The Habitats Directive in its EU Environmental Law Context

European Nature's Best Hope?

Charles-Hubert Born, An Cliquet, Hendrik Schoukens, Delphine Misonne, Geert Van Hoorick, Charles-Hubert Born, An Cliquet, Hendrik Schoukens, Delphine Misonne, Geert Van Hoorick

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317693031
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book analyses the Habitats Directive; one of the most prominent piece of EU environmental legislation of the past decades. Seen by some as the cornerstone of Europe's nature conservation policy, among other measures the Directive established the so-called "Natura 2000" ecological network, which covers more than 18% of the surface of the EU. However, despite the fact the Directive was adopted over twenty years ago only 17% of the protected habitats and species in Europe are being adequately protected while 10-60 % of animal species remain under threat.

In light of the limited success and the contested nature of the Habitats Directive so far this book examines the successes and failures of the Habitats Directive from a legal and political angle. The book brings together international experts to consider the application, implementation and future of the Habitats Directive in order to assess whether the Habitats Directive is resilient enough to tackle biodiversity loss in the twenty- first century. Particular emphasis is put on the legal regime attached to the Natura 2000 network and its possible impact on land development and the relationship between the Habitats Directive and other topics including liability for ecological damage and transboundary nature conservation.

Part I

Back to the roots

The ecological origins of the Habitats Directive

1 Global objectives and scope of the Habitats Directive

What does the obligation of result mean in practice? The European hamster in Alsace

Marc Clément*

Introduction

The protection of biodiversity led to adoption of various pieces of legislation in the Member States. However, 20 years after its adoption, the Habitats Directive remains the cornerstone of EU national legislation as regards biodiversity. When judges have to decide cases, the directive and its transposition are, most of the time, the only effective tool that can be deployed to oppose development. But it is not only effective in the context of Natura 2000 areas; the directive is also successfully activated in the context of the protection of species.

Why is it so complicated to bridge the gap between the general speeches and declarations in favour of biodiversity, and the effective protection of species?

Most will agree on the diagnosis: accelerated degradation of habitats, huge losses of biodiversity. But many would also consider that it is not fair to sacrifice urban projects or agricultural practices in order to preserve a handful of hamsters …

The Habitats Directive aims at bridging this gap between ecological and economic interests. This chapter emphasizes the role of the Habitats Directive – and its developments in the case law – as regards the achievements of the objectives of the European Union for the preservation of nature. The directive imposes a genuine obligation of results on the Member States, but this obligation of results is not easy to understand, since it is more the consequence of the level of control of judges than explicit obligations resulting from the text of the directive.

What are the objectives of the Habitats Directive?

Before identifying an obligation of results stemming from the requirements of the Habitats Directive, it is necessary to recall one important principle supporting the development of the EU nature protection legislation. The fourth recital of the directive provides that:

Whereas, in the European territory of the Member States, natural habitats are continuing to deteriorate and an increasing number of wild species are seriously threatened; whereas given that the threatened habitats and species form part of the Community’s natural heritage and the threats to them are often of a transboundary nature, it is necessary to take measures at Community level in order to conserve them.

It follows from the adoption of the directive that the preservation of ecological values is not only a Member States issue, as the natural heritage in Europe is shared by all Europeans. Although it has not been identified very often, the European natural heritage as seen by the directive is linked to EU citizenship. Preservation of threatened species in a Member State is not only a matter of concern for national citizens, but also essential for non-national Europeans.

The second purpose of the EU action – as presented in the preamble of the directive – is less convincing. The transboundary nature of the threats to the natural heritage is not excessively frequent, and most of the cases found in case law will confirm the limits of this argument. The argument is more convincing in the context of the Birds Directive, where birds’ migration implies the need for EU-level management of species.

The Natura 2000 network is designed on the principle of the existence of a common natural heritage for European citizens. However, the principle extends beyond the development of the Natura 2000 network, and also plays a significant role in shaping obligations of results of the Member States as regards species protection. If Member States are liable for preserving the natural heritage of all European citizens, then they bear obligations of results and may not only refer to satisfactory actions with limited effects.

If one admits that nature is not an asset which is the sole property of the nationals of a Member State, then the EU subsidiarity principle, according to which national and local authorities are to be considered better placed for ensuring sound management of nature, plays a limited role. Obligations of results are not only governed by the balance between socio-economic national interests and the need to preserve ecological values. There should also be taken into account the rights of the EU citizens to preserve these ecological values. If hamsters are no longer present in France, then this affects the rights to environment of Romanian citizens … even if this species is abundant in Romania.

The CJEU case law reflects the role played by the preamble (4th recital) as stated in Case C-508/04 Commission v Austria¹ and other decisions and opinions of Advocates General.² It is important to note that the Court infers the responsibility of the Member States as regards nature preservation under the Habitats Directive from these provisions. This means that the Member States act in this domain not for themselves but on behalf of the European Union.

