EU LEGISLATION ON NATURE PROTECTION 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. Summary of important ECJ case law on Habitats Directive

EU LEGISLATION ON NATURE PROTECTION European Commission 2 ECJ Decisions with respect to Article 4 Legal protection regime of protected sites Article 6.3 & 6.4Assessment of plans and projects and compensatory measures Article 7 Duality of applicable regimes Articles 12, 15, 16 Protection of species, derogations Content

EU LEGISLATION ON NATURE PROTECTION European Commission 3 (C-06/04, EU-Commission / UK and C-98/03, EU-Commission / Germany) It follows that, in the context of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise.

EU LEGISLATION ON NATURE PROTECTION European Commission 4 Article 4pSCI – SCI – SAC (legal protection regime of protected sites) Question: Is a Member State entitled or obliged to take into account economic, social and cultural requirements according to Article 2(3) when deciding on which sites to propose to Commission (stage 1 of procedure, pSCI) pursuant to Article 4(1) and or deciding on boundaries of such site? ECJ: No, since the Commission must have available an exhaustive list of sites eligible as SACs in order to create a coherent Natura 2000 network. Member States may not take into account economic, social and cultural requirements (Article 2(3)) when selecting and defining the boundaries of the sites. (C-371/98, preliminary ruling in case First Corporate Shipping, UK)

EU LEGISLATION ON NATURE PROTECTION European Commission 5 Question: When are protective measures under Article 6 (2)-(4) required under Article 4 (5)? After final approval as SAC or already before (as pSCI or as SCI)? ECJ: Protective measures prescribed in Article 6 (2) to (4) are required only as regards sites which are placed on the list of sites selected as sites of Community importance (SCI) adopted by the Commission. As concerns sites eligible for identification as sites of Community importance (pSCI) that are mentioned on the national lists transmitted to the Commission, Member States are required to take protective measures appropriate for the purpose of safeguarding that ecological interest which those sites have at national level. C-117/03, preliminary ruling in Case Dragaggi, Italy

EU LEGISLATION ON NATURE PROTECTION European Commission 6 Question: What protection regime is required under Article 3(1) in conjunction with the sixth recital in the preamble to that Directive in respect of sites which could be designated sites of Community importance, before they appear in the list of SCIs adopted by the Commission but already appear in the national list submitted to the Commission under Article 4(1)? Issue: Protection of an area before it becomes a SCI (C-244/05, preliminary ruling in case Bund Naturschutz, Germany)

EU LEGISLATION ON NATURE PROTECTION European Commission 7 ECJ: The appropriate protection scheme applicable to the sites which appear on a national list transmitted to the Commission under Article 4(1) requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites. Member States must, in accordance with the provisions of national law, take all the measures necessary to avoid interventions which incur the risk of seriously compromising the ecological characteristics of the sites which appear on the national list transmitted to the Commission. It is for the national court to assess whether that is the case.

EU LEGISLATION ON NATURE PROTECTION European Commission 8 Article 6.3 Assessment of plans and projects and compensatory measures Questions: 1.Are the words plan or project in Article 6(3) to be interpreted as also covering an activity which has already been carried on for many years (here: mechanical cockle fishing) 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? 2. What is the relationship between Article 6(2) and Article 6(3)? C-127/02, preliminary ruling in case Waddenvereniging and Vogelbeschermingsvereniging, The Netherlands

EU LEGISLATION ON NATURE PROTECTION European Commission 9 ECJ: 1.Yes, mechanical cockle fishing which has been carried on for many years but for which a license is granted annually for a limited period, with each license 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).

EU LEGISLATION ON NATURE PROTECTION European Commission 10 ECJ: 2.Article 6(3) 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) establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directives objectives, and cannot be applicable concomitantly with Article 6(3).

