Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Mr James Lee Dunn, is a British national, who was born in 1981 and is currently detained at HMP Wakefield. He is represented before the Court by Hadgkiss Hughes & Beale, a firm of solicitors based in Birmingham. The United Kingdom Government (“the Government”) are represented by their Agent, Ms Ahila Sornarajah, Foreign and Commonwealth Office.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 20 July 2006 the applicant was convicted of murder at Birmingham Crown Court. He appealed against conviction before the Court of Appeal, claiming that the evidence of one of the principal prosecution witnesses was unreliable since that witness gave inconsistent evidence at later trials. The appeal was dismissed on 23 July 2009. The Court of Appeal relied on case-law to the effect that the fact that a prosecution witness has been shown to have lied may not be fatal to conviction.

The applicant sought to challenge the way in which the Court of Appeal had dealt with the issue of adducing fresh evidence by way of an appeal to the House of Lords. It was the applicant’s case that, in determining this issue, the Court of Appeal had wrongly followed the approach of a majority of the Privy Council in the case of Dial & Anor v. The State (Trinidad and Tobago) [2005] UKPC 4, rather than the approach of the House of Lords in the case of Pendleton, R. v. [2001] UKHL 66. In order for an appeal to be lodged with the House of Lords (now the Supreme Court) in criminal matters, the Court of Appeal must certify that a point of law of general public importance arises in the case (section 33(2) of the Criminal Appeal Act 1968). The Court of Appeal indicated that it would not certify that a point of law of general public importance arose in the case.

The applicant then applied to the Court of Appeal for a declaration that section 33(2) of the Criminal Appeals Act was incompatible with Articles 6 and 14 of the Convention. The applicant argued that the certification requirement constituted a violation of his right to an impartial tribunal and his right of access to the Supreme Court.

On 18 June 2010 the Court of Appeal dismissed this application, finding that the certification requirement did not violate the applicant’s rights under Article 6 of the Convention. As regards the challenge to the Court of Appeal’s impartiality, the Court of Appeal distinguished between the substantive appeal and the certification process:

“Although [counsel for the applicant] does not suggest actual bias, what he is in truth submitting is that in deciding whether to certify the Court of Appeal may be influenced by an oblique motive; the wish to avoid the Supreme Court considering the case and possibly overruling the Court of Appeal’s decision. We entirely reject that. We reject too the suggestion that the fair minded and informed observer would conclude that in reaching its decision the Court of Appeal would be so influenced. As [counsel for the prosecution] submits, in deciding whether or not to certify the court is not sitting on an appeal against its own decision. It is not determining any criminal charge. It is merely assessing whether its decision contains an important point of law.”

The Court of Appeal also emphasised that the same court was best placed to determine the existence of a point of law of general public importance, since it had already examined all the issues in the case.

The Court of Appeal found that the certification requirement amounted to an interference with the applicant’s right of access to the Supreme Court, which was, however, justified in pursuit of the legitimate aim of providing a filtering mechanism to control the Supreme Court’s caseload.

The essence of the applicant’s right of access to the Supreme Court had not been denied since he had no right to have an uncertified point of law considered by the Supreme Court:

“Moreover, we do not accept that a refusal to certify amounts to a denial of the essence of the appellant’s right of access to the Supreme Court. The appellant has the right to have his access to the second-tier appeal court decided by an independent and impartial tribunal properly applying legal principles. If such a decision goes against the appellant that has not denied him the essence of his right to access to the Supreme Court. It means that on proper application of legal principles by an independent and impartial court he is not entitled to have his case considered by the Supreme Court in circumstances where it is legitimate for there to be a filtering of the cases before that court. That is precisely what happened here.”

As regards Article 14 of the Convention, the Court dismissed the applicant’s claim on the ground that, in criminal cases, the Supreme Court’s jurisdiction was limited to resolving important matters of legal principle, whereas it had a broader remit in civil cases, sometimes encompassing factual issues. Appellants in criminal and civil cases were not, therefore, in comparable situations.

Section 33 of the Criminal Appeal Act 1968, which replaced the Administration of Justice Act 1960, provides as regards appeals in criminal proceedings:

“33. - Right of appeal to [Supreme Court]

(1) An appeal lies to the Supreme Court at the instance of the defendant or prosecutor from any decision of the Court of Appeal on an appeal to that court ...

(2) The appeal lies only with the leave of the Court of Appeal or the [the Supreme Court]; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the [the Supreme Court] (as the case may be) that the point is one which ought to be considered by [the Supreme Court].

(3) Except as provided for by this part of this Act ... no appeal shall lie from any decision of the Criminal Division of the Court of Appeal.”

Following several high profile miscarriages of justice, the Royal Commission on Criminal Justice, Cm.2263 (HMSO, 1993), chaired by Lord Runciman, was tasked to consider, inter alia, whether changes were needed in the criminal appeals process. In its 1993 report, the Commission recommended the abolition of the certification requirement (at § 10.79):

“[I]t is unduly restrictive to require such a certificate to be issued in addition to the necessity of obtaining leave from the Court of Appeal or the House of Lords itself. We think therefore that the requirement that the Court of Appeal certify that the case involves a matter of law of general public importance should be dropped. The need to obtain the leave of either the Court of Appeal or the House of Lords before proceeding further is by itself a sufficient filter.”

A review of the criminal courts carried out in 2001 by Sir Robin Auld did not address this issue, since the composition and workings of the Appellate Committee of the House of Lords did not fall within its terms of reference.

In Scotland the High Court of Judiciary is the highest criminal court. There is no route of criminal appeal from the High Court of Judiciary to the Supreme Court. However, there is an exception under the Scotland Act 1998 for devolution issues. Devolution issues include questions as to the compatibility with the Convention of the acts and functions of the Lord Advocate and legislation passed by the Scottish parliament. In such cases, leave to appeal is required from either the High Court of Judiciary or the Supreme Court. There is no certification requirement for criminal cases referred to the Supreme Court from the High Court of Judiciary.

