Ligue Royale Belge pour la Protection des Oiseaux ASBL and Others v Région Wallone – Case C–10/96

• DOI: http://doi.org/10.1111/1467-9388.00099
• Author: Lara Levis
• Published date: 01 July 1997
• Date: 01 July 1997

Volume 6 Issue 2 1997 Case Notes

(a) foster the protection and improvement of the environment in

events or conditions which are subject to current

the territories of the Parties for the well-being of present and

environmental obligations. Thus, ‘...itfollows that cer-

future generations;

tain aspects of these conditions or situations may be rel-

(b) promote sustainable development based on cooperation and

evant when considering an allegation of a present, con-

mutually supportive environmental and economic policies;

(c) increase cooperation between the Parties to better conserve,

tinuing failure to enforce environmental law’.

5

Further,

protect, and enhance the environment including wild f‌lora

the Secretariat cited as illustrative, the Vienna Conven-

and fauna;

tion on the Law of Treaties which provides that ‘unless

(d) support the environmental goals and objectives of the NAFTA;

a different intention appears from the Treaty or is other-

(e) avoid creating trade distortions or new trade barriers;

(f) strengthen cooperation on the development and improvement

wise established, its provisions do not bind the party in

of environmental laws, regulations, procedures, policies and

relation to any act or fact which took place or any situ-

practices;

ation which ceased to exist before the date of entry into

(g) enhance compliance with, and enforcement of, environmental

force of the Treaty with respect to that party’.

6

The Sec-

laws and regulations;

retariat found that certain documents provided by the

(h) promote transparency and public participation in the develop-

ment of environmental laws, regulations and policies;

submitters and by the Party refer to acts and events that

(i) promote economically eff‌icient and effective environmental

occurred after 1 January 1994 and that those materials

measures; and

could be instrumental in clarifying whether a present

(j) promote pollution prevention policies and practices.

failure to enforce environmental law occurred. The situ-

3. A14/SEM/96-001. Public File, Centre Mexicano del derecho Ambi-

ation was thus characterized as one that had not ceased

ental; Annexes.

to exist.

4. See Sierra Legal Defence Fund, Inc., A14/SEM/95-002, Public f‌ile;

Blegal Foundation et. al., A14/SEM/95-001, Public f‌ile.

Using information provided by the petitioners, the Sec-

5. Commission for Enviromental Co-operation, A14/SEM/96-001-10-

ADV, at 4.

retariat took into account the importance and character

6. Commission for Enviromental Co-operation, A14/SEM/96-001-10-

of the resources in question in considering the issue of

ADV, at 4, from Vienna Convention on the Law of Treaties, 1155

harm under Article 14(2)(a). The Secretariat noted that

UNTS 331; (emphasis added).

although the submission did not allege specif‌ic individ-

7. North American Environment Ministers AccelerateEnviromental

Protection Efforts, Toronto, August 2, 1996.

ual harm, the public nature of marine resources brought

the submitters within the spirit and intent of Article 14. Written by: P.M. Johnson, Counsel at the law f‌irm of

The Secretariat also found that the preparation of a Fac- Heenan Blaikie and professor of law at McGill Univer-

tual Record would promote the objectives of the NAAEC sity, Monreal, Canada. He is co-author of The Environ-

as set out in Article 1 sections (g) and (f). ment and NAFTA: Understanding and implementing

the New Continental Law (Washington DC: Island

Thus, in accordance with Article 15(1), the CEC Sec- Press, 1996).

retariat recommended to Council that a Factual Record

be prepared. The Secretariat noted that it would con-

sider all of the information relevant to the issue of

The Birds Directive

whether the Mexican environmental authority’s conduct

in not requiring the submission of an EIA on the totality

Ligue Royale Belge pour la Protection des

of works contemplated in the Cozumel Port Terminal

Oiseaux ASBL and Others v Re

´gion

project constitutes a failure to enforce existing laws. The

Wallone – Case C-10/96

considerations turn in large part on the facts relating to Introduction

the def‌inition of a ‘port terminal’ under the Law of Ports, Council Directive 79/409/EEC of 2 April 1979 on the con-

the extent to which the project or projects have been servation of wild birds (the Birds Directive) was one of

‘authorized’, and the facts relative to the documentation the very f‌irst Community measures which dealt directly

generated after 1 January 1994. However, the Secretariat with the protection of nature. The Preamble’s third

did not recommend examining acts or conduct which recital provides that ‘the species of wild birds naturally

occurred prior to the entering into force of the NAAEC occurringin the European territory constitute a common

for the purposes of evaluating any alleged failures to heritage and their protection is typically a transfrontier

enforce the law at that time, including the EIA prepared environment problem entailing common responsibilit-

in 1990 for the construction of the pier. ies’. In its f‌irst judgments on the Birds Directive, the ECJ

noted the third recital of the directive and stressed the

At the regular session of the CEC Council, in Toronto on importance of its effective transposition into national

2 August 1996, the environment ministers from the three law ‘in a case such as this in which the management of

countries decided that a factual record would be pre- the common heritage is entrusted to the Member States

pared regarding the submission.

7

At time of writing the in their respective territories’. However, some Member

Factual Record is being prepared by the CEC Secretariat. States such as Belgium have failed to transpose the

directive correctly. The present case is indeed not the

f‌irst time that the ECJ has had to examine Belgian legis-

Notes

lative provisions which permit the capture of specimens

of birds in the wild to allow the replenishment of captive

1. A complete list of citizen submissions that have f‌iled under Arti-

wild birds.

1

cle 14 is available on the CEC’s Internet home page at

http//www.cec.org.

The Birds Directive contains two groups of provisions:

2. The objectives of NAAEC are set out in Article as follows:

1. The objectives of this Agreement are to:

(i) Articles 3 and 4 on the protection of habitats of wild

Blackwell Publishers Ltd. 1997.

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