The EC Habitats Directive Approaches its Tenth Anniversary: An Overview

AuthorCarolina Lasén Diaz
Date01 November 2001
Published date01 November 2001
DOIhttp://doi.org/10.1111/1467-9388.00288
RECIEL 10 (3) 2001. ISSN 0962 8797
The EC Habitats Directive Approaches its
Tenth Anniversary: An Overview
Carolina Lase
´n Diaz
INTRODUCTION
1
the central piece of Community legislation on bio-
diversity conservat ion. Adopted in 19 92, it complements
the 1979 ‘Wild Birds’ Directive
2
in its objective to pro-
tect biological diversity in the European Union, mainly,
but not only, through the establishment of protected
areas. The Habitats Directive introduced the obligation
to preserve habitats and species of Community interest,
and thus it is of broader scope than the 1979 Directive,
which is focused exclusively on wild birds. Under the
Habitats Directive, Member States are responsible for
identifying and designating important sites for the pro-
tection of specif‌ic species and habitats
3
as Special Areas
of Conservation (SACs).
The Fourth Community Environment Action Pro-
gramme (1987–1992)
4
had recognized the need for a
Community instrument aimed at protecting all species
of fauna and f‌lora, as well as the habitats of wildlife –
animals and plants – more generally. Such a compre-
hensive framework was aimed at ensuring that positive
measures were taken to protect all forms of wildlife
and their habitats throughout the Community. The
Action Programme called on the Commission to make
legislative proposals and work on the preparation of
a comprehensive list of sites under the various cate-
gories of protected areas.
Within this framework legislation, which would become
the Habitats Directive, urgent action was called to pro-
tect endangered plants and species, such as those listed
1
Council Directive 92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and f‌lora, [1992] OJ L206 –
amended by Council Directive 97/62/EC of 27 October 1997, [1997]
OJ L305. Hereinafter termed the Habitats Directive.
2
Council Directive 79/409/EEC of 2 April 1979 on the conservation of
wild birds, [1979] OJ L103.
3
Annex I and II of the Habitats Directive.
4
Resolution of the Council of the European Communities and of the
representatives of the Governments of the Member States, meeting
within the Council of 19 October 1987 on the continuation and
implementation of a European Community policy and action pro-
gramme on the environment (1987–1992), [1987] OJ C328.
Blackwell Publishers Ltd. 2001, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
287
in the appendices of the 1979 Berne Convention.
5
Over
40 European and African States, as well as the Euro-
pean Community,
6
are parties to this Convention. Its
objective is to protect the habitats of wild f‌lora and
fauna species, and it pays particular attention to the
conservation of the wild f‌lora and fauna species listed
in its Appendices I and II, as well as to the protection
of the fauna species listed in Appendix III.
The Habitats Directive was adopted almost simul-
(CBD), one of the major achievements of the 1992 UN
Conference on Environment and Development
(UNCED) held in Rio de Janeiro. The EC is also a party
to the CBD, and the Habitats Directive is the main
legislative instrument related to the Convention’s appli-
cation at an EU level.
7
AIM, SCOPE AND KEY
ELEMENTS OF THE HABITATS
DIRECTIVE
The Habitats Directive was adopted in a context of
increased awareness of the threats facing the Com-
munity’s biodiversity. The Preamble to the Directive
admits that Community habitats continue to deterio-
rate and that an increasing number of wild species are
seriously threatened. An important element of its
rationale is the need to take measures at a Community
5
Convention on the conservation of European wildlife and natural
habitats adopted at Bern on 19 September 1979 (see Council
of Europe website available at
/cadres/bern.htm>).
6
Council Decision 82/72/EEC of 3 December 1981 concerning the
conclusion of the Convention on the Conservation of European Wild-
life and Natural Habitats, [1982] OJ L38.
7
In the context of CBD implementation in the EU, a Commission Com-
munication on a European Community Biodiversity Strategy was
adopted on 5 February 1998 (COM (98)42 f‌inal). This Communication
establishes a general framework in which appropriate Community
policies and instruments are used to contribute to meeting the obli-
gations under the CBD. The strategy encompasses four major
themes: (i) conservation and sustainable use of biological diversity;
(ii) sharing of benef‌its accruing from the utilization of genetic
resources; (iii) research, identif‌ication, monitoring and exchange of
information; and (iv) education, training and awareness.
CAROLINA LASE
´N DIAZ RECIEL 10 (3) 2001
level in order to tackle the transboundary nature of
many of these threats.
This Directive aims:
to contribute towards ensuring biodiversity through the
conservation of natural habitats and of wild fauna and f‌lora
in the European territory of the Member States to which the
Treaty applies.
8
This means that the Habitats Directive does not apply
to overseas territories and other dependencies under
the control of EU countries.
The Directive’s objective is to maintain or restore cer-
tain natural habitats and species of wild fauna and f‌lora
‘at favourable conservation status’.
9
Annex I
10
lists the
natural habitat types of Community interest, whereas
Annex II contains the animal and plant species of Com-
munity interest. Annex III of the Directive sets out the
criteria for selecting sites which are eligible for identi-
f‌ication as Sites of Community Importance and desig-
nation as Special Areas of Conservation. Furthermore,
Annex IV includes those animal and plant species of
community interest ‘in need of strict protection’. The
European Commission published an ‘Interpretation
Manual of European Union Habitats’ in 1996, which
has since been revised.