In civil cases there is no certification requirement in respect of appeals to the Supreme Court from any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland. An application for permission to appeal must be made first to the Court of Appeal. If that Court refuses permission, an application may be made to the Supreme Court. For a "leapfrog" appeal directly from the High Court to the Supreme Court, however, the High Court judge must certify that the relevant conditions are satisfied, namely that a sufficient case has been made out to justify an application for permission to appeal to the Supreme Court and that all parties consent (section 12(1) of the Administration of Justice Act 1969). The “relevant conditions” (which are set out in section 12(3) of the Administration of Justice Act 1969) are that a point of general public importance is involved and that it either:

“(a) relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or

(b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the [Supreme Court] in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the [Supreme Court] (as the case may be) in those previous proceedings.”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1980 and lives in Šoštanj.

On 9 September 1994 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.

On 16 December 1997 the applicant instituted civil proceedings against ZT in the Celje Local Court (Okrajno sodišče v Celju) seeking damages in the amount of 1,104,192 tolars (approximately 4,600 euros) for the injuries sustained.

Between 23 March 1998 and 21 March 2001 the applicant filed seven preliminary written submissions and/or adduced evidence.

From 6 September 1999 and 21 May 2001 he made six requests that a date be set for a hearing.

Of the three hearings held between 6 April 2000 and 2 October 2001 none was adjourned at the request of the applicant.

During the proceedings the court appointed two medical experts. The court also sought an additional opinion from one of the appointed experts.

At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim, was served on the applicant on 25 October 2001.

On 9 November 2001 ZT appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.

On 3 December 2002 the court dismissed the appeal.

The judgment was served on the applicant on 27 December 2002.

On 15 January 2003 ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).

On 20 May 2004 the court dismissed the appeal.

The judgment was served on the applicant on 21 June 2004.


Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in 1944 and lives in the city of Yalta, Ukraine.

In March 2000 the applicant lodged a claim with the Yalta City Court against the local social welfare department, challenging the refusal of the latter to award her a higher pension. In her claim, the applicant maintained that, under Article 46 of the Constitution and Article 19 of the Law on Pensions, her pension should not be lower than the minimum living standard. Therefore, given that her pension was fixed at UAH 74.70 per month and the minimum living standard was established at UAH 118.30 per month, the applicant claimed a corresponding increase in her pension.

On 4 April 2000 the court decided against the applicant. The court established in particular that, although Article 19 of the Law on Pensions provided the possibility for a higher pension, it also limited the amount to a maximum sum which the applicant in fact received. The court did not consider the applicant’s argument about the inconsistency of the amount of her pension with the minimum living standard guaranteed by Article 46 of the Constitution.

The applicant appealed against the judgment of the Yalta City Court to the Supreme Court of the Autonomous Republic of Crimea. In her cassation appeal the applicant repeatedly claimed that her pension should not be lower than the minimum living standard, as defined in Article 46 of the Constitution, and that the constitutional provisions have supremacy over the provisions of normal laws.

On 3 July 2000 the Supreme Court of the Autonomous Republic of Crimea upheld the decision of the first instance court. The court did not consider the applicant’s appeal from the viewpoint of Article 46 of the Constitution.

The relevant provisions read as follows:

“... The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.”

“... Pensions and other types of social payments and assistance that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard (прожитковий мінімум) established by law.”

“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine.

The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”

“The jurisdiction of the Constitutional Court of Ukraine encompasses:

1) deciding on issues of conformity with the Constitution of Ukraine (the constitutionality) of the following:

- laws and other legal acts of the Verkhovna Rada of Ukraine;

- acts of the President of Ukraine;

- acts of the Cabinet of Ministers of Ukraine;

- legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea.

These issues are considered on the appeals of: the President of Ukraine; at least forty-five National Deputies of Ukraine; the Supreme Court of Ukraine; the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine; the Verkhovna Rada of the Autonomous Republic of Crimea;

2) the official interpretation of the Constitution of Ukraine and the laws of Ukraine;

On issues envisaged by this Article, the Constitutional Court of Ukraine adopts decisions that are mandatory for execution throughout the territory of Ukraine, that are final and shall not be appealed.”

Article 11 of the Code provided that courts should decide a case on the basis of the Constitution, other legislative acts or the international treaties of Ukraine, under the procedure provided for in the Code.

Article 202 of the Code foresaw that a court decision should mention the facts of the case established by the court, evidence on which the court’s conclusion was based, and reasons for admitting or rejecting this or that argument, as well as the laws applied by the court.

“When, in the proceedings before the courts of general jurisdiction, a dispute arises over the constitutionality of norms applied by a court, the examination of the case shall be suspended.

In such circumstances, constitutional proceedings shall be initiated and the case shall be considered by the Constitutional Court of Ukraine immediately.”

“The ground for a constitutional appeal in order to obtain an official interpretation of the Constitution of Ukraine and laws of Ukraine is a lack of uniform application of provisions of the Constitution or laws by the courts of Ukraine, or other organs of State authorities, if the subject of the right to a constitutional appeal considers that it may lead or has led to a violation of his or her constitutional rights and freedoms.”

Article 19 of this Law provides as relevant:

“Old age pensions shall be established in the amount of 55% of the salary, but not less then the minimum amount of pensions (мінімальний розмір пенсії)...

The minimum amount of an old age pension shall be established in relation to the minimum consumer budget (мінімальний споживчий бюджет). In case of economic crisis and a fall in production, the minimum amount of pensions shall be established in an amount which is not lower than the basic standard of income (межа малозабезпеченості). ...

The maximum amount of an old age pension shall not exceed ... three times the minimum amount of pensions ...”

The Law set the basic monthly standard of income (межа малозабезпеченості) at UAH 90.7 for the first half of 1999, and UAH 118.3 for the second half.

This Law set the minimum amount of pensions (мінімальний розмір пенсії) at UAH 24.9.

The relevant parts of the Resolution read as follows:

“2. Since the Constitution of Ukraine, as stipulated in its Article 8, has the highest legal force, and its norms are norms of direct effect, the courts, in consideration of concrete cases, shall assess the content of any law or any other legal act for its compliance with the Constitution of Ukraine and, where necessary, shall apply the Constitution as an act of direct effect. The court decisions shall be based on the Constitution and the current legislation which does not contradict it.

In case of doubt as to the compliance with the Constitution of Ukraine of a particular law, as applied or applicable in a case, the court, upon the motion of the parties to the proceedings or of its own motion, shall suspend consideration of the case and apply, by way of a reasoned decision (ruling), to the Supreme Court of Ukraine which, under Article 150 of the Constitution, may raise before the Constitutional Court the issue of compliance of laws and other legal acts with the Constitution. Such decisions can be taken by the first instance court, court of cassation or the court which considers a supervisory review...”


