The "Fitness Check" of EU Nature Legislation: Legal Analysis of Certain Mandate Questions

UK -

CHARLOTTE SAMS / WWF CHARLOTTESAMS

The "Fitness Check" of EU Nature Legislation: Legal Analysis of certain Mandate Questions

The "Fitness Check" of EU Nature Legislation:

Legal Analysis of certain Mandate questions

Carol Day

March 2015

Carol Day MSc (Nature Conservation, UCL) is a solicitor and environmental campaigner. Between 1991 and 2013, she was employed by WWF as Planning Officer (1991-2000) and then as an in-house solicitor. In the mid-1990s, she ran WWF's Endangered Spaces Campaign, which resulted in a doubling of the UK's list of candidate Special Areas of Conservation (SACs), and coordinated WWF's work on numerous site specific campaigns. More recently, she was involved in campaigns to designate more UK SACs for the Atlantic salmon in Northern Ireland and marine SACs for the harbour porpoise. She currently runs the Environmental Planning and Litigation Service (EPLS) for law firm Leigh Day and is a part-time legal consultant for the RSPB.

This document should be cited as:

Day, C (2015) “The "Fitness Check" of EU Nature Legislation: Legal Analysis of certain Mandate questions,” legal research for WWF-UK.

All links correct as of March 2015.

TABLE OF CONTENTS

ABBREVIATIONS AND ACRONYMS

1.0 EXECUTIVE SUMMARY

2.0 INTRODUCTION

3.0 COHERENCE BETWEEN THE BIRDS DIRECTIVE AND THE HABITATS DIRECTIVE (BHDs)

3.1 An overview of the Birds Directive 3.2 An overview of the Habitats Directive 3.3 Key areas of commonality between the Birds Directive and the Habitats Directive

4.0 COHERENCE BETWEEN THE BHDs AND THE STRATEGIC ENVIRONMENTAL ASSESSMENT DIRECTIVE (SEAD)

4.1 Introduction 4.2 Scope 4.3 Environmental Report 4.4 Public participation 4.5 Monitoring 4.6 Information, reporting and review

5.0 COHERENCE BETWEEN THE BHDs AND THE WATER FRAMEWORK DIRECTIVE (WFD)

5.1 General remarks 5.2 Origin and central tenets 5.3 The Objectives of the BHDs and the WFD 5.4 The scope of the BHDs and the WFD 5.5. Integrating the assessment of biological quality elements and habitats/species in the WFD and the BHDs 5.6 The integration of differing objectives for water bodies under the BHDs and the WFD 5.7 Integrating targets and deadlines 5.8 Coordinating River Basin Management Plans and management plans under Article 6(1) Habitats Directive 5.9 Integrating the management of Heavily Modified and Artificial Natura 2000 sites 5.10 The integration of Articles 6(3) and (4) of the Habitats Directive and Article 4(7) of the WFD – derogations and exemptions 5.11 Register of Protected Areas 5.12 Monitoring under the BHDs and the WFD 5.13 The relationship between Good Ecological Status (GES)/potential of the WFD and Favourable Conservation Status (FCS) in the BHDs 5.14 Public Participation 5.15 Reporting

6.0 COHERENCE BETWEEN THE BHDs AND THE MARINE STRATEGY FRAMEWORK DIRECTIVE (MSFD)

6.1 Origins and central tenets 6.2 The objectives of the BHDs and the MSFD 6.3 The relationship between GES and FCS 6.4 Coherence between the key measures required under the BHDs and the MSFD 6.5 Coherence between protected area mechanisms under the BHDs and the MSFD 6.6. The consideration of socio-economic considerations and the application of exceptions in the BHDs and the MSFD 6.7 Monitoring 6.8 Public participation 6.9 Reporting

7.0 COHERENCE BETWEEN THE BHDs AND THE ENVIRONMENTAL IMPACT ASSESSMENT (EIA) DIRECTIVE

7.1 The “triggers” for EIA and Appropriate Assessment (AA) 7.2 The scope and content of EIA/AA 7.3 Consultation and public participation

8.0 COHERENCE BETWEEN THE BHDs AND THE FLOODS DIRECTIVE

8.1 Introduction 8.2 An overview of the key provisions of the Floods Directive 8.3 Public participation 8.4 Cooperation between Member States 8.5 Reporting

9.0 COHERENCE BETWEEN THE BHDs AND THE NATIONAL EMISSIONS CEILINGS DIRECTIVE (NECD)

9.1 Introduction 9.2 Revision of the NECD 9.3 A summary of the key provisions of the NECD 9.4 Public participation 9.5 Reporting 9.6 Cooperation between Member States

10.0 COHERENCE BETWEEN THE BHDs AND THE ENVIRONMENTAL LIABILITY DIRECTIVE (ELD)

10.1 Introduction 10.2 Scope 10.3 Remediation and restoration 10.4 Public participation 10.5 Cooperation between Member States 10.6 Reporting

11.0 POLICY INTEGRATION – THE BHDs AND CLIMATE CHANGE

11.1 Mandate Question C3: Is there scope for integration between the BHDs and other policy objectives, including climate change?

12.0 POLICY INTEGRATION – THE BHDs AND ENERGY/TRANSPORT

Mandate Question C4: Are provisions of EU Nature legislation sufficiently taken into account and integrated in to other EU sectoral policies, including transport and energy?

12.1 Does Article 6(4) of the Habitats Directive provide a satisfactory mechanism for determining whether energy/transport proposals satisfy Imperative Reasons of Overriding Public Interest (IROPI) in Article 6(4) of the Habitats Directive?

12.2 As regards the TEN-E Regulation on energy infrastructure1 what is the interrelationship between Art 7 - and more particularly Art 7(8) - and Art 6(4) of the Habitats Directive? Specifically as regards Art 7(8) what is the impact of ‘being of public interest from an energy policy perspective’ (Art 7.8 of TEN-E Regulation).

13.0 COHERENCE BETWEEN THE BHDS AND OTHER EU, INTERNATIONAL AND GLOBAL COMMITMENTS ON NATURE AND BIODIVERSITY

13.1 EU Biodiversity Strategy 13.2 CBD Aichi Biodiversity Targets 2015-2020 13.3 EU 7th Environmental Action Plan

14.0 ANNEXES

Annex 7.A: Extracts of relevant CJEU judgments on Article 6(3) Habitats Directive

Annex 12.A – EU Case-law on Article 6(4) of the Habitats Directive and Imperative Reasons of Overriding Public Interest (IROPI)

Annex 12.B - European Commission Opinions relevant to Article 6(4) of the Habitats Directive

Annex 12.C - EU Guidance on Article 6(4) of the Habitats Directive and IROPI

Annex 13. A – Extract from (COM(2011) 244) showing Actions to achieve Goal 1

Annex 13.B – The Aichi Biodiversity Targets (2015-2020)

Annex 13.C – 7th Environmental Action Plan: Thematic Priorities

1 EU REGULATION 347/2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 at http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32013R0347&from=EN 4

ABBREVIATIONS AND ACRONYMS

AA Appropriate Assessment

BHDs Birds and Habitats Directives

CBD Convention on Biological Diversity

CJEU Court of Justice of the European Union

EIA Environmental Impact Assessment

ELD Environmental Liability Directive

FCS Favourable Conservation Status

GES Good Ecological Status; Good Environmental Status

IROPI Imperative Reasons of Overriding Public Interest

MSFD Marine Strategy Framework Directive

NECD National Emissions Ceilings Directive

SEAD Strategic Environmental Assessment Directive

SAC Special Area of Conservation

SCI Site of Community importance

SPA Special Protection Area

UNECE United Nations Economic Commission for Europe

WFD Water Framework Directive

1.0 EXECUTIVE SUMMARY

The European Commission is conducting a "Fitness Check" on EU Nature Legislation (Birds and Habitats Directives). The European offices of WWF will be engaging fully in the different stages of the Fitness Check process. In preparation for that engagement, WWF commissioned legal analysis of a number of the Mandate questions, focussing primarily on the Coherence section of the Mandate, as follows:

Coherence between the Birds Directive and the Habitats Directive

Key areas of commonality were identified including:

 The aim of each Directive;  Natura 2000 – both Directives require the identification and designation/classification of a coherent suite of sites;  Species protection – both Directives require Member States to establish regimes of strict protection for species inside and outside Natura 2000 sites;  Socio-economic factors – both Directives allow Member States to take socio-economic factors into account when implementing the Directives2 (although Member States are prohibited from taking account of economic, social and cultural requirements or regional and local characteristics when selecting and defining the boundaries of Natura 2000 sites3);  Sustainable use – both instruments permit the “exploitation” of certain species including, for example, hunting4 and fishing5; and  Measures outside protected areas – both Directives encourage Member States to take measures outside Natura 2000 to improve the ecological coherence of the network.

Coherence with the Strategic Environmental Assessment Directive (2001/42/EEC6)

There is significant commonality of strategic aims between the SEA Directive (SEAD) and the BHDs. Both instruments aim to provide a high level of environmental protection, the SEAD reinforcing the duty on Parties to the Convention on Biological Diversity (CBD) to integrate, as far as possible, the conservation and sustainable use of biological diversity into relevant sectoral and cross-sectoral plans and programmes7. Both the BHDs and the SEAD embody the precautionary principle8 in requiring a prior assessment of the likely significant effects of plans and programmes on Natura 2000 sites (under the BHDs) and the environment more generally (under the SEAD) before the adoption of plans or programmes or their submission to legislative procedures.

2 Recital 6 and Article 9 Birds Directive and recital 3 and Articles 2(3), 6(4) and 16 Habitats Directive 3 See Case C-44/95, UK – “Lappel Bank” in respect of SPAs and cases C-371/98, UK – “First Corporate Shipping” and C-67/99, Commission v Ireland in respect of SACs 4 Article 7 covers the hunting of species listed in Annex II to the Birds Directive. See also Recital 11 to the preambles to the Directive 5 Article 14 Habitats Directive 6 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 7 Recital 3 SEAD 8 See recital 10 of the Habitats Directive and recitals 1 SEAD 6

The aims of the SEAD are achieved by ensuring that an Environmental Assessment (EA) is carried out of certain plans and programmes which are likely to have significant effects on the environment9. This assessment is conducted without prejudice to any requirements under the EIA Directive and “any other Community law requirements10”, thus recognising the potential for overlap between assessment procedures conducted under the EIA Directive and the BHDs. Where an obligation to undertake assessments arises simultaneously from the SEAD and other Community legislation, Member States are encouraged to provide for coordinated or joint procedures11. This enables Member States to efficiently fulfil the distinct, but overlapping, requirements of assessment processes under relevant Directives.

Both the SEAD and the Habitats Directive require Member States to consider alternative solutions. Article 6(4) of the Habitats Directive only allows Member States to sanction plans or projects adversely affecting the integrity of Natura 2000 sites in the absence of alternative solutions. Article 5(1) of the SEAD requires Member States to consider “reasonable alternatives” and is therefore weaker than the assessment required under the Habitats Directive. Information to be provided in the Environmental Report may include relevant information on the environmental effects of the plans and programmes obtained through other Community legislation, such as the BHDs.

There are other commonalities between the BHDs and the SEAD including:

 Sustainable development – both instruments explicitly refer to the importance of sustainable development for ensuring environmental protection12;

 Public participation – the Habitats Directive acknowledges the public’s role in the consideration of plans and programmes13 and the desirability of re-introducing species listed in Annex IV of the Directive14. The importance of participatory rights are developed in Article 6 of the SEAD, which requires Member States to ensure that draft plans or programmes and Environmental Reports are made available to relevant authorities and the public, along with effective opportunities to submit views before the adoption of the plan or programme or its submission to the legislative procedure. Similar rights apply to authorities and the public in Member States where a plan or programme arising in another Member State is likely to have a significant environmental effect in their territory;

 Monitoring - Article 10 of the SEAD requires Member States to monitor the significant environmental effects of the implementation of plans and programmes in order, inter alia, to identify unforeseen adverse effects, and to be able to undertake appropriate remedial action. Where appropriate and in order to prevent duplication, Member States may use existing monitoring arrangements, thereby providing an opportunity for monitoring schemes under the BHDs15 to be integrated with those under the SEAD;

 Information, reporting and review – both instruments create duties in relation to regular reporting and review. Article 17(1) of the Habitats Directive and Article 12(1) of the Birds Directive require Member States to submit regular reports to the Commission on the

9 Article 1, SEAD 10 Article 11(1) SEAD 11 Recital 19 and Article 11(2) SEAD 12 Recital 3 of the preambles to the Habitats Directive and recitals 1, 2 and Article 1 of the SEAD 13 Article 6(3) Habitats Directive 14 Article 22(a) Habitats Directive 15 Recital 16 and Articles 4(3) and 12 Birds Directive and recital 16 and Articles 12(1), 12(2) and 17 of the Habitats Directive 7

implementation of measures taken under the BHDs. The Commission must then prepare a composite report evaluating the progress achieved. Article 12 of the SEAD obliges Member States to exchange information on the experience gained in applying the Directive. The SEAD also obliges the Commission to issue a report on the application and effectiveness of the Directive to the European Parliament and to the Council16 at seven-yearly intervals; and

 Community action – both instruments reinforce the crucial role of Community action in light of the trans-boundary nature of the Community’s natural heritage17. In particular, the SEAD requires different environmental assessment systems operating within Member States to contain a set of common procedural requirements in order to contribute to a high level of environmental protection18.

Coherence with the Water Framework Directive (Directive 2000/60/EC19)

There are many synergies between the texts of the BHDs and the Water Framework Directive (WFD) and the implementation of measures under the WFD will generally benefit the objectives of the nature Directives. The implementation of the Directives has, in practice, led to a number of questions. However, EU Guidance on the links between the Directives demonstrates that, together, they provide a sound basis for joint objective setting, management, the consideration of derogations/ exemptions, monitoring, public engagement and reporting.

Areas of commonality include:

 The BHDs and the WFD are primarily concerned with protecting biodiversity and natural resources. The BHDs form the backbone of the EU’s biodiversity policy and the WFD explicitly recognises water and wetlands as inherently valuable. As such, both aim to ensure healthy aquatic ecosystems while at the same time ensuring a balance between water/nature protection and the sustainable use of natural resources;

 Both the BHDs and the WFD recognise the crucial role of Community action in light of the trans-boundary nature of natural resources and threats to them;

 Both instruments explicitly recognise the polluter pays principle, sustainable development and embody the precautionary principle;

 While the BHDs and the WFD cite their main aims as the maintenance of biodiversity and healthy aquatic ecosystems (respectively), they explicitly take account of economic, social, cultural requirements and regional and local characteristics (in the case of the Habitats Directive) and the economic and social development of the Community as a whole (in the case of the WFD);

16 Due to delays in transposing the Directive in many Member States and the limited experience of its application, the information available on 21 July 2006 was not sufficient to enable the Commission to produce a report as required. The Report was duly published in 2009 and can be accessed here: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52009DC0469 17 Recital 4 of the preambles to the Habitats Directive and recitals 6, 7, 8 and 16 SEAD 18 Recital 6 SEAD 19 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy 8

 While there is no direct correspondence between water body types of the WFD and habitat types of the BHDs, EU Guidance explains how the objectives of the BHDs and the WFD can be jointly and effectively managed;

 The BHDs target specific components of aquatic ecosystems such as species or habitats, but also (like the WFD) use species/species groups as indicators of the conservation status of the natural habitat types listed in Annex I. Both Directives help to protect or enhance aquatic ecosystems by either (directly or indirectly) protecting species and habitats;

 The WFD does not change what Member States must achieve for the BHDs - the objectives of both instruments are closely related. The Directives form a joint framework for implementation in water-dependent Natura 2000 sites;

 The use of water body type and its characteristics can be used as guidance for setting joint objectives for the management of the Natura 2000 water bodies in RBMPs and management plans under Article 6(1) of the Habitats Directive. Measures serving the BHDs and WFD objectives must be included in both plans;

 The management measures for aquatic areas/ water dependent systems under the WFD may overlap with the conservation objectives for water dependent Natura 2000 sites. Measures under both Directives must be coordinated and included in the WFD Programme of Measures;

 Both the BHDs and the WFD permit the use of derogations/exemptions for socio-economic reasons under certain conditions. While there are differences in the procedures to be followed under Article 6(4) of the Habitats Directive and Article 4(7) of the WFD, they are compatible - and exemptions from the achievement of the environmental objectives of the WFD cannot be used to deviate from the achievement of objectives under the BHDs (and vice versa). If a measure or plan/project only fulfils the conditions of one Directive, competent authorities may not authorise it under either Directive;

 The requirement to establish a register(s) of protected areas provides the opportunity to integrate the management of WFD wetlands, water dependent Natura 2000 sites and areas protected under national legislation;

 Both the BHDs and the WFD place due emphasis on monitoring. Wherever possible (e.g. fish) joint monitoring should be undertaken in order to save resources and to allow an assessment based on a common data set. This is also advisable in a trans-boundary context;

 The Habitats Directive focuses on habitats and species of Community interest. The WFD looks at presence or absence of certain species (if their presence is a good parameter for the assessment of the status of a specific biological quality element or their absence is essential to determine the ecological status of that water body type). While the differences in objectives, scope and approach result in different monitoring needs, the main objective should be to integrate monitoring as far as possible;

 Both the BHDs and the WFD recognise the importance of involving civil society in implementing the Directives. The stronger requirements for public participation in the WFD reflect subsequent EU commitments to participatory rights under the UNECE Aarhus Convention and associated EU law; and 9

 The obligation to regularly report on progress made under the BHDs and the WFD enables Member States and the Commission to evaluate the extent to which the Directives are not only achieving their own objectives but also contributing to the achievement of other environmental objectives under Community law.

Coherence with the Marine Strategy Framework Directive (Directive 2008/65/EC)

The BHDs form the backbone of the EU’s biodiversity policy, protecting Europe’s most valuable species and habitats. Together, SPAs and SACs form the Natura 2000 network of sites, which provides a central mechanism for ensuring protected species and habitats are maintained at, or restored to, favourable conservation status (FCS).

The purpose of the Marine Strategy Framework Directive (MSFD) is to protect, preserve, prevent deterioration or, where practical, restore Europe’s oceans and seas where they have been adversely affected and to prevent and reduce inputs in to the marine environment. As such, both the BHDs and the MSFD aim at ensuring healthy marine ecosystems while at the same time balancing marine/nature protection with the sustainable use of natural resources.

There are a great many synergies between the BHDs and the MSFD, including mutually supportive objectives, overlapping measures (including the identification of protected areas), the consideration of derogations/exceptions, monitoring, public engagement and reporting.

Areas of commonality include:

 The BHDs and the MSFD are concerned with aspects of biodiversity conservation in the marine environment, including a requirement to achieve good status for the elements of biodiversity covered by each Directive;

 The concepts of good environmental status (GES) and favourable conservation status (FCS) (or status of population (BD)) are not necessarily equivalent but can be mutually supportive. The specific mechanisms of the BHDs (Articles 6 and 12) make an important contribution to achieving the wider objectives of the MSFD. Similarly, the MSFD can help to ensure that Natura 2000 sites are not compromised by addressing degradation outside protected sites;

 The obligation on Member States to take measures in order to achieve or maintain GES by 2020 provides an imperative for the implementation of conservation measures under the BHDs and the opportunity to integrate measures to maintain or achieve FCS for Annex I habitats and Annex II species (and equivalent measures for wild birds) within the programme of measures in marine strategies;

 There is a requirement to take existing environmental targets at national, Community and international level into account when establishing a comprehensive set of environmental targets and associated indicators for their marine waters to guide progress towards achieving GES. Measures for the achievement of FCS under the BHDs therefore provide a starting point for the relevant environmental targets under the MSFD;

 Both the BHDs and the MSFD acknowledge the relationship between the achievement of targets and sustainable use. The Habitats Directive recognises that achieving FCS may require the maintenance, or even the encouragement, of human activities. Similarly, marine strategies under the MSFD are based on an ecosystem based approach to the management of human

activities, ensuring that the collective pressures are within levels compatible with the achievement of GES and the capacity of marine ecosystems to respond to human-induced change;

 The requirements of the BHDs can contribute to the development of marine strategies under the MSFD. A number of the measures required under both instruments have elements in common, such as spatial protection measures, measures to improve the ecological coherence of Natura 2000 under Article 10 of the Habitats Directive and the requirement to take appropriate steps to avoid pollution or deterioration of habitats outside protected areas under Article 4(4) of the Birds Directive;

 Conservation measures identified under Article 6(1) of the Habitats Directive should be integrated into the programme of measures under the MSFD on the basis that measures to achieve/ maintain FCS will generally help the achievement of GES. Similarly, the regime of strict protection established under Article 12 of the Habitats Directive should also be taken into account when drawing up the programme of measures for the marine strategies on the basis that species play a functional role in the protection of habitats and, as such, species protection measures are pivotal to achieving GES;

 The Natura 2000 network is recognised as a component of the programmes of measures pursuant to the objective of achieving or maintaining GES. To adequately cover the full diversity of marine ecosystems under the MSFD, Member States should, where necessary, establish management measures outside Natura 2000 sites and consider broadening the scope of management measures within the Natura 2000;

 Both the BHDs and the MSFD recognise socio-economic considerations, albeit at different stages. Care therefore needs to be taken to ensure that the consideration of socio-economic concerns under the MSFD is in line with the conservation management aspect of HBD;

 The “overriding public interest” exception under Article 14 of the MSFD has fewer safeguards than the Habitats Directive, but cannot take precedence over Article 6 of the Habitats Directive as the Treaty requires that stricter provisions take precedence when more than one applies to the same issue.

 The monitoring requirements of the BHDs and the MSFD are broad, thereby allowing scope for monitoring regimes to be mutually supportive;

 Key stakeholders, including the public, routinely participate in the implementation of the BHDs and the MSFD, with particular emphasis on the establishment of the necessary conservation measures and the setting of environmental targets for marine waters; and

 The reporting of species and habitats under the BHDs, as part of the 2012 initial assessment, has been streamlined with MSFD reporting, so that Member States can report for MSFD on these features using the BHDs reporting formats and timescales (i.e. in 2013 instead of by October 2012).

Coherence with the EIA Directive (Directive 2014/52/EU)

In considering this, WWF specifically sought analysis of coherence in: (i) the triggers for EIA and AA; (ii) the scope and content of the ES/AA; and (iii) the procedures for consultation and public participation.

The original EIA Directive (85/337/EEC) came in to force in 1985. It has subsequently been amended three times - in 1997, 2003 and in 2009. The initial Directive of 1985 and its three 11

amendments were codified by Directive 2011/92/EU of 13th December 2011, which brought the Directive in line with the UNECE Espoo Convention on EIA in a Trans-boundary Context. This Directive was itself amended in 2014 by Directive 2014/52/EU.

In general terms, the 2014 Directive gives particular prominence to the role of EIA in protecting features listed on the BHDs20. This includes requiring Member States to establish coordinated or joint procedures where assessments are required simultaneously under the EIA Directive and the BHDs (similarly where EIA overlaps with assessments required under other EU Directives (including, inter alia, the Water Framework Directive, Strategic Environmental Assessment Directive, Waste Framework Directive and the Industrial Emissions Directive). Such procedures must take into account the specific organisational characteristics of all relevant EU legislation. The joint procedures established under Article 2(3) of the Directive are designed to provide for a single assessment of the environmental impact of a particular project required by all relevant EU legislation. Article 2(3) also obliges the Commission to provide guidance in respect of joint procedures involving EIA and assessments required under the BHDs, Water Framework Directive and the Industrial Emissions Directive.