EU LEGISLATION ON NATURE PROTECTION European Commission 11 Article 6(3) makes the requirement for an appropriate assessment in accordance with the precautionary principle! A probability or a risk of significant effect exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned. Land use plans must also be subject to appropriate assessment of their implication of the site concerned as they have great influence on the decision. C-6/04, EU-Commission / UK

EU LEGISLATION ON NATURE PROTECTION European Commission 12 Article 7Duality of applicable regimes? Question: Does Article 6(2) to (4) of the Habitats Directive apply to areas which have not been classified as SPAs but should have been so classified? Commissions opinion: The protection regime laid down in the birds directive is stricter than that under the habitats directive, and it would be paradoxical to place areas of ornithological interest that have not been the subject of a national classification measure such as an SPA under a stricter protection scheme than that applicable to areas which have actually been classified as SPAs by a Member State. C-374/98, EU-Commission / France, Basses Corbières Site Case

EU LEGISLATION ON NATURE PROTECTION European Commission 13 ECJ: Areas which have not been classified as SPAs but should have been so classified continue to fall under the (stricter) regime governed by the first sentence of Article 4(4) of the Birds Directive. A Member State cannot derive an advantage from its failure to comply with its Community obligations. The classification of SPA is an incentive for Member States.

EU LEGISLATION ON NATURE PROTECTION European Commission 14 However, in C-415/01 (Commission / Belgium) the ECJ decided: Since Article 7 of Habitats Directive provides that the obligations which arise, among others, under Article 6(2) of that directive are to replace those arising under the first sentence of Article 4(4) of the Birds Directive in respect of SPAs, the legal status of protection of those areas must also guarantee the avoidance therein of the deterioration of natural habitats and the habitats of species as well as significant disturbance of the species for which those areas have been designated.

EU LEGISLATION ON NATURE PROTECTION European Commission 15 Articles 12 ff. Protection of Species ECJ: Articles 12, 13 and 16 require Member States to establish a coherent system of strict protection for animal and plant species. A national provision which, when listing the situations in which the use of pesticides is prohibited, does not clearly, specifically and strictly express the prohibitions under Articles 12 and 13 of the directive on protected species being adversely affected, does not ensure such a system. C-98/03, EU-Commission / Germany

EU LEGISLATION ON NATURE PROTECTION European Commission 16 Facts of the case: Use of mopeds and presence of buildings on a breeding beach of turtle Caretta caretta, also small boats in coastal areas EU-Commissions point of view: The Greek Government has not adopted a legislative nor an institutional framework within the prescribed time-limit capable of ensuring the effective long-term protection of the sea turtle Caretta caretta. Article 12 System of strict protection C-103/00, EU-Commission / Greece

EU LEGISLATION ON NATURE PROTECTION European Commission 17 The Greek point of view: By issuing a presidential decree (after the Commissions complaint) which classifies the land and sea regions in question as a national marine park and the costal areas as a regional park, it has instituted a system of strict protection for the sea turtle. For the period before the Government listed a series of laws, regulations and administrative measures without referring to any specific provisions capable of meeting those requirements. The number of nests has not decreased over a period of 15 years.

EU LEGISLATION ON NATURE PROTECTION European Commission 18 ECJ Decision: Use of mopeds constitute the deliberate disturbance of the species in question during its breeding period for the purposes of Article 12(1)(b). Presence of buildings on a breeding beach is liable to lead to the deterioration or destruction of the breeding site within the meaning of Article 12(1)(d). The fact that the number of nests did not decrease is irrelevant. Failing to take requisite measures to establish and implement an effective system of strict protection for the sea turtle so as to avoid any disturbance of the species during its breeding period and any activity which might bring about deterioration or destruction of its breeding sites, Greece has failed to fulfill its obligations under Article 12(1)(b) and (d).