Violation of Article 6 - Right to a fair trial;Violation of Article 13+6 - Right to an effective remedy (Article 6 - Right to a fair trial)

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The facts of the case, as submitted by the parties, may be summarised as follows.

On 13 October 1992 the local authorities of Briceni decided to split the State-owned Regional Association for Production and Services (“the Association”) into two companies, one of which was the applicant company. On 28 December 1992 the applicant company was officially registered with the authorities as a private company and was subsequently assigned certain assets belonging to the Association.

The applicant company operated until 3 December 1993, when the local authorities sealed its premises in order to recover State property allegedly held by it. On 16 December 1993 the local authorities decided to create a State-owned company (“the State company”) with a similar name to that of the applicant company and to transfer to it the Association's assets which had been assigned to the applicant company in 1992.

The applicant company claimed that its own property had been seized on 3 December 1993 together with the property that had formerly belonged to the Association and had been assigned to it in 1992. It also claimed that it had paid for the property assigned to it in 1992 and that therefore the seizure of 3 December 1993 had been unlawful. When the State company refused to return the seized assets, the applicant company initiated court proceedings.

On 12 May 1994 the Briceni District Court allowed the applicant company's claims. On 1 June 1994 the Supreme Court of Justice quashed that judgment and ordered a full rehearing of the case.

On 15 February 1995 the Briceni District Court discontinued the proceedings on the ground that the arbitration courts were competent to examine such cases. On 22 March 1995 the Supreme Court of Justice upheld that decision.

On an unknown date in 1995 the applicant company initiated proceedings before the Arbitration Court. On 27 November 1995 the Arbitration Court partly allowed the applicant company's claims. On the same day the court issued an enforcement order, which was amended on 19 December 1995.

On 5 February 1996 the enforcement of the decision of 27 November 1995 was suspended pending an appeal before the Supreme Court of Justice.

On 2 July 1996 the decision of 27 November 1995 was amended by the Arbitration Court, reducing the amount awarded to the applicant company.

On 1 July 1997 the Arbitration Court of the Republic of Moldova annulled all the previous judgments and ordered a full rehearing of the case.

On 26 September 1997 the Chişinău Arbitration Court partly allowed the applicant company's claims.

On 14 November 1997 the applicant company complained to various authorities, including the Supreme Council of the Judiciary, of unnecessary delays in the proceedings. The complaints were forwarded to the court examining the case.

On 16 January 1998 the Appeals Chamber of the Arbitration Court of Moldova quashed the judgment of 26 September 1997 and ordered a full rehearing of the case.

On 23 March 1998 the Chişinău Arbitration Court partly allowed the applicant company's claims. On the same day the court issued an enforcement order. No appeal was lodged and the judgment became final fifteen days later.

On 4 May 1998 the Prosecutor General's Office lodged an application for annulment of the final judgment and asked the Supreme Court of Justice to reopen the proceedings. On 3 June 1998 the Supreme Court of Justice allowed the request and quashed the final judgment of 23 March 1998, ordering a full rehearing of the case.

The Chişinău Arbitration Court scheduled some thirty-one court hearings in the months that followed, almost all of which resulted in decisions to adjourn the proceedings and summon the parties for another date, because more evidence was necessary, or one of the parties was absent, or because a connected set of proceedings to determine who should represent the State company was in progress. This period lasted from 23 September 1998 until 25 March 1999.

During one of the hearings, on 8 October 1999, the court noted that there was a disagreement between the parties as to the correct valuation of the disputed property and concluded that an expert valuation was necessary. It therefore suspended the proceedings and ordered an expert report on the companies' accounts, to be paid for by the applicant company. The report, dated 18 May 2000, confirmed that the State company owed the applicant company 778,877 Moldovan lei (MDL). According to the Government, the report was submitted to the court on 21 July 2000.

On 15 December 2000 the applicant company sought leave to pay the court fees by instalments, referring to its poor financial state. The Court accepted the request, noting, inter alia, that the proceedings had started in 1995, that the case had been sent for a fresh examination and that the examination of the case had already lasted for a long time.

On 19 November 2002 the Chişinău Arbitration Court partly allowed the applicant company's claims.

On 12 February 2003 the Supreme Court of Justice decided to assign the case to the Chişinău Court of Appeal in view of the fact that all the judges of the Appeals Chamber of the Economic Court had already examined the case earlier.

On 3 June 2003 the Chişinău Court of Appeal upheld the judgment of 19 November 2002.

On 23 October 2003 the Supreme Court of Justice quashed the lower courts' judgments and adopted a new one, rejecting all the applicant company's claims as unfounded. It found, in particular, that it had not been proved with sufficient certainty that the applicant company had acquired any property of its own in addition to the property which had been assigned to it in 1992 and which it had had to return to the State company. Several items which the applicant company had proved to be its own property had been returned by the State company or compensation had been paid. The creation of the applicant company, with State property but in private ownership, had been contrary to the law, and a number of its claims concerning its financial dealings with the State company could not be verified because the original documents had been destroyed after the expiry of the relevant time-limits for keeping them. The judgment of the Supreme Court of Justice was final.

On 28 March 2008 the Appeals Chamber of the Economic Court of Moldova decided to put the applicant company into liquidation for non-payment of debts.


No violation of Art. 3;No violation of Art. 6-1

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant made the following allegations concerning the events underlying the dispute he submitted to the English courts. The Government stated that they were not in a position to comment on the accuracy of these claims.

The applicant, who is a trained pilot, went to Kuwait in 1991 to assist in its defence against Iraq. During the Gulf War he served as a member of the Kuwaiti Air Force and, after the Iraqi invasion, he remained behind as a member of the resistance movement. During that period he came into possession of sex videotapes involving Sheikh Jaber Al-Sabah Al-Saud Al-Sabah (“the Sheikh”), who is related to the Emir of Kuwait and is said to have an influential position in Kuwait. By some means these tapes entered general circulation, for which the applicant was held responsible by the Sheikh.

After the Iraqi armed forces were expelled from Kuwait, on or about 2 May 1991, the Sheikh and two others gained entry to the applicant’s house, beat him and took him at gunpoint in a government jeep to the Kuwaiti State Security Prison. The applicant was falsely imprisoned there for several days during which he was repeatedly beaten by security guards. He was released on 5 May 1991, having been forced to sign a false confession.