The preservation of biodiversity is a policy objective of the European Union which goes beyond the Habitats Directive: the directive is based on Article 130r of the Treaty, which justifies action of the Community in the environment domain as defined by the new Title VII of the Treaty which was introduced by the Single European Act: ‘Article 130r 1. Action by the Community relating to the environment shall have the following objective: to preserve, protect and improve the quality of the environment …’. It was much easier in 1992 to find a legal basis in the Treaty following the adoption of the Single European Act: the Birds Directive adopted in 1979 needed to rely on the General Competence Clause.

In addition to the Treaty legal basis, one should not neglect the influence of the Environment Action Programme. The directive explicitly refers to the 1987–92 Action Programme (the Fourth Environment Action Programme). Action Programmes have shaped the development of EU environment policy since the adoption of the first programme in 1973. Reading these documents, one might easily come to the conclusion that most of the items identified as priorities are still valid. The Fourth Action Programme also makes an explicit link as regards nature conservation and protection of endangered species to the Bern Convention:

Within such a framework, urgent action is also needed, aimed at the protection of endangered plants and species, such as those listed in the appendices of the Berne Convention. It seems clear from recent reports that the implementation of the Berne Convention in the Member States of the Community, as elsewhere, is poor. A comprehensive framework of nature protection measures, at Community level, would undoubtedly help to improve the situation of endangered species of plants and animals within the Community, whilst at the same time helping to achieve the three-fold objective of the World Conservation Strategy.³

It is interesting to note that the 7th Environment Action Programme⁴ proposed by the Commission for 2013–20 includes a priority objective 1 entitled ‘To protect, conserve and enhance the EU’s natural capital’, and refers to the EU Biodiversity Strategy to 2020.⁵ In other words, the objectives of the Fourth Environment Action Programme are still valid …

The objective of preservation of the common natural heritage of European citizens is therefore solidly enshrined in the Treaties and policy documents adopted by the European Union. There is no doubt that the Habitats Directive is the main instrument for achieving this objective. The policy documents issued by the European Commission, including the Action Programmes, regularly recall that correct implementation of the Habitats Directive is seen as a main instrument for the biodiversity protection policy of the European Union.

If the objective of preservation of biodiversity is clear, the obligations of Member States defined by the directive are of two different natures: (a) obligations to develop specific means for ensuring the protection of habitats and species such as the development of the Natura 2000 network, and (b) some kind of obligations of results. The strength of the directive is that it does not limit the obligations to the first category.

Although the obligations to actively develop the Natura 2000 network and to take measures for protection of species (for instance, in Article 12 of the directive) are clear, the directive has been interpreted by case law as going beyond mere obligations of means or action from Member States.

Obligation of results in the Habitats Directive?

The CJEU case law clearly relies on results achieved.⁶

Prima facie, the obligations of Article 12 of the Habitats Directive are limited to the development of a system of strict protection: this is more a set of negative obligations (‘You shall not …’) than a set of positive measures. Member States should avoid capturing and killing species; they should prevent disturbance of species, destruction of eggs, deterioration or destruction of breeding sites or resting places. Sticking to the text of Article 12, one could think that as long as the Member States do not allow destruction of species or their immediate habitats (breeding sites and resting places), then the obligations are fulfilled. The Opinion of Advocate General Kokott in Case C-383/09 and the potential debate on the notion of protection of breeding and resting sites are compelling indications that Member States do not hesitate to refer to a narrow interpretation of the text of the directive.

It is true that it is not possible to identify in the text of the directive a clear indication that if the conservation status of a species is declining, then the Member State has not fulfilled its obligations. However, the case law developed by the Court of Justice goes well beyond a mere textual reading of the Article 12 of the directive.

In Case C-103/00, the Court stated explicitly that:

As regards the other measures which, according to the Greek Government, are intended to implement an effective system of protection for that species, it must be remembered that Article 12(1)(b) and (d) of the Directive require that the requisite measures be taken to establish a system of strict protection for the animal species listed in Annex IV(a) of that Directive in their natural habitats, prohibiting the deliberate disturbance of those species, particularly during the period of breeding, rearing, hibernation and migration, and the deterioration or destruction of breeding sites or resting places.⁷

The emphasis should be on the notion of implementation of ‘...

Table of contents

• Cover Page
• Half Title page
• Routledge Research in EU Law
• Title Page
• Copyright Page
• Contents
• List of abbreviations
• Notes on contributors
• Acknowledgements
• Foreword
• Introduction
• Part I Back to the roots: The ecological origins of the Habitats Directive
• Part II Natura 2000: Protecting and enhancing the world's biggest ecological network
• Part III Species protection: The ‘forgotten part' of the Habitats Directive
• Part IV Transversal issues: The Habitats Directive and its neighbours
• Part V Science policy and nature conservation: best friends for ever?
• Part VI Nature conservation at sea: A brave new world?
• Part VII The integration of nature conservation in other policy areas: Twenty years of solitude?
• Part VIII New approaches to nature conservation: A quick glance at the future
• Index