11
Measures taken to promote biodiversity must ‘take
account of economic, social and cultural requirements’
as well as regional and cultural characteristics.
12
In this
respect, the Directive is considered to contribute to the
general objective of sustainable development, although
sustainability was not included in the EC Treaty as a
specif‌ic objective of the Community until 1999, with the
entry into force of the Treaty of Amsterdam.
13
The two main parts of the Habitats Directive are: Art-
icles 3–11, as they relate to ‘conservation of natural
habitats and habitats of species’; and Articles 12–16,
which deal with ‘protection of species’ and cover strictly
those protected animal and plant species listed in
Annex IV of the Directive. There is some overlap
8
9
Ibid., Article 2(2).
10
Annex I today lists 198 (originally 164) European natural habitat
types, including 65 priority habitats (i.e. habitat types in danger of
disappearance and whose natural range mainly falls within the terri-
tory of the European Union). Annex I is based on the hierarchical
classif‌ication of European habitats developed by the CORINE
Biotopes project (1988), since that was the only existing classif‌ication
at a European level.
11
Latest version October 1999, available at
comm/environment/nature/habit-en.pdf>.
12
13
The ‘Treaty of Amsterdam Amending the Treaty on European
Union, the Treaties establishing the European Communities and cer-
tain related acts’ was signed on 2 October 1997 and it entered into
force on 1 May 1999.
Blackwell Publishers Ltd. 2001.
288
between the two regimes as some species benef‌it from
both parts. However, the protection afforded to listed
species is not restricted geographically, unlike Article 6
which is limited to the Natura 2000 network (see
below).
Article 1 of the Directive includes a long and detailed
list of def‌initions of all the key terms used throughout
the text, such as: ‘natural habitat type of Community
interest’; ‘priority natural habitat type’; ‘conservation
status of a natural habitat’; ‘species of Community
interest’; ‘sites of Community importance’; ‘favourable
conservation status’; and ‘special area of conservation’.
The latter is especially relevant as one of the Directive’s
main objectives is the establishment of a network of
protected areas: the ‘Natura 2000 Network’.
The Directive refers to Natura 2000 as ‘a coherent Eur-
opean ecological network’ of sites hosting the natural
habitat types listed in Annex I plus habitats of the spec-
ies listed in Annex II.
14
The Habitats Directive also pro-
vides for the inclusion in the Natura 2000 network of
the special protection areas (SPAs) designated under
the Birds Directive.
15
All EU Member States must contribute to the creation
of this network of protected areas in proportion to the
representation of the listed habitat types and species in
their territory. The burden is therefore placed on the
Member States to designate sites in their territory as
Special Areas of Conservation. Annex III of the Direc-
tive provides guidance to Member States by listing the
criteria for selecting sites eligible for designation.
The setting up of the Natura 2000 Network is ruled by
a complex system of site identif‌ication and designation
over a long timeframe whose deadlines have been con-
sistently missed.
The main steps to establish Natura 2000 are as follows:
1. According to the Habitats Directive,
16
in the f‌irst
stage the Member States must prepare a list of
areas following the criteria set out in Annex III of
the Directive and indicating which natural habitat
types of Annex I, and which species of Annex II
that are native to its territory, are hosted by the
proposed sites. Full lists should have been trans-
mitted to the Commission by June 1995, together
with information on each of the sites included.
There have been frequent delays in submitting
complete national lists. In addition, some of the
lists have not been representative of the Member
14
Habitat’s Directive, Article 3; Articles 3–11 of the Directive relate to
‘conservation of natural habitats and habitats of species’, while Art-
icles 12–16 deal with ‘protection of species’.
15
Habitat’s Directive, Article 3(1).
16
Ibid., Article 4.
RECIEL 10 (3) 2001 THE EC HABITATS DIRECTIVE
State’s habitat types and the Commission has had
to ask Member States to submit a second list to
complete the f‌irst one.
2. The Commission, together with the Member States,
are responsible for identifying the sites of Com-
munity importance (SCI) from the Member States’
lists. These SCIs will form the protected area net-
work. Member States whose sites represent more
than 5% of their territory may, in agreement with
the Commission, request a f‌lexible application of
the criteria listed in Annex III when selecting SCIs
in their territory. This list of selected sites should
have been adopted by June 1998. This deadline has
not been kept as the f‌irst stage of site identif‌ication
has not yet been completed.
3. Member States have to designate the selected sites
as Special Areas of Conservation ‘as soon as poss-
ible and within six years at most’. This is the last
stage in the setting up of the Natura 2000 network,
which should be completed by 2004.
Under Article 5, if a Member State fails to include in
its list a site hosting a priority habitat type or species
that the Commission considers essential for Natura
2000, the Commission can initiate a special consul-
tation procedure that may lead to a Council decision
allowing its inclusion into the network. However, the
Council must agree to this inclusion by unanimity.
The Commission periodically reviews progress on the
establishment of Natura 2000 and its objectives. In this
context, a Special Area of Conservation can be con-
sidered for de-classif‌ication where this is warranted by
natural developments.
17
Amendments can be made to
the Directive so that it adequately ref‌lects the priorities
and concerns of the Union’s environment. In 1997, the
Directive’s Annexes were amended to ref‌lect the new
Member States’ biodiversity (Austria, Finland and
Sweden) and to include new species and habitats of
importance for the new countries.
18
Member States also have specif‌ic obligations towards
the animal species listed in Annex IV.
