EU environmental law

Christoph Hermes
Europa-Institut, Saarland University,
2021
EU nature protection law
Topics of session 8

 The environmental problem of biodiversity loss

 International law on biodiversity and nature protection
 EU legislation on nature protection: the Birds and Habitats Directives
The environmental problem of
biodiversity loss (IPBES, 2019)
Instruments to protect nature and
biodiversity at international level
 Convention on the Conservation of European Wildlife and Natural Habitats
(“Bern Convention”) (Council of Europe) of 1979:
 Objective: “to conserve wild flora and fauna and their natural habitats”
 Rules on the protection of habitats and the protection of species
 Annexes with protected and strictly protected species
 Convention on Biological Diversity (CBD) (UN) of 1992
 Objective: “conservation of biological diversity, the sustainable use of its
components and the fair and equitable sharing of the benefits arising out of the
utilization of genetic resources”
 Various rather general rules, e.g. on establishing a system of protected areas,
access to genetic resources etc.
 Convention on the Conservation of Migratory Species of Wild Animals (CMS or
“Bonn Convention”) (UNEP) of 1979
EU legislation on nature protection

 Protecting nature and restoring degraded nature requires addressing the key
drivers of biodiversity loss
 This involves EU action in many areas, such as agriculture, fisheries, energy,
water, pollution control, protected areas, invasive species etc.
 We will focus on two pieces of EU nature protection legislation, the so-called
„EU Nature Directives“:
 Directive 2009/147/EC of the European Parliament and of the Council of 30
November 2009 on the conservation of wild birds (codified version replacing
Directive 79/409/EEC), OJ L 20, 26.1.2010, p. 7. (“Birds Directive”)
 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats
and of wild fauna and flora, OJ L 206, 22.7.1992, p. 7 (“Habitats Directive”)
Basic structure of the EU Nature
Directives
 Overall objective of the two Directives: ensure that species and habitat types they
protect are maintained or restored at a “favourable conservation status”
throughout their natural range within the EU
 To be achieved through two main types of measures:
 Habitat protection:
 Creation of Natura 2000 network of protected sites for habitat types and habitats of
species listed respectively in Annex I and II of the Habitats Directive and habitats of bird
species listed in Annex I of the Birds Directive and of migratory birds (Art. 3, 4 Habitats
Directive; Art. 4(1),(2) Birds Directive)
 Protection/management of Natura 2000 sites (Art. 6, 7 Habitats Directive; Art. 4(1) Birds
Directive)
 Species protection:
 Establishment of a strict protection regime for all European bird species and for species
listed in Annex IV of the Habitats Directive; applies across the entire natural range of the
species within the EU, i.e. both within and outside protected sites (Art. 12-16 Habitats
Directive; Art. 5-9 Birds Directive)
Habitat protection: creating the Natura
2000 network of sites
 Habitats Directive:
 Art. 4(1): Member States to propose sites based on the ecological criteria of the
Directive and scientific information; need for an “exhaustive list of the sites”
without omitting sites because of economic, social or cultural requirements (see C-
371/98, para. 23)
 Art. 4(2): based on proposals, Commission adopts list with “sites of Community
importance” (SCIs)
 Art. 4(4): Member States have six years to designate sites as “special areas of
conservation” (SACs) with conservation objectives and measures
 Birds Directive:
 Art. 4(1)(2): Member States to designate “the most suitable territories” as “special
protection areas” (SPAs) for bird species listed in Annex I and migratory species;
only ornithological criteria are relevant (C-141/14, paras. 27-29)
 SACs (Habitats Directive) + SPAs (Birds Directive) = Natura 2000 network
Habitat protection: the Natura 2000
network
 Covers 18% of the EU’s land area and 8% of its marine territory
 the largest coordinated network of protected areas in the world
Habitat protection: Court cases on the
creation of the Natura 2000 network
 Number of ECJ cases about Member States’ obligations relating to the
proposal or designation of sites
 Often: infringement cases against Member States unwilling to
propose/designate sites for (mainly economic) reasons unrelated to ecological
considerations
 Recent examples:
 C-97/17 Commission v Bulgaria (Rila Mountains): ski resorts
 C-141/14 Commission v Bulgaria (Kaliakra): wind power installations
 C-669/16 Commission v UK (Harbour porpoise): offshore wind farm construction, oil
and gas exploration and fishing
Habitat protection: Protection of
Natura2000 sites
 Protection and management of Natura 2000 sites governed by Art. 6 Habitats Directive (that also
applies to SPAs designated under Birds Directive, see Art. 7 Habitats Directive)
 Art. 6(1) Habitats Directive (and Art. 4(1) Birds Directive): Member States must take positive
conservation measures that correspond to the ecological requirements of habitat types and species
present on the sites
 Art. 6(2) Habitats Directive: Member States must take measures to avoid any deterioration of the
habitat types or any significant disturbance of the species for which the sites have been designated
 Art. 6(3), (4) Habitats Directive: assessment and permitting procedure for plans/projects likely to
have significant negative effects on Natura 2000 sites:
 “screening”: is plan/project connected to site management or can it be excluded on the basis of objective
information that it will have significant effects on the site?
 If not: need for “appropriate assessment” to determine whether the project/plan risks affecting the integrity
of the Natura 2000 site (taking into account possible mitigation measures)
 Authorization of plan/project only if appropriate assessment provides certainty (no reasonable scientific doubt)
that it will not adversely affect the integrity of the site
 Art. 6(4) allows for derogation under certain conditions (demonstrated absence of alternative solutions,
imperative reasons of overriding public interest to carry out the plan/project, adequate compensatory
measures to ensure coherence of the Natura 2000 network)
Habitat protection: Protection of Natura2000
sites – the Moorburg case (C-142/16)
Habitat protection: Protection of Natura2000
sites – the Moorburg case (C-142/16)