On or about 7 May 1991 the Sheikh took the applicant at gunpoint in a government car to the palace of the Emir of Kuwait’s brother. At first the applicant’s head was repeatedly held underwater in a swimming-pool containing corpses, and he was then dragged into a small room where the Sheikh set fire to mattresses soaked in petrol, as a result of which the applicant was seriously burnt.

Initially the applicant was treated in a Kuwaiti hospital, and on 17 May 1991 he returned to England where he spent six weeks in hospital being treated for burns covering 25% of his total body surface area. He also suffered psychological damage and has been diagnosed as suffering from a severe form of post-traumatic stress disorder, aggravated by the fact that, once in England, he received threats warning him not to take action or give publicity to his plight.

On 29 August 1992 the applicant instituted civil proceedings in England for compensation against the Sheikh and the State of Kuwait in respect of injury to his physical and mental health caused by torture in Kuwait in May 1991 and threats against his life and well-being made after his return to the United Kingdom on 17 May 1991. On 15 December 1992 he obtained a default judgment against the Sheikh.

The proceedings were re-issued after an amendment to include two named individuals as defendants. On 8 July 1993 a deputy High Court judge ex parte gave the applicant leave to serve the proceedings on the individual defendants. This decision was confirmed in chambers on 2 August 1993. He was not, however, granted leave to serve the writ on the State of Kuwait.

The applicant submitted a renewed application to the Court of Appeal, which was heard ex parte on 21 January 1994. Judgment was delivered the same day.

The court held, on the basis of the applicant’s allegations, that there were three elements pointing towards State responsibility for the events in Kuwait: firstly, the applicant had been taken to a State prison; secondly, government transport had been used on 2 and 7 May 1991; and, thirdly, in the prison he had been mistreated by public officials. It found that the applicant had established a good arguable case, based on principles of international law, that Kuwait should not be afforded immunity under section 1(1) of the State Immunity Act 1978 (“the 1978 Act”: see paragraph 21 below) in respect of acts of torture. In addition, there was medical evidence indicating that the applicant had suffered damage (post-traumatic stress) while in the United Kingdom. It followed that the conditions in Order 11 rule 1(f) of the Rules of the Supreme Court had been satisfied (see paragraph 20 below) and that leave should be granted to serve the writ on the State of Kuwait.

The Kuwaiti government, after receiving the writ, sought an order striking out the proceedings. The application was examined inter partes by the High Court on 15 March 1995. In a judgment delivered the same day the court held that it was for the applicant to show on the balance of probabilities that the State of Kuwait was not entitled to immunity under the 1978 Act. It was prepared provisionally to accept that the Government were vicariously responsible for conduct that would qualify as torture under international law. However, international law could be used only to assist in interpreting lacunae or ambiguities in a statute, and when the terms of a statute were clear, the statute had to prevail over international law. The clear language of the 1978 Act bestowed immunity upon sovereign States for acts committed outside the jurisdiction and, by making express provision for exceptions, it excluded as a matter of construction implied exceptions. As a result, there was no room for an implied exception for acts of torture in section 1(1) of the 1978 Act. Moreover, the court was not satisfied on the balance of probabilities that the State of Kuwait was responsible for the threats made to the applicant after 17 May 1991. As a result, the exception provided for by section 5 of the 1978 Act could not apply. It followed that the action against the State should be struck out.

The applicant appealed and the Court of Appeal examined the case on 12 March 1996. The court held that the applicant had not established on the balance of probabilities that the State of Kuwait was responsible for the threats made in the United Kingdom. The important question was, therefore, whether State immunity applied in respect of the alleged events in Kuwait. Lord Justice Stuart-Smith finding against the applicant, observed:

“Jurisdiction of the English court in respect of foreign States is governed by the State Immunity Act 1978. Section 1(1) provides:

‘A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. ...’

... The only relevant exception is section 5, which provides:

‘A State is not immune as respects proceedings in respect of

(a) death or personal injury ... caused by an act or omission in the United Kingdom.’

It is plain that the events in Kuwait do not fall within the exception in section 5, and the express words of section 1 provide immunity to the First Defendant. Despite this, in what [counsel] for the Plaintiff acknowledges is a bold submission, he contends that that section must be read subject to the implication that the State is only granted immunity if it is acting within the Law of Nations. So that the section reads: ‘A State acting within the Law of Nations is immune from jurisdiction except as provided ...’

... The argument is ... that international law against torture is so fundamental that it is a jus cogens, or compelling law, which overrides all other principles of international law, including the well-established principles of sovereign immunity. No authority is cited for this proposition. ... At common law, a sovereign State could not be sued at all against its will in the courts of this country. The 1978 Act, by the exceptions therein set out, marks substantial inroads into this principle. It is inconceivable, it seems to me, that the draughtsman, who must have been well aware of the various international agreements about torture, intended section 1 to be subject to an overriding qualification.

Moreover, authority in the United States at the highest level is completely contrary to [counsel for the applicant’s] submission. [Lord Justice Stuart-Smith referred to the judgments of the United States courts, Argentine Republic v. Amerada Hess Shipping Corporation and Siderman de Blake v. Republic of Argentina, cited in paragraph 23 below, in both of which the court rejected the argument that there was an implied exception to the rule of State immunity where the State acted contrary to the Law of Nations.] ... [Counsel] submits that we should not follow the highly persuasive judgments of the American courts. I cannot agree.

... A moment’s reflection is enough to show that the practical consequences of the Plaintiff’s submission would be dire. The courts in the United Kingdom are open to all who seek their help, whether they are British citizens or not. A vast number of people come to this country each year seeking refuge and asylum, and many of these allege that they have been tortured in the country whence they came. Some of these claims are no doubt justified, others are more doubtful. Those who are presently charged with the responsibility for deciding whether applicants are genuine refugees have a difficult enough task, but at least they know much of the background and surrounding circumstances against which the claim is made. The court would be in no such position. The foreign States would be unlikely to submit to the jurisdiction of the United Kingdom court, and in its absence the court would have no means of testing the claim or making a just determination. ...”

The other two members of the Court of Appeal, Lord Justice Ward and Mr Justice Buckley, also rejected the applicant’s claim. Lord Justice Ward commented that “there may be no international forum (other than the forum of the locus delicti to whom a victim of torture will be understandably reluctant to turn) where this terrible, if established, wrong can receive civil redress”.