19
They must
prohibit all forms of deliberate killing or capture;
deliberate disturbances, deterioration or destruction of
breeding sites or resting places; and the keeping, trans-
port, sale or exchange of specimens taken from the
wild. A system of strict protection for the plant species
listed in Annex IV is also required.
20
EU countries must
ban the picking, collection, cutting, uprooting or
destruction of these plants ‘in their natural range in the
17
18
Annexes I and II of the Habitats Directive were amended by Direc-
tive 97/62 of 27 October 1997, adapting to technical and scientif‌ic
progress Directive 92/43, [1997] OJ L305.
19
20
Ibid., Article 13.
Blackwell Publishers Ltd. 2001.
289
wild’; and also the keeping, transport, sale or exchange
of wild specimens of such species.
ARTICLE 6
Article 6 is one of the cornerstones of the Habitats
Directive. The designation of sites as SACs involves a
series of duties and safeguards to protect the natural
habitats and the species for which those areas have
been designated. To guide Member States on the
interpretation of certain key concepts of Article 6, the
European Commission has published an interpretation
guide
21
for this Article alone. The Commission docu-
ment is not binding and it is currently being reviewed
and updated.
This is one of the most important Articles of the Direc-
tive as it relates to site conservation measures, as well
as providing for the integrated management of pro-
tected areas, and therefore linking conservation and
land use issues. Article 6 includes three areas linked to
the conservation and management of Natura 2000
sites:
Article 6(1): adoption of conservation measures;
Article 6(2): avoidance of habitat deterioration and
signif‌icant disturbance of listed species;
Article 6(3) and (4): safeguards related to plans and
projects likely to have a signif‌icant effect on a Nat-
ura 2000 site.
As SPAs under the Birds Directive are to be included
in the Natura 2000 network, the provisions of Article
6(2), (3) and (4) are applicable to SPAs. Article 7
specif‌ically refers to the fact that these three para-
graphs replace Article 4(1) and (2) of the Birds Direc-
tive from the date of implementation of the Habitats
Directive, i.e. 10 June 1994. No mention is made of
Article 6(1) and so it is considered not to apply to SPAs.
Case law
22
of the European Court of Justice (ECJ) sup-
ports that sites that deserve classif‌ication as SPAs
should be treated in the same way, regardless of
whether or not they have been formally classif‌ied. The
Commission guidance on Article 6 states that the pro-
visions of Article 6(2), (3) and (4) are applicable to
SPAs, or to sites which should be classif‌ied as SPAs.
23
However, the ECJ has recently contradicted this pos-
ition in its ruling of December 2000,
24
according to
which:
21
European Commission ‘Managing Natura 2000 sites: The pro-
visions of Article 6 of the Habitats Directive 92/43/EEC’, available at
Fen.pdf>.
22
Santon
˜a Marshes Case (ECJ 2 August 1993, Case C-355/90, Com-
mission v. Spain, [1993] ECR I-4221).
23
See n. 21 above, at 12.
24
ECJ 7 December 2000, Case C-374/98, Commission v. French
Republic, [2000] ECR-2000.
CAROLINA LASE
´N DIAZ RECIEL 10 (3) 2001
Article 7 appears to support the interpretation . . . that the
application of Article 6(2) to (4) [of the Habitats Directive]
presupposes the classif‌ication of the area concerned as an
SPA.
Therefore, the Court found it clear that those areas
that:
have not been classif‌ied as SPAs but should have been so
classif‌ied continue to fall under the regime . . . of Article
4(4) of the birds Directive [and thus not under the Habi-
tats Directive].
25
Under Article 6(1), Member States are to draw up con-
servation plans for Natura 2000 sites. This provision
establishes a general conservation regime for all SACs
and all natural habitat types of Annex I and the species
of Annex II present on those sites, except those ident-
if‌ied as non-signif‌icant. Achieving the Directive’s objec-
tive of ‘contributing towards ensuring biodiversity’ will
rely to a great extent on these conservation measures
and their implementation.
These measures can take the form of management
plans, statutory, administrative or contractual meas-
ures. Management plans must either be appropriate
and specif‌ically designed for the sites, or integrated into
other development plans. Although they are not com-
pulsory, ‘statutory, administrative or contractual meas-
ures’ should be taken. The choice among them, as well
as consideration of whether to adopt management
plans, is left to Member States.
The measures that Member States must take under
Article 6(2) are of a preventive nature and are aimed
at avoiding deterioration and disturbances related to
predictable events. These measures only apply to the
species and habitats for which the sites were designated
as SACs and, if necessary, should also be implemented
outside the protected areas, according to the Com-
mission’s guidance.
26
Both deterioration and disturb-
ance are to be assessed against the conservation status
of the species and habitats concerned.
Plans or projects that can have a signif‌icant effect on
Natura 2000 sites need to be assessed by the com-
petent national authorities as to their effect on the
integrity of the site concerned. Article 6(3) sets out the
circumstances where these assessments should be
made, while Article 6(4) allows certain exceptions to
override a negative assessment: in cases of ‘imperative
reasons of overriding interest, including those of social
or economic nature’. Member States must take com-
pensatory measures in this case ‘to ensure that the
overall coherence of Natura 2000 is protected’.
25
Ibid., at para. 47.
26
Ibid., at 24 (‘the article does not specify that measures have to be
taken in the SAC but to avoid in the SAC’).