Areas of Commonality include:

 The definition of “project” in Article 1(2) of the EIA Directive has been relied on by both domestic courts21 and the CJEU22 to define the concept of “plan” or “project” in the Habitats Directive, which seeks (as does the EIA Directive) to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment;

 Member States cannot exclude certain classes of project (AA) or establish thresholds and/or criteria at a level (EIA) such that, in practice, all projects of a certain type would be exempt in advance from the requirement for assessment – unless (in the case of EIA) all the projects excluded could, when viewed as a whole, be regarded as not likely to have significant effects on the environment;

 The 2014 EIA Directive requires Member States to establish coordinated or joint procedures where assessments are required simultaneously under the EIA Directive and the BHDs. The joint procedures established under Article 2(3) of the EIA Directive are designed to provide for a single assessment of the environmental impact of a particular project required by all relevant EU legislation. Article 2(3) of the 2014 EIA Directive also obliges the Commission to provide guidance in respect of joint procedures involving EIA and assessments required under the BHDs, Water Framework Directive and the Industrial Emissions Directive;

 The requirement for EIA and/or AA cannot be circumvented by splitting projects (sometimes called “salami slicing” in respect of EIA). The failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an

20 Preambles 11 and 37, Article 2(3) and Article 3 and Annex III(2)(h)) EIA Directive (2014) 21 See, for example, R (on the application of (1) STEPHEN AKESTER (2) MARC MELANAPHY (ON BEHALF OF THE LYMINGTON RIVER ASSOCIATION)) (Claimant) v (1) DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS (2) WIGHTLINK LTD (Defendants) & (1) LYMINGTON HARBOUR COMMISSIONERS (2) NATURAL ENGLAND (3) NEW FOREST DISTRICT COUNCIL (Interested Parties) [2010] EWHC 232 (Admin), paragraph 70 22 See, for example, Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (C-127/02) [2004] E.C.R. I-7405, paragraphs 25-27 12

assessment when, taken together, they are likely to have significant effects on the environment and/or an SCI;

 Both the EIA Directive and the BHDs include the assessment of the effects of certain public and private projects on the environment. In both cases, the assessment procedure takes place before the project is finally decided upon. The results of that assessment must be taken into consideration when the decision on the project is made, and the decision may be amended depending on the results;

 The purpose of an EIA under the 2014 Directive is to assess the direct and indirect effects of the project on: (a) population and human health; (b) biodiversity, with particular attention to species and habitats protected under the BHDs; (c) land, soil, water, air and climate; (d) material assets, cultural heritage and the landscape; and (e) the interaction between the factors referred to in points (a) to (d). As such, the 2014 Directive places particular emphasis on the protection of features on the BHDs, resource use and prospective impacts on land. The purpose of an AA under the Habitats Directive is to evaluate the implications of the plan or project on the site’s conservation objectives (on the basis, inter alia, of the importance of the sites for the maintenance or restoration at a FCS of an Annex I natural habitat type or an Annex II species and for the coherence of Natura 2000, and of the threats of degradation or destruction to which they are exposed). While the objectives of the assessment procedures are distinct. In broad terms, the purpose of an EIA is to evaluate the potential impacts of the project on the environment generally, whereas the purpose of an AA is to evaluate the potential impact of the plan or project on the features of interest for which the Natura 2000 is designated/classified. However, they clearly overlap, thus providing scope for coordinating survey methodology and evaluation;

 Both the BHDs and the EIA Directive require the ES/AA to identify, describe and evaluate alternatives to the plan or project being proposed23; and

 Both the BHDs and the EIA Directive recognise the importance of involving civil society in implementing the Directives.

Coherence with the Floods Directive (2007/60/EC)

The purpose of the Floods Directive is to reduce and manage the risks that floods pose to human health, the environment, cultural heritage and economic activity. The Directive requires Member States to identify river basins and associated coastal areas at risk of flooding, to draw up flood risk maps and to establish flood risk management plans focused on prevention, protection and preparedness.

The Floods Directive does not make explicit reference to the BHDs. However, Member States are under a duty to take appropriate steps to coordinate the implementation of the Floods Directive with the WFD, which has strong synergies with the BHDs. Particular emphasis is placed on opportunities for improving efficiency, information exchange and for achieving common synergies

23 The 2014 EIA Directive replaces the requirement for an EIA report to outline the “main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects” with a requirement to include a “description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment” (Article 5(1)(d) and Annex IV(2)). This considerably widens the scope of the alternatives that must be considered, bringing the EIA Directive into line with the text of the Strategic Environmental Assessment (SEA) Directive 13

and benefits having regard to the environmental objectives laid down in Article 4 of the WFD24 (which contains provisions in relation to protected areas including Natura 2000 sites25).

In particular:

 The preparation of the preliminary flood risk assessments under Article 4 of the Floods Directive provides an opportunity for Member States to assess the potential risks of flooding on relevant Natura 2000 sites and the achievement of the objectives of the BHDs more generally;

 Flood hazard maps and flood risk maps developed under Article 6 of the Floods Directive must show the potential adverse consequences associated with flood scenarios for protected areas identified in Annex IV(v) of the WFD (including Natura 2000 sites where the maintenance or improvement of the status of water is an important factor in their protection); and

 Flood risk management plans prepared under Article 7 of the Floods Directive must take account of the environmental objectives of Article 4 of the WFD and related provisions on protected areas, including Natura 2000 sites26. Moreover, Member States must take other factors into account in the development of the Plans, including land use and nature conservation27. As such, it can be argued that the ambit of the Plans extends beyond relevant Natura 2000 sites to consider whether, and how, the Plans may affect the achievement of the objectives of the BHDs more generally.

In terms of other areas of commonality, both the BHDs and the Floods Directive:

 Recognise the contribution they make towards achieving the general objective of sustainable development28;

 Include provisions for public participation29. The Floods Directive strengthens opportunities for public engagement by requiring Member States to make the preliminary flood risk assessments, the flood hazard maps, the flood risk maps and the flood risk management plans available to the public and encouraging the active involvement of interested parties in the production, review and updating of the flood risk management plans;

 Reinforce the crucial role of Community action in light of the trans-boundary nature of flooding and measures needed to reduce the risk of flood damage and maintain the Community’s natural heritage30;

 Provide for the establishment of a Committee to assist the Commission in the discharge of duties under the Directive31; and

 Require Member States and the Commission to regularly report on progress made with respect to the implementation of the Directive32.

24 Article 9 Floods Directive 25 Article 4(1) of the WFD states: (c) for protected areas “Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established” 26 Ibid 27 Article 7(3) Floods Directive 28 Recital 3 Habitats Directive and Recital 22 Floods Directive 29 Articles 6(3) and 22 Habitats Directive and Recital 25 and Article 10 Floods Directive 30 Recital 4 Habitats Directive and Recital 23 and Articles 4(3), 5(2), 6(2), 7(4) and 8(1), (2) and (3) Floods Directive 31 Article 20 Habitats Directive and Article 12 Floods Directive 32 Article 17 Habitats Directive, Article 12 Birds Directive and Articles 8(5), 15 and 16 Floods Directive 14

Coherence with the National Emission Ceilings Directive (2001/81/EC)

The National Emission Ceilings Directive (NECD) sets upper limits for the total emissions of pollutants responsible for acidification, eutrophication and ground-level ozone pollution (sulphur dioxide, nitrogen oxides, volatile organic compounds and ammonia) in 2010 for each Member State. The Directive was amended as part of the accession of new Member States and is currently being reviewed as part of the EU’s Clean Air Policy Package33 34.

The 2001 NECD does not make explicit reference to the BHDs. However, its principal aim is to improve the protection of human health and the environment in the Community by limiting emissions of acidifying and eutrophying pollutants and ozone precursors35 and there are numerous references in the Directive to the impact of acidifying and eutrophying substances on the environment, including plants and ecosystems36. Thus, while there is no overt linkage between the two texts, the reduction of atmospheric pollution and consequential impacts on the environment (including vegetation and ecology) is clearly coherent with, and helps to support, the achievement of the objectives of the BHDs.

The proposal for a revised NECD makes reference to the EU’s 7th Environmental Action Programme37 and the long-term objective of achieving levels of air quality that do not give rise to significant negative impacts on the environment and gives a somewhat higher emphasis to the impact of air pollution on ecosystems and biodiversity38.

In particular, the revised Directive enables Member States to make use of monitoring systems established under other EU instruments to monitor the adverse impacts of air pollution on water and terrestrial ecosystems39, including under the WFD40. EU Guidance41 recommends that, wherever possible, joint monitoring under the BHDs and the WFD should be undertaken in order to save resources and to allow an assessment based on a common data set, thus enabling Member States to coordinate monitoring regimes under the BHDs, the WFD and the NECD.

Additionally, there are a number of commonalities in the texts of the BHDs and the NECD with regard to the recognition of fundamental principles of EU environmental law and implementation strategies. For example, both the BHDs and the NECD:

 Recognise the EU’s commitment to sustainable development42 and the precautionary principle43;

 Include provisions for public participation44. The NECD includes opportunities for public engagement by requiring Member States to make the national programmes for the progressive

33 The Clean Air Policy Package was adopted 18 December 2013. See: http://ec.europa.eu/environment/air/clean_air_policy.htm 34 The current proposal for a revised NECD aims to ensure that the current NECs for SO2, NOx, NMVOC and NH3 apply until 2020 and establishes new national emission reduction commitments ("reduction commitments") applicable from 2020 and 2030 for SO2, NOx, NMVOC, NH3, fine particulate matter (PM2,5) and methane (CH4) 35 Article 1 NECD 36 Recital 5 and Article 3(d) NECD 37 See http://ec.europa.eu/environment/newprg/ 38 Recitals 2, 7 and 18 and Article 8 revised NECD 39 Annex V can be accessed at: http://ec.europa.eu/environment/air/pdf/com2013_920/COM_2013_920_F1_ANNEX_EN.pdf 40 Recital 18, Article 8 and Annex V of the revised NECD 41 See Links between the Water Framework Directive and Nature Directives – frequently asked questions (2011) available at: http://ec.europa.eu/environment/nature/natura2000/management/docs/FAQ-WFD%20final.pdf 42 Recital 3 Habitats Directive and Recitals 1 and 3NECD 43 Recital 13 NECD and as embodied in Recital 10 and Article 6(3) Habitats Directive in relation to plans and projects potentially affecting Natura 2000 sites 15

reduction of national emissions of pollutants in Article 4 of the Directive available to the public and appropriate organisations. The EU’s ratification of the UNECE Aarhus Convention has strengthened provisions for public participation in the revised NECD still further;

 Reinforce the crucial role of Community action. While there is explicit recognition of the need to take measures at Community level in Recital 4 of the Habitats Directive, the NECD places great emphasis on the importance of developing harmonised Community measures in light of the trans-boundary threat of atmospheric pollution45. The principle of Community action is maintained in the revised NECD, which harmonises the requirements on national programmes and on the monitoring and reporting of emissions of air pollutants with a view to correcting shortcomings of the 2001 NECD;

 Provide for the establishment of a Committee to assist the Commission in the discharge of duties under the Directives46; and

 Require Member States and the Commission to regularly report on progress made with respect to the implementation of the Directives47. The emphasis on reporting in the NECD reflects the recognition that the objectives of the Directive can only be achieved through coordinated and effective Community action. The revised NECD requires Member States to communicate their NAPCPs (and any updates) and all monitoring information established in accordance with Articles 7 and 8 of the Directive to the Commission. The revised NECD also obliges the Commission to regularly verify the accuracy and completeness of reported national emission inventory data and to report on the implementation of this Directive every five years.

Coherence with the Environmental Liability Directive (2004/35/CE)

The key purpose of the Environmental Liability Directive (ELD) is to establish a framework based on the Polluter Pays Principle (PPP) to prevent and remedy environmental damage as set out in the TFEU48 49. The focus of the ELD is the protection of nature using measures designed to prevent or remedy damage caused to protected species and natural habitats, notably Natura 2000 sites50.

While the Habitats Directive refers to the PPP, it posited that it “can have only a limited application in the special case of nature conservation51”. The ELD was subsequently crafted to develop the PPP as a mechanism of widespread application to support the achievement of the objectives of the BHDs. In order to ensure coherence between the BHDs and the ELD (and indeed the WFD and the MSFD and the ELD), the ELD requires that when a concept derives from other Community legislation, the same definition should be used so that common criteria can be used and uniform application promoted52.

In addition to the commonality of the central aim of the ELD, the Directive:

 Reinforces the importance of sustainable development53;

44 Articles 6(3) and 22 Habitats Directive and Article 6(4) NECD 45 See, inter alia, Recitals 2, 9, 13, 18 NECD 46 Article 20 Habitats Directive and Article 13 NECD 47 Article 17 Habitats Directive, Article 12 Birds Directive and Articles 8 and 9 NECD 48 Article 191(2) TFEU 49 Article 1 ELD 50 The WFD and the MSFD are major reference points for damage to water and another of the three categories of environmental damage under the ELD 51 Recital 11 of the preamble to the Habitats Directive 52 Preamble 5 ELD 53 Recital 3 of the preambles to the Habitats Directive and recitals 2 and 31 of the preambles to the ELD 16

 Adopts the definition of “favourable conservation status54” from the Habitats Directive;

 Strengthens opportunities for civil society to assist in the implementation of the Directives (the ELD includes explicit provisions for requiring relevant natural and legal persons to exercise rights under the Directive);

 Reinforces the crucial role of Community action in light of the trans-boundary nature of the Community’s natural heritage and threats to it55; and

 Requires Member States and the Commission to report on progress made under the Directive56.

Policy Integration - The BHDs and CLIMATE CHANGE

Mandate Question C3: Is there scope for policy integration between the BHDs and other policy objectives, including climate change?

If the existing provisions of the BHDs were fully implemented, Member States would have a robust armoury of tools to address both the causes and effects of climate change. Such provisions include: monitoring the effects of climate change (both within Natura 2000 sites and the wider land/sea scape); the employment of administrative and policy measures to address the causes of site deterioration and improve ecological coherence/connectivity between sites; the encouragement of large scale habitat restoration and recovery to mitigate the impacts of climate change in the longer term; and a forum for international collaboration and cooperation.

The existing text of the BHDs enable site managers and statutory agencies to monitor the impacts of climate change on Natura 2000 sites, to take steps to avoid (as far as possible) the deterioration of sites and to implement policy and management measures in the wider countryside to improve the functional coherence and connectivity of the network and thus enable the network to adapt to climate change. Member States also have the potential to mitigate the impacts of climate change in the longer term through the development of policy measures to encourage wide-scale habitat restoration and recovery, as encouraged by Article 3(2) of the Birds Directive.

Policy Integration – THE BHDSs and ENERGY/TRANSPORT

Mandate Question C4: Are provisions of EU Nature legislation sufficiently taken into account and integrated in to other EU sectoral policies, including transport and energy?

In particular, which policy considerations are relevant when deciding whether energy/transport proposals satisfy Imperative Reasons of Overriding Public Interest (IROPI) in Article 6(4) of the Habitats Directive?

54 Article 2(4)(a) and (b) ELD 55 Recital 28 and Article 15 ELD 56 Recital 31 and Article 18 ELD 17

As regards the TEN-E Regulation on energy infrastructure what is the interrelationship between Art 7 - and more particularly Art 7(8) - and Art 6(4) of the Habitats Directive? Specifically as regards Art 7(8) what is the impact of ‘being of public interest from an energy policy perspective’ (Art 7.8 of TEN-E Regulation)?

There is no case-law on this point yet. However, EU Guidance suggests that “being of public interest from an energy policy perspective" means that infrastructure projects of common interest have the potential to satisfy the IROPI test in Article 6(4) of the Habitats Directive, provided that all the conditions set out in the Habitats Directive are fulfilled, i.e. that there are no alternatives, that compensatory measures to ensure the coherence of the Natura 2000 network are secured and, in the event of adverse effects on priority natural habitat types and/or species, subject to an opinion from the European Commission.

COHERENCE BETWEEN THE BHDS AND OTHER EU, INTERNATIONAL AND GLOBAL COMMITMENTS ON NATURE AND BIODIVERSITY

EU Biodiversity Strategy

The first target of the EU’s Biodiversity strategy is to halt the deterioration in the status of all species and habitats covered by EU nature legislation and to achieve a significant and measurable improvement in their status. As that target can only be achieved if the “full and timely implementation of the BHDs” is attained, the Strategy aims to achieve a significant and measurable improvement in the conservation status of species and habitats protected under the BHDs. Thus, by 2020, 34% of the habitats and 26% of the species should either have reached FCS or shown a significant improvement in their status. Similarly for birds, the aim is for 80% of bird species to be either secure or improving by 2020.

Target two of the Strategy focuses on maintaining and enhancing ecosystem services and restoring degraded ecosystems thus, inter alia, ensuring better functional connectivity between ecosystems within, and between, Natura 2000 areas and in the wider countryside. As such, the Strategy reinforces Articles 3(3) and 10 of the Habitats Directive, which encourage (but do not require) Member States to improve the ecological coherence of Natura 2000 by maintaining, and where appropriate developing, features of the landscape of major importance for wild fauna and flora. Targets three and four are concerned with ensuring the sustainability of agriculture, forestry and fisheries and target five seeks to combat invasive alien species. As the achievement of FCS for species and habitats listed on the Directives is designed to be achieved primarily, but not exclusively, through the Natura 2000 network, the realisation of targets 2, 3, 4 and 5 of the Strategy are also directly relevant to the objectives of the BHDs. Thus, the achievement of the objectives of the two instruments is therefore inextricably linked and mutually supportive.

CBD Aichi Biodiversity Targets 2015-2020

The BHDs directly support at least four of the Aichi targets and indirectly support at least six. Realising the objectives of the BHDs will therefore contribute to the achievement of at least half of the agreed twenty Aichi Biodiversity Targets for 2015-2020.

EU 7th Environmental Action Plan

The aim of the first Priority Objective of the 7th EAP is to protect, conserve and enhance the Union’s natural capital, which includes Natura 2000 and features protected under the BHDs57, thus providing immediate linkage to the BHDs. The EAP notes continuing declines in biodiversity, reinforcing the role of the EU Biodiversity Strategy as a mechanism to improve the implementation of the BHDs. As agriculture and forestry, together, represent 78% of land cover in the Union, the realisation of Priority Objective one requires better integration of natural capital objectives in the development and implementation of other policies, such as agriculture, fisheries and cohesion policy. The EAP also reinforces the importance of the maritime environment and the need to make progress on the completion of the marine Natura 2000 network. Finally, the EAP recognises the importance of restoring degraded ecosystems and expanding the use of Green Infrastructure as a means of overcoming land fragmentation and thus, in combination with the full implementation of the BHDs, further enhancing natural capital and increasing ecosystem resilience.

57 http://ec.europa.eu/environment/basics/natural-capital/index_en.htm 19

2.0 INTRODUCTION

In its 2013 ‘Communication on Strengthening the Foundations of Smart Regulation – improving Evaluation’58 the European Commission notes that:

“The Commission has a long history of evaluating its spending programmes and is committed to evaluating all its activities, including legislative and other non- financial interventions. Whilst there is often a fairly consistent and standard model that applies to the planning and timing of spending programme evaluations, the practice for evaluating regulatory and other policy actions is more varied. The Commission will from now on fulfil its commitment to "evaluate first" and systematically ensure that all significant proposals for a revision are backed up by a robust evaluation of the performance of existing EU action.

Fitness Checks are comprehensive policy evaluations covering more than one piece of legislation. They assess whether the regulatory framework for a policy area is "fit for purpose" and if not, what should be changed. […] Their aim is to identify excessive administrative/regulatory burdens, overlaps, gaps, inconsistencies and/or obsolete measures which may have appeared over time, for launching a discussion of the effectiveness, efficiency, relevance, coherence and EU added value of the actions being considered.”

A Fitness Check follows a standard procedure, also set out in the ‘Communication’. The overall aim is to undertake a comprehensive policy evaluation to assess whether EU legislation is “fit for purpose” on the basis of the following criteria:

1. Effectiveness: Have the objectives been met? 2. Efficiency: Were the costs involved justified, given the changes which have been achieved? 3. Coherence: Does the action complement other actions or are there contradictions? 4. Relevance: Is the EU action still necessary? 5. EU Added value: Can or could similar changes have been achieved without EU action, or did EU action make a difference?

The findings serve as a basis for drawing policy conclusions on how well EU policies have been performing and feed into possible consideration on the future of the relevant regulatory framework.

At the same time, the Commission published a ‘Communication on Regulatory Fitness and Performance (REFIT): Results and Next Steps’59 and as part of this Communication, the Commission announced a "Fitness Check" on EU Nature Legislation (Birds and Habitats Directives).60

This Nature Fitness check focuses on two pieces of legislation, commonly referred to as the Birds and Habitats Directives. These directives provide a common EU framework that sets the standards for nature protection across the European Member States and together establish an EU network of areas of high biodiversity value, called Natura 2000.

The Birds and Habitats Directives are central to achieving the EU 2020 target of halting and reversing the loss of biodiversity endorsed by Heads of State and Government. They are also key tools to give effect to EU commitments under international conventions and agreements

58 COM(2013) 686 final at p 3 http://ec.europa.eu/smart-regulation/docs/com_2013_686_en.pdf 59 COM(2013) 685 final 60 Ibid. p 7; Annex to the Communication, p. 11. 20

such as the Convention on Biological Diversity, the Bern Convention on European Wildlife, the Convention on Migratory Species and the African Eurasian Waterbird Agreement.

The European Offices of WWF will be engaging fully in all stages of the fitness check. In preparation for that engagement, WWF commissioned a legal analysis of a number of the Mandate questions, focusing primarily on the Coherence section. The questions examined the extent to which the Birds and Habitats Directives are coherent with each other and the integration of the BHDs with key provisions of EU environmental legislation, such as the Water Framework Directive, Marine Strategy Framework Directive and EC Directives on Environmental Impact Assessment and Strategic Environmental Assessment. The analysis also addressed coherence with other EU, International and Global commitments on nature conservation and the extent to which the BHDs can satisfactorily address the implications of a warming climate.

3.0 COHERENCE BETWEEN THE HABITATS DIRECTIVE AND THE BIRDS DIRECTIVE

The Birds and Habitats Directives (BHD) form the backbone of the EU’s biodiversity policy, protecting Europe’s most valuable species and habitats. The protected areas designated under these directives form the “Natura 2000” network and, together with the Directives’ species protection requirements, they are the central mechanism for ensuring protected species and habitats are maintained at, or restored to, favourable conservation status.

3.1 An Overview of the Birds Directive

The Birds Directive61 creates a comprehensive scheme of protection for all wild bird species naturally occurring in the Union. It provides a framework for the conservation and management of, and human interactions with, wild birds in Europe. The main provisions of the Birds Directive include:

• The maintenance of the populations of all wild bird species across their natural range (Article 2) with the encouragement of various activities to that end (Article 3);

• The identification and classification of Special Protection Areas (SPAs) for rare or vulnerable species listed in Annex I of the Directive (as well as for all regularly occurring migratory species), paying particular attention to the protection of wetlands of international importance (Article 4);

• The establishment of a general scheme of protection for all wild birds naturally occurring in the European territories. Article 5 of the Directive requires Member States to ban the deliberate killing or capture of all species of wild birds. This ban also applies to damaging nests and eggs and the taking or keeping of eggs. The keeping of wild birds and the deliberate disturbance of birds is also contrary to the Birds Directive, particularly during the breeding season;

• Restrictions on the sale and keeping of wild birds (Article 6);

• Specification of the conditions under which hunting and falconry can be undertaken (Article 762);

• Prohibition of large-scale non-selective means of bird killing (Article 8);

• Procedures under which Member States may derogate from the provisions of Articles 5-8 (Article 9);

• Encouragement of certain forms of relevant research (Article 10 and Annex V); and

• Requirements to ensure that the introduction of non-native birds do not threaten other biodiversity (Article 11).

61 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (this is the codified version of Directive 79/409/EEC as amended) 62 Huntable species are listed on Annex II of the Directive 22

3.2 An Overview of the Habitats Directive

The foundations of the Habitats Directive lie in Articles 130r63 and 130s64 of the Single European Act 1986. In light of deteriorating habitats and serious threats to wild species65, the European Community took collective action in agreeing that the principle aim of the Habitats Directive was “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 applies66”.