On 27 November 1996 the applicant was refused leave to appeal by the House of Lords. His attempts to obtain compensation from the Kuwaiti authorities via diplomatic channels have proved unsuccessful.

There is no rule under English law requiring a plaintiff to be resident in the United Kingdom or to be a British national before the English courts can assert jurisdiction over civil wrongs committed abroad. Under the rules in force at the time the applicant issued proceedings, the writ could be served outside the territorial jurisdiction with the leave of the court when the claim fell within one or more of the categories set out in order 11, Rule 1 of the Rules of the Supreme Court. For present purposes only Rule 1(f) is relevant:

“... service of a writ out of the jurisdiction is permissible with the leave of the court if, in the action begun by the writ,

(f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction ...”

The relevant parts of the State Immunity Act 1978 provide:

“1. (1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.

A State is not immune as regards proceedings in respect of-

(a) death or personal injury;

caused by an act or omission in the United Kingdom ...”

The above provision (section 5 of the 1978 Act) was enacted to implement the 1972 European Convention on State Immunity (“the Basle Convention”), a Council of Europe instrument, which entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal). Article 11 of the Convention provides:

“A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.”

Article 15 of the Basle Convention provides that a Contracting State shall be entitled to immunity if the proceedings do not fall within the stated exceptions.

In its Report on Jurisdictional Immunities of States and their Property (1999), the working group of the International Law Commission (ILC) found that over the preceding decade a number of civil claims had been brought in municipal courts, particularly in the United States and United Kingdom, against foreign governments, arising out of acts of torture committed not in the territory of the forum State but in the territory of the defendant and other States. The working group of the ILC found that national courts had in some cases shown sympathy for the argument that States are not entitled to plead immunity where there has been a violation of human rights norms with the character of jus cogens, although in most cases the plea of sovereign immunity had succeeded. The working group cited the following cases in this connection: (United Kingdom) Al-Adsani v. State of Kuwait 100 International Law Reports 465 at 471; (New Zealand) Controller and Auditor General v. Sir Ronald Davidson [1996] 2 New Zealand Law Reports 278, particularly at 290 (per Cooke P.); Dissenting Opinion of Justice Wald in (United States) Princz v. Federal Republic of Germany 26 F 3d 1166 (DC Cir. 1994) at 1176-1185; Siderman de Blake v. Republic of Argentina 965 F 2d 699 (9th Cir. 1992); Argentine Republic v. Amerada Hess Shipping Corporation 488 US 428 (1989); Saudi Arabia v. Nelson 100 International Law Reports 544.

The working group of the ILC did, however, note two recent developments which it considered gave support to the argument that a State could not plead immunity in respect of gross human rights violations. One of these was the House of Lords’ judgment in ex parte Pinochet (No. 3) (see paragraph 34 below). The other was the amendment by the United States of its Foreign Sovereign Immunities Act (FSIA) to include a new exception to immunity. This exception, introduced by section 221 of the Anti-Terrorism and Effective Death Penalty Act of 1996, applies in respect of a claim for damages for personal injury or death caused by an act of torture, extra-judicial killing, aircraft sabotage or hostage-taking, against a State designated by the Secretary of State as a sponsor of terrorism, where the claimant or victim was a national of the United States at the time the act occurred.

In its judgment in Flatow v. the Islamic Republic of Iran and Others (76 F. Supp. 2d 16, 18 (D.D.C. 1999)), the District Court for the District of Columbia confirmed that the property of a foreign State was immune from attachment or execution, unless the case fell within one of the statutory exceptions, for example that the property was used for commercial activity.

The Kuwaiti Constitution provides in Article 31 that “No person shall be put to torture”.

Article 5 of the Universal Declaration of Human Rights 1948 states:

“No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.”

Article 7 of the International Covenant on Civil and Political Rights 1966 states as relevant:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

The United Nations 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment provides in Article 3 that:

“No State may permit or tolerate torture and other cruel inhuman or degrading treatment or punishment.”

In the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, adopted on 10 December 1984 (“the UN Convention”), torture is defined as:

“For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

The UN Convention requires by Article 2 that each State Party is to take effective legislative, administrative, judicial or other measures to prevent torture in any territory under its jurisdiction, and by Article 4 that all acts of torture be made offences under each State’s criminal law.

In its judgment in Prosecutor v. Furundzija (10 December 1998, case no. IT-95-17/I-T, (1999) 38 International Legal Materials 317), the International Criminal Tribunal for the Former Yugoslavia observed as follows:

“144. It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in time of emergency ... This is linked to the fact, discussed below, that the prohibition on torture is a peremptory norm or jus cogens. ... This prohibition is so extensive that States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.

These treaty provisions impose upon States the obligation to prohibit and punish torture, as well as to refrain from engaging in torture through their officials. In international human rights law, which deals with State responsibility rather than individual criminal responsibility, torture is prohibited as a criminal offence to be punished under national law; in addition, all States parties to the relevant treaties have been granted, and are obliged to exercise, jurisdiction to investigate, prosecute and punish offenders. ...

The existence of this corpus of general and treaty rules proscribing torture shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals. No legal loopholes have been left.

There exists today universal revulsion against torture ... . This revulsion, as well as the importance States attach to the eradication of torture, has led to a cluster of treaty and customary rules on torture acquiring a particularly high status in the international, normative system.

... the prohibition of torture imposes on States obligations erga omnes, that is, obligations owed towards all the other members of the international community.

... the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special or even general customary rules not endowed with the same normative force.

Clearly the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. ...”

Similar statements were made in Prosecutor v. Delacic and Others (16 November 1998, case no. IT-96-21-T, § 454) and in Prosecutor v. Kunarac (22 February 2001, case nos. IT-96-23-T and IT-96-23/1, § 466).

The United Kingdom ratified the UN Convention with effect from 8 December 1988.

Section 134 of the Criminal Justice Act 1988, which entered into force on 29 September 1988, made torture, wherever committed, a criminal offence under United Kingdom law triable in the United Kingdom.

In its Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3), judgment of 24 March 1999 [2000] Appeal Cases 147, the House of Lords held that the former President of Chile, Senator Pinochet, could be extradited to Spain in respect of charges which concerned conduct that was criminal in the United Kingdom at the time when it was allegedly committed. The majority of the Law Lords considered that extraterritorial torture did not become a crime in the United Kingdom until section 134 of the Criminal Justice Act 1988 came into effect. The majority considered that although under Part II of the State Immunity Act 1978 a former head of State enjoyed immunity from the criminal jurisdiction of the United Kingdom for acts done in his official capacity, torture was an international crime and prohibited by jus cogens (peremptory norms of international law). The coming into force of the UN Convention (see paragraph 29 above) had created a universal criminal jurisdiction in all the Contracting States in respect of acts of torture by public officials, and the States Parties could not have intended that an immunity for ex-heads of State for official acts of torture would survive their ratification of the UN Convention. The House of Lords (and, in particular, Lord Millett, at p. 278) made clear that their findings as to immunity ratione materiae from criminal jurisdiction did not affect the immunity ratione personae of foreign sovereign States from civil jurisdiction in respect of acts of torture.


FAIRFIELD AND OTHERS v. THE UNITED KINGDOM

The applicants, Ms Rosemary Fairfield, daughter of Mr Harry Hammond, Mr Andrew Tredea and Mr Geoffrey Cox, executors of Mr Hammond's estate, are United Kingdom nationals, who were born in 1959, 1959 and 1956 and live in Fordingbridge, Birmingham and Poole respectively. They were represented before the Court by Mr P. Conrathe, a solicitor practising in Croydon.

The facts of the case, as submitted by the applicants, may be summarised as follows.

Mr Harry Hammond, born in 1932, was an evangelical Christian who had been preaching for twenty years. His religious beliefs were deeply held and he had a desire to convert others to his way of thinking.

During the summer of 2001, Mr Hammond had a large double-sided sign made, bearing the words “Stop Immorality”, “Stop Homosexuality” and “Stop Lesbianism”. The sign, attached to a pole, also bore in each corner the words “Jesus is Lord”.

Prior to 13 October 2001 Harry Hammond had on at least one occasion preached in public while displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface or destroy the sign.

On the afternoon of Saturday, 13 October 2001, Harry Hammond travelled by bus into Bournemouth. He covered the sign with a plastic bin liner for the trip as he believed, in light of previous reactions, that it might provoke a disturbance if displayed inside the bus. He then took up position in The Square, a pedestrian area of the town centre, and began preaching, holding up the sign.

A group of thirty to forty people gathered around him, arguing and shouting. Some were angry, others aggressive or distressed; some threw soil at him. At one point, someone tried to snatch the sign away from him and it struck someone on the head. A struggle ensued during which Harry Hammond fell to the ground. He got up and continued preaching, holding up the sign. At this point, someone poured water over his head.

Two police constables, Ms Gandy and Mr Elliott, arrived at the scene. PC Gandy found the crowd to be angry, agitated and insulted. She asked Harry Hammond to put away the sign and leave. He refused. He declared that he was aware that people found the sign insulting as he had had a similar reaction previously. PC Elliott was of the opinion that it was not necessary for the police to take any action. PC Gandy took the view that he was provoking violence and arrested him for breach of the peace.

On 4 December 2001 Harry Hammond was charged with an offence under the Public Order Act 1986, in that he had displayed a sign which was threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress, contrary to section 5(1) of the Act.

The case was heard before magistrates on 23 and 24 April 2002. On 24 April 2002 the magistrates convicted Harry Hammond, finding that he had known that insult, distress and disturbance were likely to be caused but had refused to put away the sign or leave when requested. He was fined 300 pounds sterling, with prosecution costs. The sign was confiscated.

Mr Hammond appealed to the High Court by way of case stated. In their statement of case dated 9 July 2002, amended on 7 January 2004, the magistrates declared that they had considered his Convention rights but found that there had been a pressing social need to restrict his freedom of expression to prevent disorder. They gave the following reasons.

(a) The words displayed on the sign were in fact insulting and caused distress to persons who were present.

(b) The appellant was aware that the words on the sign were insulting; he admitted this to PC Gandy. His awareness was also demonstrated by his covering the sign with a black plastic bin liner while travelling on the bus and acknowledging that he had received a similar reaction in the past.

(c) The restriction on the appellant's right to freedom of expression had the legitimate aim of preventing disorder in view of the reaction of people in the crowd to the sign.

(d) There was a pressing social need for the restriction and the restriction corresponded to that need. The words on the appellant's sign were directed specifically towards the homosexual and lesbian communities, implying that they were immoral and there was a need to show tolerance towards all sections of society. The sign was displayed in the town centre on a Saturday afternoon, provoking hostility from members of the public.

(e) The interference with the appellant's right to freedom of expression by prosecuting him was a proportionate response in view of the fact that his behaviour went beyond legitimate protest, was provoking violence and interfered with the rights of others.

(f) Although the appellant knew that insult, distress and disturbance were likely to be caused by using the placard, having received a similar reaction in the past, he refused to put away the sign or leave at PC Gandy's request.

On 16 August 2002 Harry Hammond died. The executors of his estate were granted permission on 10 November 2002 to continue the appeal.

After a hearing on 13 January 2004, the Divisional Court dismissed the appeal.

Lord Justice May held, inter alia:

“... The essential grounds of appeal ... are firstly that the justices were wrong and misdirected themselves in finding that the words on the sign were insulting and secondly, that a proper reading of Articles 9 and 10 of the Convention should have led to the conclusion that the appellant should have been acquitted of this offence. The precise intellectual route by means of which that, it is submitted, should be achieved can, in my judgment, be addressed by reference to the question of reasonableness. ...

... It is submitted that no reasonable tribunal of fact could conclude that the words on the sign went beyond legitimate expression and that they were something more than an affront or disrespectful is not sustained. There is no element of stereotyping, no element of gratuitous or gross abuse. ...

... I have not found this question easy because it is certainly correct that the words on the sign are short and, so far as they go, are not expressed in intemperate language. ... but I come to the clear conclusion that it was open to the magistrates to reach the conclusion they did, not least because the words appear to relate homosexuality and lesbianism with immorality. The justices themselves take this into consideration when they say that the words on the appellant's sign were directed specifically towards the homosexual and lesbian community, implying that they were immoral. Accordingly, not without hesitation, I have reached the conclusion that it was open to the justices to reach the conclusion ... that these words on the sign were, in fact, insulting.