Blackwell Publishers Ltd. 2001.
290
The Commission interpreted a ‘project’ as including
‘construction works and other interventions in the
natural environment’. ‘Plan’ is also considered in a
broad sense to include land use and sectoral plans, but
excluding ‘general policy statements’.
27
It is important
to determine what constitutes a project or plan ‘likely
to have a signif‌icant effect on the site’, either individu-
ally or in combination with other plans or projects, to
take account of cumulative impacts. The European
Commission recognizes the need to interpret the term
‘signif‌icant’ in a consistent and objective way ‘to ensure
that Natura 2000 functions as a coherent network’.
28
The impact assessment must be made ‘in view of the
site’s conservation objectives’.
29
EC Directive 85/337/EEC of 27 June 1985
30
on the
assessment of the effects of certain public and private
projects on the environment (the EIA Directive) is con-
sidered to accommodate those assessments under Arti-
cle 6 of the Habitats Directive. However, the latter is
narrower in scope than the former, as Article 6(3) is
limited to the plan’s or project’s implications for the
site in the light of its conservation objectives. Although
the Habitats Directive does not prescribe the form that
such an assessment should take, the ECJ has emphas-
ized, in relation to the EIA Directive, that it is necessary
to take into account the sensitivity of the location. The
Commission considers it appropriate that projects
likely to have a signif‌icant impact on a Natura 2000 site
undergo an assessment that fulf‌ils the requirements of
The EIA Directive also provides for improved public
participation conditions compared to the provisions of
the Habitats Directive, which only requires that ‘the
opinion of the general public’ be obtained ‘if appropri-
ate’.
31
In this context, the EC and its Member States are
signatories to the 1998 Aarhus Convention on Access
to Information, Public Participation in Decision making
and Access to Justice in Environmental Matters,
32
which strengthens citizens’ participation in environ-
mental decision making. As a result, a proposed Direc-
tive
33
on ‘public participation in respect of the drawing
up of certain plans and programmes relating to the
environment’, and amending the EIA Directive, is cur-
rently going through the EU’s legislative procedure. In
line with the Aarhus Convention, the proposed Direc-
tive requests Member States to ‘ensure that the public
27
Ibid., at 33.
28
Ibid., at 34.
29
30
[1985] OJ L175/40 – amended by Council Directive 97/11/EC of 3
March 1997, [1997] OJ L73.
31
32
Adopted on 25 June 1998, the Convention will enter into force on
30 October 2001 (available at ).
33
COM (2000)839 of 18 January 2001, [2001] OJ C154.
RECIEL 10 (3) 2001 THE EC HABITATS DIRECTIVE
concerned is given early and effective opportunities to
participate in the development consent procedure’.
34
Article 6(4) of the Directive addresses the exceptions
to the general rule of the previous paragraph, according
to which only plans and projects that do not affect the
integrity of SACs can be authorized. The condition that
must be met, according to this provision, is the absence
of alternative solutions to the proposed plan or project.
These could imply alternative locations or different
scales of development, including the ‘zero option’, i.e.
not undertaking that particular project or plan at all.
The Commission guidance stresses that Article 6(4)
needs to be interpreted in a restrictive way.
If alternative solutions cannot be found, the next step
is to examine whether there are ‘imperative reasons of
overriding public interest, including those of a social or
economic nature’. The ECJ has not been called to pro-
vide interpretation of this expression. The Commission
guidance refers to other areas of Community law that
use similar concepts, such as competition law.
35
National authorities should balance the interest
between the conservation objectives of the site affected
and the mentioned ‘imperative reasons’. In case the
authorities rule in favour of the latter, ‘all compen-
satory measures necessary to ensure the overall
coherence of Natura 2000’ must be taken. Again, the
Directive provides no def‌inition as to what these meas-
ures might be. The Commission advises that they can
be mitigation measures or strictly compensatory, such
as the re-creation of a habitat on a new site; habitat
improvement in another site, proportional to the habi-
tat loss suffered; and ‘in exceptional cases’, proposing
a new site under the Directive.
36
The last paragraph of Article 6(4) includes the qualif‌ier
that when a site hosts a priority natural habitat and/or
a priority species, the only circumstances that are
allowed in order to authorize a plan or project that will
have a negative impact on that site are ‘human health’,
‘public safety’ and ‘primary benef‌icial consequences for
the environment’. A prior opinion from the Com-
mission is required for all ‘imperative reasons’ other
than these three. It is considered that this opinion
needs to cover: the assessment of the ecological values
likely to be affected by the plan or project; the relevance
of the alleged imperative reasons; and the balance of
the two opposed interests, as well as evaluation of the
compensation measures proposed. This opinion is not
binding in the Member State but legal action could fol-
low in case of non-conformity with Community law.
37
34
Article 2(2)(a) of the proposed Directive.
35
See n. 21, at 44.
36
Ibid., at 46.
37
Ibid., at 50.
Blackwell Publishers Ltd. 2001.
291
There have so far only been two cases when the Com-
mission has been asked to rule on a proposed exemp-
tion from the Habitats Directive, both from Germany.
