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

ASSESSMENTASSESSMENT

DOUBTSDOUBTS

COMPLAINTCOMPLAINT

NO INFRINGEMENTNO INFRINGEMENT

CLEAR OR PROBABLE INFRINGEMENTCLEAR OR PROBABLE INFRINGEMENT

LETTER OF FORMAL NOTICELETTER OF FORMAL NOTICE=> MS (2 months for reply)=> MS (2 months for reply)

REASONED OPINIONREASONED OPINION=> MS (2 months for reply) or=> MS (2 months for reply) or

ECJ (~2 years until the judgment) orECJ (~2 years until the judgment) or

Court rulingCourt ruling

ASSESSMENTASSESSMENT

CLOSE THE FILECLOSE THE FILE

INFORMAL LETTER TO MS INFORMAL LETTER TO MS to precise the factsto precise the facts

(2 months: indicative period)(2 months: indicative period)

MS REPLYMS REPLY(or not)(or not)

ASSESSMENTASSESSMENT

ASSESSMENTASSESSMENT

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)

0

100

200

300

400

500

600

700

2000 2001 2002 2003

complaints own initiative cases

Statistics (2)Number of ongoing cases

0

500

1000

1500

2000

2500

3000

3500

4000

4500

A=infringements 2019 533

B=own initiativecases

228 113

P=Complaints 1972 833

Commission Environment

Statistics (3) Open environmental cases by

sectors

0

50

100

150

200

250

300

350

400

450

500

Nature Waste Impact Water Air Others

Pre-infringements (B+P) Infringements (A)

Statistics (4)

Complaints in the environment

by sector:

Nature: 441Impact: 163Waste: 102Water: 58Other: 69

Sum: 833

nature impact waste water other

(11 February 2004)

Statistics (5)

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

13 24

131

10

255

29

78

11

87 94

118 27

12

43

0

50

100

150

200

250

300

A B D DK E EL F FI I IR L NL P S UK

Statistics (7)

0

10

20

30

40

50

60

70

80

A B D DK E EL F FI I IR L NL P S UK

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