Legal instruments for site protection in the EU

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Legal instruments for site protection in the EU

• Boris Barov, BSPB/BirdLife Bulgaria

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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

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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)

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EU case procedures
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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)

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Statistics (1) Cases open by year (DG ENV)
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Statistics (2)Number of ongoing cases
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Statistics (3) Open environmental cases by
sectors
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Statistics (4)
Complaints in the environment
by sector Nature 441 Impact 163 Waste
102 Water 58 Other 69 Sum 833
(11 February 2004)
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Statistics (5)

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

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

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Type of decisions of ECJ

• Proceedings for failure to fulfill an obligation
• EC letter gt 1 year consultations gt 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

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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.

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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