The f‌irst was in 1995, when the Commission approved
the construction of a section of the A20 motorway. The
second took place in April 2000, when the Commission
agreed that a German aerospace f‌irm could partially
destroy a protected area to expand its manufacturing
facility. The Commission took the view that ‘imperative
reasons of overriding public interest’ outweighed the
adverse environmental effects of allowing the aircraft
manufacturer to build over part of a nearby wetland in
preparation for building a new Airbus jet. The affected
site is the Mu
¨hlenberger Loch, in Hamburg, which,
extending over 700 hectares, makes it Europe’s biggest
freshwater wetland,
38
and boasts rare species such as
the hemlock water dropwort, listed in the Habitats
Directive. In a request for clarif‌ication sent to the Com-
mission, the German Government argued that the plant
could not be located elsewhere and it added that the
project would create up to 8000 jobs.
39
Germany was not legally obliged to request clearance
for the developments since the list of proposed Natura
2000 sites has not yet been approved. The Government
had asked for a ruling to ensure that it would not be in
contravention of the Directive once the list is approved.
Ironically, the scientif‌ic conf‌irmation of the network
has been delayed principally by Germany’s failure to
provide the Commission with adequate lists of pro-
posed protected areas. The Commission said this meant
it could not assess the compensatory measures that
Germany must take when it builds the plant.
40
German
environmental non-government organizations (NGOs)
took legal action but Hamburg’s administrative court
lifted an injunction to stop the works in February 2001.
German NGOs do not consider the case as closed yet
and they may seek to challenge the ruling in their coun-
try’s constitutional court.
41
The European Commission took France to the ECJ in
relation to its implementation of Article 6(3) and (4) of
42
France’s legislation allows the
waiving of the requirement to conduct an EIA for cer-
tain projects based on ‘their low cost or their purpose’.
This was considered by the Court to be unjustif‌ied
within the discretion of Member States, which is
implied by the expression ‘likely to have a signif‌icant
effect [on the site]’. In any event, the Court ruled that
the provision cannot authorize a Member State to enact
national legislation which allows the EIA obligation for
38
ENDS Daily, 20 February 2001.
39
ENDS Daily, 19 April 2000.
40
Ibid.
41
ENDS Daily, 20 February 2001.
42
ECJ 6 April 2000, Case C-256/98, European Commission v. French
Republic, [2000] ECR I-2487.
CAROLINA LASE
´N DIAZ RECIEL 10 (3) 2001
development plans to be waived because of the low
costs entailed or the particular type of work planned.
43
IMPLEMENTING THE
CONSTANT DELAYS AND
NUMEROUS INFRINGEMENT
PROCEDURES
The deadline for transposing the Habitats Directive into
the legal systems of the Member States was 2 years
after it entered in force, i.e. by June 1994. Trans-
position may require changes to existing laws on the
protection and management of protected areas and
species, as well as administrative and f‌inancial meas-
ures. The variety of national legal and administrative
systems of EU countries has made transposition a chal-
lenge, especially for federal or quasi-federal countries
such as Germany or Spain.
Greece was taken to the ECJ and declared in breach
of Community law for not implementing the Directive
within the prescribed timeframe. While the Greek
Government, did not deny that the Directive had not
been transposed, it pointed out that the delay in trans-
posing it had been attributable to technical legislative
problems.
44
More recently, the ECJ has ruled that:
according to the settled case-law of the Court, a Member
State may not plead provisions, practices or circumstances
existing in its internal legal system in order to justify a fail-
ure to comply with the obligations and time-limits laid
down in a Directive.
45
By November 1997, the conservation organization
World Wide Fund for Nature (WWF) reported that the
European Commission was pursuing eight EU coun-
tries for non- or incorrect transposition of the Directive
into national law, with 36 infringement procedures
pending at the time against all Member States for in-
adequate implementation.
46
Most Member States have
not met the deadlines for adequately transposing the
Directive into their national legal systems and designat-
ing sites that will be part of the Natura 2000 network
(national lists of proposed SCIs were due by June
1995).
47
43
Ibid., at para. 39.
44
ECJ 26 June 1997, Case C-329/96, Commission of the European
Communities v. Hellenic Republic, [1997] ECR I-3749.
45
N. 24 above, para. 13.
46
WWF Press Release, 7 November 1997.
47
Portugal, The Netherlands, Italy, Germany and the UK have all
been sent ‘Reasoned Opinions’ by the European Commission in the
summer of 2001 for inadequate national legislation used to give effect
to the Habitats Directive (European Commission Press Release of 6
August 2001).
Blackwell Publishers Ltd. 2001.
292
In January 2000, the Commission started an infraction
procedure against the United Kingdom for submitting
an incomplete list of proposed SCIs. At that time,
infraction procedures were already under way against
Germany, France and Ireland for considering their pro-
posed sites as an insuff‌icient national contribution to
the Natura 2000 network.
48
The ECJ ruled on these
three cases on 11 September 2001, following the Advo-
cate General’s advice that the three countries should be
condemned by the Court for contravening the Directive
on two counts: all submitted their site lists well after
the 1995 deadline and none provided an exhaustive
register of all eligible sites. The cases were brought by
the European Commission in 1999, and although the
threat of legal action, plus warnings that EU aid would
be cut off, prompted all three to submit fuller lists,
49
the court found that the three countries’ lists had been:
manifestly inadequate, going well beyond the margin of
discretion available to Member States for the purpose of
drawing up the list of sites mentioned in Article 4(1).
50
The three judgments reinforce the requirement for
Member States to nominate all eligible sites, ‘based
solely on a scientif‌ic assessment and not on adminis-
trative or political convenience’.