The Habitats Directive67 focuses on habitats and species of European importance. The aim of the Directive is to promote the maintenance of biodiversity by requiring Member States to take measures to maintain or restore natural habitats and wild species listed on the Annexes to the Directive at a Favourable Conservation Status (FCS). The main provisions of the Habitats Directive include:

 The maintenance or restoration of European protected habitats and species listed in the Annexes at FCS (Articles 1 and 2);

 While Article 2(3) of the Directive acknowledges that measures taken pursuant to it “shall take account of economic, social and cultural requirements and regional and local characteristics68”, CJEU case-law has subsequently confirmed that Member States may not take account of economic requirements when choosing and defining the boundaries of SPAs69 and may not take account of economic, social and cultural requirements or regional and local characteristics when selecting and defining the boundaries of Special Areas of Conservation (SACs)70;

63 “Artide 130r*- 1. Action by the Community relating to the environment shall have the following objectives: (i) to preserve, protect and improve the quality of the environment; (ii) to contribute towards protecting human health; (iii) to ensure a prudent and rational utilization of natural resources. 2. Action by the Community relating to the environment shall be based on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source, and that the polluter should pay. Environmental protection requirements shall be a component of the Community's other policies. 3. In preparing its action relating to the environment, the Community shall take account of: (i) available scientific and technical data; (ii) environmental conditions in the various regions of the Community; (iii) the potential benefits and costs of action or of lack of action; (¡v) the economic and social development of the Community as a whole and the balanced development of its regions. 4. The Community shall take action relating to the environment to the extent to which the objectives referred to in paragraph 1 can be attained.” 64 “Article 130s* - The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall decide what action is to be taken by the Community. The Council shall, under the conditions laid down in the preceding subparagraph, define those matters on which decisions are to be taken by a qualified majority.” 65 Recital 4, Habitats Directive 66 Article 2 and Recital 3, Habitats Directive 67 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora 68 See also Recital 3, Habitats Directive 69 Case C-44/95, United Kingdom – “Lappel Bank” 70 Case C-71/99, Commission v Germany, Case C-220/99, Commission v France, C-371/98, United Kingdom – “First Corporate Shipping”; Case C-67/99, Commission v Ireland and Case C-226/08, Stadt Papenburg v Bundesrepublik Deutschland 23

 The creation of a coherent European ecological network of protected sites comprising SACs for habitats listed on Annex I and for species listed on Annex II and SPAs classified under Article 4 of the Birds Directive. Together SACs and SPAs comprise the Natura 2000 network (Article 3);

 Conservation measures to appropriately manage SACs and ensure the appropriate assessment of plans and projects likely to have a significant effect on the integrity of an SAC. Projects may still be permitted if there are no alternatives, and there are imperative reasons of overriding public interest. In such cases compensatory measures are necessary to ensure the overall coherence of the Natura 2000 network (Article 6);

 Article 6(3)71 holds that any plan or project not directly connected with or necessary to the management of the site, but which is likely to have a significant adverse effect on it (either individually or in combination with other plans and projects) shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. Competent national authorities shall only 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;

 Article 6(4) confirms that 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 (IROPI) – 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. Where the site concerned hosts a priority habitat and/or species, the only considerations that may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the European Commission, to other imperative reasons of overriding public interest72;

 Management of features of the landscape that support the Natura 2000 network (Articles 3 and10);

 Surveillance of habitats and species (Article 11);

 Articles 12 and 13 establish a system of strict protection for species listed on Annex IV. The Directive prohibits the following for Annex IV(a) animals: (i) all forms of deliberate capture or killing of specimens in the wild; (ii) deliberate disturbance (particularly during breeding, rearing, hibernation and migration); (iii) deliberate destruction or taking of eggs from the wild; (iv) deterioration or destruction of breeding sites or resting places; and (v) the keeping, transport, sale and exchange of specimens taken from the wild. The Directive requires the following for Annex IV(b) plants: (i) deliberate picking, collecting, cutting, uprooting or destruction in their natural range in the wild; and (ii) the keeping, transport, sale and exchange of specimens taken from the wild;

 Article 16 clarifies the circumstances in which Member States may derogate from the requirements of Articles 12 and 13 of the Directive. Providing there is no satisfactory alternative and derogating is not detrimental to the maintenance of the population(s) of the species concerned at FCS in their natural range, Member States may derogate from the requirements of Articles 12, 13, 14 and 15(a) and (b) of the Directive:

o in the interest of protecting wild fauna and flora and conserving natural habitats;

71 See also recital 10, Habitats Directive 72 See also recital 9, Habitats Directive 24

o to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property; o 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; o for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants; o 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.”

 Periodic (every six years) reporting on the implementation of the Directive, including the assessment of the conservation status of species and habitats listed on the Annexes;

 Article 1973 sets out the procedure for amending Annexes I, II, III, V and VI in light of technical and scientific progress. Such amendments shall be adopted by the Council acting by qualified majority on a proposal from the Commission. Necessary amendments to Annex IV of the Directive shall be adopted by the Council acting unanimously on a proposal from the Commission.

3.3 Key areas of commonality between the Habitats Directive and the Birds Directive

Important areas of commonality between the Habitats Directive and the Birds Directive include:

 Aim - the objective of the Habitats Directive is to maintain or restore the habitats and species protected under the Directive at Favourable Conservation Status74 (FCS). The Birds Directive requires Member States to take the requisite measures to maintain the population of all European wild bird species at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level75. This obligation has generally been considered analogous to FCS by those working in the scientific and policy fields, although it has not been confirmed in domestic or EU case-law.

 Central tenets – both instruments recognise the need for measures at the Community level due to the trans-frontier nature of the resource76.

 Natura 2000 – both Directives require the identification and designation/classification of a coherent suite of sites. The Habitats Directive requires Member States to designate Special Areas of Conservation (SACs) for the protection of natural habitat types listed in Annex I and species listed in Annex II of the Directive77. The Birds Directive requires Member States to classify Special Protection Areas (SPAs) for Annex I of the Birds Directive and migratory birds78. Together, these sites form the European Natura 2000 Network.

73 See also recital 18, Habitats Directive 74 Recital 6 of the preamble to the Habitats Directive and Article 2(2) of the Habitats Directive 75 Article 2, Birds Directive 76 Recital 3 of the Birds Directive and recitals 4 and 11 of the Habitats Directive 77 Recital 7 and Article 3(1) Habitats Directive 78 Recital 9 and Article 4(1) Birds Directive 25

 Species protection – both Directives require Member States to establish regimes of strict protection for species inside and outside Natura 2000 sites. The regime established under the Birds Directive applies to all wild European bird species79, whereas the Habitats Directive provides protection for endangered species listed in Annex IV(a) and (b)80. Both Directives permit Member States to derogate from the regime in certain circumstances81.

 Socio-economic factors – both Directives allow Member States to take socio-economic factors into account when implementing the Directives82 (although Member States are prohibited from taking account of economic, social and cultural requirements or regional and local characteristics when selecting and defining the boundaries of Natura 2000 sites83). Article 6 of the Habitats Directive sets out the circumstances in which Member States may take account of such factors in relation to Natura 2000 sites.

 Sustainable use – both instruments permit the “exploitation” of certain species including, for example, hunting84 and fishing85.

 Measures outside protected areas – both Directives encourage Member States to take measures outside Natura 2000 to improve the ecological coherence of the network. Article 4(4) of the Birds Directive requires Member States to strive to avoid the pollution or deterioration of habitats outside SPAs. Article 10 of the Habitats Directive urges Member States to use land-use planning and development policies to encourage the management of features of the landscape which are of major importance for wild fauna and flora86.

 Monitoring and reporting - both Directives place reliance on surveillance and reporting in order to ensure the objectives of the Directives are being achieved87.

 Introductions – both Directives seek to ensure the introduction of species not naturally occuring in the EU territory does not prejudice local fauna and flora88. The Habitats Directive also requires Member States to study the desirability of re-introducing species listed in Annex IV of the Directive that are native to their territory where this may contribute to the achievement of FCS89.

 Research – both instruments recognise the value of necessary research and scientific work90, including the exchange of information in the interests of coordination at the EU level.

 Provision to amend the Annexes – both Directives provide for a mechanism to review the Annexes in the light of technical and scientific progress91.

79 Article 5 Birds Directive 80 Recital 15 and Articles 12 and 13 Habitats Directive 81 Article 9 Birds Directive and Article 16 Habitats Directive 82 Recital 6 and Article 9 Birds Directive and recital 3 and Articles 2(3), 6(4) and 16 Habitats Directive 83 See Case C-44/95, UK – “Lappel Bank” in respect of SPAs and cases C-371/98, UK – “First Corporate Shipping” and C-67/99, Commission v Ireland in respect of SACs 84 Article 7 covers the hunting of species listed in Annex II to the Birds Directive. See also Recital 11 to the preambles to the Directive 85 Article 14 Habitats Directive 86 See also recital 13 of the preamble to the Habitats Directive 87 Recital 16 and Articles 4(3) and 12 Birds Directive and recital 16 and Articles 12(1), 12(2) and 17 of the Habitats Directive 88 Recital 15 and Article 11 Birds Directive and Article 22(b) Habitats Directive 89 Article 22(a) Habitats Directive 90 Article 10 Birds Directive and recital 17 and Article 18 Habitats Directive 26

4.0 COHERENCE WITH THE STRATEGIC ENVIRONMENTAL ASSESSMENT DIRECTIVE (2001/42/EEC92)

4.1 Introduction

The objective of the SEA Directive (SEAD) is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development. These aims are achieved by ensuring that an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment93.

4.2 Scope

Article 3 of the SEAD makes it mandatory for Member States to carry out an environmental assessment (EA) for plans and programmes relevant to the following areas which are likely to have significant environmental effects:

(a) Agriculture, forestry, fisheries, energy, industry, transport, waste management, water management94, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to the EIA Directive95; or

(b) Plans or programmes requiring assessment under Article 6(3) of the Habitats Directive96.

Member States have the discretion to determine whether plans and programmes listed in (a) which determine the use of small areas at local level and minor modifications to plans and programmes are likely to have significant environmental effects, and thus require an EA97. Similarly, Member States enjoy discretion as to whether plans and programmes other than those referred to in (a) above, which set the framework for future development consent of projects, are likely to have significant environmental effects98.

The determination of significant environmental effects is done through case-by-case examination or by specifying types of plans and programmes (or a combination of both approaches). For this purpose, Member States must take into account criteria in Annex II of the Directive and consult

91 Recital 17 and Article 15 Birds Directive and recital 18 and Article 19 Habitats Directive 92 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 93 Article 1, SEAD 94 Note that in case C-43/10, the CJEU held that a project for the partial diversion of the waters of the river Acheloos was not regarded as a plan or programme falling within the scope of the SEAD 95 Article 3(2)(a) SEAD 96 Article 3(2)(b) SEAD 97 Article 3(3) SEAD 98 Article 3(4) SEAD 27

relevant authorities identified under Article 6(3)99. Member States must publish their reasoning for either requiring, or not requiring100, an EA.

Article 3(8) exempts the following plans and programmes from the SEAD:

 Plans and programmes the sole purpose of which is to serve national defence or civil emergency; and  Financial or budget plans and programmes.

The EA must be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative process.

4.3 Environmental Report

Article 5(1) of the SEAD requires the Environmental Report (ER) prepared on the basis of an EA to identify, describe and evaluate the likely significant effects of implementing the plan or programme on the environment and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.

There are overlaps between the assessment procedures conducted under the SEAD and the BHDs. Any EA carried out under the SEAD is without prejudice to any requirements under the EIA Directive and “any other Community law requirements101”, including appropriate assessment under the Habitats Directive. Moreover, where an obligation to undertake assessments arises simultaneously from the SEAD and other Community legislation (including the BHDs), Member States may provide for coordinated or joint procedures102.

The consideration of alternatives under the SEAD is more restricted than that required under Article 6(4) of the Habitats Directive, which only enables Member States to sanction plans or projects adversely affecting the integrity of Natura 2000 sites, inter alia, in the absence of alternative solutions.

Information to be provided in the ER is set out in Annex I of the SEAD and may include relevant information on the environmental effects of the plans and programmes obtained through other Community legislation, such as the BHDs. The authorities identified under Article 6(3) of the SEAD must be consulted when deciding on the scope and level of detail of the information included in the ER.

99 Article 6(3) SEAD requires Member States to designate the authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes 100 Pursuant to Articles 4 and 9 of the SEAD 101 Article 11(1) SEAD 102 Note that in Case C-295/10 , the CJEU held that Article 11(2) of Directive 2001/42 must be interpreted as not placing Member States under an obligation to provide, in national law, for joint or coordinated procedures in accordance with the requirements of the SEAD and the EIA Directive 28

4.4 Public participation

There is some recognition of the value of public involvement in the consideration of plans and programmes in Article 6(3) of the Habitats Directive and the desirability of re-introducing species listed in Annex IV of the Directive103. However, in 1979 and 1992104, the integration of participatory rights into domestic and EU law was in its infancy. As may be expected, the text of the SEAD prescribes these rights more explicitly. Article 6 of the SEAD requires Member States to ensure that both the draft plan or programme and the ER are made available to the authorities and the public105 and that all parties (the authorities and the public, including environmental NGOs) are given an early and effective opportunity to submit their views on the draft plan or programme and the ER before the adoption of the plan or programme or its submission to the legislative procedure.

Where a plans or programmes is likely to have significant effects on the environment in another Member State, Article 7 of the SEAD obliges the Member State in whose territory the plan or programme is being prepared to consult the other Member State(s). This can initiate a bi-lateral consultation procedure resulting in detailed arrangements to ensure that relevant authorities and the public in the Member State likely to be significantly affected are given the opportunity to submit views within a reasonable time-frame.

The Environmental Report and the results of the any consultations undertaken (including trans- boundary consultations) must be taken into account before the adoption of the plan or programme or submission to the legislative procedure106. Once the plan or programme is adopted, the environmental authorities and the public must be informed and relevant information is made available to them107.

4.5 Monitoring

Article 10 of the SEAD requires Member States to monitor the significant environmental effects of the implementation of plans and programmes in order, inter alia, to identify unforeseen adverse effects, and to be able to undertake appropriate remedial action. Where appropriate and in order to prevent duplication, Member States may use existing monitoring arrangements, thereby providing an opportunity for monitoring schemes under the BHDs108 to be integrated with those operating under the SEAD.

4.6 Information, reporting and review

Article 17(1) of the Habitats Directive requires Member States to draw up a report on the implementation of the measures taken under the Directive, including: (i) information on the

103 Article 22(a), Habitats Directive 104 The year of adoption of the Birds and Habitats Directives respectively 105 Article 6(1) SEAD 106 Article 8 SEAD 107 Article 9 SEAD 108 Recital 16 and Articles 4(3) and 12 Birds Directive and recital 16 and Articles 12(1), 12(2) and 17 of the Habitats Directive 29

conservation measures referred to in Article 6(1); (ii) an evaluation of the impact of those measures on the conservation status of the natural habitats types in Annex I and the species in Annex II; and (iii) the main results of the surveillance referred to in Article 11. The report must be submitted to the Commission and made accessible to the public. On the basis of these reports, the Commission must prepare a composite report evaluating the progress achieved, with particular emphasis on the contribution of the Natura 2000 network to the achievement of the objectives set out in Article 3 of the Directive.

Article 12 of the SEAD obliges Member States to exchange information on the experience gained in applying the Directive. The Commission was required to issue a first report on the application and effectiveness of the Directive to the European Parliament and to the Council by 21st July 2006109, with further evaluation reports at seven-year intervals.

109 Due to delays in transposing the Directive in many Member States and the limited experience of its application, the information available on 21 July 2006 was not sufficient to enable the Commission to produce a report as required. The Report was duly published in 2009 and can be accessed here: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52009DC0469 30

5.0 COHERENCE WITH THE WATER FRAMEWORK DIRECTIVE (Directive 2000/60/EC110)

5.1 General remarks

The BHDs form the backbone of the EU’s biodiversity policy, protecting Europe’s most valuable species and habitats. Together, SPAs and SACs form “Natura 2000”, which provides the central mechanism for ensuring protected species and habitats are maintained at, or restored to, favourable conservation status (FCS).

The aim of the Water Framework Directive (WFD) is to establish a framework for the protection of all surface waters and groundwater with the progressive aim of reaching good environmental status in all waters by 2015 or at set milestones thereafter. Whilst there are specific targets to be achieved as set out in all three Directives it is clear that ‘aiming to reach’ GES is weaker than a requirement to manage or restore to the standard of FCS as set out in the BHDs.

Both the BHDs and the WFD aim at ensuring healthy aquatic ecosystems while at the same time ensuring a balance between water/nature protection and the sustainable use of natural resources. There are many synergies and the implementation of measures under the WFD should generally benefit the objectives of the BHDs. However, poor implementation of the WFD has led to the provisions for extensions under the WFD being applied (wrongly in WWF’s view) thereby leading to the delay of achieving FCS for certain protected sites within the UK.

5.2 Origin and central tenets

The basis for the BHDs and the WFD are the “Environment” title of the Treaty. The foundations of the WFD lie in the Treaty of Amsterdam111, which introduced a number of changes to the Single European Act 1986112 including an explicit reference to subsidiarity113 within the context of Community action on the environment114.

110 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy 111 Available at: http://europa.eu/eu-law/decision- making/treaties/pdf/treaty_of_amsterdam/treaty_of_amsterdam_en.pdf 112 Articles 174 and 175 of the Amsterdam Treaty replacing Art 130r and 130s of the SEA 1986 respectively 113 The principle of subsidiarity is defined in Article 5 of the Treaty on European Union. It ensures that decisions are taken as closely as possible to the citizen and that constant checks are made to verify that action at Union level is justified in light of the possibilities available at national, regional or local level. Specifically, it is the principle whereby the Union does not take action (except in the areas that fall within its exclusive competence), unless it is more effective than action taken at national, regional or local level. It is closely bound up with the principle of proportionality, which requires that any action by the Union should not go beyond what is necessary to achieve the objectives of the Treaties 114 Article 130r(2) SEA 1986 was replaced by the following: ”2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay…In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause 31

Notwithstanding the above, the BHDs and the WFD recognise the crucial role of Community action in light of the trans-boundary nature of both resources and threats to them115. Both instruments also explicitly recognise the polluter pays principle116, sustainable development117 and embody the precautionary principle118. Similarly, whilst the BHDs and WFD cite their main aims as the maintenance of biodiversity and healthy aquatic ecosystems respectively, they explicitly take account of economic, social, cultural requirements and regional and local characteristics (in the case of the Habitats Directive119) and the economic and social development of the Community as a whole (in the case of the WFD120). Both also recognise the importance of involving civil society in implementing the Directives121 and place due emphasis on monitoring122 and reporting123 (see later).

5.3 The Objectives of the BHDs and the WFD

The BHDs form the cornerstone of the EU’s biodiversity policy, protecting Europe’s most valuable species and habitats. Together, SPAs and SACs form the “Natura 2000” network of sites, which comprise the central mechanism for ensuring protected species and habitats are maintained at, or restored to, FCS. The principal aim of the Habitats Directive is “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 applies124”.

The main objectives of the WFD for surface waters are: (i) to prevent the deterioration of status; (ii) to reach good ecological and chemical status (Good Ecological Potential (GEP) and good chemical status in artificial and heavily modified water bodies) generally by 2015; and (iii) to implement necessary measures to progressively reduce pollution from priority substances (including ceasing or phasing out emissions, discharges and losses of priority hazardous substances).

The main objectives for groundwater are to reach good quantitative status and good chemical status in all groundwater bodies. The definition of good status for groundwater bodies includes not

allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.” 115 Recital 4 of the preambles to the Habitats Directive and recitals 9, 14, 18, 23, 35 of the preambles to the WFD 116 Recital 11 of the Habitats Directive and recitals 11, 38 and Article 9(1) of the preambles to the WFD. Note the reference to the principle is qualified in the Habitats Directive by stating that it has limited application in the field of nature conservation 117 Recital 3 of the preambles to the Habitats Directive and Article 7(c) of the WFD 118 See explicit references in recitals 11 and 44 of the preambles to the WFD and recital 10 and Article 6(3) of the Habitats Directive, which requires an appropriate assessment of any plan or project on the integrity of Natura 2000 sites 119 Recital 3 of the preambles and Article 2(3) of the Habitats Directive and recital 12 of the preambles to the WFD 120 The principal objective of the WFD is to protect and defend water as a natural EU heritage and not as a commercial product thereby providing a sustainable ecosystem service 121 Articles 6(3), 17(1) and 22(a) of the Habitats Directive and recitals 14 and 46 of the preambles and Article 14 of the WFD 122 Articles 11 and 12(4) Habitats Directive and Articles 7(1), 8, 11(5) of the WFD 123 Recital 16 of the preambles, Articles 16 and 17 of the Habitats Directive and recital 46 of the preambles and Articles 15(2) and 18 of the WFD 124 Article 2 and recital 3 of the preambles to the Habitats Directive 32

only the protection of the proper groundwater, but also the protection of directly dependent surface water and terrestrial ecosystems125.

Article 4(1)(c) covers protected areas, including Natura 2000 sites. Article 4(1)(c) states: “Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established.”

As Natura 2000 sites are protected areas under Article 4(1)(c) of the WFD, Member States are obliged to establish the necessary measures to ensure the maintenance of (or restoration to) FCS for water-dependant Annex I natural habitat types and Annex II species in their bio-geographical region by 2015. According to EU Guidance126, this includes indirect effects on birds within SPAs, natural habitat types on Annex I and species on Annex II of the Habitats Directive.

The WFD does not change what Member States must achieve for the BHDs (although it provides an imperative, as Member States must achieve compliance with any standards and objectives (as required by existing Directives) by 2015127). The Directives form a joint framework for implementation in water-dependent Natura 2000 sites. As such, the measures serving the BHDs and WFD objectives must be included in the River Basin Management Plans (RBMPs) required under Article 13 of the WFD128 as well as management plans under Article 6(1) of the Habitats Directive.

5.4 The scope of the BHDs and the WFD

The WFD addresses all surface waters: rivers, lakes, transitional waters and coastal waters. These “water categories” are divided into surface water types that have been defined using selected abiotic criteria129 and which form the basic unit for water management under the WFD. The WFD also addresses groundwater, which are also divided into water bodies forming the basic water management unit under the WFD.

Common Implementation Standards (CIS) for the WFD Guidance Document No. 2 on the identification of water bodies130 recommends that water bodies are delineated as far as possible taking into account protected areas, because:

"… there are additional objectives to be considered for water bodies which are also fully part of a protected area. Hence, the existing boundaries of protected areas may be considered for the identification of water bodies under the Water Framework Directive.

125 WFD Annex V, 2.1.2 and 2.3.2 126 See Links between the Water Framework Directive and Nature Directives – frequently asked questions (2011) available at: http://ec.europa.eu/environment/nature/natura2000/management/docs/FAQ-WFD%20final.pdf 127 Article 4(1)(c) WFD 128 Case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and Others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and Others established that Articles 13(6) and 24(1) of the WFD must be interpreted as respectively fixing 22 December 2009 as the date of expiry of the period allowed to Member States for the publication of RBMPs 129 Listed in Annex II, 1.2 WFD 130 Common Implementation Strategy (CIS) for the Water Framework Directive Guidance Document No. 2: Identification of Water Bodies, section 3.3.2. Available at: https://circabc.europa.eu/sd/a/655e3e31-3b5d-4053-be19- 15bd22b15ba9/Guidance%20No%202%20-%20Identification%20of%20water%20bodies.pdf 33

[…] In case a water body would not fully be inside or outside a protected area, it may be considered to sub-divide the water bodies into two parts so that the boundaries coincide".

The Habitats Directive defines a site as "a geographically defined area whose extent is clearly delineated131". A Site of Community importance (SCI) is a site "which, in the bio-geographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II …132". A SPA is a territory designated by the Member State for the conservation of the bird species listed in Annex I of the Birds Directive and migratory bird species taking into account their protection requirements in the geographical sea and land area where the Directive applies133.

In the Habitats Directive, natural habitats are defined as terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features. This includes open sea and tidal area habitats as well as freshwater habitats (standing waters and running waters).

