Protecting Bird Habitat of European Importance — The View from Basses Corbières

Abstract

This paper describes the operation of the habitat protection provisions of the EEC Birds Directive of 1979 in the light of changes made by the Habitats Directive of 1992, by reference to the case law of the European Court of Justice and especially the decisions of Commission v Spain (‘Santoña Marshes’) in 1993 and Commission v France (‘Basses Corbières’) in 2000. The effect of the Basses Corbières decision was first considered by a United Kingdom court in R (Bown) v Secretary of State for Transport, decided by Collins J at first instance on 26 March 2003 and by the Court of Appeal on 31 July 2003. The author reviews the relevant aspects of these two decisions, and concludes that, although the actual result in the case may well be correct, the Court of Appeal did not accurately identify and address the issues which it raised. The judgment of the Court of Appeal is inconsistent in important respects with the European cases, and therefore a potentially misleading authority for those, whether courts, ministers or inspectors, who have to make decisions about the status and protection of areas which, it is contended, should have been, but have not been, included by government in a classified special protection area under the Birds Directive.