51
In 2001, some countries have still not completed the
transposition of this Directive. In April 2000, France
was condemned by the ECJ for its failure to give com-
plete effect to the site protection requirements for Nat-
ura 2000, as projects likely to signif‌icantly affect such
sites are not adequately addressed by French legis-
lation.
52
In January 2001, the Commission sent a Rea-
soned Opinion to French authorities for inadequacies
in their national legislation to give effect to the Habitats
Directive, following on from the previous year’s Court
ruling. France has indicated that the necessary legis-
lation will be in place by mid-2001.
Also in January 2001, the European Commission
decided to make a f‌irst application to the ECJ against
Sweden for the shortcomings of the Swedish legislation
regarding safeguards for Natura 2000 sites, as well as
the Directive’s requirements on prohibitions and dero-
gations.
53
In May 2001, the Swedish Government
announced that it had sent the European Commission
48
Commission Press Release, ‘Commission takes new measures
against several Member States’, 11 January 2000.
49
ENDS Daily, 3 May 2001.
50
ECJ 11 September 2001, Case C-67/99, European Commission v.
Ireland, at 37; ECJ 11 September 2001, Case C-71/99, European
Commission v. Germany, at 30; and ECJ 11 September 2001, Case
C-220/99, European Commission v. France, at 34, not yet reported.
51
ENDS Daily, 11 September 2001.
52
Case C-256/98, see n. 42 above.
53
European Commission Press Release ‘Habitats Directive: the Com-
mission challenges inadequate Swedish and French legislation’, 12
January 2001, IP/01/36.
RECIEL 10 (3) 2001 THE EC HABITATS DIRECTIVE
a list of 102 additional sites to be considered for protec-
tion under the Natura 2000 network. This brings the
total number of Swedish sites nominated to almost
3000, with more nominated sites expected this aut-
umn.
54
In relation to the Directive’s implementation and the
obligation for Member States to designate sites for pro-
tection under the Habitats Directive, the ECJ has ruled
that EU countries cannot take economic or similar con-
siderations into account when deciding whether to
nominate sites for the Natura 2000 network. The Nov-
ember 2000 judgment
55
responds to a request from the
high court of England and Wales in a dispute between
the UK Government and the company operator of Bris-
tol docks. This company (First Corporate Shipping Ltd)
had objected to the nomination of the Severn estuary
as a proposed Natura 2000 site, arguing that Article
2(3) of the Habitats Directive requires Member States
to ‘take account of economic, social and cultural
requirements and regional and local characteristics’.
The court rejected this argument and ruled that to pro-
duce a draft list of SACs, the Commission ‘must have
an exhaustive list of the sites that, at national level,
have an ecological interest’. When a Member State
draws up its national list ‘it is not in a position to have
precise detailed knowledge of the situation of habitats
in the other Member States’. Therefore:
it cannot of its own accord, whether because of economic,
social or cultural requirements or because of regional or
local characteristics, delete sites which at national level have
an ecological interest.
The ruling therefore concluded that a Member State
may not take account of economic, social and cultural
requirements, or regional and local characteristics,
when selecting and def‌ining the boundaries of the sites
to be proposed to the Commission as eligible for identi-
f‌ication as SCIs.
56
More recently, France’s highest administrative court,
the Conseil d’Etat, suspended an authorization granted
by the Ministry of Agriculture in February 2001 to plant
vines at a site in Alsace that had been nominated as a
Natura 2000 candidate site.
57
The case was brought by
a network of French environmental NGOs,
58
which has
hailed this ruling as the f‌irst time that the French legal
system has recognized the jurisdiction of the 1992
59
54
ENDS Daily, 23 May 2001.
55
Case C-371/98, Reference for a preliminary ruling of the High Court
of Justice (England and Wales), ECR [2000] I-9235.
56
Ibid., at para. 25.
57
Ruling of 9 July 2001, announced on 11 July 2001.
58
France Nature Environment. See press release available at
france-nature-environnement.org/pdf/CP2%20conseil%20natu ra2000.pdf>.
59
ENDS Daily, 12 July 2001.
Blackwell Publishers Ltd. 2001.
293
The European Commission has also used other Com-
munity policies to ‘incentivate’ Member States to speed
up their designation of Natura 2000 sites. In 1999, EU
Environment and Regional Policy Commissioners
wrote to all Member States in the run up to the new
regional funding period for 2000–2006. The Com-
mission reminded EU countries that they should ensure
the proper implementation of the Habitats and Birds
Directives, which require them to identify protected
zones under Natura 2000. For the f‌ive countries where
implementation of the Directives is considered parti-
cularly poor, the letters contained a clear threat that
funds would be frozen until governments comply with
these Directives. The letters to Ireland, Germany,
France, the Netherlands and Portugal all warned that
the Commission may not be able to assess their appli-
cations for EU Structural Funds for 2000–2006 unless
they nominate a suff‌icient number of areas to be
included in the Natura 2000 network.
60
Conservation NGOs have regularly drawn attention to
the implementation delays and infringement pro-
cedures related to the Habitats Directive. WWF has
compiled a ‘shadow list’ of over 2300 sites which,
according to the organization, should be incorporated
into the Natura 2000 network. They claim that Member
States should have designated at least 30% more wild-
life sites for inclusion under the Habitats Directive.
61
In 2001 alone, the Commission started a number of
infringement proceedings against Germany,
62
the
United Kingdom,
63
Belgium,
64
Italy,
65
Spain,
66
France
67
and Sweden
68
for failure to properly implement the
Habitats and Birds Directives.