There is, therefore, no direct correspondence between water body types of the WFD and habitat types of the BHDs. The typology of water bodies required under the WFD is more detailed and requires the consideration of a number of different abiotic parameters134.

As all waters are divided into water bodies, all aquatic Annex I habitats of the Habitats Directive are part of water bodies. In a water-dependent Natura 2000 site, the aquatic Annex I habitats of the Directive can be included in either one or in several water bodies. In many cases, the Natura 2000 sites are much larger than the water bodies and the same site may include several water bodies. However, whatever the relationship between the water body(ies) and the Natura 2000 site(s) is, EU Guidance holds that it “should not pose any particular problem in managing WFD and BHDs objectives135”.

5.5 Integrating the assessment of biological quality elements and habitats/species in the WFD and BHDs

The aim of the WFD is to use the species (of the biological quality elements identified in the WFD) as indicators of the ecological status of the aquatic ecosystem. The biological quality elements are generally phytoplankton, (benthic) aquatic flora, benthic invertebrates and fish, and the assessment is generally based on species composition and abundance.

The BHDs targets specific components of aquatic ecosystems such as species or habitats. The Habitats Directive sets the parameters for assessing the health of these components/ecosystems with features such as range, areas, population size and structure and functions of habitats for long- term maintenance. The Habitats Directive can also use species/species groups as indicators of the conservation status of the natural habitat types listed in Annex I as they can indicate the state of the specific structure and functions of the habitat type. When assessing the status of habitats, the

131 Article 1(j) Habitats Directive 132 Article 1(k) Habitats Directive 133 See Article 4(1) Birds Directive 134 See Annex II, 1.2 WFD 135 See Links between the Water Framework Directive and Nature Directives – frequently asked questions (2011) available at: http://ec.europa.eu/environment/nature/natura2000/management/docs/FAQ-WFD%20final.pdf 34

BHDs therefore come close to the aim of ecological status assessment, i.e. assessing the structure and function of the aquatic ecosystem.

The Directives are coherent as, in protecting the biodiversity of species and habitats (either directly or indirectly) and the sustainable use of their components, they help to protect or enhance aquatic ecosystems.

5.6 The integration of differing objectives for water bodies under the BHDs and the WFD

Article 4(2) of the WFD states: "Where more than one of the objectives under paragraph 1 relates to a given body of water, the most stringent shall apply.”

EU Guidance on the links between the BHDs and the WFD136 clarifies that where two objectives set in legislation affect the same matter (e.g. if a certain concentration of phosphorus is needed to achieve GES under the WFD and a more stringent value is needed to achieve a site's conservation objectives under the BHDs), then the latter applies.

However, the Guidance also explains that it is not always easy to decide whether one objective fully covers the other, nor is it always straight forward to determine which objective is the more stringent. For example, the objectives for species and habitats in the BHDs, whilst applied at the site level need to be established in the context of the bio-geographical region, whereas the objectives of the WFD relate to water bodies. Thus, the measures must first be aligned in order to assess which measures must be taken.

Problems may occur where artificially changed or created conditions favour Natura 2000 species at the expense of achieving GES under the WFD. The Guidance suggests that, in principle, restoration towards GES should prevail on the basis that the whole ecosystem, not simply specific species or habitats, are benefitting. In such cases, EU Guidance argues the objectives of Natura 2000 species or habitats should be modified to reflect the objectives of the WFD. Exceptions to this general rule are justifiable where, for example, it would be impossible to maintain at/restore to an Annex I natural habitat type or Annex II species at FCS or where deterioration is the result of a restoration measure and should not be considered as a deterioration of status137. A report arising from a recent workshop on the WFD, MSFD and the BHDs addresses this issue.138

The Guidance also suggests that integrating management objectives for surface waters under the BHDs and WFD is generally not problematic as all of the Annex I natural habitat types listed in the Habitats Directive (of which there are about thirty) can be characterised as surface waters under the WFD. Where Annex I natural habitat types or Annex II species are not characteristic of a water body type, the Guidance confirms their protection should not prevail over the restoration of a water body, unless the latter is required for the achievement of FCS in the national bio-geographical region. For example if you have a wetland area supporting non-wetland habitats or species on the Habitats Directive, the conservation of the wetland should be prioritised – unless losing the non-

136 Ibid 137 EU Guidance gives several examples, including where a compensation requirement under Article 6(4) of the Habitats Directive leads to a change in water body type (e.g. from a freshwater marsh to a tidal lagoon) 138 EC (2015) Workshop on coordinated implementation of nature, biodiversity, marine and water policies (2-3 December 2014 Brussels), Summary Report (Final, 30/1/2015). 35

wetland Habitats Directive habitat/species would compromise its ability to achieve FCS within that BGR.

To summarise, therefore, the use of water body type and its characteristics can be used as guidance for setting joint objectives for the management of the Natura 2000 water bodies in both RBMPs and management plans under Article 6(1) of the Habitats Directive.

5.7 Integrating targets and deadlines

The BHDs do not specify a date by which species and natural habitat types must be maintained at, or restored to, FCS. However, that does not mean the obligation is open-ended. Where the features for which a site is designated as a Natura 2000 site are already at FCS, no further deterioration must occur139, i.e. the target of FCS applies from the date at which the site is designated (within six years of the notification of the Directive140).

Member States must establish the necessary conservation measures corresponding to the ecological requirements of the Annex I habitats and Annex II species present on all sites as soon as they are formally adopted by the Commission as Sites of Community Importance141 (equally as soon as sites are classified as SPAs under the Birds Directive).

Member States must also demonstrate clear progress in achieving FCS142 and must take appropriate steps to avoid the deterioration of natural habitats and the habitats of species for which the areas have been designated143. The reporting deadlines in the BHDs apply equally to water-dependent Natura 2000 sites identified under the WFD (and included in the register under Article 6 of the WFD).

Article 4(1)(c) of the WFD states: ‘for protected areas Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established.’ Thus, Natura 2000 sites covered by Article 4(1)(c) WFD must achieve FCS by 22nd December 2015.

While certain exemptions are possible, due account must be taken of possible consequences for achieving the objective under the BHDs. For example, the deadlines established under Articles 4(1) (a) and (b) of the WFD can only be extended where "no further deterioration occurs in the status of the affected body of water144". Moreover, the application of the extension must not “permanently exclude or compromise the achievement of the objectives of the WFD in other bodies of water within the same river basin district145" and the application must be “consistent with the implementation of other Community environmental legislation146". In any event, steps must be undertaken to ensure that the application of extensions "guarantees at least the same

139 Articles 6(1) and (2) Habitats Directive 140 Article 3(4) Habitats Directive 141 Article 6(1) Habitats Directive 142 Article 17(1) Habitats Directive 143 Article 6(2) Habitats Directive 144 Article 4(4) WFD 145 Article 4(8) WFD 146 Ibid 36

level of protection as the existing Community legislation147". Finally, the WFD also stipulates that the application of exemptions must be indicated and justified in the RBMPs148.

5.8 Coordinating RBMPs and management plans under Article 6(1) Habitats Directive

Article 13 of the WFD requires Member States to develop RBMPs for river basin districts. These plans must integrate all aspects of water management, including, where relevant, measures under other EU legislation such as the BHDs.

The core section of the RBMP is the programme of measures149, which identifies the necessary measures to reach the environmental objectives for all surface waters and groundwater by 2015. The programme of measures must include the necessary “basic measures" (consisting of Community legislation and other measures) and may include "supplementary measures" (any additional measures needed to reach the environmental objectives). The BHDs are listed as basic measures150. Thus, the programme of measures must include any measures necessary to achieve compliance with standards and objectives for Natura 2000 sites listed in the register of protected areas151 as far as their ecological status is concerned. Measures required under the BHDs can be included either directly into the RBMPs or as a reference to the relevant Natura 2000 management plan or other conservation instruments containing Natura 2000 related conservation measures.

The Programme of Measures must also take into account the provisions of Article 12 of the Habitats Directive on the strict protection of animal and plant species listed in Annexes IV (a) and (b) of the Habitats Directive. Such measures may also apply outside SCIs152.

The Habitats Directive recognises the ecological coherence of the Natura 2000 network is essential for the long-term survival of species and habitats. Member States are obliged to establish the necessary conservation measures corresponding to the ecological requirements of the habitats in Annex I and species in Annex II present on Natura 2000 sites153 and must take appropriate steps to avoid the deterioration of natural habitats and the habitats of species for which the areas have been designated154. If needed, appropriate management plans may specifically be designed for the sites or integrated into other development plans155 (such as the RBMPs).

As many habitats listed on Annex I of the Habitats Directive are also aquatic areas or water- dependent systems, the measures proposed under BHDs and WFD may overlap. As far as water bodies in water-dependent protected areas are concerned, measures under both Directives must be coordinated and included in the WFD Programme of Measures.

147 Article 4(9) WFD 148 Article 4(4)(b) WFD 149 Article 11 WFD 150 Annex VI, Part A WFD 151 Article 6 WFD 152 See Links between the Water Framework Directive and Nature Directives – frequently asked questions (2011) available at: http://ec.europa.eu/environment/nature/natura2000/management/docs/FAQ-WFD%20final.pdf 153 Article 6(1) Habitats Directive 154 Article 6(2) Habitats Directive 155 Article 6(1) Habitats Directive 37

5.9 Integrating the management of Heavily Modified and Artificial Natura 2000 sites

Under Article 4(3) of the WFD, Member States may, if certain conditions are fulfilled, classify water bodies as heavily modified (HMWB) or artificial water bodies (AWB). Such bodies are required to reach Good Ecological Potential (not GES).

The designation of a water body as heavily modified is done regardless of whether that water body forms part of a Natura 2000 site and does not change the conservation objectives established under the Habitats Directive (as the site will already contribute to maintaining the population of the protected species or the habitats in its present state). Similarly, the obligation to avoid deterioration and make progress towards FCS under the Habitats Directive continues to apply.

However, Member States are required to take measures under the WFD after designation of the water body as heavily modified in order to ensure the water body achieves GEP. In general, such measures will also benefit the achievement of FCS. Where the present status of the water body satisfies the required GEP but does not allow progress towards FCS, Member States are still required to take additional measures under the BHDs. Such measures should be inserted in management plans and, as far as water related measures is concerned, also be reflected in the RBMP, as will be measures to achieve the objectives under Article 4(1)(c) of the WFD.

5.10 The integration of Articles 6(3) and (4) of the Habitats Directive and Article 4(7) of the WFD – derogations and exemptions

Article 6(3) of the Habitats Directive states that any plan or project not directly connected with or necessary to the management of the site, but which is likely to have a significant adverse effect on it (either individually or in combination with other plans and projects) shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. 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.

Article 6(4) confirms that 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 (IROPI) – 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. Where the site concerned hosts a priority habitat and/or species, the only considerations that may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the European Commission, to other imperative reasons of overriding public interest156.

Article 4(7) of the WFD states that Member States will not be in breach of the Directive when:

 failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or

156 See also recital 9 of the preambles to the Habitats Directive 38

groundwater is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater, or

 failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities and all the following conditions are met:

(a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

(b) the reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 and the objectives are reviewed every six years;

(c) the reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development, and

(d) the beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option.

In Nomarchiaki Aftodioikisi Aitoloakarnanias and Others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and Others157, the CJEU held that the transfer of water from one river basin to another (here from the upper waters of the river Acheloos to Thessaly) must not jeopardise the realisation of the objectives laid down by the WFD. Consent may be given if the conditions set out in Article 4(7)(a) to (d) are satisfied. However, the CJEU also held that the fact that it is impossible for the receiving river basin or river basin district to meet from its own water resources its needs in terms of drinking water, electricity production or irrigation is not essential for such a transfer of water to be compatible with the WFD, provided that the conditions listed in Article 4(7)(a) to (d) are satisfied.

Where a plan or project under Article 6(3) of the Habitats Directive could have an impact on a water body, EU Guidance158 confirms that Article 4(7) of the WFD is engaged where, on the basis of an appropriate assessment under Article 6(3) of the Habitats Directive, it cannot be excluded that the plan or project is likely to cause a deterioration of the ecological status of the water body, or affect the ability of the water body to meet its objectives under the WFD. In this eventuality, competent authorities should assess whether the conditions of Article 4(7) WFD are fulfilled.

Where a new development would cause deterioration in the status of a water body and a failure to achieve the objectives of a Natura 2000 site, the criteria for the use of derogations/exemptions in both the BHDs and the WFD must be fulfilled, i.e.:

157 Case C-43/10 – judgment available at: http://eur-lex.europa.eu/legal- content/EN/TXT/?qid=1417516460206&uri=CELEX:62010CJ0043 158 See Links between the Water Framework Directive and Nature Directives – frequently asked questions (2011) available at: http://ec.europa.eu/environment/nature/natura2000/management/docs/FAQ-WFD%20final.pdf 39

 The conditions set out in Article 6(4) of the Habitats Directive for authorising plans or project with significant adverse effects on a Natura 2000 site must be met; and

 The relevant conditions set out in Article 4(7) (a-d) of the WFD for allowing deterioration of status must be met to the extent that it is a water body.

Both the BHDs and the WFD permit the use of derogations/exemptions for socio-economic reasons under certain conditions. Some of the issues that must be addressed under Article 6(4) of the Habitats Directive and Article 4(7) of the WFD are common (e.g. the need to demonstrate IROPI) but some are distinct – such as the absence of alternatives and the requirement to provide compensatory measures under Article 6(4) of the Habitats Directive.

In the Nomarchiaki Aftodioikisi Aitoloakarnanias and Others case159, the CJEU examined the compatibility of a project for the partial diversion of the upper waters of the river Acheloos to Thessaly in Greece with Article 4(7) of the WFD and Article 6(3) and (4) of the Habitats Directive. The project intended to serve not only the irrigation and electricity production needs of the region of Thessaly but also the supply of water to towns and cities in that region.

The CJEU held that where the transfer is liable to have adverse effects on water under Article 4(7) of the WFD, consent may be given if the conditions set out in Article 4(7) (a) to (d) are satisfied. Moreover, the fact that it is impossible for the receiving river basin or river basin district to meet its own needs in terms of drinking water, electricity production or irrigation is not essential for such a transfer of water to be compatible with the WFD, provided the conditions set out in Article 4(7)(a) to (d) are satisfied. In this respect, reference was made to Recital 15 of the WFD (which recognises that the supply of water is a service of general interest) and Article 4(3)(a)(iii), which exempts artificial and heavily modified water bodies from reaching GES where that would have significant adverse effects on activities for the purposes of which water is stored, such as drinking-water supply, power generation or irrigation.

With respect to Natura 2000 sites, the CJEU held that Articles 6(3) and (4) of the Habitats Directive prohibit the grant of consent for a project involving the diversion of water which is not directly connected with or necessary to the conservation of an SPA, but which is likely to have a significant effect on it (and in the absence of information or of reliable and updated data concerning the birds in that area). However, Article 6(4) of the Habitats Directive must be interpreted as meaning that grounds linked, on the one hand, to irrigation and, on the other, to the supply of drinking water, relied on in support of a project for the diversion of water, may constitute IROPI.

Where such a project adversely affects the integrity of a SCI hosting a priority natural habitat type and/or a priority species, the Court held that its implementation may, in principle, be justified by grounds linked with the supply of drinking water. In some circumstances, it might be justified by reference to beneficial consequences of primary importance which irrigation has for the environment. On the other hand, irrigation cannot, in principle, qualify as a consideration relating to human health and public safety, justifying the implementation of a project such as the river Acheloos diversion.

EU Guidance holds that IROPI may also vary depending on the scale of the project and the expected impacts and benefits (e.g. relevance at local, regional or national scale). Ultimately, however, IROPI is to be determined on a case by case basis by the Member and is not a matter to be

159 Op cit at 155 40

prescribed in legislation. Generally, however, IROPI should only apply where plans or projects are indispensable within the framework of:

 Actions or policies aiming to protect fundamental value for citizen's lives (health, safety, environment); and/or

 Fundamental policies for the state and the society - carrying out activities of an economic or social nature, fulfilling specific obligations of public services.

Article 6(4) of the Habitats Directive is only engaged in the absence of alternative solutions. While Article 6(3) does not explicitly require Member States to examine alternative solutions, EU Guidance on the Habitats Directive160 clarifies the need for an assessment of alternatives before invoking IROPI.

Article 4(7)(a) of the WFD obliges Member States to ensure that "all practicable steps are taken to mitigate the adverse impact on the status of the body of water" and, when applying the exemptions in Article 4 of the WFD, Member States are obliged to take steps to ensure at least the same level of protection as existing Community legislation applies161. As such, exemptions from the achievement of the environmental objectives of the WFD cannot be used to deviate from the achievement of objectives under the BHDs (and vice versa).

Thus, if a measure or plan/project only fulfils the conditions of one Directive, competent authorities may not authorise it under either Directive (in which case it should be assessed whether amendments can be made to the measure or plan/project so that it satisfies the requirements of both Directives).

5.11 Register of Protected Areas

Article 6(1) of the WFD requires the establishment of a register(s) of protected areas "which have been designated as requiring special protection under specific Community legislation for the protection of their surface water and groundwater or for the conservation of habitats and species directly depending on water". The register must contain "areas designated for the protection of habitats or species where the maintenance or improvement of the status of water is an important factor in their protection, including relevant Natura 2000 sites …162".

Any Natura 2000 site with water-dependent Annex I habitat types or Annex II species or with water-dependent bird species of Annex I or migratory bird species of the Birds Directive, where the presence of these species or habitats has been the reason for their designation, must be included in the register of protected areas under Article 6 of the WFD163. These areas are summarised as

160 See Flow Chart of the Article 6(3) and (4) procedure (from MN2000) in relation to the stages of the guidance in Assessment of plans and projects significantly affecting Natura 2000 sites - Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC (2002) available at: http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/natura_2000_asses s_en.pdf 161 Article 4(9) WFD 162 Annex IV, (v) WFD 163 See CIS Guidance No. 12 on wetlands, section 5.1 available via: http://ec.europa.eu/environment/water/water-framework/facts_figures/guidance_docs_en.htm 41

"water-dependent Natura 2000 sites" and for these Natura 2000 sites, the objectives of both the BHDs and the WFD apply.

Annex IV of the WFD also requires Member States to include protected areas in the register if they have been "designated for the protection of habitats or species where the maintenance or improvement of the status of water is an important factor in their protection". As such, areas protected under national legislation can be included in the register in order to ensure that the water relevant objectives of the WFD are contributing to the protection of species and habitats. EU Guidance164 suggests this is helpful because the BHDs also contain provisions for habitats and species occurring outside Natura 2000 sites165 and these provisions must also be taken into account when implementing the WFD. Member States enjoy discretion in deciding which areas under national protection fulfilling the above requirements are to be included in the register.

5.12 Monitoring under the BHDs and the WFD

By contrast, Article 8 of the WFD contains very detailed monitoring requirements for surface waters and stipulates that monitoring programmes for protected areas "shall be supplemented by those specifications contained in Community legislation under which the individual protected areas have been established166".

In Commission v Malta167, the CJEU held that by failing to establish monitoring programmes on the status of inland surface water and make them operational and by failing to submit summary reports on the monitoring programmes on the status of inland surface water, Malta had failed to fulfil its obligations under Articles 8(1) and 15(2) of the WFD.

While the biological quality elements or organism groups that need to be monitored under WFD and BHDs will differ, the EU guidance168 identifies that there may be some biological quality elements where joint monitoring is beneficial (e.g. fish). In any event, the Guidance clarifies that, wherever possible, joint monitoring should be undertaken in order to save resources and to allow an assessment based on a common data set. This is also advisable in a trans-boundary context.

164 See Links between the Water Framework Directive and Nature Directives – frequently asked questions (2011) available at: http://ec.europa.eu/environment/nature/natura2000/management/docs/FAQ-WFD%20final.pdf 165 See Articles 3 and 5 of the Birds Directive and Articles 12 and 13 and Annex IV of the Habitats Directive 166 Article 8(1) and Annex V, 1.3.5 167 Case C-351/09 168 See Links between the Water Framework Directive and Nature Directives – frequently asked questions (2011) available at: http://ec.europa.eu/environment/nature/natura2000/management/docs/FAQ-WFD%20final.pdf 42

5.13 The relationship between GES/potential of the WFD and FCS in the BHDs

The aim of the BHDs is to ensure that Annex I habitats and Annex II species are maintained at, or restored to, FCS and that their long-term survival is deemed secure across their natural range169. The coherent European ecological network of sites (Natura 2000) established under Article 3(1) of the Habitats Directive makes a substantial contribution to the achievement of FCS. The conservation objectives, established for SACs under Article 4(4) of the Habitats Directive, must also be taken into consideration. Member States must also adopt strict protection regimes for species listed on Annex IV of the Habitats Directive. Such measures also contribute to fulfilling the main objective of the Directive.

The Habitats Directive does not require Member States to look at all species in a water body – the Directive focuses on habitats and species of Community interest.

The WFD defines Ecological status as “an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters170”. EU Guidance explains that because ecological status assessment is type-specific, surface waters are divided into types and their undisturbed reference conditions defined. The assessment of ecological status is based on the deviation of the status from its type-specific reference conditions and is supported by selected physicochemical and hydromorphological elements.

Ecological status is classified in accordance with the normative definitions for high, good and moderate status for each of the biological, hydromorphological, and physicochemical quality elements. By inter-calibrating GES it can be ensured that Member States' definitions are consistent with the normative definitions and their assessment results comparable.

The Good Ecological Potential (GEP) is established for heavily modified water bodies. Ecological status/potential of the aquatic fauna and flora is assessed in terms of species composition and abundance.

The WFD looks at presence or absence of certain species, only if their presence is a good parameter for the assessment of the status of a specific biological quality element or their absence is essential to determine the ecological status of that water body type.

These differences in objectives, scope and approach result in different monitoring needs. Nonetheless, synergies in monitoring programmes should be considered and the main objective should be to integrate monitoring as far as possible.

5.14 Public Participation

169 Article 2(1) Habitats Directive 170 Article 2(21) WFD 171 Article 6(3) Habitats Directive 172 Article 22(a) Habitats Directive 43

on many aspects, including the designation of Natura 2000 sites173 and the establishment of the necessary conservation measures174.

Article 14(1) of the WFD requires Member States to actively involve all interested parties in the implementation of the Directive, in particular in the production, review and updating of the RBMPs. While Member States are not under a duty to adopt framework legislation in order to implement the provisions of the WFD, in Commission v Luxembourg175, the CJEU found against Luxembourg for failing to implement any measures enabling individuals to ascertain, well in advance, the full extent of their rights under Article 14(1) and (2) of the WFD. Moreover, parallel infraction proceedings taken by the Commission have resulted in a number of judgments against Member States for failure to fulfil the public information and consultation procedure in Article 14(1)(c) of the WFD176. However, note that in the Nomarchiaki Aftodioikisi Aitoloakarnanias and Others case 177, the CJEU held that management plans for river basins adopted on 2 August 2006 (i.e. before the deadline of 22nd December 2009) cannot be regarded as management plans falling within Articles 13 to 15 of the WFD. As such, the obligation stemming from Article 14(1) of that directive does not apply to plans produced before 22nd December 2009.

The RBMPs must include measures related to the implementation of the BHDs in order to achieve compliance with standards and objectives for Natura 2000 sites as far as the ecological status of the water bodies is concerned.

5.15 Reporting

Article 17(1) of the Habitats Directive requires Member States to draw up a report on the implementation of the measures taken under the Directive, including: (i) information on the conservation measures referred to in Article 6(1); (ii) an evaluation of the impact of those measures on the conservation status of the natural habitats types in Annex I and the species in Annex II; and (iii) the main results of the surveillance referred to in Article 11. The report must be submitted to the Commission and made accessible to the public. On the basis of these reports, the Commission is obliged to prepare a composite report evaluating the progress achieved, with particular emphasis on the contribution of the Natura 2000 network to the achievement of the objectives set out in Article 3 of the Directive.