EU LEGISLATION ON NATURE PROTECTION European Commission 19 ECJ: Article 12(1)(d), which prohibits the deterioration or destruction of breeding sites or resting places, covers not only deliberate acts but also non-deliberate ones. By not limiting that prohibition to deliberate acts, contrary to what it did in respect of acts referred to in Article 12(1)(a) to (c), the Community legislature has demonstrated its intention to give breeding grounds or resting places increased protection against acts causing their deterioration or destruction. Given the importance of the objectives of protecting biodiversity which the directive aims to achieve, it is by no means disproportionate that the prohibition laid down in Article 12(1)(d) is not limited to deliberate acts. C-98/03, EU-Commission / Germany

EU LEGISLATION ON NATURE PROTECTION European Commission 20 EU-Commission: UK legislation contains no general prohibition on the use of all indiscriminate means capable of causing local disappearance of, or serious disturbance to, populations of relevant species of wild fauna. UK: Provisions establish lists kept under review in order to be updated. ECJ: Article 15 imposes a general obligation designed to prohibit the use of all indiscriminate means of capture or killing of the species of wild fauna concerned. Prohibiting only the methods expressly listed in Annex VI(a) and (b), without imposing a general prohibition on the use of indiscriminate means is less effective than a general prohibition and not sufficient for proper transposition. Article 15 Prohibition of indiscriminate means C-6/04, EU-Commission / UK

EU LEGISLATION ON NATURE PROTECTION European Commission 21 Article 16 defines in a precise manner the circumstances in which MS may derogate from Articles 12, 13, 14 and 15(a) and (b) thereof, so that Article 16 must be interpreted restrictively. Article 16 Derogations A national provision does not provide a legal framework consistent with the derogatory regime established by Article 16 if it does not submit the grant of the derogations to all of the conditions laid down in Article 16, but merely provides as the sole condition for authorisation for those derogations that animals and plant species which are particularly protected must not be subject to deliberate harm. C-6/04, EU-Commission / UK C-98/03, EU-Commission / Germany

EU LEGISLATION ON NATURE PROTECTION European Commission 22 Articles 12 and 16 have been transposed in substantially identical terms in the Finnish legislation on hunting. This case puts into question the administrative practice of the Finnish authorities regarding wolf hunting. The maximum number of wolves which may be hunted in each district during the hunting season from 1 November until 31 March, are set by the Ministry of Agriculture and Forestry. However, wolf hunting is authorised on a case-by-case basis by the competent game management district and may exceed the limits. During the period in question the total number of wolves present on Finnish territory rose from between 110 and 130 specimens to between 185 and 200 specimens. Facts of the case (C-342/05, EU-Commission / Finland, Finnish wolves):

EU LEGISLATION ON NATURE PROTECTION European Commission 23 The practice in Finland consisting in authorising hunting as a preventive measure is contrary to Article 16(1). Permits are issued by the Finnish authorities without any relationship with the particular wolves causing such damage being duly established. In those circumstances hunting is not a very effective means to prevent such damage. There are alternatives available to preventive killing of wolves in order to avoid serious damage. EU-Commissions point of view: Finlands point of view: The decisions precisely determine the geographical areas covered by the permits where wolves causing such damage are present. However, since wolves live in packs the hunting permit cannot always identify the specimen(s) causing the damage. Competent authority examines if there are satisfactory alternatives to preventive killing in each case.

EU LEGISLATION ON NATURE PROTECTION European Commission 24 ECJ Decision: Article 16(1) does not require serious damage to be sustained before derogating measures can be adopted. Certain parties are of the opinion that continued hunting keeps wolves wary of humans and thus helps to reduce damage, while others consider that hunting of wolves which belong to packs only increases damage. However, decisions, which are not based on an assessment of the effect of the killing of the wolves that they authorise on the maintenance at a favourable conservation status of the population of that species in its natural range, and which do not contain a clear and sufficient statement of reasons as to the absence of a satisfactory alternative, are contrary to Article 16(1).

EU LEGISLATION ON NATURE PROTECTION European Commission 25 Consequently, a Member State which authorises the hunting on a preventive basis of the wolf, an animal species appearing in Annex IV(a), without it being established that the hunting is such as to prevent serious damage within the meaning of Article 16(1)(b), fails to fulfill its obligations under Articles 12(1) and 16(1)(b).