 Art. 6 Habitats Directive:

3. 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.
4. 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.
Habitat protection: Protection of Natura2000
sites – the Moorburg case (C-142/16)

Reasoning of the Court:

 Pursuant to Art. 6(3), authorization only if ascertained that ‘there is no reasonable
doubt from a scientific point of view as to the absence of […] adverse effects to
the integrity of the site’
 appropriate assessment under Art. 6(3) can take into account ‘protective measures
forming part of that project aimed at avoiding or reducing any direct adverse
effects on the site’ (so-called “mitigating measures”), but not compensatory
measures that merely compensate negative effects (the latter can only be taken
into account in Art. 6(4))
 Court found that fish ladder installed further upstream was mitigating measure
(questionable!) because it was intended to keep fish stocks in the Natura 2000
areas upstream stable
 But: breach of the Directive because the appropriate assessment did not contain
definitive data regarding the effectiveness of the fish ladder (no certainty at the
moment of granting the permit as to the absence of negative effects on the site)
Species protection: strict protection
rules in the Habitats and Birds Directive
 Protection of certain species across their entire natural range within the EU, i.e. both within and
outside Natura 2000 sites
 Species listed in Annex IV of the Habitats Directive and all wild bird species in the EU
 Obligations in Article 5 Birds Directive and Articles 12 (for animals) and 13 (for plants) Habitats
Directive: Member States shall in essence prohibit (via legislative framework and enforcement):
 deliberate capture or killing of species;
 deliberate disturbance during breeding, rearing, hibernation and migration
 deterioration or destruction of breeding sites or resting places;
 deliberate destruction of nests or eggs, or the uprooting or destruction of protected plants.
 Derogation only under strict conditions (Article 9 Birds Directive and Article 16 Habitats Directive):
 in the interests of public health and safety, or for other imperative reasons of overriding public interest
 no other satisfactory alternative
 consequences of these derogations not incompatible with the overall aims of the Directives
Species protection: Wolf protection in
the EU
Species protection: Wolf protection under the
Habitats Directive
 Wolf (most populations) is listed in Annex IV of the Habitats Directive
 Strict protection of Art. 12(1) applies:
“1. Member States shall take the requisite measures to establish a system of strict
protection for the animal species listed in Annex IV (a) in their natural range, prohibiting:
(a) all forms of deliberate capture or killing of specimens of these species in the wild; (…)”
 Derogation under strict conditions of Art. 16(1):
“1. Provided that there is no satisfactory alternative and the derogation is not detrimental
to the maintenance of the populations of the species concerned at a favourable conservation
status in their natural range, Member States may derogate from the provisions of Articles 12,
13, 14 and 15 (a) and (b):
(…)
(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water
and other types of property;
(c) in the interests of public health and public safety, or for other imperative reasons of
overriding public interest, including those of a social or economic nature and beneficial
consequences of primary importance for the environment;
(e) to allow, under strictly supervised conditions, on a selective basis and to a limited
extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited
numbers specified by the competent national authorities. (…).”
Case study: C-674/17 Tapiola - Facts
 Finnish authorities granted derogation to kill seven wolves
 justification: manage the wolf population in order to prevent poaching which
occurs because of problems resulting from wolves attacking hunting dogs and a
general feeling of insecurity in the population
 recommendation to target young specimen causing nuisance and to avoid killing
alpha males
 Finnish NGO brought action against these derogation decisions in the Finnish
courts
 Preliminary ruling request with, inter alia and in essence, the following
questions:
- can “population management” fall under Art. 16(1)(e) Habitats Directive if it intends
to prevent poaching, and also harm to dogs and increasing the general feeling of
security?
- no satisfactory alternative within the meaning of Art 16(1) Habitats Directive?
- requirement in Art. 16(1) Habitats Directive that there be no negative impact on
favourable conservation status?
Case study: C-674/17 Tapiola - Court
 Art. 16(1)(e) – in contrast to Art. 16(1)(a)-(d) – does not specify objective of the
derogation; contains other restrictive conditions; Art. 16(1)(e) only applies when
letters (a)-(d) are not relevant; objective of derogation assessed under Art.
16(1)(e) must be compatible with the objectives of the Directive
 combating poaching in principle legitimate objective under Art. 16(1)(e); but
Member State must demonstrate that population management hunting is actually
capable of reducing poaching; here: no scientific evidence that legal hunting
reduces poaching to an extent that it would have an overall positive effect on the
conservation status of wolves
 Absence of satisfactory alternatives (chapeau Art. 16(1))? Probably not, Member
State must give priority to strict and effective monitoring of poaching rather than
authorizing legal killing; here: authority has not demonstrated that the only way
of achieving reduction in poaching is allowing population management hunting
 No detrimental effect on populations (chapeau Art. 16(1))? Probably not, hunting
for population management purposes involved the killing of almost 15% of the
entire wolf population of Finland; negative net effect on relevant populations