Article 15 of the WFD requires Member States to send copies of the RBMPs and all subsequent updates to the Commission and to any other Member State concerned within three months of their publication. Member States are also required to submit summary reports of the analyses under Article 5 and the monitoring programmes designed under Article 8 undertaken for the purposes of the first RBMP within three months of their publication. Finally, within three years of the publication of the RBMPs, Member States must submit an interim report describing progress in the implementation of the planned progress of measures. Under Article 18 of the WFD, the Commission is obliged to publish, and submit to the European Parliament and the Council, a

173 Article 4(4) Habitats Directive 174 Article 6(1) Habitats Directive 175 Case C-32/05 176 See, for example, Case C-297 Commission v Greece, C-403/11 Commission v Spain, C-366/11 Commission v Belgium, C-223/11 Commission v Portugal, 177 Op cit at 155 44

report on the implementation of the Directive, at the latest 12 years after the date of entry into force of the WFD (and every six years thereafter).

The obligation to regularly report on progress made under the BHDs and the WFD enables Member States and the Commission to evaluate the extent to which the Directives are not only achieving their own objectives but also contributing to the achievement of other objectives under Community law.

6.0 COHERENCE WITH THE MARINE STRATEGY FRAMEWORK DIRECTIVE (MSFD) (Directive 2008/65/EC178)

6.1 Origins and central tenets

The basis for the BHDs and the MSFD are the “Environment” title of the EC Treaty. The MSFD was adopted in 2008 and its foundations lie in the Treaty of Nice179, which entered into force on 1st February 2003180.

The BHDs recognises that threatened habitats and species form part of the Community's natural heritage, that threats to them are often of a trans-boundary nature and that it is necessary to take measures at Community level to conserve them181. Some fourteen years later, and in light of the fluidity and trans-boundary nature of the resource, the MSFD is peppered with references to the crucial role of Community action182. Both the BHDs and the MSFD explicitly recognise the polluter pays principle183, sustainable development184 and embody the precautionary principle185. The MSFD, post the Amsterdam Treaty, references both subsidiarity and proportionality186.

6.2 The objectives of the BHDs and the MSFD

The BHDs form the backbone of the EU’s biodiversity policy, protecting Europe’s most valuable terrestrial and marine species and habitats. Together, SPAs and SACs form the Natura 2000 network, which provides a central mechanism for ensuring European protected species and habitats are maintained at, or restored to, FCS.

The principal aim of the Habitats Directive is “to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European

178 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) 179 Available via: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12001C/TXT 180 Article 175(1) of the Treaty of Amsterdam replaced Article 130r of the Single European Act 1986 with the following text: “2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay…In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure”. The Treaty of Nice made no change to Article 175 of the Treaty of Amsterdam 181 Recital 4 of the preambles to the Habitats Directive 182 See, for example, recitals 16, 19, 28, 2, 8, 9, 10, 23, 31, 32, 41, 42 and 43 of the preambles and Articles 12, 13(5), 15, 19, 20, 21 and 22 of the MSFD 183 See recital 11 of the Habitats Directive and recital 27 of the MSFD. The reference to the principle is qualified in the Habitats Directive by stating that it has limited application in the field of nature conservation 184 Recital 3 of the preambles to the Habitats Directive and recital 45 and Article 13(3) of the MSFD 185 See explicit references in recitals 27 and 44 of the preambles to the MSFD and recital 10 and Article 6(3) of the Habitats Directive, which requires an appropriate assessment of any plan or project on the integrity of Natura 2000 sites 186 See recital 43, MSFD. The principles of subsidiarity and proportionality essentially hold that the MSFD does not go beyond what is necessary in order to achieve its objectives 46

territory of the Member States to which the Treaty applies187”. This aim is to be achieved through measures designed to “maintain or restore, at favourable conservation status188, natural habitats and species of wild fauna and flora of Community interest”189.

The Birds Directive is concerned with the conservation of all naturally occurring wild bird species and covers their protection, management and control190. Article 2 of the Birds Directive obliges Member States to “take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of those species to that level”. While not expressly referencing FCS, the aim of the Birds Directive as set out in Article 2 is considered analogous to FCS (although there is no CJEU case-law on this).

The MSFD establishes a framework within which Member States shall take the necessary measures to achieve or maintain Good Environmental Status (GES) in the marine environment191 and, as such, is intended to deliver the environmental pillar of the future maritime policy for the European Union192. The purpose of the MSFD is to “protect, preserve, prevent deterioration or, where practical, restore Europe’s oceans and seas where they have been adversely affected and to prevent and reduce inputs in the marine environment193”. The Directive is underpinned by the application of the ecosystem based approach to the management of human activities, whilst ensuring the sustainable use of marine goods and services.

The MSFD sets an ambitious target for Member States to take the necessary measures to achieve or maintain GES in the marine environment by the year 2020 at the latest. GES is defined as194:

“‘Good environmental status’ means the environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions, and the use of the marine environment is at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations, i.e.:

(a) the structure, functions and processes of the constituent marine ecosystems, together with the associated physiographic, geographic, geological and climatic factors, allow those ecosystems to function fully and to maintain their resilience to human-induced environmental change. Marine species and habitats are protected, human-induced decline of biodiversity is prevented and diverse biological components function in balance;

(b) hydro-morphological, physical and chemical properties of the ecosystems, including those properties which result from human activities in the area concerned, support the ecosystems as described above. Anthropogenic inputs of substances and energy, including noise, into the marine environment do not cause pollution effects.”

The MSFD takes a regional approach to the achievement of GES. Annex I contains 11 qualitative descriptors for determining GES at the marine region or sub-region level, including maintaining biodiversity (Descriptor 1).

187 Article 2 and recital 3 of the preambles to the Habitats Directive 188 As defined in Article 1(e) and 1(i) of the Habitats Directive 189 Article 2(2) Habitats Directive 190 Article 1(1) Birds Directive 191 Article 1.1 MSFD 192 Ibid 193 Article 1.2(a) and (b), MSFD 194 Article 3(5), MSFD 47

Article 10 of the MSFD requires Member States to establish a comprehensive set of environmental targets and associated indicators for their marine waters to guide progress towards achieving GES. Where possible, existing environmental targets at national, Community and international level must be taken into account and be mutually compatible (similarly, the indicative list of characteristics to be taken into account when setting environmental targets set out in Annex IV of the MSFD also highlights the need for environmental targets to be compatible with existing Community and Member State commitments195). The measures for the achievement of FCS under the BHDs therefore provide a robust starting point for the relevant environmental target under MSFD.

Notwithstanding the above, there are a number of broad differences between the BHDs and the MSFD. First, in terms of scope, the MSFD aims, inter alia, to achieve and maintain GES by taking an inclusive approach to all marine biodiversity. By way of contrast, the BHDs focus on the conservation of particular habitats and species (including all wild birds) throughout the territory of the EU.

Secondly, while there is no set timescale for achieving FCS under the BHDs, the MSFD requires Member States to take measures in order to achieve or maintain GES by 2020. The MSFD therefore provides an imperative for the implementation of conservation measures under the BHDs and the opportunity to integrate measures to maintain or achieve FCS for Annex I habitats and Annex II species (and equivalent measures for wild birds) within the programme of measures in respective marine strategies.

Thirdly, whilst both instruments have the maintenance of biodiversity as a central goal, the MSFD is a framework Directive and therefore necessarily less detailed. The BHDs are constructed to achieve their objectives via two principal mechanisms - the establishment of Natura 2000196 and a system of strict protection for all wild birds and species listed in Annex IV (strict protection) and Annex V (subject of exploitation)197. There are comparable measures in the MSFD. The programmes of measures incorporate spatial protection measures198, the first qualitative descriptor for determining GES is that biological diversity is maintained199 and the indicative lists of characteristics, pressures and impacts in Annex III include a description of the population dynamics, natural and actual range and status of other species occurring in the marine region or sub-region which are the subject of Community legislation or international agreements. Clearly, however, Member States enjoy discretion as to how the measures in the MSFD are implemented.

There is an underlying synergy between the maintenance of, or restoration towards, FCS under the BHDs and the achievement of GES under the MSFD. Both instruments have prescriptive, measureable targets, but acknowledge the relationship between the achievement of targets and sustainable use. The Habitats Directive recognises that the maintenance of biodiversity may require the maintenance, or even the encouragement, of human activities200. Similarly, marine strategies under the MSFD are based on an ecosystem based approach to the management of

195 See Annex IV, indicative characteristic 11, MSFD 196 Natura 2000 aims to protect the natural habitat types and the habitats of species listed in Annexes I and II of the Habitats Directive and the 193 species of bird listed in Annex I of the Birds Directive, particularly areas deemed important for breeding, feeding, resting or staging 197 Articles 5-9 Birds Directive and Articles 12-16 Habitats Directive 198 Article 13(4) MSFD 199 Annex I MSFD 200 Recital 3 of the preambles to the Habitats Directive 48

human activities, ensuring that the collective pressures are within levels compatible with the achievement of GES and the capacity of marine ecosystems to respond to human-induced change.

All in all, the specific mechanisms of the BHDs can, and do, make an important contribution to achieving the wider objectives of the MSFD. Similarly, the MSFD can help to ensure that Natura 2000 sites are not compromised by addressing degradation outside protected sites.

6.3 The relationship between GES and FCS

The Habitats Directive defines FCS for habitats and species in Articles 1(e) and 1(i) respectively. Article 17 of the Directive obliges Member States to submit regular reports on the conservation status of features listed on the Directive. The Article 17 reports submitted to the Commission cover: (i) general information about the implementation of the Directive; (ii) the assessments of conservation status of species; and (iii) for habitats. Conservation status is assessed using a standard methodology to facilitate aggregation and comparisons between Member States and bio- geographical regions. Conservation status is assessed as either ‘favourable’, ‘unfavourable- inadequate’ and ‘unfavourable-bad’, based on parameters Article 1 of the Habitats Directive (range, area, structure and functions and future prospects in the case of habitats and range, population, habitat of species and future prospects in the case of species). Where there is significant uncertainty the conservation status can be reported as ‘unknown’. The assessments of the four parameters are combined following an agreed method to give an overall assessment of conservation status201.

Under Article 12 of the Birds Directive, Member States must assess the status and trends of wild birds throughout the European territory of Member States (the Birds Directive does not distinguish between bio-geographic regions).

For practical reasons, marine habitats and species are assessed within five marine regions. These regions correspond to similar marine regions under the MSFD, although their boundaries may not always coincide202. GES is defined in Article 3(5) of the MSFD (see above) at the level of a marine region or sub-region and on the basis of the 11 qualitative descriptors set out in Annex 1 of the Directive. GES is broad in scope dealing with large marine areas, incorporates sustainable use, and is concerned with biological diversity, water quality, ecosystem structure and function, and impacts on these elements203.

201 Further information here: http://forum.eionet.europa.eu/x_habitat- art17report/library/papers_technical/reporting_ver1pdf 202 See Links between the Marine Strategy Framework Directive (MSFD 2008/56/EC) and the Nature Directives (Birds Directive 2009/147/EEC (BD) and Habitats Directive 92/43/EEC (HD)) (2012), Table 1, page 10. Available here: http://ec.europa.eu/environment/nature/natura2000/marine/docs/FAQ%20final%202012-07- 27.pdf 203 The Commission has subsequently published a Decision on criteria and methodological standards on good environmental status of marine waters (2010/477/EU) covering the descriptors in Annex I of the MSFD. The criteria and indicators given for assessing progress with descriptor 1 (biological diversity is maintained) are comparable to the criteria used to determine FCS of the habitats and species listed on the Habitats Directive across their natural range. The Decision is available here: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32010D0477(01)&from=EN 49

EU Guidance suggests that the assessments of FCS and GES at the individual species/ habitat level are broadly similar because they are assessed at similarly large scales using comparable criteria204. The Guidance recognises, however, that further work is needed to fully understand the relationship between the two types of assessment, with a view to seeking greater harmonisation of the two processes and their outcomes, e.g. through full alignment of the marine regions used for assessment.

The achievement of FCS for the relevant marine species and habitats under the BHDs is likely to be a key aspect in assessing the achievement of GES for the biodiversity components of the MSFD. Moreover, measures taken under the Habitats Directive outside Natura 2000 sites to avoid deterioration of the features within SACs are also likely to contribute to achieving GES. The corollary of this is that if FCS is not achieved at a particular level (whether Member State or biogeographic region), this could also undermine the achievement of GES for biodiversity components on the same scale.

Finally, EU Guidance points out that the basis for the assessment of FCS (e.g. population dynamics and supporting structure and function) and GES (the condition of food webs and water quality) are mutually supportive - but not necessarily equivalent205. FCS and GES are most likely to be equivalent in relation to species whose populations are widely dispersed and/or affected by the condition of a range of habitats regardless of whether they are listed in the Habitats Directive. The achievement of FCS for the harbour porpoise, for example, may depend on a range of aspects within an MSFD region achieving GES as these species range widely, feed on prey from many different habitat types as well as from pelagic and benthic ecosystems, and could be affected by any of the descriptors for assessing GES.

6.4 Coherence between the key measures required under the BHDs and the MSFD

There is a good degree of commonality in measures required under the BHDs and MSFD. Member States are, for example, required to draw up a programme of measures for each marine region or sub-region to achieve or maintain GES under the MSFD. This shall include “spatial protection measures contributing to coherent and representative networks of Marine Protected Areas, adequately covering the diversity of the constituent ecosystems such as protected areas” required under the BHDs as well as other types of marine protected area set up under international or regional agreements206.

Article 6(1) of the Habitats Directive provides for appropriate management plans to be integrated into “other development plans”. Such management plans could usefully be taken into account by Member States when preparing the programme of measures under the MSFD on the basis that measures to achieve/ maintain FCS should generally help achieve GES.

The Habitats Directive also establishes a regime of strict protection for species listed in Annex IV across their natural range207 (similar provisions apply for wild birds under Article 5 of the Birds Directive). This regime should also be taken into account when drawing up the programme of measures for the marine strategies on the basis that species play a functional role in the protection of habitats and, as such, species protection measures are pivotal to achieving GES.

There are other potential overlaps between the Directives, including measures to improve the ecological coherence of Natura 2000 (Article 10 of the Habitats Directive) and the requirement to take appropriate steps to avoid pollution or deterioration of habitats outside protected areas (Article 4(4) of the Birds Directive).

204 Ibid, para 26 205 Ibid, paragraphs 30 and 31 206 Article13(4) MSFD 207 Article 12 Habitats Directive 50

6.5 Coherence between protected area mechanisms under the BHDs and the MSFD

Natura 2000 is intended to form a “coherent European ecological network” of sites hosting Annex I habitats and the habitats of Annex II species. The network makes a major contribution to the achievement of FCS for those features208 and is supported by a regime of strict protection for Annex IV species209 and wider conservation measures.

The starting point for the MSFD is a broad ecosystem-based approach to the management of human activities with protected areas recognised as one spatial management mechanism210. The programmes of measures established under Article 13(2) of the Directive must include “coherent and representative networks of MPAs, adequately covering the diversity of the constituent ecosystems” such as SACs and SPAs.

Article 6(1) of the Habitats Directive obliges Member States to establish the necessary conservation measures to maintain or restore habitats and species to FCS. Article 6(2) requires Member States to take appropriate steps to avoid the deterioration of habitats and the habitats of species present. To adequately cover the full diversity of marine ecosystems under the MSFD, Member States should, where necessary, establish management measures outside Natura 2000 sites and consider broadening the scope of management measures within the Natura 2000.

6.6 The consideration of socio-economic considerations and the application of exceptions in the BHDs and the MSFD

While both the BHDs and the MSFD take account of economic and social considerations, the stage at which they can be engaged is different. In general terms, socio-economic considerations come into play in the BHDs during the decision-making process governing the destruction of, or damage, to Natura 2000 sites211. Under the MSFD, socio-economic considerations are engaged with respect to exceptions to the obligation on Member States to achieve environmental targets or GES212 and the development of marine strategies for marine regions and sub-regions213.The Habitats Directive states that measures taken pursuant to it shall take account of economic, social, cultural requirements and regional and local characteristics214. The aim of the Birds Directive is to take measures to maintain the population of wild bird species at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements or to adapt the population of these species to that level215. The CJEU has held that economic and social considerations are not relevant to the identification and designation/classification of sites under the BHDs216. However, the Habitats Directive sets out a process whereby Member States can take such factors into account when deciding whether to approve plans or projects not directly connected with or necessary to the management of the site that will have an adverse impact on site integrity.

208 Article 3(1) Habitats Directive 209 Article 12 Habitats Directive 210 Article 13(4) MSFD 211 Article 6(4) Habitats Directive 212 Article 14 MSFD 213 Article 5 MSFD 214 Recital 3 of the preambles and Article 2(3) of the Habitats Directive 215 Article 2 Birds Directive 216 See, in relation to SPAs, case C-44/95, United Kingdom – “Lappel Bank” and, in relation to SACs, cases C-71/99, Commission v Germany, C-220/99, Commission v France, C-371/98, United Kingdom – “First Corporate Shipping”; C-67/99, Commission v Ireland, C-226/08, Stadt Papenburg v Bundesrepublik Deutschland 51

Article 6(4) of the Directive confirms that 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 (IROPI) – 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. Where the site concerned hosts a priority habitat and/or species, the only considerations that may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the European Commission, to other imperative reasons of overriding public interest.

Article 14 of the MSFD provides a number of exceptions to the obligation on Member States to achieve environmental targets or GES (or to achieve them within the time schedules set out by the Directive). Under such circumstances, appropriate ad hoc measures must be taken to continue pursuing the targets and preventing further deterioration in the status of the marine waters affected and to mitigate the adverse impact at the level of the marine region or sub-region concerned or in the marine waters of other Member States. Member States must also ensure that any modifications or alterations “taken for reasons of overriding public interest which outweigh the negative impact on the environment, including any trans-boundary impact” do not preclude or compromise the achievement of GES at the level of the marine region or sub-region217.

The “overriding public interest” exception under Article 14 of the MSFD has fewer safeguards than the Habitats Directive (there is no requirement to take compensatory measures for example), although Member States are prohibited from permanently compromising the achievement of GES by failing to take steps218. However, the MSFD exceptions cannot take precedence over Article 6 of the Habitats Directive as the Treaty requires that stricter provisions take precedence when more than one applies to the same issue.

Article 5 of the MSFD requires Member States to develop marine strategies for each marine region or sub-region. The preparation of the strategies includes an economic and social analysis of the use of the waters and of the cost of degradation of the marine environment219. Member States must also take into account the “pressures or impacts of human activities in each marine region or sub- region” as part of the process of determining GES under Article 9 of the MSFD. Similarly, when drawing up the programmes of measures under Article 13 of the MSFD, Member States must also give due consideration to sustainable development and, in particular, to the social and economic impacts of the measures envisaged. In particular, Member States must ensure that measures are cost-effective and technically feasible, and carry out impact assessments, including cost-benefit analyses, prior to the introduction of any new measure220. The requirement to consider social and economic factors in the preparation of marine strategies, the determination of GES and the development of programmes of measures reflect the commitment to an ecosystem based approach and the achievement of GES, while enabling the sustainable use of marine goods and services by present and future generations221.

Similarly, Article 14(4) MSFD exempts Member States from the obligation to take specific steps to implement all the elements of marine strategies states where: "there is no significant risk to the marine environment, or where the costs would be disproportionate taking account of the risks to the marine environment, and provided that there is no further deterioration". Thus, any decision

217 Article 14(d) MSFD 218 Article 14 (4) MSFD 219 Article 8(1)(c) MSFD 220 Article 13(3) MSFD 221 Article 1(3) MSFD 52

not to take action must be properly justified. Where precautionary (and costly) action is necessary at a regional level to maintain or improve the status of a Natura 2000 site(s), Articles 6 and 8 (EU co-financing) of the Habitats Directive may need to be engaged.

6.7 Monitoring

Article 11 of the Habitats Directive requires Member States to: “undertake surveillance of the conservation status of the natural habitats and species … with particular regard to priority natural habitat types and priority species". Member States must submit a report on the implementation of the measures taken under the Directive to the European Commission every six years (including assessments of conservation status222). Similar reporting on bird population status and trends has now been implemented223.

Article 11 of the MSFD requires Member States to establish and implement coordinated monitoring programmes for the ongoing assessment of the environmental status of their marine waters on the basis of the indicative lists of elements set out in Annex III and the list set out in Annex V, and by reference to the environmental targets established under Article 10(1).

Where Member States share a marine region or sub-region, the Directive requires them to endeavour to ensure their monitoring methods are consistent and “shall build upon, and be compatible with, relevant provisions for assessment and monitoring laid down by Community legislation, including the Habitats and Birds Directives, or under international agreements224”. This is facilitated by the indicative lists of characteristics in Annex III which include: (i) the identification and mapping of special habitat types, especially those recognised or identified under Community legislation (including the BHDs); and (ii) a description of the population dynamics, natural and actual range and status of other species occurring in the marine region or sub-region which are the subject of Community legislation or international agreements. It is also worth highlighting that while some of the characteristics in Annex III (Table 1) do not specifically refer to the BHDs (e.g. the predominant seabed and water column habitat types with a description of the characteristic physical and chemical features), they can contribute to the maintenance of, or restoration towards, FCS for species and habitats listed in the BHDs - thus providing further opportunities for integrated monitoring programmes that could help support the implementation of both Directives.

Components of the marine strategies must be reviewed every six years after their initial establishment, including the assessment and determination of GES and the monitoring programmes established under Article 11(1) of the MSFD225. Thus, while the timescales under the BHDs and the MSFD are not formally synchronised, the MSFD establishes a formal mechanism for ensuring that monitoring regimes established under the Directive complement, and build upon, those of the BHDs.

222 Article 17 Habitats Directive. Most recent UK report here: http://jncc.defra.gov.uk/pdf/A17_2013_Gen_Imp%20_Rpt.pdf 223 Article 12 Birds Directive. Most recent UK report here: http://jncc.defra.gov.uk/pdf/A17_2013_Gen_Imp%20_Rpt.pdf 224 Article 11(1) MSFD 225 Article 17(2) MSFD 53

6.8 Public participation

While the BHDs do not explicitly recognise the public’s role in implementing the Directives, reference is made to public participation in the context of the consideration of plans and programmes226 and species re-introductions227. In practice, Member States involve the public on many aspects, including the designation of Natura 2000 sites228 and the establishment of the necessary conservation measures229.

The MSFD requires Member States to ensure that all interested parties are given early and effective opportunities to participate in the implementation of the Directive, involving, where possible, existing management bodies or structures, such as Regional Sea Conventions, Scientific Advisory Bodies and Regional Advisory Councils230.

Member States must also publish summaries of the following elements of marine strategies for public consultation231: (i) the initial assessment and the determination of GES as provided for in Articles 8(1) and 9(1); (ii) the environmental targets established under Article 10(1); (iii) the monitoring programmes established under Article 11(1); and (iv) the programmes of measures established under Article 13(2). The Directive also confirms that the EC Directive on Access to Information applies232.

6.9 Reporting

The Commission is obliged to prepare a composite report evaluating the progress achieved on the basis of the national reports, with particular emphasis on the contribution of the Natura 2000 network to the achievement of the objectives set out in Article 3 of the Directive (i.e. the maintenance of FCS). The first composite report was published in 2009233, covering the period 2001-2006. Member States were due to submit their second reports for the period 2007-12 by 1st

226 Article 6(3) Habitats Directive 227 Article 22(a) Habitats Directive 228 Article 4(4) Habitats Directive 229 Article 6(1) Habitats Directive 230 Article 19(1) MSFD 231 Article 19(2) and recital 36 MSFD 232 Article 19(3) MSFD. Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information. Available at: http://ec.europa.eu/environment/nature/knowledge/rep_habitats/docs/report_en.pdf 233 Available here: http://ec.europa.eu/environment/nature/knowledge/rep_habitats/docs/report_en.pdf 54

July 2013, although progress has been somewhat slow234. A new procedure for reporting on the status and trends of birds came into effect at the end of 2013 (EU-level: 2015) to coincide with reporting under the Habitats Directive.

In accordance with Article 19(3) of the MSFD and the provisions of Directive 2007/2/EC235, Member States are required to provide the Commission with a review of the status of the marine environment in the Community236, along with access and use rights in respect of data and information resulting from the initial assessments made under Article 8 and from the monitoring programmes established under Article 11 (the latter must also be made available to the European Environment Agency (EEA) within six months of the information and data becoming available237).

Article 20(1) MSFD requires the Commission to publish a first evaluation report on the implementation of the MSFD by 2019 at the latest and further reports every six years thereafter. The first major reports by Member States for MSFD were published in 2012, covering an initial assessment of marine waters, the determination of GES and the setting of environmental targets238. The Commission then published a report on the first phase of implementation in February 2014239.

The Commission was also obliged to publish a report assessing the contribution of this Directive to the implementation of existing obligations, commitments and initiatives of the Member States or the Community at Community or international level in the sphere of environmental protection in marine waters by 15th July 2012 under Article 20(2) MSFD240.

Finally, Member States were also required to publish relevant information on spatial protection measures within the programmes of measures and the adoption of measures concerning the management of human activity in respect of each marine region or sub-region by 2013 at the latest241.

EU Guidance on the BHDs and the MSFD confirms that the reporting of species and habitats under the BHDs, as part of the 2012 initial assessment, has been streamlined with MSFD reporting, so that Member States can report for MSFD on these features using the BHDs reporting formats and timescales (i.e. in 2013 instead of by October 2012242).

234 See: http://bd.eionet.europa.eu/activities/Reporting/Article_17/Reports_2013/Member_State_Deliveri es 235 Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) 236 In coordination with the European Environment Agency and the relevant regional marine and fisheries organisations and conventions 237 Article 19(3) MSFD 238 In accordance with Article 12 MSFD (covering obligations under Articles 9(2), 10(2) and 11(3)). Reports can be accessed here: http://ec.europa.eu/environment/marine/eu-coast-and-marine- policy/implementation/reports_en.htm 239 See: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0097&from=EN 240 Report can be accessed here: http://europeanmemoranda.cabinetoffice.gov.uk/files/2012/12/16434- 122.pdf 241 Articles 13(4) and (6) MSFD 242 See: Links between the Marine Strategy Framework Directive (MSFD 2008/56/EC) and the Nature Directives (Birds Directive 2009/147/EEC (BD) and Habitats Directive 92/43/EEC (HD)) (2012, para 21. Available here: http://ec.europa.eu/environment/nature/natura2000/marine/docs/FAQ%20final%202012-07- 27.pdf 55

7.0 COHERENCE WITH THE Environmental Impact Assessment (EIA) Directive (2014/52/EU243)?

In considering this issue, WWF specifically sought analysis of coherence in: (i) the triggers for EIA and AA; (ii) the scope and content of the ES/AA; and (iii) the procedures for consultation and public participation.

7.1 The “triggers” for EIA and Appropriate Assessment (AA)

The criteria (or triggers) for an assessment under the EIA Directive are set out in Annexes I and II of the Directive (see below). They are essentially based on the size and/or scale of the project, although Member States enjoy a level of discretion as to whether projects listed in Annex II of the Directive must be subject to an EIA. The trigger for an AA is set out in Article 6(3) of the Habitats Directive, which requires any plan or project not directly connected with or necessary to the management of a Natura 2000 site but likely to have a significant effect thereon (either individually or in combination with other plans or projects) to be subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives. The threshold for “significant effect” is, in fact, very low244.

EIA Directive

Projects listed in Annex I of the EIA Directive must be subject to an assessment in accordance with Article 4(1) of the Directive245. Annex I includes major projects, such as long-distance railway lines, motorways and express roads, airports with a basic runway length ≥ 2100 m, installations for the disposal of hazardous waste and waste water treatment plants > 150.000 population equivalent.

Member States enjoy a level of discretion as to whether projects listed in Annex II of the Directive must be subject to an EIA246. Member States are obliged to make that determination on a case-by- case examination or by the imposition of thresholds or criteria. The projects listed in Annex II include, for example, the construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex I), industrial installations for the production of electricity, steam and hot water (projects not included in Annex I) and quarries, open-cast mining and peat extraction (projects not included in Annex I).

Changes introduced by the 2014 EIA Directive on screening and scoping

The 2014 EIA Directive introduces a number of modifications in relation to screening, including a requirement to assess the impact of the whole project247. Competent authorities are obliged to

243 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment Text with EEA relevance. Available here: http://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32014L0052&from=EN 244 See Case C-127/02 (“Waddenzee”) and C-258/11 (“Sweetman”) 245 Subject to the provisions of Article 2(4) of the Directive, which provides (without prejudice to Article 7) that Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in the Directive 246 Ibid 247 Preamble 22 and Annex III(1)(a) 2014 EIA Directive 56

specify what information is needed from the developer in order to determine whether an Annex II project must be subject to EIA248. Competent authorities are also obliged to identify the most relevant criteria to be considered and to take into account information available from other assessments required by EU legislation249. There is also a recognition that taking unsolicited comments from the public or public authorities (even though no formal consultation is required at the screening stage) into account constitutes good administrative practice250.

Article 4 of the 2014 Directive gives Member States the discretion to set thresholds or criteria to determine when projects need not undergo either screening or EIA, and/or thresholds or criteria to determine when projects shall in any case be made subject to EIA without undergoing screening.

Where screening is required, the developer must provide information on the characteristics of the project and its likely significant effects on the environment. The developer must also take into account the available results of any other relevant assessments of the effects on the environment required by other EU legislation and may also provide a description of any features of the project and/or mitigation measures251.

Competent authorities must make decisions on screening on the basis of the information provided by the developer and the screening opinion must be made public252. The screening opinion must state the main reasons for either requiring EIA or not requiring EIA with reference to the relevant criteria listed in Annex III of the Directive. Where an EIA is not required, the opinion must state any features of the project and/or mitigation measures proposed by the developer.

Competent authorities must make determinations as soon as possible (and not exceeding 90 days from the date on which the developer submitted the requisite information). In exceptional cases, the deadline may be extended, in which case the competent authority must inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.

Article 5(2) of the 2014 Directive introduces a number of helpful changes with regard to scoping. Competent authorities are under an explicit duty to provide an opinion as to the contents of an EIA where so requested by a developer. Particular regard must be placed on the specific characteristics of the project, including its location and technical capacity and its likely impact on the environment. Where an opinion is issued, the EIA report must be based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment. The developer is also obliged to take into account the available results of other relevant assessments under EU or national legislation, in preparing the EIA report.

Member States may also require the competent authorities to give such an opinion as referred to in the first subparagraph, irrespective of whether the developer so requests.

The meaning of a “project”

The CJEU has held253 that the term “project” in Article 1(2) of the EIA Directive refers to works and physical interventions254. The renewal of an existing permit (to operate an airport) cannot, in the

248 Preamble 26 2014 EIA Directive 249 Preamble 28 2014 EIA Directive 250 Preamble 29 2014 EIA Directive 251 Article 4(4) 2014 EIA Directive 252 Article 4(5) 2014 EIA Directive 253 See Environmental Impact Assessment of Projects – Rulings of the Court of Justice (European Court of Justice, 2013). Available at: http://ec.europa.eu/environment/eia/pdf/eia_case_law.pdf 57

absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a “project” within the meaning of the second indent of Article 1(2)255.

The Court has given a broad interpretation of the concept of “construction”, recognising that works for the refurbishment of an existing road may be equivalent, due to their size and the manner in which they are carried out, to the construction of a new road256. Similarly, works to alter the infrastructure of an existing airport, without any extension of the runway, can be regarded as an alteration of the airport itself on the basis of their nature, extent and characteristics257. However, while the jurisprudence of the CJEU has established that the scope of the EIA Directive is wide and its purpose very broad258, a purposive interpretation of the Directive cannot disregard the clearly expressed intention of the legislature of the EU259.

The definitive decision relating to the carrying on of operations at an existing landfill site, taken on the basis of a conditioning plan (pursuant to Article 14(b) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste), does not constitute a “consent” within the meaning of Article 1(2) of the EIA Directive, unless that decision authorises a change to or extension of that installation or site, through works or interventions involving alterations to its physical aspect, which may have significant adverse effects on the environment within the meaning of point 13 of Annex II to the EIA Directive, and thus constitute a “project” within the meaning of Article 1(2) of the Directive260.

Trans-boundary projects

Annex I projects extending into the territory of other Member States are not exempt from the EIA Directive on the basis that it does not contain any express provision in regard to them as such an exemption would seriously interfere with the objective of the EIA Directive. This conclusion is reinforced by reference to Article 7 of the EIA Directive, which provides for inter-State cooperation when a project is likely to have significant effects on the environment in another Member State261.

Criteria/thresholds

The CJEU has recognised that even a small-scale project can have significant effects on the environment if located in a situation in which the environmental factors set out in Article 3 of the EIA Directive (such as fauna and flora, soil, water, climate or cultural heritage) are sensitive to the slightest alteration262.

The criteria and/or thresholds listed in Article 4(2) of the EIA Directive are designed to facilitate the examination of the actual characteristics exhibited by a given project in order to determine

254 C-2/07 Abraham and Others, C-275/09, Brussels Hoofdstedelijk Gewest and Others, paragraph 20 255 C-275/09, Brussels Hoofdstedelijk Gewest and Others, paragraph 24; C-121/11, Pro-Braine and Others, paragraph 31 256 Case C-142/07 Ecologistas en Acción-CODA [2008] ECR I-6097, paragraph 36 257 C-2/07 Abraham and Others, paragraph 40 258 See, inter alia, Abraham and Others, paragraph 32, and Ecologistas en Acción-CODA, paragraph 28 259 See the AG’s Opinion in Abraham and Others, paragraph 28 260 C-121/11, Pro-Braine and Others, paragraph 38 261 C-205/08, Umweltanwalt von Kärnten, paragraphs 54-56 262 C-392/96, Commission v. Ireland, paragraph 66 and C-435/09, Commission v Belgium, paragraph 50 58

whether it is subject to the requirement to carry out an assessment - not to exempt whole classes of projects listed in Annex II in the territory of a Member State263.

Limits of discretion

Article 4(2) of the EIA Directive gives Member States a discretion as to the basis upon which it is determined whether Annex II projects shall be subject to EIA (either case-by-case examination or by thresholds or criteria set by the Member State). This discretion does not prevent Member States from using other methods to specify the projects requiring an EIA under the Directive. However, whatever method adopted (be it by legislative designation or following an individual examination of the project), it must not undermine the objective of the Directive, i.e. no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive screening, be regarded as not being likely to have such effects264.

Level of thresholds – type of criteria to be taken into consideration

Member States cannot establish thresholds and/or criteria at a level such that, in practice, all projects of a certain type would be exempt in advance from the requirement of an impact assessment unless all the projects excluded could, when viewed as a whole, be regarded as not likely to have significant effects on the environment265. For example, a Member State which, on the basis of Article 4(2) of the EIA Directive, has established thresholds and/or criteria taking account only the size of projects, without taking into consideration all the criteria listed in Annex III (i.e. nature and location of projects), exceeds the limits of its discretion under Articles 2(1) and 4(2) of the EIA Directive266.

Similarly, by limiting the EIA for urban development projects exclusively to projects located on non-urban land, the Spanish Government confined itself to applying the criterion of location, which is only one of three criteria set out in Article 2(1) of the EIA Directive267.

Cumulative impacts - Splitting of projects

The requirement for EIA cannot be circumvented by splitting projects (sometimes called “salami slicing”). The failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the EIA Directive268.

263 (C-133/94, Commission v Belgium, paragraph 42, C-72/95 Kraaijeveld and Others, paragraph 51 and Case C-301/95 Commission v Germany, paragraph 45) 264 C-435/97, WWF and Others, paragraphs 42, 43, 45 and C-87/02, Commission v Italy, paragraphs 41, 42, 44 265 C-392/96, Commission v. Ireland, paragraph 53, C-72/95, Kraaijeveld and Others, paragraph 53, C- 435/97, WWF and Others, paragraph 38, C-392/96 Commission v. Ireland, paragraph 75, C-66/06, Commission v. Ireland, paragraph 65 and C-427/07, Commission v. Ireland, paragraph 42 266 C-392/96, Commission v. Ireland, paragraphs 65, 72, C-66/06, Commission v. Ireland, paragraph 64, C- 255/08, Commission v. Netherlands, paragraphs 32-39 and C-435/09, Commission v Belgium, paragraphs 52, 55 267 C-332/04, Commission v. Spain, paragraphs 75-79 268 C-392/96, Commission v. Ireland, paragraphs, 76, 82, C-142/07, Ecologistas en Acción-CODA, paragraph 44, C-205/08, Umweltanwalt von Kärnten, paragraph 53, Abraham and Others, paragraph 27 and C-275/09, Brussels Hoofdstedelijk Gewest and Others, paragraph 36 59

Habitats Directive

The meaning of “plan” or “project”

Article 6(3) of the Habitats Directive establishes a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site.

The Habitats Directive does not define the terms “plan” and “project”. By contrast, the EIA Directive defines project in Article 1(2) as “the execution of construction works or of other installations or schemes, - other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources”. This definition has been used by both domestic courts and the CJEU to define the concept of plan or project in the Habitats Directive, which, seeks (as does the EIA Directive), to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment.

The fact that the activity has been carried on periodically for several years on the site concerned and that a licence has to be obtained for it every year, each new issuance of which requires an assessment both of the possibility of carrying on that activity and of the site where it may be carried on, does not in itself constitute an obstacle to considering it, at the time of each application, as a distinct plan or project within the meaning of the Habitats Directive269.

Excluding categories of projects from AA

Member States are prohibited from excluding certain categories of projects from the requirement to undergo appropriate assessment. For example, in Case C-93/03 (Commission v Germany) the Court held that it was unlawful for German legislation to exclude “projects relating to installations or to use of water, on account of the fact that they are not subject to authorisation” from AA on the basis that “the use of small quantities of water does not in itself preclude the possibility that some of those uses are likely to have a significant effect on a protected site. Even assuming that such uses of water are not likely to have a significant effect on the status of a body of water, it does not follow that they are not likely to have a significant effect on neighbouring protected sites”.

Similarly, in Case C-6/04 (Commission v UK), there was no express legal provision to ensure that “water abstraction plans and projects” and “land use plans” were subject to AA. The UK system essentially provided that all water abstraction plans and projects falling within the conditions laid down in Article 6(3) of the Habitats Directive were deemed in advance to be potentially damaging for the site concerned. While this kind of advance assessment of potential risks can be based on concrete facts with regard to the site, this was not the case with regard to the projects themselves, and therefore contrary to the requirements of Article 6(3) of the Habitats Directive. Similarly, although land use plans do not as such authorise development and planning permission must be obtained for development projects in the normal manner, the Court recognised that they have great influence on development decisions and must, therefore, also be subject to appropriate assessment of their implications for the site concerned.

269 C-127/02 – “Waddenvereniging and Vogelbeschermingsvereniging” (“Waddenzee”). See also Case C-226/08 Stadt Papenburg v Bundesrepublik Deutschland 60

Cumulative effects

Article 6(3) of the Habitats Directive requires that an AA of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives. Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field270.

Joint processes

The 2014 EIA Directive requires Member States to establish coordinated or joint procedures where assessments are required simultaneously under the EIA Directive and the BHDs. The joint procedures established under Article 2(3) of the EIA Directive are designed to provide for a single assessment of the environmental impact of a particular project required by all relevant EU legislation. Article 2(3) of the 2014 EIA Directive also obliges the Commission to provide guidance in respect of joint procedures involving EIA and assessments required under the BHDs, Water Framework Directive and the Industrial Emissions Directive.

7.2 The scope and content of EIA/AA

EIA

Article 3 of the 2014 Directive is more ambitious than the 2011 Directive in respect of what an EIA must cover, requiring an assessment of the direct and indirect effects on: (a) population and human health; (b) biodiversity, with particular attention to species and habitats protected under the BHDs; (c) land, soil, water, air and climate; (d) material assets, cultural heritage and the landscape; and (e) the interaction between the factors referred to in points (a) to (d). As such, the 2014 Directive places particular emphasis on the protection of features on the BHDs, resource use and prospective impacts on land.

Where the assessment of the environmental impacts must address the indirect effects of a project, that assessment must also include an analysis of the cumulative effects on the environment which that project may produce if considered jointly with other projects (in so far as such an analysis is necessary in order to ensure that the assessment covers examination of all the notable impacts on the environment of the project in question271).

In accordance with Article 3 of the EIA Directive, it is necessary to examine the direct and indirect effects of a project on, inter alia, human beings and material assets and, in accordance with the fourth indent of that article, it is also necessary to examine such effects on the interaction between those two factors. In Case C-420/11 (Leth), the CJEU examined, in particular, the effects of a project on the use of material assets by human beings. The Court concluded that in circumstances where exposure to noise resulting from a project covered by Article 4 of the EIA Directive has significant effects on individuals (in the sense that a home affected by that noise is rendered less capable of fulfilling its function and the individuals’ environment, quality of life and, potentially, health are affected), a decrease in the pecuniary value of that house may indeed be a direct

270 C-127/02– “Waddenvereniging and Vogelbeschermingsvereniging” (“Waddenzee”) 271 C-404/09, Commission v. Spain, paragraphs 78-80 61

economic consequence of such effects on the environment, this being a matter which must be examined on a case-by-case basis.

The CJEU concluded that the prevention of pecuniary damage, in so far as that damage is the direct economic consequence of the environmental effects of a public or private project, is covered by the objective of protection pursued by the EIA Directive. As such economic damage is a direct consequence of such effects, it must be distinguished from economic damage which does not have its direct source in the environmental effects and which, therefore, is not covered by the objective of protection pursued by that Directive, such as, inter alia, certain competitive disadvantages272.

In order to satisfy the obligation imposed on it by Article 3, the competent environmental authority may not confine itself to identifying and describing a project’s direct and indirect effects on certain factors, but must also assess them in an appropriate manner, in the light of each individual case. That obligation is distinct from the obligations laid down in Articles 4 to 7, 10 and 11 of the EIA Directive, which are, essentially, obligations to collect and exchange information, consult, publicise and guarantee the possibility of challenge before the courts. They are procedural provisions which do not concern the implementation of the substantial obligation laid down in Article 3 of the EIA Directive.

While Article 8 of the EIA Directive requires the results of the consultations and the information gathered pursuant to Articles 5 to 7 to be taken into consideration in the development consent procedure, that obligation must not be confused with the assessment obligation laid down in Article 3 of the EIA Directive. Indeed, that assessment (which must be carried out before the decision-making process273) involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data. That competent authority must thus undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect effects of the project concerned on the factors set out in the first three indents of Article 3 and the interaction between those factors.

It follows, therefore, both from the wording of the provisions of the EIA Directive and from its general scheme that Article 3 is a fundamental provision. The transposition of Articles 4 to 11 alone cannot be regarded as automatically transposing Article 3274.

Mitigation hierarchy and EIA

The 2014 EIA Directive recognises the role of assessment and mitigation within the context of achieving the objectives of the CBD (Preamble 10), the BHDs, the EU’s Biodiversity Strategy 2020, no net loss of biodiversity and avoiding environmental deterioration (Preamble 11). Preamble 35 identifies that Member States are responsible for ensuring that both mitigation and compensation measures are implemented and that appropriate procedures to monitor significant adverse environmental effects arising from projects are established.

Article 6(3) of the Habitats Directive does not define any particular method for carrying out an AA. Nonetheless, according to the wording of that provision, an AA of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative

272 C-420/11, Leth, paragraphs 25-30, 31, 35-36 273 Case C-508/03 Commission v United Kingdom [2006] ECR I-3969, paragraph 103 274 C-50/09, Commission v. Ireland, paragraphs 35, 37-41 62

effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives. Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field. Those objectives may, as is clear from Articles 3 and 4 of the Habitats Directive, in particular Article 4(4), be established on the basis, inter alia, of the importance of the sites for the maintenance or restoration at a FCS of an Annex I natural habitat type or an Annex II species and for the coherence of Natura 2000, and of the threats of degradation or destruction to which they are exposed.

7.3 Consultation and public participation

EIA

Article 6(1) of the EIA Directive requires Member States to take the measures necessary to ensure that the authorities likely to be concerned by the project (by reason of their specific environmental responsibilities) are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent.

Article 6(2) of the Directive obliges the public to be informed (by public notices or by other appropriate means such as electronic media where available) of the following matters early in the environmental decision-making process (and, at the latest, as soon as information can reasonably be provided):

 the request for development consent;  the fact that the project is subject to an EIA procedure and, where relevant, the fact that Article 7 applies;  details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;  the nature of possible decisions or, where there is one, the draft decision;  an indication of the availability of the information gathered pursuant to Article 5;  an indication of the times and places at which, and the means by which, the relevant information will be made available;  details of the arrangements for public participation made pursuant to paragraph 5 of this Article.

The public concerned must be given early and effective opportunities to participate in the environmental decision-making procedures and be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken. Member States must provide reasonable time-frames for the different phases, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making.

Timing of the consultations

The consultation procedures required under Articles 6(1) and (2) of the EIA Directive must be carried out, necessarily, before consent is granted. Such opinions, and further opinions which Member States may stipulate, form part of the consent process and are aimed at assisting the 63

competent body's decision on granting or refusing development consent. They are therefore preparatory in nature and not, generally, subject to appeal275.

Trans-boundary effects

Article 7 of the EIA Directive requires Member States to consult other Member States where a project is likely to have significant effects on the environment in their territory. The affected Member State must be consulted as soon as possible and no later than when the public in the “home” territory is consulted. The affected Member State must be sent a description of the project (together with any available information on its possible trans-boundary impact) and information on the nature of the decision which may be taken. The affected Member State must be given a reasonable time-frame in which to indicate whether it wishes to participate in the environmental decision-making procedures and, should it wish to do so, to forward its opinion on the project. Article 7(4) of the EIA Directive requires the Member States concerned to enter into consultations regarding the potential trans-boundary effects of the project and the measures envisaged to reduce or eliminate such effects.

Consideration of submissions and decision

Article 8 of the EIA Directive requires Member States to take the results of consultations and the information gathered pursuant to Articles 5, 6 and 7 into consideration in the development consent procedure.

Article 9 of the EIA Directive requires Member States to ensure that the public is informed once the decision to grant or refuse development consent has been taken. The purpose of issuing this information is not merely to inform the public but also to enable persons who consider themselves harmed by the project to exercise their right of appeal within the appointed deadlines.

The publication of an Environmental Impact Statement by a competent authority is not required under Community law and is no substitute for the obligation to inform the public of the granting or refusal of consent to proceed with a project under Article 1(2) of the Directive. This interpretation is supported by the purpose of the EIA Directive in its original version, which is, according to the first recital, to prevent the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects.

The Article 9 obligation is intended to involve the public concerned in supervising the implementation of these principles. Informing the public only of the content of the opinion which is to be taken into account by the competent authority before adopting its decision is a less effective way of involving the public in supervision than informing the public of the final decision which concludes the consent procedure.

Reasons for the competent authority’s decision

Article 6(9) of the UNECE Aarhus Convention and Article 9(1) of the EIA Directive do not require the decision itself to contain the reasons for the competent authority’s decision to approve a project. However, if an interested party so requests, the competent authority is obliged to provide the reasons for that decision or the relevant information and documents in response to the request made276.