The Directorate General for Environment at the Euro-
pean Commission (DG Environment) acknowledges in
its management plan for 2001–2002 that one of the
major challenges they face regarding biodiversity is the
completion of the Natura 2000 network and ensuring
60
ENDS Daily, 8 July 1999.
61
WWF Press Release, ‘One in three European wildlife sites unpro-
tected, warns WWF’, 15 June 2000.
62
For failure to ensure the protection of the habitats of an endangered
hamster, the Cricetus cricetus: Europe Environment (20 February
2001), at 19.
63
For the application of the United Kingdom’s licensing system used
to grant exceptions to the Habitats Directive: ibid.
64
For failure to protect important nature sites under the Birds and
Habitats Directives: Europe Environment (6 February 2001), at 5.
65
For the damage done by a golf course development to priority habi-
tats proposed by Italy as SCIs: ibid.
66
For the construction of a private airport within a SPA and without
respect for site safeguards: ibid. Also, for the general insuff‌iciency of
the SPA network under the Birds Directive: Europe Environment (6
March 2001), at 22.
67
For the general insuff‌iciency of the French SPA network under the
Birds Directive: ibid.
68
For shortcomings of the Swedish legislation concerning the safe-
guards of Natura 2000 sites as well as the Directive’s prohibitions and
derogations: Europe Environment (23 January 2001), at 18.
CAROLINA LASE
´N DIAZ RECIEL 10 (3) 2001
its appropriate management. This objective is also
ref‌lected in the Commission’s work plan for 2001–
2002.
69
MARINE SACS: APPLYING THE
MARINE AND COASTAL
ENVIRONMENT
The EU coastline
70
amounts to over 53,000 km, with
Greece and the United Kingdom accounting for 49% of
this between them.
71
There is no commonly agreed and
internationally recognized def‌inition of ‘coastal zones’
encompassing marine, shoreline and landward areas,
so a diverse set of def‌initions and boundaries currently
exist.
72
The EU’s coastline is considered to support over
50% of the EU’s richest and most sensitive coastal
areas.
73
EU nature conservation policy, including the Birds and
Habitats Directives and the actions to create the Natura
2000 network, are designed to protect habitats and
species of Community importance, including marine
ecosystems and species. The Commission Communi-
cation on Integrated Coastal Zone Management
(ICZM)
74
acknowledges that Natura 2000 may not pro-
vide protection to as many ecosystems or natural areas
as might be desirable from a local or national perspec-
tive. However, the only reference to Natura 2000
relates to the Commission’s role in monitoring the
implementation of Article 6 of the Habitats Directive
to ensure that:
designation of a site as part of the Natura 2000 network
does not discourage economic (or non-economic) activities
that do not have a negative impact on the status of the target
species or habitats.
75
Article 2(1) of the Habitats Directive states that this
legal instrument is applicable to the ‘European territory
of the Member States to which the Treaty applies’. This
69
See website available at uropa.eu.int/comm/dgs/environment/
managementFplanF2001.pdf>.
70
All Member States have coastlines, except Austria and Luxem-
bourg.
71
Firn Crichton Roberts Ltd and Graduate School of Environmental
Studies, University of Strathclyde, An Assessment of the Socio-
economic Costs and Benef‌its of Integrated Coastal Zone Manage-
ment, Report to the Commission (November 2000), at 19.
72
Ibid., at 20.
73
Informal Council of Ministers of the Environment 1994, in K. Mitch-
ell, European Seminar on Implementing the Habitats Directive in Mar-
ine and Coastal Areas (June 1997).
74
Commission Communication of 27 September 2000 to the Council
and the European Parliament on integrated coastal zone manage-
ment: a strategy for Europe, COM (2000)547 f‌inal.
75
Ibid., at 15.
Blackwell Publishers Ltd. 2001.
294
also includes both the terrestrial and marine territory
of EU countries. Annex I of the Directive, listing the
‘natural habitat types of community interest whose con-
servation requires the designation of special areas of
conservation’ does include some marine, coastal and
freshwater habitat categories.
76
In November 1999, the London High Court ordered the
UK Government to apply the Habitats Directive
throughout its 200-mile marine Exclusive Economic
Zone before granting new offshore oil or gas explo-
ration licences.
77
The ruling centred on the scope of the
Habitats Directive, and in particular on its def‌inition
of ‘territory’. In the absence of a stated limit, the UK
Government maintained that the Directive should be
taken as referring only to territorial waters up to 12
nautical miles. However, the judge accepted Green-
peace’s argument that most EU Directives with marine
implications such as those relating to f‌isheries and oil
exploration specify a 200-mile limit. The fact that the
United Kingdom has applied the 1985 EIA Directive
with a limit of up to 200 miles may have helped Green-
peace’s case.
In February 1998, the Commission adopted a Com-
munication to the Council and the Parliament on a Eur-
opean Community Biodiversity Strategy, ‘to anticipate,
prevent and attack the causes of signif‌icant reduction
or loss of biodiversity at the source’.
78
The Community’s
Biodiversity Strategy has as one of its objectives the full
implementation of the Birds and Habitats Directives,
but there is no reference in its text to the marine or
aquatic environment.
