law, the admissibility of an action must be judged by reference to the situation prevailing when it was brought (see the order in Selmani v Council and Commission, paragraph 69 and the case-law cited).

49 It follows that an applicant may only amend his pleadings in response to supervening events in the course of the proceedings if his application for annulment of the act originally contested was itself admissible when that application was lodged (see the order in Selmani v Council and Commission, paragraph 70 and the case-law cited).

50 In this case, it has already been held that, on the date the present action was brought, the applicant’s claim for partial annulment of Decision 2009/95 was inadmissible.

51 It follows that the applicant’s claim for annulment of ‘Decision 2009/95/EC to the extent that it extends [Site] ES6120032 to … Gibraltar territorial waters (both within and outside [Site] UKGIB0002) and to an area of the high seas’ is inadmissible and that it is not appropriate to allow the applicant to amend the form for order it seeks as regards the adoption of Decision 2010/45 and of Decision 2011/85.

52 It follows from all foregoing that the action must be dismissed as inadmissible.

Costs

53 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs as applied for by the Commission.

54 Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. It must therefore be ordered that the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland are to bear their own costs.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby orders:

1. The action is dismissed as inadmissible.

2. The Government of Gibraltar shall bear its own costs and pay those incurred by the European Commission.

3. The Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland shall bear their own costs.

Luxembourg, 24 May 2011.

E. Coulon


A. Dittrich

Registrar


President

* Language of the case: English.

-Reproduced/published in Gibraltar Panorama 06.06.2011