Changes introduced by the 2014 EIA Directive

275 C-332/04, Commission v. Spain, paragraph 54 276 C-182/10, Solvay and Others, paragraph 64 64

Much of the Preambular text highlighting the importance of public participation in the 2011 EIA Directive has been removed and replaced in the 2014 Directive by a general obligation on Member States277 to ensure that the objectives of the Directive relating to public consultation are achieved through the legislative process. This includes ensuring that the various steps of the EIA of projects are carried out within a reasonable period of time278. The text of Articles 6, 7 and 9 of the 2014 Directive are, in a number of ways, stronger than the 2011 Directive. Key differences include:

 While both Directives give Member States the discretion to determine the detailed arrangements for informing the public about EIA, Article 6(5) of the 2014 Directive requires them to take the necessary measures to ensure that the relevant information is electronically accessible to the public, through at least a central portal or easily accessible points of access, at the appropriate administrative level;

 While both Directives require Member States to provide reasonable time-frames for consulting on the different phases of an EIA, Article 6(7) of the 2014 Directive specifies that the time- frame for consulting the public concerned on an EIA report must not be shorter than 30 days;

 Article 7(4) of the 2014 Directive enables Member States entering into consultations regarding the potential trans-boundary effects of a project to conduct consultation through an appropriate joint body; and

 While both Directives require competent authorities to inform the public promptly when a decision to grant or refuse development consent has been taken, Article 9(1)(b) of the 2014 Directive also requires competent authorities to include a summary of the results of the consultations and the information gathered pursuant to Articles 5 to 7 and how those results have been incorporated or otherwise addressed, in particular the comments received from affected Member State referred to in Article 7 (trans-boundary impacts).

Habitats Directive

While the BHDs do not explicitly recognise the public’s role in implementing the Directives, reference is made to public participation in the context of the consideration of plans and programmes279 and species re-introductions280 and, in practice, Member States involve the public on many aspects, including the designation of Natura 2000 sites281 and the establishment of the necessary conservation measures282.

277 Preambles 1, 24 and 36, 2014 EIA Directive 278 Preamble 36, 2014 EIA Directive 279 Article 6(3) Habitats Directive 280 Article 22(a) Habitats Directive 281 Article 4(4) Habitats Directive 282 Article 6(1) Habitats Directive 65

8.0 COHERENCE WITH THE FLOODS DIRECTIVE (2007/60/EC283)

8.1 Introduction

The purpose of the Floods Directive is to reduce and manage the risks that floods pose to human health, the environment, cultural heritage and economic activity. The Directive applies to inland waters as well as all coastal waters across the whole territory of the EU. Member States were required to transpose the Directive into domestic legislation by 26th November 2009284 285.

The Directive requires Member States to identify the river basins and associated coastal areas at risk of flooding by 2011, draw up flood risk maps by 2013 and to establish flood risk management plans focused on prevention, protection and preparedness by 2015.

8.2 An overview of the key provisions of the Floods Directive

Article 1 sets out the purpose of the Floods Directive as being: “to establish a framework for the assessment and management of flood risks, aiming at the reduction of the adverse consequences for human health, the environment, cultural heritage and economic activity associated with floods in the Community286”.

In order to implement the Directive, Member States are required to make use of arrangements made under Articles 3(1), (2), (3), (5) and (6) of the WFD concerning the coordination of administrative arrangements within river basin districts. Article 3(2) of the Directive provides that Member States may appoint different competent authorities from those identified under Article 3(2) of the WFD and may identify certain coastal areas or individual river basins and assign them to a unit of management different from those assigned under Article 3(1) of the WFD (from hereon in, the “river basin districts” will be taken to include any such areas identified by the Member States).

Preliminary flood risk assessment

Article 4 of the Floods Directive requires Member States to undertake a preliminary flood risk assessment for each river basin district, or the portion of an international river basin district lying within their territory, by 22nd December 2011. The basis for these assessments is available or readily available information, such as records and studies on long-term developments, in particular impacts of climate change on the occurrence of floods. Article 4(2) sets out certain mandatory elements of these assessments, including:

 Maps of the river basin district; and

 A description of past flooding with significant adverse effects on human health, the environment, cultural heritage and economic activity – and for which the likelihood of similar future events is still relevant, including flood extent, conveyance routes and an assessment of the adverse impacts they have entailed.

283 Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks 284 Article 17(1) Floods Directive 285 As of February 2015, the Commission has referred two cases of non-transposition to the CJEU: Commission v Poland (Case C-20/11) and Commission v France (Case C-597/10) 286 Article 1 Floods Directive 66

Depending on the needs of Member States, the assessments must also include: “an assessment of the potential adverse consequences of future floods for human health, the environment, cultural heritage and economic activity, taking into account as far as possible issues such as the topography, the position of watercourses and their general hydrological and geomorphological characteristics, including floodplains as natural retention areas, the effectiveness of existing manmade flood defence infrastructures, the position of populated areas, areas of economic activity and long-term developments including impacts of climate change on the occurrence of floods”.

Where Member States share international river basin districts, they are obliged to ensure the exchange of relevant information between the competent authorities concerned287. Member States are also under a duty to review the preliminary flood risk assessments by 22nd December 2018 and every six years thereafter288.

On the basis of the preliminary flood risk assessments prepared under Article 4 of the Directive, Member States must identify the areas in each river basin district (or portion of an international river basin district lying within their territory) for which potential flood risks exist or might be considered likely to occur289.

Thus, whilst not an explicit requirement of Article 4 of the Directive, the preparation of the preliminary flood risk assessment provides an opportunity for Member States to assess the potential risks of flooding on relevant Natura 2000 sites and the achievement of the objectives of the BHDs more generally290.

Flood hazard/risk maps and flood risk management plans

Article 6 of the Floods Directive requires Member States to prepare flood hazard maps and flood risk maps for the areas identified under Article 5(1) of the Directive by 22nd December 2013. Member States must collaborate with respect to shared areas291.

Flood hazard maps must cover the geographical areas which could be flooded according to the following scenarios: (i) floods with a low probability, or extreme event scenarios; (ii) floods with a medium probability (likely return period ≥ 100 years); and (iii) floods with a high probability. For each scenario, the maps must show the flood extent, water depths (or levels) and, where appropriate, the flow velocity or the relevant water flow. The maps must also show the potential adverse consequences associated with the relevant flood scenario, including:

 The indicative number of inhabitants potentially affected;

 The type of economic activity of the area potentially affected;

 Installations referred to in Annex I of the EC Directive on IPPC292 which might cause accidental pollution in case of flooding and potentially affected protected areas identified in Annex IV(1)(i), (iii) and (v) to the WFD; and

287 Article 4(3) Floods Directive 288 Article 14(1) Floods Directive 289 Article 5(1) Floods Directive 290 See Article 4(2)(b) and (d) Floods Directive which requires, respectively, the preliminary flood risk assessments to include a description of the floods which have occurred in the past and which have had significant adverse impacts on, inter alia, the environment and an assessment of the potential adverse consequences of future floods for, inter alia, the environment 291 Article 6(2) Floods Directive 292 Council Directive 96/61/EC of 24 September 1996 concerning Integrated Pollution Prevention and Control 67

 Other information considered useful, such as the indication of areas where floods with a high content of transported sediments and debris floods can occut and information on other significant causes of pollution.

The flood risk maps prepared under the Floods Directive must therefore show the potential adverse consequences associated with flood scenarios for “areas designated for the protection of habitats or species where the maintenance or improvement of the status of water is an important factor in their protection, including relevant Natura 2000 sites293”.

Member States are under a duty to review the flood hazard maps and flood risk maps by 22nd December 2019, and every six years thereafter294.

The flood hazard maps provide the basis for the establishment of flood risk management plans (“the Plans”) at river basin district level under Article 7 of the Directive by 22nd December 2015295. The aim of the plans is the development of appropriate objectives for the management of flood risks for areas identified as potentially at significant risk of flooding, focusing on the potential adverse consequences of flooding for human health, the environment, cultural heritage and economic activity and, if appropriate, on non-structural initiatives and/or on the reduction of the likelihood of flooding296.

The identification of management objectives provides the basis for the determination of measures to achieve the objectives in accordance with the factors listed above and the components listed in Part A of the Annex to the Floods Directive. Annex A includes, inter alia, reference to flood related measures taken under other Community acts, including Directives on EIA297, SEA298 and the WFD. The Plans must also take account of other relevant aspects, such as:

“costs and benefits, flood extent and flood conveyance routes and areas which have the potential to retain flood water, such as natural floodplains, the environmental objectives of Article 4 of the WFD, soil and water management, spatial planning, land use, nature conservation, navigation and port infrastructure299” (own emphasis added).

The Plans must address all aspects of flood risk management focusing on prevention, protection, preparedness (including flood forecasts and early warning systems) and take the characteristics of the particular river basin or sub-basin into account. The plans may also include the promotion of sustainable land use practices, improvement of water retention as well as the controlled flooding of certain areas in the case of a flood event.

The Member States are under a duty to review the FRMPs by 22nd December 2021, and every six years thereafter300.

As stated above, the Plans must take account of the environmental objectives of Article 4 of the WFD and related provisions on protected areas, including Natura 2000 sites301. Moreover, Member States must take other factors into account in the development of the Plans, including natural floodplains, land use and nature conservation. As such, it can be argued that the ambit of the Plans

293 Annex IV(v) WFD 294 Article 14(2) Floods Directive 295 Article 7(5) Floods Directive 296 Article 7(2) Floods Directive 297 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain private and public projects on the environment 298 Council 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 299 Article 7(3) Floods Directive 300 Article 14(3) Floods Directive 301 Article 4(1) of the WFD states: (c) for protected areas “Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established” 68

extends beyond relevant Natura 2000 sites to consider whether, and how, they may affect the achievement of the objectives of the BHDs more generally.

8.3 Public participation

Article 10 of the Floods Directive obliges Member States to make certain information available to the public, including the preliminary flood risk assessments, the flood hazard maps, the flood risk maps and the flood risk management plans and to encourage active involvement of interested parties in the production, review and updating of the flood risk management plans. As such, the Floods Directive develops public participation in decision-making beyond that contemplated by the BHDs, reflecting subsequent Community commitments in this field under the UNECE Aarhus Convention302.

8.4 Cooperation between Member States

The purpose of the Floods Directive is to reduce and manage the risks that floods - as a phenomenon oblivious to international borders - pose to human health, the environment, cultural heritage and economic activity. It is therefore unsurprising that the Directive contains numerous duties in relation to cooperation between Member States. For example:

 Article 4(3) of the Floods Directive obliges Member States sharing international river basin districts to ensure that competent authorities exchange relevant information;

 Article 5(2) obliges Member States to coordinate with respect to the identification of areas belonging to an international river basin district for which they conclude that potential significant flood risks exist or might be considered likely to occur;

 Article 6(2) obliges Member States to exchange information with regard to the preparation of flood hazard maps and flood risk maps for areas identified under Article 5 which are shared with other Member States;

 Article 7(4) holds that in the interests of solidarity, flood risk management plans established in one Member State shall not include measures which, by their extent and impact, significantly increase flood risks upstream or downstream of other countries in the same river basin or sub- basin (unless these measures have been coordinated and an agreed solution has been found among the Member States concerned);

 Article 8(1) obliges Member States to produce one single flood risk management plan (or a set of flood risk management plans coordinated at the level of the river basin district) for river basin districts falling entirely within their territory;

 Article 8(2) obliges Member States to ensure coordination with the aim of producing one single international flood risk management plan (or a set of flood risk management plans coordinated at the level of the international river basin district) where an international river basin district falls entirely within the Community. Where such plans are not produced, Member States must produce flood risk management plans covering at least the parts of the international river basin

302 The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 69

district falling within their territory, as far as possible coordinated at the level of the international river basin district;

 Article 8(3) provides that where an international river basin district extends beyond the boundaries of the Community, Member States must endeavour to produce one single international flood risk management plan (or a set of flood risk management plans coordinated at the level of the international river basin district). Where this is not possible, Member States must ensure coordination with the aim of producing one single international flood risk management plan (or a set of flood risk management plans coordinated at the level of the international river basin district) for the parts of the international river basin falling within their territory; and

 Article 8(5) provides that where a Member State identifies an issue which has an impact on the management of flood risks of its water and that issue cannot be resolved by that Member State, it may report the issue to the Commission and any other Member State concerned and may make recommendations as to how the issue should be resolved. The Commission must respond to any report or recommendations from Member States within a period of six months.

These duties extend well beyond the recognition that Community action is necessary in recital 4 of the preambles to the BHDs:

“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”.

While the emphasis on cooperation between Member States undoubtedly reflects the subject matter of the Floods Directive, the BHDs are instruments of a time in which collaboration was given less prominence.

8.5 Reporting

Article 15 of the Floods Directive requires Member States to make the preliminary flood risk assessments, the flood hazard maps, the flood risk maps and the flood risk management plans (as well as their review and, where applicable, their updates to the Commission) available within three months after the dates prescribed in Articles 4(4), 6(8), 7(5) and 14 of the Directive respectively. Member States are also obliged to inform the Commission of decisions taken in accordance with Article 13(1), (2) and (3) and make available the relevant information by the dates indicated in Articles 4(4), 6(8) and 7(5).

The Commission is obliged to submit a report on the implementation of the Floods Directive to the Parliament and to the Council by 22nd December 2018, and every six years thereafter. The report must take the impact of climate change into account.

Similar reporting duties on the Commission exist under Article 17 of the Habitats Directive303 and Article 12 of the Birds Directive304.

303 Article 17(1): “Every six years from the date of expiry of the period laid down in Article 23, Member States shall draw up a report on the implementation of the measures taken under this Directive. This report shall include in particular information concerning the conservation measures referred to in Article 6 (1) as well as evaluation of the impact of those measures on the conservation status of 70

the natural habitat types of Annex I and the species in Annex II and the main results of the surveillance referred to in Article 11. The report, in accordance with the format established by the committee, shall be forwarded to the Commission and made accessible to the public” Article 17(2): “The Commission shall prepare a composite report based on the reports referred to in paragraph 1. This report shall include an appropriate evaluation of the progress achieved and, in particular, of the contribution of Natura 2000 to the achievement of the objectives set out in Article 3. A draft of the part of the report covering the information supplied by a Member State shall be forwarded to the Member State in question for verification. After submission to the committee, the final version of the report shall be published by the Commission, not later than two years after receipt of the reports referred to in paragraph 1, and shall be forwarded to the Member States, the European Parliament, the Council and the Economic and Social Committee.” 304 Article 12(1): “Member States shall forward to the Commission every three years, starting from 7 April 1981, a report on the implementation of national provisions taken under this Directive” Article 12(2): “The Commission shall prepare every three years a composite report based on the information referred to in paragraph 1. That part of the draft report covering the information supplied by a Member State shall be forwarded to the authorities of the Member State in question for verification. The final version of the report shall be forwarded to the Member States” 71

9.0 COHERENCE WITH THE NATIONAL EMISSION CEILINGS DIRECTIVE (NECD) (2001/81/EC305)

9.1 Introduction

The National Emission Ceilings Directive (NECD) sets upper limits for each Member State for the total emissions of the four pollutants responsible for acidification, eutrophication and ground level ozone pollution (sulphur dioxide, nitrogen oxides, volatile organic compounds and ammonia) in 2010. The Directive leaves it largely to the Member States to decide which measures – on top of Community legislation for specific source categories - to take in order to comply. Member States were required to transpose the Directive into domestic legislation by 27th November 2002306.

The 2001 Directive was amended as part of the accession of new Member States and is currently being reviewed as part of the EU’s Clean Air Policy Package307. The revised NECD will repeal and replace the current regime on the annual capping of national emissions of air pollutants as defined in the 2001 Directive (see below).

9.2 Revision of the National Emission Ceilings Directive

In 2005, the European Commission’s Thematic Strategy on Air Pollution identified a number of key measures to be taken to help meeting the 2020 interim objectives for human health and the environment. The revision of the NECD was identified as one of the key measures.

The proposal for a revised NECD extends the policy horizon to 2030, with two important interim milestones. First, transposition of the EU's new international obligations agreed under the amended Gothenburg Protocol308 by 2020 and, for 2025, intermediate reduction obligations to maintain the trajectory towards 2030. The proposal also strengthens coherence with the assessment and management of air quality standards contained in the Ambient Air Quality Directive309 and climate change mitigation, and will contribute to limiting climate change. It also features enhanced provisions on inventories, projections, and ecosystem monitoring to measure implementation more effectively. The reporting timetable has also been aligned with that for greenhouse gases. Second, for 2030 the proposal includes cost-effective national emission reduction obligations for the four original air pollutants (SO2, NOx, non-methane VOCs, and NH3), and for two new ones: primary PM2.5 (fine particulate matter) and CH4 (methane).

The text below highlights changes that will be introduced by the revised NECD where there is commonality with provisions in the BHDs.

305 Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants is being reviewed 306 Article 15(1) NECD 307 The Clean Air Policy Package was adopted 18 December 2013. See: http://ec.europa.eu/environment/air/clean_air_policy.htm 308 See http://www.unece.org/env/lrtap/multi_h1.html 309 Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe 72

9.3 A summary of the key provisions of the NECD

Purpose and scope

The aim of the NECD is: “to limit emissions of acidifying and eutrophying pollutants and ozone precursors in order to improve the protection in the Community of the environment and human health against risks of adverse effects from acidification, soil eutrophication and ground-level ozone and to move towards the long-term objectives of not exceeding critical levels and loads and of effective protection of all people against recognised health risks from air pollution by establishing national emission ceilings, taking the years 2010 and 2020 as benchmarks, and by means of successive reviews as set out in Articles 4 and 10”.

Thus, while there is no overt linkage between the BHDs and the NECD, the reduction of atmospheric pollution and its consequential impacts310 on the environment (including vegetation and ecology) is clearly coherent with, and supportive of, the achievement of the objectives of the BHDs.

The NECD covers emissions in the territory of the Member States and their exclusive economic zones from all sources of the pollutants referred to in Article 4 arising from human activities311.

National emission ceilings and interim environmental objectives

Article 4 of the 2001 NECD requires Member States to limit their annual national emissions of sulphur dioxide (SO2), nitrogen oxides (NOx), volatile organic compounds (VOC) and ammonia (NH3) to amounts not greater than the emission ceilings laid down in Annex I by 2010. The national emission ceilings in Annex I are broadly designed to meet interim environmental objectives on acidification, health-related ground-level ozone exposure and vegetation-related ground-level ozone exposure for the Community as a whole by 2010.

National programmes

Member States are obliged, by 1 October 2002 at the latest, to draw up programmes for the progressive reduction of national emissions of the pollutants referred to in Article 4 of the NECD (sulphur dioxide, nitrogen oxides, volatile organic compounds and ammonia) with the aim of complying at least with the national emission ceilings laid down in Annex I by 2010 at the latest312. The national programmes must include information on adopted and envisaged policies and measures and quantified estimates of the effect of these policies and measures on emissions of the pollutants in 2010. The national programmes must be updated and revised by 1st October 2006313.

Emission inventories and projections

Article 7 of the NECD requires Member States to prepare and annually update national emission inventories and emission projections for 2010 for sulphur dioxide, nitrogen oxides, volatile organic compounds and ammonia using the methodologies specified in Annex III.

Article 7(2) of the NECD requires the Commission (assisted by the European Environment Agency and the Member States) to establish inventories and projections for sulphur dioxide, nitrogen oxides, volatile organic compounds and ammonia and to make them publicly available.

310 In particular, the NECD defines “critical level” as: “the concentration of pollutants in the atmosphere above which direct adverse effects on receptors, such as human beings, plants, ecosystems or materials, may occur, according to present knowledge” 311 Some exceptions are listed in Article 2 including emissions from international maritime traffic and aircraft emissions beyond the landing and take-off cycle 312 Article 6(1) NECD 313 Article 6(3) NECD 73

9.4 Public participation

Article 6(4) of the NECD obliges Member States to make the national programmes of progressive reduction of national emissions of the pollutants available to the public and to appropriate organisations such as environmental organisations. The information made available must be clear, comprehensible and easily accessible314.

Furthermore, the inventories and emission projections for 2010 for sulphur dioxide, nitrogen oxides, volatile organic compounds and ammonia prepared by the Commission (assisted by the European Environment Agency and the Member States) must be made publicly available315.

The EU’s ratification of the UNECE Aarhus Convention in 2005316 is reflected in strengthened provisions for public participation in the revised NECD. For example, Member States must subject National Air Pollution Control Programmes (NAPCPs) adopted and implemented under Article 6 of the revised NECD to public consultation before their finalisation317. Moreover, Article 11 of the revised NECD obliges Member States to ensure the active and systematic dissemination of the NAPCPs (and any updates) to the public and the national emission inventories, including when occurring, the adjusted emission inventories, the national emission projections and the informative inventory reports and additional reports and information communicated to the Commission in accordance with Article 9.

The Commission is also obliged to ensure the EU-wide active and systematic dissemination of emission inventories, projections and informative inventory reports by publishing the reports on a publicly accessible internet site318.

9.5 Reporting

Article 8(1) of the NECD requires Member States to report their national emission inventories and their emission projections for 2010 to the Commission and the European Environment Agency each year by 31st December at the latest. They must also report their final emission inventories for the previous year but one and their provisional emission inventories for the previous year.

Member States must also inform the Commission of the programmes for the progressive reduction of national emissions of sulphur dioxide, nitrogen oxides, volatile organic compounds and ammonia by 31st December 2002 and must inform the Commission of the updated programmes by 31st December 2006 at the latest319.

314 In joined cases C-165/09 and C-167/09 (Stichting Natuur en Milieu and others), the CJEU held that Article 6 of the NECD grants rights to individuals directly concerned which can be relied upon before the national courts in order to claim that, during the transitional period from 27 November 2002 to 31 December 2010, the Member States should adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of the pollutants covered so as to comply with the national ceilings laid down in Annex I to that directive by the end of 2010 at the latest, and should make the programmes drawn up for those purposes available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information 315 Article 7(2) NECD 316 UNECE Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 317 Article 16 revised NECP 318 Regulation n° 1367/2006 of the European Parliament and of the Council 319 Article 8(2) NECD 74

The Commission must forward the national programmes received to the other Member States within one month of their reception and establish provisions to ensure consistent and transparent reporting of national programmes320.

Article 9(1) of the NECD requires the Commission to report to the European Parliament and the Council on progress on the implementation of the national emission ceilings laid down in Annex I and on the extent to which the interim environmental objectives are likely to be met by 2010 and on the extent to which the long-term objectives set out in Article 1 (the objective of the NECD) could be met by 2020. The reports must include an economic assessment of the national emission ceilings on particular Member States and sectors. They must also include a review of the limitations of the scope of the Directive and an evaluation of the extent to which further emission reductions might be necessary in order to meet the interim environmental objectives. They must take into account the reports made by Member States under Article 8(1) and (2) of the NECD, as well as, other factors set out in Article 9(a)-(n) of the Directive.

Article 10 of the Directive sets out a regime for reviewing the Directive in light of the factors listed in Article 9(a)-(n) and progress made. The 2004 review concerned the indicative emission ceilings for the Community as a whole set out in Annex II.

The revised NECD requires Member States to communicate their NAPCPs (and any updates) and all monitoring information established in accordance with Articles 7 and 8 to the Commission321. The Commission, assisted by the European Environment Agency and Member States, must regularly verify the accuracy and completeness of reported national emission inventory data. Article 10 obliges the Commission to report on the implementation of this Directive every five years.

The emphasis on reporting in the NECD and the revised NECD reflects the recognition that the objectives of the Directive can only be achieved through coordinated and effective Community action.

9.6 Cooperation between Member States

The NECD recognises that its objectives cannot be sufficiently achieved by the Member States322. To address the significant remaining air quality impacts in the EU, each Member State must reduce its pollutant emissions, and the cost-effective combination of reductions across Europe is coordinated at EU level through the process outlined above. The reduction commitments identified take account not only of the domestic impacts of national emissions, but also of their trans- boundary impacts.

Article 11 of the NECD also requires the Member States to pursue bilateral and multilateral cooperation with third countries and relevant international organisations such as the United Nations Economic Commission for Europe (UNECE), the International Maritime Organization (IMO) and the International Civil Aviation Organization (ICAO), including through the exchange of information, concerning technical and scientific research and development and with the aim of improving the basis for the facilitation of emission reductions.

The principle of Community action is maintained in the revised NECD, which harmonises the requirements on national programmes and on the monitoring and reporting of emissions of air pollutants with a view to correcting shortcomings of the 2001 NECD.