The main focus of implementing the Habitats Directive
in its f‌irst 10 years has been the identif‌ication and des-
ignation of protected areas to form the Natura 2000
network. Even though this obligation has yet to be ful-
f‌illed, the Directive has a broader scope, and more
action at the national level is needed to adopt conser-
vation measures and regulation of sustainable activities
inside, outside and next to Natura 2000 sites. In
addition, the Directive also covers the protection of
endangered species outside protected areas. The Strat-
egy also promotes the development of biodiversity-
related initiatives across the EU territory outside pro-
tected areas. In this respect, the EU ‘Cardiff process’
79
76
See website available at ttp://europa.eu.int/comm/environment/
nature/hab-an1en.htm>.
77
ENDS Daily, 5 November 1999.
78
Commission Communication of 4 February 1998 to the Council and
to the Parliament on a European Community Biodiversity Strategy,
COM (1998)42.
79
The European Council meeting held in Cardiff in June 1998
requested all relevant Council conf‌igurations to develop their own
strategies for integrating environment and sustainable development
into their respective policy areas. This ‘integration process’ relates to
the obligation in Article 6 of the EC Treaty to integrate the require-
ments of environmental protection into the def‌inition and implemen-
tation of all Community policies. The Council was asked to submit
RECIEL 10 (3) 2001 THE EC HABITATS DIRECTIVE
promotes the integration of environmental consider-
ations into sectoral and cross-sectoral policy areas.
In 1998, the Fisheries Council reported on environmen-
tal integration into the Common Fisheries Policy
80
and
recognized the failure of past approaches, directed at
the decline of f‌ish catches, as failures in the protection
of species. It also noted:
the adverse effects of f‌ishing on the sea bed, certain habitats
and on those components of marine ecosystems which are
of no direct interest for f‌ishing,
and explicitly mentioned the conservation of marine
ecosystems as an option for future policy develop-
ment.
81
The European Commission has published a Communi-
cation setting out the basis for a strategy to integrate
environmental protection requirements into the Com-
mon Fisheries Policy.
82
This Communication intro-
duces a fundamental change of approach in the EU’s
f‌isheries policy, as it states that:
any management action should be performed taking into
account that it may have important effects on the marine
ecosystem, even if their f‌ine details are not totally under-
stood. This is equivalent to, or will result in, adopting an
ecosystem-based approach to f‌isheries management.
83
One of the key messages of this Communication is that
the conservation of marine ecosystems should be cen-
tral to an environment-integrated policy of f‌isheries.
This document further acknowledges that the desig-
nation and management of marine-protected areas
which are part of the Natura 2000 network:
present a unique opportunity to show how commercial f‌ish-
ing can be continued within protected areas provided it is
made compatible with conservation requirements.
The Commission also recognizes that:
some habitats not specif‌ically mentioned in the Habitats
Directive may deserve special consideration due to recent
threats from f‌ishing activities, such as certain deep water
habitats.
84
comprehensive sectoral integration strategies to the European Coun-
cil meeting in Go
¨thenburg in June 2001.
80
Council Report (Fisheries) of 16 June 2000 [9386/00], No. 46.
81
R.A. Kraemer, ‘Results of the “Cardiff-Processes” – Assessing the
State of Development and Charting the Way Ahead’, Ecologic, Ger-
many (March 2001).
82
Commission Communication of 16 March 2001 to the Council and
the European Parliament on elements of a strategy for the integration
of environmental protection requirements into the common f‌isheries
policy, COM (2001)143 f‌inal.
83
Ibid., at 9.
84
Ibid., at 12 and 13.
Blackwell Publishers Ltd. 2001.
295
CONCLUSION
The nearly 10 years of existence of the Habitats Direc-
tive show that it has not had the impact that was
expected. The European Union continues to lose its
biological diversity, with an increasing number of spe-
cies and habitats becoming threatened by the effects of
farming practices, land-use planning, transport infra-
structure, over-f‌ishing and pollution, among other
human activities. This piece of European Community
legislation can claim the dubious record of being one
of the most litigated environmental instruments in the
EU, as Member States have failed both to transpose it
correctly into their legal systems and to comply with
any of the deadlines established by the Directive.
The tenth anniversary of the Habitats Directive
coincides with the review and assessment of progress
since the 1992 UNCED Conference held in Rio. This
circumstance should provide an opportunity to ref‌lect
on the political will and the f‌inancial and human
resources necessary to make EU legislation work in
practice. The Union’s biodiversity will not benef‌it from
progressive international agreements and EU legis-
lation if there is no action directed to ensuring the
adequate implementation of those regimes at the
national, regional and local level.
Further action is therefore needed on a number of areas
that challenge the successful implementation of the
Habitats Directive. Besides a speedier identif‌ication
and designation of sites to form the Natura 2000 net-
work, EU countries should take action on a number of
important issues, such as the protection of the species
included in Annex IV, the management of those land-
scape features that are important for wildlife, and the
protection of the marine environment. The forthcoming
enlargement of the European Union to embrace the
countries of Central and Eastern Europe makes the
need to achieve the integration of biodiversity concerns
into land-use planning, sectoral plans and policies even
more urgent. This remains the key challenge for the
future and the only way of ensuring the long-term sur-
vival of biological diversity in Europe and worldwide.
Carolina Lase
´n Diaz is Staff Lawyer in the Biodiversity
and Marine Resources Programme of the Foundation
for International Law and Development (FIELD). The
author would like to thank Pauline Briand for her
research assistance.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT