1. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission COOPERATION WITH NATIONAL JUDGES AND PROSECUTORS IN THE FIELD OF EU ENVIRONMENTAL LAW WORKSHOP ON EU LEGISLATION NATURE PROTECTION © 2010 Microsoft Corporation. All rights reserved. Key Features of Directive 92/43

2. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 1. STRUCTURE 2

3. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Adopted on 21 May 1992 (two weeks earlier than CBD) 24 Articles. 16 definitions. 6 Annexes. –Annex I. Natural habitats –Annex II. Species of fauna and flora –Annex III. Criteria for selecting sites –Annex IV. Priority species (fauna and flora) –Annex V. Species allowed to be taken –Annex VI. Prohibited hunting methods and modes of transport 3

4. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 2. MAIN OBJECTIVES 4

5. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Objectives To contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna. To maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest. 5

6. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Other considerations Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics. –These are NOT derogations from the Directives objectives. 6

7. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 7 3. MATERIAL AND TERRITORIAL SCOPE OF DIRECTIVE 92/43

8. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Material scope Habitats Directive: It applies to –some (but not all) species of fauna and flora. –Habitats. Wild birds remain outside its scope. 8

9. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Territorial scope The European territory of the Member States, according to TFEU. This includes land and maritime waters within the jurisdiction of the Member States. 9

10. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 4. PROTECTED AREAS UNDER THE HABITATS DIRECTIVE 10

11. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission AREAS CREATED BY THE HABITATS DIRECTIVE Provisional category: Sites of Community Importance (SCIs) Definitive category: Special Areas of Conservation (SACs) AREAS SUBJECT TO THE HABITATS DIRECTIVE SCIs SACs Special Protection Areas (SPAs, Directive 79/409) 11

12. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission SAC A site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated. 12

13. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 13 5. STAGES OF THE DESIGNATION PROCEDURE

14. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission PROCEDIMIENTO, ART. 4 First stage: June 1992-June 1995 –Member States must have designated national sites according (only) to the criteria set out in the Directive. (proposed sites of Community importance): Annex I (habitats) Annex II (species) Annex III (criteria for selecting sites) 14

15. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Second stage: June 1995-June 1998 –Official designation of lists by the European Commission (sites of Community importance). –The Commission is reviewing previous lists Decison 2010/42 of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of Community importance for the Alpine biogeographical region. –Challenges before the ECJ have been rejected by the ECJ. 15

16. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Third stage: 1998-??? - Designation of SACs by the Member States - 6 years from the definitive list adopted by the Commission - (However, the Member States must set out priorities regarding the designating procedure). 16

17. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 6. NATURA 2000 NETWORK 17

18. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Natura 2000 (1)Natura 2000 is defined as a coherent European ecological network. (2) It comprises both SACs and SPAs. (3) It is independent of other networks, e.g. national or international. (4) Natura 2000 is to enable the natural habitat types and the species habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range. 18

19. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Favourable conservation status (habitats) its natural range and areas it covers within that range are stable or increasing, and the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and the conservation status of its typical species is favourable. 19

20. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 6.1 The coherence of Natura 2000 20

21. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Coherence of Natura 2000 (A) When classifying SCIs. –Obligation to classify an exhaustive list. (B) When designating SACs. (C) When adopting general protection measures. (D) When avoiding deterioration and alteration of habitats and species. (E) When carrying out environmental assessment of plans or projects. (F) In order to connect sites (Article 10). 21

22. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 7. DECLASSIFICATION OF SACS 22

23. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Declassification of SACs A SAC may be considered for declassification where this is warranted by natural developments noted as a result of the surveillance provided for in Article 11. –If evolution is negative, why? –If evolution is positive, why? 23

24. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Declassification (1) Only SACs can be declassified. (2) The Directive does not indicate who is to take the final decision concerning the declassification. –However, the Commission has a say regarding this matter. 24

25. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 25 8. PROTECTION OF HABITATS

26. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Outline Article 6(1). General measures. Article 6(2) Duty to avoid deterioration and alterations. Article 6(3) and (4). Duty to carry out an EIA of any plans or projects affecting Natura 2000 sites. 26

27. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission General measures: Article 6(1) (1) Only applicable to SACs. (2) Compulsory: statutory, administrative and/or contractual agreements. (3) Option: they may be contained in plans specifically approved for the SAC or included in other more general plans. 27

28. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission OBLIGATION TO AVOID DETERIORATION Of (any) natural habitats and the habitats of (any) species in SACs and SACs The European Commission equates deterioration to physical degradation. Article 6(2) Applicable to SCIs, SACs and SPAs 28

29. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission AVOIDDISTURBANCE Any of the species for which SACs and SPAs have been designated, insofar as such disturbance could be significant in relation to the objectives of the Directive According to the Commission, disturbance would not refer to physical deterioration but to the species. It would also be limited in time. Article 6(2) 29

30. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 30 9. DUTY TO CARRY OUT AN EIA

31. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Article 6(3) Key provision in the Directive. Applicable to: –SCIs (once the Commission approves the official list of sites, not before). –SACs. –SPAs (already designated or once they are designated, Article 7). 31

32. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Duty to carry out an EIA (1) 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. 32

33. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Duty to carry out an EIA (2) Directive 92/43 goes beyond the mandate of Directives 85/337 (projects) and 2001/42 (plans): –Any plan or project. –Article 11(1) of Directive 2001/42 (plans): 1. An environmental assessment carried out under this Directive shall be without prejudice to any requirements under Directive 85/337/EEC and to any other Community law requirements. 33

34. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Duty to carry out an EIA (3) Appropriate assessment is not defined. –There is no need to cover all the aspects required by Directives 85/337 (projects) or 2001/42 (plans) but basically the effects on habitats, species and conservation objectives. –Assessment must be based on best available scientific knowledge. 34

35. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Duty to carry out an EIA (4) The competent national authorities must be certain that a plan or project will not have adverse effects on the integrity of the site concerned. –If doubts remain as to the absence of such effects, the competent authority will have to refuse authorisation. –If they still want to execute the project, they must (a) find alternatives and if not (b) can invoke certain exceptions. 35

36. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Duty to carry out an EIA (5) However, exceptions may be invoked to authorise the execution of the plan or project despite its negative effects: –(5.1) imperative reasons of overriding public interest, including those of a social or economic nature. 36

37. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Duty to carry out an EIA –(5.2) Where the site concerned hosts a priority natural habitat type and/or a priority species: human health or public safety, beneficial consequences of primary importance for the environment, or further to an opinion from the Commission, other imperative reasons of overriding public interest. 37

38. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Commissions decisions on the application of Article 6(4) The Commission (usually) accepts the application of exceptions: –(a) If it is a project of European interest (e.g. the extension of Rotterdam harbour, high-speed train in France; construction of Airbus A380). –(b) If there is a real unemployment problem (e.g. A20 motorway in Germany; unemployment rate of 15% in the region concerned as compared to 9% in Germany). 38

39. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Commissions decisions on the application of Article 6(4) (c) If there is the need to guarantee water supply to cities, e.g. construction of a dam in Spain, even though habitats of highly endangered species (Iberian lynx; imperial eagle) were to be destroyed. –This project had previously been upheld by the European Commission (DG Regions). 39

40. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Commissions decisions on the application of Article 6(4) The Commission considers that other imperative reasons (Article 6(4) (third paragraph) include socio- economic ones. –This contradicts the strict wording and structure of Article 6(4). 40

41. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 10. SPECIES PROTECTION 41

42. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Priority species (Annex IV) (Articles 12 (fauna) and 13 (flora)) Strict protection Species subject to regulation (Article 15 Annex V) Taking of these species is permitted 42

43. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Priority species (Annex IV) (1) Basic activities are subject to general prohibitions unless particular exceptions to be restrictively interpreted are applied on a case-by-case basis. (2) Prohibitions apply regardless of other rules affecting habitats or designated areas. (3) Prohibitions are in force as of 10 June 1994 (the date of the entry into force of the Directive). 43

44. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Article 12(1) (a) all forms of deliberate capture or killing of specimens of these species in the wild; (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; (c) deliberate destruction or taking of eggs from the wild; (d) deterioration or destruction of breeding sites or resting places. 44

45. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Priority species (Annex IV) (4) General prohibition on trade of species: –The sale, transport for sale, keeping for sale and the offering for sale. Article 2(i) of Regulation 338/97 (CITES): offering for sale shall mean offering for sale and any action that may reasonably be construed as such, including advertising or causing to be advertised for sale and invitation to treat; (p) sale shall mean any form of sale. 45

46. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 11. PROHIBITED HUNTING METHODS AND TRANSPORT VEHICLES USED FOR HUNTING 46

47. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Article 15 There must be a general prohibition on the use of all indiscriminate means capable of –causing local disappearance of species, or –serious disturbance to, populations of such species. In particular: –(1) means of capture and killing of Annex VI (a); –(2) modes of transport referred to in Annex VI (b). 47

48. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 12. EXCEPTIONS 48

49. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Exceptions Article 16 Derogations from prohibitions set out in Articles 12, 13, 14 and 15 are allowed provided (1)there is no satisfactory alternative: In principle, it must be applied if there is an alternative that can avoid the application of the exception: –Exchange of species for breeding purposes instead of taking them in the wild. –Use of non-prohibited hunting methods (e.g. guns) instead of those prohibited (nets). 49

50. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Exceptions Article 16 (2) The derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. 50

51. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission SUMMARY 51

52. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Summary (1) Directive 92/43 is based on the precautionary principle (Article 6(3)). (2) Only scientific criteria can be taken into account for the designation of SCAs. (3) Environmental assessment requirements are very strict. –National judges must carefully consider whether scientific information has properly assessed likely effects and whether the scientific method employed were the best available. 52

53. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Summary (4) Prohibitions apply to any specimens of species included in Annex IV. –They must respect the exact wording of the Directive. (5) Exceptions to prohibitions must be restrictively interpreted. (6) Concepts included in the Directive are EU concepts. Member States cannot provide their own definitions particularly if the restrict the (wide) reach of those set out in the Directive. 53