Legal instruments for site protection in the EU Boris Barov, BSPB/BirdLife Bulgaria

The context of EU legislation and case work The EU legislation (Community Law) most relevant for nature conservation: Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds - “Birds Directive” Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora - “Habitats Directive” Council Directive of 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment - “EIA Directive” Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment – “SEA Directive

What is EU Case? Typical examples for such cases are: National/regional legislation is not in line with EU legislation, (transposition case) EU legislation is not implemented correctly (implementation case), for example if –sites of EU importance are not (or not fully) designated under Natura 2000, although they fulfil the necessary criteria –a Natura 2000 site (or non-classified IBA) is (or is likely to be) significantly affected due to human activities (e.g. development of infrastructure, land use change, but also abandonment and deterioration), and the relevant EU legislation is not respected (e.g. missing or inadequate impact assessments) –the conditions for derogations from EU legislation are not respected (e.g. in the context of bird hunting during the breeding period) Practice (e.g. hunting of threatened species) in a Member State goes against EU legislation, but also against national/regional law, without adequate measures taken against this by the authorities (enforcement case)

EU case procedures ASSESSMENT DOUBTSCOMPLAINT NO INFRINGEMENT CLEAR OR PROBABLE INFRINGEMENT LETTER OF FORMAL NOTICE => MS (2 months for reply) REASONED OPINION => MS (2 months for reply) or ECJ (~2 years until the judgment) or Court ruling ASSESSMENT CLOSE THE FILE INFORMAL LETTER TO MS to precise the facts (2 months: indicative period) MS REPLY (or not) ASSESSMENT ASSESSMENT

How to make a case effective? Basic conditions:: –Is EU legislation being infringed? –Have all national instruments been exhausted for this case and proven unsuccessful? –Is the case really important for your NGO? Selection of appropriate actions: –National level investigations, providing written or oral evidence communication/dialogue with authorities and stakeholders campaigns/media work (alone or in coalition with other NGOs) formal letters/complaints/objections to national authorities, Members of Parliament etc. reference to national Courts –EU level /international complaints to the European Commission (potentially leading to an infringement action by the EC against a Member State and ultimately to a ruling of the ECJ) requests to Members of the European Parliament to pose questions to the EC on certain cases letters of intervention from other partner organizations. cooperation between two or more organizations (e.g. on a trans-boundary case or for sharing experience) EU level campaigns/international media work (alone or in coalition with other NGOs)

Statistics (1) Cases open by year (DG ENV)

Statistics (2) Number of ongoing cases

Statistics (3) Open environmental cases by sectors

Statistics (4) Complaints in the environment by sector: Nature: 441 Impact: 163 Waste: 102 Water: 58 Other: 69 Sum: 833 (11 February 2004)

Statistics (5) Complaints in the environment by Member State (11 February 2004)

Statistics (7) Infringements in the environment by Member States (11 February 2004)

European Court of Justice The final stage of the Infringement procedure can reach the ECJ in Luxembourg, 25 judges and 8 Advocate Generals. plenary sessions or chambers of three or five judges. discussions are secret and held in French without interpreters. Decisions by simple majority vote by judges

Type of decisions of ECJ Proceedings for failure to fulfill an obligation –EC letter > 1 year consultations > formal letter –reasoned oppinion of EC used by ECJ Preliminary ruling –ensure that Community law is interpreted and applied uniformly throughout the EU –National courts ask for clarifications on community law and must implement ECJ decision without modification

Nature in ECJ case law: Birds Directive Habitat protection (Articles 3 and 4) Designating SPAs (No. C-355/90, Santoña marshes, Spain) Dutch Dykes case (No. C-3/96) Important Bird Areas (“IBA”) book contains the most suitable sites for designation. The protection system to be applied on SPAs (Nacken in the Wadden Sea, No. C-57/89 Germany, UK) economic and recreational criteria cannot be seen as overruling ecological criteria Protection of species (Articles 5-9) Hunting (C-435/92, Belgium) Starting and closing dates should be defined as to protect all bird species, and, within one species, all independent or returning birds to their site of breeding.

Conclusions Every citizen/NGO can complain to EC Complaints must follow established procedures National level steps must be exhausted Case law must be well studied and used Resolving a case may take many years