I have also considered whether in light of Article 10, in particular but also taking account of Article 9 of the Convention, the justices should have concluded that Mr Hammond had established that his conduct was reasonable. He was, after all, according to his understanding, exercising his right of freedom of expression of views which may or may not have been acceptable to those who were passing by but, nevertheless, one had to bear in mind the cardinal importance of freedom of expression in a society such as ours. Nevertheless, I have concluded that the justices in their reasons have not only considered the questions which they were obliged to consider ... and have reached a conclusion that it was open to them to reach, for the reasons they gave, that the appellant's conduct was not reasonable.”

The Divisional Court refused to certify that a point of law of public importance arose to be considered by the House of Lords. Its decision was therefore final.

The relevant parts of section 5 of the Public Order Act 1986 provide:

“(1) A person is guilty of an offence if he –

(b) displays any writing or sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(3) It is a defence for the accused to prove –

(c) that his conduct was reasonable.”

Section 6 is relevant as regards the mental element. Section 6(4) provides:

“A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may) he intends his behaviour to be or is aware that it may be disorderly.”


COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE KOKKELVISSERIJ U.A. v. THE NETHERLANDS

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant, Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A., is an association based in Kapelle, the Netherlands. The applicant association was represented before the Court by Mr G. van der Wal, a lawyer practising in Brussels (Belgium) and The Hague (the Netherlands).

The applicant association is comprised of individuals and enterprises engaged in mechanical cockle fishing in waters including, prior to the events complained of, the Wadden Sea.

The Wadden Sea is a tidal wetlands area linked directly to the North Sea. The western part belongs to the internal waters of the Netherlands. It provides feeding and breeding grounds for a variety of wildlife including a number of species of molluscs and seabirds. With the exception of passages left open for shipping and military training grounds, it is subject to an environmental protection regime under domestic law.

In the part of the Wadden Sea under the sovereignty of the Netherlands, the regime was defined at the relevant time by decrees issued under the 1967 Nature Conservation Act (Natuurbeschermingswet). Section 16 of that Act made activities, including the catching and killing of animals in protected areas, subject to the granting of a licence by the Minister of Agriculture, Nature Conservation and Fisheries (Minister van Landbouw, Natuurbeheer en Visserij).

The cockle (cerastoderma edule or cardium edule) is an edible bivalve mollusc found in tidal flats and on the seabed in shallow coastal waters. Its natural predators in the Wadden Sea include several bird species, particularly eider ducks (somateria mollissima) and oystercatchers (haematopus ostralegus).

Cockles are fished commercially, using both manual and mechanical methods: the mechanical techniques used are dredging and suction.

On 1 July 1999 the Deputy Minister (Staatssecretaris) of Agriculture, Nature Conservation and Fisheries (“the Deputy Minister”) granted a licence to the applicant association entitling its members collectively to a total catch of up to 10,000 tonnes of cockle meat from the Wadden Sea over a period of approximately three and a half months in the following autumn.

On 11 August 1999 the Wadden Sea Society (Landelijke Vereniging tot Behoud van de Waddenzee, also known as Waddenvereniging), a nongovernmental organisation whose stated aim was to protect the Wadden Sea environment, lodged an objection (bezwaar) on its own behalf and on behalf of another non-governmental organisation, the Netherlands Society for the Protection of Birds (Nederlandse Vereniging tot Bescherming van Vogels, also called Vogelbescherming Nederland). The Society stated, in so far as relevant 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, on the grounds that 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, particularly since the birds could also feed on protected mussel banks.

The Wadden Sea Society appealed against that 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 tonnes 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 on its own behalf and on behalf of the Netherlands Society for the Protection of Birds. It mainly restated the grounds of its 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 Deputy 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 assessment 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 assessment was incompatible with the Habitats Directive, since in his view the assessment under the applicable domestic legislation was equivalent in scope and was based on the latest available scientific information. No grounds for serious concern as to possible irreversible environmental damage had been made out, nor had the reality of the supposed threat to the feeding grounds of eider ducks and oystercatchers been established.

The Wadden Sea Society lodged an appeal against that decision also.

The Administrative Jurisdiction Division joined the cases and held a hearing on 20 November 2001. The applicant association appeared as an interested party.

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 the binding substantive standards of European Community law, in particular the Habitats Directive. It was therefore necessary to seek a preliminary ruling of the Court of Justice of the European Communities (“the 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 sub-paragraphs 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 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 [the EC Treaty] 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?

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?”

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 conclusions were as follows:

“153. 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.

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 in so far as avenues of legal redress against measures infringing the above-mentioned 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 procedure.

In a letter of 11 February 2004 the applicant association sought permission to submit a written response to the Advocate General’s opinion; it sought, in the alternative, an order for the reopening of the oral procedure, and in the further alternative, some other opportunity to revisit the opinion.

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

“5. To begin with, PO Kokkelvisserij [the applicant association] contends that the positions taken in that opinion are incorrect as to both the facts and the law. In support of its primary and further alternative requests PO Kokkelvisserij invokes the right to adversarial proceedings under 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 conduct of the proceedings to set out the merits of its objections against the Advocate General’s opinion in its letter of 11 February 2004.

It should be pointed out that the Statute of the Court of Justice and the Court’s Rules of Procedure make no provision for parties to submit observations in reply to the opinion of the Advocate General (see the decision of 4 February 2000 in Case C17/98 Emesa Sugar [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).

PO Kokkelvisserij’s request to submit written observations in reply to the opinion of the Advocate General, or to be granted the opportunity otherwise to revisit the opinion, must therefore be rejected.

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, of its own motion, on a proposal from the Advocate General or at the request of the parties, as applicable, reopen the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see the above-mentioned Emesa Sugar decision, point 18).

In the instant case PO Kokkelvisserij’s request contains no precise information indicating that it would be either useful or necessary to reopen the procedure.

PO Kokkelvisserij’s request for the reopening of the oral procedure must therefore be dismissed.”

On 7 September 2004 the ECJ delivered its judgment. The preliminary ruling which it contained was worded as follows:

“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.

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.

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.

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 into the legal order of the member State concerned despite the expiry of the time-limit laid down for that purpose.”

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 assessment of the facts. The applicant association 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 delivered its 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 set out 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 habitats appeared likely to be “significant”, it revoked 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.

The provisions of the EC Treaty relevant to the present case provide as follows:

“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.”

“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.”

“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.”

“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. ...”

“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 [European Central Bank];

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.”

“The Community shall have legal personality.”

The Statute of the ECJ is in the form of a Protocol to the EC Treaty. In so far as relevant to the case before the Court, it provides as follows:

“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.”

“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.”

“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.”

“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.”

“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 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.”

“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.”

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

“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.

“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.”

“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 decision shall then be notified by the Registrar of the Court to the parties, to the member States and to the Commission, and also to the Council or to the European Central Bank if the act the validity or interpretation of which is in dispute originates from one of them, ...

Within two months of this notification, the parties, the member States, the Commission and, where appropriate, ... the Council ... shall be entitled to submit statements of case or written observations to the Court.

In so far as relevant to the present case, the provisions of the ECJ’s Rules of Procedure (Official Journal of the European Communities) L 176 of 4 July 1991, p. 7, as amended and corrected) read as follows:

“1. The Advocate General shall deliver his opinion orally at the end of the oral procedure.

After the Advocate General has delivered his opinion, the President shall declare the oral procedure closed.”

“The Court may, after hearing the Advocate General, order the reopening of the oral procedure.”

In its order of 4 February 2000 in Case C-17/98 Emesa Sugar [2000] ECR I-665, the ECJ held as follows:

“5. In its judgment in Vermeulen v. Belgium, cited above, the European Court of Human Rights found that the procureur général’s department at the Belgian Court of Cassation had as ‘its main duty, at the hearing as at the deliberations, ... to assist the Court of Cassation and to help ensure that its case-law is consistent’ (paragraph 29) ‘with the strictest objectivity’ (paragraph 30); it also considered that ‘great importance must be attached to the part actually played in the proceedings by the member of the procureur général’s department, and more particularly to the content and effects of his submissions. These contain an opinion which derives its authority from that of the procureur général’s department itself [in the French version, ‘ministère public’]. Although it is objective and reasoned in law, the opinion is nevertheless intended to advise and accordingly influence the Court of Cassation’ (paragraph 31).

The [European] Court of Human Rights went on to consider that ‘the fact that it was impossible for Mr Vermeulen to reply to them [the submissions] before the end of the hearing infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service [in the French version, ‘magistrat indépendant’], with a view to influencing the court’s decision’. Accordingly, the [European] Court of Human Rights found that this fact in itself amounted to a breach of Article 6 § 1 [of the Convention] (paragraph 33) (see also, to the same effect, the judgments of: 20 February 1996 in Lobo Machado v. Portugal, Reports of Judgments and Decisions 1996-I, p. 195, paragraphs 28 to 31; 25 June 1997 in Van Orshoven v. Belgium, Reports of Judgments and Decisions 1997-III, p. 1040, paragraphs 38 to 41; 27 March 1998 in J.J. v. the Netherlands, Reports of Judgments and Decisions 1998II, p. 604, paragraphs 42 and 43; and 27 March 1998 in K.D.B. v. the Netherlands, Reports of Judgments and Decisions 1998-II, p. 621, paragraphs 43 and 44).

Emesa takes the view that this case-law applies to the opinion delivered before the Court by the Advocate General and accordingly seeks leave to reply to it.

As the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures (see, in particular, opinion 2/94 of 28 March 1996 [1996] ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the member States and from the guidelines supplied by international treaties for the protection of human rights on which the member States have cooperated or of which they are signatories. The Convention has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).

Moreover, those principles have been incorporated in Article 6 § 2 of the Treaty on European Union, according to which ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member States, as general principles of Community law’. According to Article 46(d) of the Treaty on European Union, the Court is to ensure that this provision is applied ‘with regard to action of the institutions, in so far as [it] has jurisdiction under the Treaties establishing the European Communities and under [the] Treaty [on European Union]’.

It is also appropriate to recall the status and role of the Advocate General within the judicial system established by the EC Treaty and by the EC Statute of the Court of Justice, as set out in detail in the Court’s Rules of Procedure.

In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both Judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence.

Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain member States. They are not entrusted with the defence of any particular interest in the exercise of their duties.

The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that in the interpretation and application of the Treaty, the law is observed.

Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which ‘derives its authority from that of the procureur général’s department [in the French version, ‘ministère public’]’ (judgment in Vermeulen v. Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a member of the Court of Justice itself.

The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the opinion is published together with the Court’s judgment.

Having regard to both the organic and the functional link between the Advocate General and the Court, referred to in paragraphs 10 to 15 of this order, the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the opinion of the Court’s Advocates General.

Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure.

Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, with regard to the reopening of the oral procedure, the order of 22 January 1992 in Case C-163/90 Legros and Others, not published in the ECR, and the judgment of 16 July 1992 in Case C-163/90 Legros and Others [1992] ECR I4625; the order of 9 December 1992 in Case C-2/91 Meng, not published in the ECR, and the judgment of 17 November 1993 in Case C-2/91 Meng [1993] ECR I5751; the order of 13 December 1994 in Case C-312/93 Peterbroeck, not published in the ECR, and the judgment of 14 December 1995 in Case C-312/93 Peterbroeck [1995] ECR I-4599; the order of 23 September 1998 in Case C-262/96 Sürül, not published in the ECR, and the judgment of 4 May 1999 in Case C-262/96 Sürül [1999] ECR I-2685; and the order of 17 September 1998 in Case C-35/98 Verkooijen, not published in the ECR).

In the instant case, however, Emesa’s application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.”

On 28 June 2007 Advocate General Sharpston delivered an opinion in Case C-212/06 Government of the French Community and Walloon Government v. Flemish Government. It included the following passage (footnote reference omitted, emphasis added):

“156. ... I am fully conscious of the fact that, in the present case, only one member State ... has intervened. It would seem desirable for a proper exploration of the elements that I have canvassed above to take place against the background of fuller participation from the member States and (as a corollary) a more developed presentation by the Commission. It might be that, on more detailed examination, the prima facie case that I have outlined above is refuted.

The Court would not, I suspect, wish to decide such a fundamental point in the present case (unless, of course, it decides to reopen the oral procedure and invite member States to make their views on this issue known); and I do not see an overriding need for it to do so. ...”

Article 6 of the Habitats Directive provides:

“1. For special areas of conservation, member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.”