320 Article 13(2) NECD 321 Article 9 revised NECD 322 Recitals 3, 9, 13 and 18 and Articles 8(1), (2), (3), (4), Articles 9(1), (2) Article 10 and Article 11 NECD 75

10. COHERENCE WITH THE ENVIRONMENTAL LIABILITY DIRECTIVE (ELD) (2004/35/CE323)

10.1 Introduction

The BHDs form the cornerstone of the EU’s biodiversity policy, protecting Europe’s most valuable species and habitats. Together, SPAs and SACs form the Natura 2000 network - the central mechanism for ensuring protected species and habitats are maintained at, or restored to, favourable conservation status (FCS).

The purpose of the ELD is to establish a framework based on the Polluter Pays Principle (PPP) to prevent and remedy environmental damage, as set out in the Treaty on the Functioning of the European Union (TFEU)324 325. The focus of the ELD is the protection of nature using measures designed to prevent or remedy damage caused to protected species and natural habitats, notably Natura 2000 sites. As such, the ELD was specifically crafted to support the achievement of the objectives of the BHDs.

10.2 Scope

The scope326 of the ELD is “environmental damage327” caused by or resulting from occupational activities to:

 Birds Directive - birds mentioned in Article 4(2) (i.e. regularly occurring migratory species); birds listed on Annex I; and the habitats of these bird species;

 Habitats Directive - animal and plant species listed in Annexes II and IV; habitats of species listed in Annex II; the breeding sites or resting places or species listed in Annex IV, habitats listed in Annex I;

 Waters covered by the WFD - water damage is defined as “any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in the WFD, of the waters concerned328 329”.

 Land contamination that creates a significant risk of harming human health. Land damage is defined as “any land contamination that creates a significant risk of human health being

323 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage 324 Article 191(2) TFEU 325 Article 1 ELD 326 Article 3 ELD 327 Damage to protected species and habitats does not include previously identified adverse effects which result from an act by an operator which was expressly authorised by the relevant authorities in accordance with provisions implementing Articles 6(3), 6(4) and 16 of the Habitats Directive and Article 9 of the Birds Directive, or in the case of habitats and species not covered by Community law, in accordance with equivalent provisions of national law on nature conservation 328 Adverse effects where Article 4(7) of the WFD applies are excluded 329 Article 2(1)(b) ELD 76

adversely affected as a result of the direct or indirect introduction, in, on or under land, or substances, preparations, organisms or micro-organisms330”.

The definition of “conservation status” in the ELD is taken from Articles 1(e) and 1(g) of the Habitats Directive331.

The principle of liability applies to environmental damage and imminent threat of damage resulting from occupational activities, where it is possible to establish a causal link between the damage and the activity in question.

The Directive therefore distinguishes between two complementary situations, each one governed by a different liability scheme: (i) occupational activities specifically mentioned in the Directive; and (ii) other occupational activities.

The first liability scheme applies to the dangerous or potentially dangerous occupational activities listed in Annex III to the Directive. These are mainly agricultural or industrial activities requiring a licence under the Directive on integrated pollution prevention and control (IPPC), activities which discharge heavy metals into water or the air, installations producing dangerous chemical substances, waste management activities (including landfills and incinerators) and activities concerning genetically modified organisms (GMOs) and micro-organisms. Operators carrying out dangerous activities listed in Annex III of the Directive fall under strict liability (i.e. there is no need to prove fault).

The second liability scheme applies to all occupational activities other than those listed in Annex III to the Directive, but only where there is damage or imminent threat of damage, to species or natural habitats protected by Community legislation. In this case, the operator will be held liable only if he is at fault or negligent. The establishment of a causal link between the activity and the damage is always required.

The Directive provides for a certain number of exemptions from environmental liability. The liability scheme does not apply in the case of damage or imminent damage resulting from inter alia: (i) armed conflicts332; (ii) natural phenomenon of exceptional, inevitable and irresistible character333; (iii) where liability for compensation falls within the scope of any of the international Conventions listed in Annex IV334; and (iv) nuclear risks335. Moreover, it only applies to environmental damage, or the imminent threat of damage, caused by diffuse pollution where it is possible to establish a causal link between the damage and the activities of individual operators336 337.

330 Article 2(2)(c) ELD 331 Article 2(4)(a) and (b) ELD 332 Article 4(1)(a) ELD 333 Article 4(1)(b) ELD 334 Including the International Convention on Civil Liability for Oil Pollution Damage; the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage; the International Convention on Civil Liability for Bunker Oil Pollution Damage; the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea; and the Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels 335 Article 4(4) ELD 336 Recital 13 and Article 4(5) ELD 337 There is presently an interesting request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 3 April 2014 — Tamoil Italia v Ministero dell’Ambiente e della Tutela del Territorio e del Mare (Case C-156/14). The question referred is: “Do the European Union principles relating to the 77

As the ELD deals with the "pure ecological damage", it is based on the powers and duties of public authorities ("administrative approach") as distinct from a civil liability system for "traditional damage" (damage to property, economic loss, personal injury).

The ELD applies without prejudice to more stringent Community legislation regulating the operation of any of the activities falling within its scope338. Similarly, Member States are not prohibited from implementing more stringent provisions in relation to the prevention and remedying of environmental damage or from adopting appropriate measures, such as the double recovery of costs where this could occur as a result of concurrent action by a competent authority339 under the Directive and by a person whose property is affected by environmental damage340.

Article 5 of the ELD requires operators to take necessary preventive measures where there is an imminent threat of damage. Where the threat of danger is not dispelled, operators must inform the competent authority of the situation as soon as possible. The competent authority may require the operator to: (a) provide it with information; (b) take the necessary preventive measures; (c) give instructions to the operator on the necessary preventive measures; or (d) itself take the necessary preventive measures.

Where environmental damage has already occurred, Article 6 of the ELD requires the operator to inform the competent authority of that fact, to take all practicable steps to immediately control, contain, remove or otherwise manage the relevant contaminants and/or any other damage factors and to take the necessary remedial measures under Article 7. If the operator fails to comply with these obligations, the competent authority may take the necessary measures itself.

10.3 Remediation and restoration

The determination of remedial measures is set out in Article 7 and Annex II of the ELD. Annex II sets out a common framework in order to choose the most appropriate measures to ensure the remedying of environmental damage. For damage affecting the land, the Directive requires that the land concerned be decontaminated until there is no longer any serious risk of negative impact on human health. For damage affecting water or protected species and natural habitats, the ELD aims to restore the environment to how it was before it was damaged (i.e. back to its “baseline condition341”). For this purpose, the damaged natural resources or impaired services must be

environment, laid down in Article 191(2) of the Treaty on the Functioning of the European Union and in Directive 2004/35/EC (1) of 21 April 2004 (Articles 1 and 8(3) and recitals 13 and 24 in the preamble) — specifically, the ‘polluter pays’ principle, the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority — preclude national legislation, such as the rules set out in Articles 244, 245 and 253 of Legislative Decree No 152 of 3 April 2006, which, in circumstances in which it is established that a site is contaminated and in which it is impossible to identify the polluter or to have that person adopt the restoration measures, do not permit the administrative authority to require the owner (who is not responsible for the pollution) to implement the emergency safety and decontamination measures, merely attributing to that person financial liability limited to the value of the site once the decontamination measures have been carried out?” 338 Article 3(2) ELD 339 Member States are required to designate the competent authority(ies) responsible for fulfilling duties provided for in the Directive (Article 11 ELD) 340 Recital 29 and Article 16 ELD 341 Article 2(14) ELD defines "baseline condition" as the condition at the time of the damage of the natural resources and services that would have existed had the environmental damage not occurred, estimated on the basis of the best information available 78

restored or replaced by identical, similar or equivalent natural resources or services either at the site of the incident or, if necessary, at an alternative site.

Restoration of the environment to its baseline condition is achieved by way of primary, complementary and compensatory remediation, where:

 "Primary" remediation is any remedial measure which returns the damaged natural resources and/or impaired services to, or towards, baseline condition;

 "Complementary" remediation is any remedial measure taken in relation to natural resources and/or services to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources and/or services;

 "Compensatory" remediation is any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect; and

 "interim losses" means losses resulting from the fact that the damaged natural resources and/or services are not able to perform their ecological functions or provide services to other natural resources or to the public until the primary or complementary measures have taken effect. It does not consist of financial compensation to members of the public.

Where primary remediation does not result in the restoration of the environment to its baseline condition, then complementary remediation will be undertaken. In addition, compensatory remediation will be undertaken to compensate for the interim losses.

The competent authority is required to invite the person on whose land remedial measures would be undertaken, and any person(s) within the ambit of Article 12(1) of the Directive, to make observations on the determination of remedial measures, and shall take those views into account342 (see below).

Article 8 of the ELD covers prevention and remediation costs. These are normally borne by the operator or recovered from the operator where the competent authority has incurred costs in relation to the preventive or remedial actions taken. The same principle applies to environmental assessments carried out to determine the extent of damage and the action to be taken to repair it. The operator is not required to bear the costs where: (i) he can prove that the damage was, inter alia, caused by a third party and occurred despite the fact that appropriate safety measures were in place343; or (ii) he can demonstrate that he was not at fault or negligent and that the environmental damage was caused by an emission or an activity that was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time344.

If several operators are jointly responsible for damage, they must bear the costs of repair either jointly and severally or on a proportional basis345. The Directive does not oblige operators to take

342 Article 7(4) ELD 343 Article 8(3)(a) ELD 344 Article 8(4)(b) ELD 345 Recital 22 and Article 9 ELD 79

out a financial security, such as insurance, to cover their potential insolvency. However, Member States are required to encourage operators to make use of such mechanisms346.

The limitation period for the recovery of costs is five years from the date on which the measures were completed, or the liable operator or third party has been identified, whichever is the later347.

The ELD entered into force on 30th April 2004348. Member States were required to transpose the Directive into domestic law by 30th April 2007349. However, this process was not completed until July 2010 and, in the interim, several cases of non-transposition were referred to the CJEU350.

The ELD has been amended three times351. The amendments broadened the scope of strict liability by adding the "management of extractive waste" and the "operation of storage sites pursuant to Directive 2009/31/EC" to the list of dangerous occupational activities in Annex III of the ELD. The Offshore Safety Directive, containing an amendment to the ELD (extension of the scope of damage to marine waters), was adopted in June 2013.

10.4 Public Participation

The BHDs make reference to public involvement in the consideration of plans and programmes in Article 6(3) of the Habitats Directive and the desirability of re-introducing species listed in Annex IV of the Directive352. In practice, Member States involve the public on many aspects of the BHDs, including the designation of Natura 2000 sites353 and the establishment of the necessary conservation measures for site management354. The somewhat limited explicit recognition of the public’s role in implementing the BHDs largely reflects the timing of their adoption. In 1979 and 1992 respectively, the integration of participatory rights into domestic and EU law was in its infancy. Member States and the European Community as a party in its own right, had yet to sign (1998) and ratify (2005) the UNECE Aarhus Convention, which subsequently gave rise to EU legislation on access to information and public participation in decision-making.

As may be expected, the ELD makes overt reference to such rights. Article 12 of the Directive sets out the circumstances in which civil society can submit observations relating to instances of

346 Recital 27 and Article 14 ELD. Under Article 14(2) of the ELD, the Commission was obliged to present a report on the effectiveness of the Directive in terms of actual remediation of environmental damages, on the availability at reasonable costs and on conditions of insurance and other types of financial security for the activities covered by Annex III before 30 April 2010. The report can be found here: http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:52010DC0581&from=EN 347 Article 11 ELD 348 Article 20 ELD 349 Article 19(1) ELD 350 The CJEU ruled the following Member States had failed to properly transpose the Directive into domestic legislation by 30th April 2007: Commission v Austria (C-422/08), Commission v Slovenia (C-402/08), Commission v France (C-330/08), Commission v Finland (C-328/08), Commission v UK (C-417/08), Commission v Belgium (C-329/08) and Commission v Luxembourg (C-331/08) 351 Through Directive 2006/21/EC on the management of waste from extractive industries, Directive 2009/31/EC on the geological storage of carbon dioxide and amending several directives, and Directive 2013/30/EU on safety of offshore oil and gas operations and amending Directive 2004/35/EC 352 Article 22(a), Habitats Directive 353 Article 4, Habitats Directive 354 Article 6(1), Habitats Directive 80

environmental damage to competent authorities – and request a competent authority to take action under the ELD. This includes natural or legal persons:

 Affected or likely to be affected by environmental damage; or  Having a sufficient interest in environmental decision-making relating to the damage; or, alternatively  Alleging the impairment of the right, where the administrative procedural law of a Member State requires this as a precondition.

What constitutes “sufficient interest” and “impairment of a right” is determined by the Member States355. However, any NGO promoting environmental protection and meeting any requirements under national law is deemed sufficient for fulfilling these purposes.

Where the request for action and supporting information and data make a robust case that environmental damage exists356, the competent authority is obliged to consider the request and give the relevant operator the opportunity to make their views known. The competent authority must inform those making the request for action under Article 12(1) of the Directive with a reasoned decision as soon as possible. Where there is an imminent threat of damage, competent authorities may dispense with the duty to invite and consider requests and provide a reasoned decision.

Those persons submitting a request for action must have access to a court or other independent and impartial public body competent to review the procedural and substantive legality of the decisions, acts or failures to act of the competent authority under the Directive357.

10.5 Cooperation between Member States

The BHDs recognise the crucial role of Community action in light of the trans-boundary nature of the Community’s natural heritage and threats to it358.

Similarly, the objective of the ELD (the establishment of a common framework for the prevention and remedying of environmental damage at a reasonable cost to society) can only be achieved at Community level by reason of the scale of the Directive and its implications in respect of other Community legislation359. Article 15 of the ELD specifically requires requisite Member States to cooperate where environmental damage affects, or is likely to affect, several Member States. Such cooperation includes the appropriate exchange of information and, where necessary, remedial action in respect of any environmental damage.

355 Article 12(1) ELD 356 Article 12(2) ELD 357 Recital 26 and Article 13 ELD 358 Recital 4 of the preambles to the Habitats Directive 359 Recital 3 and 28 of the preambles to the ELD 81

10.6 Reporting

Article 17(1) of the Habitats Directive requires Member States to draw up a report on the implementation of the measures taken under the Directive, including: (i) information on the conservation measures referred to in Article 6(1); (ii) an evaluation of the impact of those measures on the conservation status of the natural habitats types in Annex I and the species in Annex II; and (iii) the main results of the surveillance referred to in Article 11. The report must be submitted to the Commission and made accessible to the public. On the basis of these reports, the Commission must prepare a composite report evaluating the progress achieved, with particular emphasis on the contribution of the Natura 2000 network to the achievement of the objectives set out in Article 3 of the Directive.

Article 18(1) of the ELD required Member States to report to the Commission on the experience gained in the application of the ELD by 30th April 2013360. Annex VI of the Directive sets out the information and data the reports were obliged to cover. For each instance of environmental damage and liability under this Directive, the following information and data must be provided:

 Type of environmental damage, date of occurrence and/or discovery of the damage and date on which proceedings were initiated under this Directive;

 Activity classification code of the liable legal person(s);

 Whether there has been resort to judicial review proceedings either by liable parties or qualified entities. (The type of claimants and the outcome of proceedings shall be specified);

 Outcome of the remediation process; and

 Date of closure of proceedings.

In addition, Member States may include any other information and data deemed useful to allow a proper assessment of the functioning of this Directive, such as:

 Costs incurred with remediation and prevention measures, as defined in this Directive: . paid for directly by liable parties (when available); . recovered ex post facto from liable parties; . unrecovered from liable parties (reasons for non-recovery should be specified).

 Results of the actions to promote and the implementation of the financial security instruments used in accordance with this Directive; and

 An assessment of the additional administrative costs incurred annually by the public administration in setting up and operating the administrative structures needed to implement and enforce this Directive.

360 The Reports of the Member States can be found on the European Commission’s website here: http://ec.europa.eu/environment/legal/liability/ 82

The European Commission was obliged to report on the Member States’ experience gained in the application of the Directive by 30th April 2014361. However, due to delays in reporting and evaluation (Member State reports, evaluation studies, internal REFIT process) and due to the changes at EU political level in 2014, the Commission’s report will not be completed before the middle of 2015362.

361 Under Article 18(2) ELD 362 See the Commission’s website here: http://ec.europa.eu/environment/legal/liability/ 83

11.0 POLICY INTEGRATION – CLIMATE CHANGE

11.1 Mandate Question C3: Is there scope for integration between the BHDs and other policy objectives, including climate change?

While there will be other measures necessary to comprehensively address climate change, some of the pertinent measures for Natura 2000 sites are outlined below.

The BHDs were adopted by the Council of the European Communities before the full implications of climate change were recognised by the scientific community363. However, as repositories of Europe’s most precious biodiversity, policy guidance demonstrates that Natura 2000 sites can be managed to allow for adaptation to, and mitigation of, climate change364.

The most vulnerable Natura 2000 habitat types are coastal habitats, fresh water habitats, bogs, mires and fens, and alpine habitats. Amphibians and fish are considered to be the most vulnerable Natura 2000 species. For many invertebrates (with the exception of butterflies365), not much is known about their response to climate change. The Mediterranean and the Alpine regions show the highest number of vulnerable species366.

Monitoring regimes, including those implemented under the BHDs367, will be a core part of an adaptive management planning process. Adaptive management of Natura 2000 sites (and all protected areas) will require monitoring of the actual effects of climate change, as well as evaluation of the effectiveness of measures developed to address its impacts.

It should also be recognised that Natura 2000 sites provide natural solutions for mitigating and adapting to climate change368. They can specifically contribute to managing climate change by, inter alia369:

 Increasing capture and storage of carbon dioxide in natural ecosystems (all ecosystems but especially peat lands and forests);  Providing opportunities for water retention / storage (Riverine Natura 2000 sites or areas prone to flooding);  Climate regulation (all areas but especially relevant for areas located near urban areas);  Reducing the risks of and impacts from extreme events; and  Reducing the impacts of sea level rise (for coastal areas).

363 The Wild Birds Directive (79/409/EEC, as was) was adopted by the Council of the European Communities on 2nd April 1979 and the Habitats Directive (92/43/EEC) was adopted by the Council of the European Communities on 21st May 1992 364 See guidance – page 88: http://ec.europa.eu/environment/nature/climatechange/pdf/Guidance%20document.pdf 365 Settele, J., Kudrna, O., Harpke, A., Kuhn, I., van Sway, C., Verovnik, R., Warren, M., Wiemers, M., Hanspach, J., Hickler, T., Kuhn, E., van Halder, I., Veling, K., Vliegnethart, A., Wynhoff, I. & Schweiger, O. (2008). Climatic risk atlas of European butterflies. Pensoft, Sofia 366 Supra, n.377, section 3.2 367 Articles 4(3) and 12 of the Birds Directive and Articles 12(1), 12(2) and 17 of the Habitats Directive 368 UNEP (2009) The Natural Fix? The role of ecosystems in climate mitigation and WWF (2010). Natural solutions; protected areas helping people cope with climate change. 369 See European Commission (2013) Guidelines on Natura 2000 and Climate Change. Available at: http://ec.europa.eu/environment/nature/climatechange/pdf/Guidance%20document.pdf. For further examples see Naumann et al. (2010). Assessment of the potential of ecosystem-based approaches to climate change and mitigation in Europe 84

The European Commission notes a lack of confidence when addressing the impacts of climate change at both site and network levels370. Although the Habitats Directive was progressive in recognising the role of land-use planning and development policies in improving the ecological coherence of the Natura 2000 network, such measures are not mandatory371 and, until now, the importance of ecological connectivity has generally received little attention.

In this respect, measures at the network level will be crucial to enable species to disperse from present to future suitable climate zones. For species to expand their range, existing habitat networks must be well connected to neighbouring areas that may become suitable due to climate change. Facilitating range shifts will require well connected, semi-natural habitat over large distances as the suitable climate zones for many species are predicted to move several hundreds of kilometres. This requires international cooperation to find the best routes and opportunities for implementation of cross border measures372. The overall aim of all measures at the network level is to facilitate movement of species between different Natura 2000 sites (as well as between Natura 2000) and suitable habitat in the surrounding of the Natura 2000 sites.

The type of measures that will be required largely depend on the nature of the land cover (e.g. forest, grasslands) and the land use intensity within the landscape surrounding Natura 2000 sites and the ecological requirements of the species. Necessary measures include:

 Improving connectivity by developing stepping-stones and corridors – the wider landscape is often not suitable for the dispersal or migration of species in intensively used agricultural areas. There is mounting evidence that small, natural landscape elements within the landscape (e.g. avenues of trees, hedgerows, road/waterway verges, ponds, copses) are required to support the biodiversity of the protected areas373. However, such “routes” are often scattered and of poor quality from a biodiversity perspective. The Natura 2000 network can be enhanced by taking into account species’ requirements concerning the robustness and quality of corridors and stepping stones374. For improved connectivity for Natura 2000 sites along or incorporating rivers and streams, the development of River Basin Management Plans (as required under the Water Framework Directive) offers opportunities to strengthen the connectivity of river and stream habitats;

 Implementing appropriate management of the wider landscape and development of semi-natural habitat - in landscapes containing a good amount of semi-natural habitat, the main challenges are to ensure that current management is maintained and that developments do not reduce the amount and quality of that habitat. Agri-environmental measures can be one way of ensuring this. However, the use of such measures is only effective if a sufficient amount of habitat is developed in the landscape between Natura 2000 sites. Also, other policies, in areas such as spatial planning, or RBMPs (see above) can be instrumental in improving the management of the wider landscape and development of semi-natural habitat;

 Implementing measures to reduce the barrier effects of roads, railways and technical objects in rivers and streams to facilitate species spatial responses to

370 Ibid, Chapter 7 371 Article 3(3) and 10, Habitats Directive. Note also that Article 4(4) of the Birds Directive requires Member States to strive to avoid the pollution or deterioration of habitats outside SPAs 372 Vos C., D. van der Hoek, M. Vonk. Spatial planning of a climate adaptation zone for wetland ecosystems. Landscape Ecology, 25, 10. Pages: 1465-1477 373 Grashof-Bokdam, C.J., J.P. Chardon, C.C Vos, R.P.B. Foppen, M. Wallis DeVries, M. Van der Veen & H.A.M. Meeuwsen, 2009. The synergistic effect of combining woodlands and green veining for biodiversity. Landscape Ecology 24: 1105-1121 374 Articles 3(3) and 10, Habitats Directive 85

climate change - man-made infrastructure inhibits the dispersal and migration of species. Where possible, new infrastructure should be adapted to make it more passable for many species; and

 Creating new areas in order to minimize the occurrence of large spatial gaps in the network – there may be gaps in the network of suitable areas for many species. It is therefore necessary to link habitat currently separated networks through the creation of new habitat patches.

The BHDs also require Member States to take appropriate steps to avoid the deterioration of Natura 2000 sites375. The extent to which Member States is able to do that in relation to climate change will vary (at both the site and national level). However, consideration to this duty should be given in the development and implementation of management plans (where necessary376) at the site level and legislative and policy decision-making at all levels377.

Member States should also be encouraged to utilise existing provisions to mitigate the impacts of climate change in the longer term through the development of policy measures to encourage wide- scale habitat restoration and recovery, e.g. Article 3(2) of the Birds Directive378, including at landscape scale.

The BHDs recognise the need for action at the Community level due to the trans-frontier nature of the resource379. The Biogeographic Regional Process (BRP) provides an opportunity and a framework for cooperation between Member States on Natura 2000 priority habitats and species at biogeographic regional level. It can also establish useful mechanisms to capitalise on national studies and EU level research on climate change, especially in sharing information and building knowledge about impacts on priority species and habitats.

Additionally, the Prioritised Action Frameworks (PAFs) (which specify how Natura 2000 and nature conservation priorities generally will be funded at Member State level) should address how nature conservation funds can trigger and secure contributions from non-environment sectors, such as agriculture and rural development funds.

More generally, integration between environmental and other sectors must be strengthened and improved to address climate change. This not only includes transport, agriculture and spatial planning, but also local government structures with primary responsibilities for people’s social and economic well-being. This is perhaps most obvious in coastal areas. Natural coastal defences, as opposed to build structures, are a valid consideration as they are likely to be more sustainable and

375 Article 4(4) Birds Directive and Article 6(2) Habitats Directive 376 Article 6(1) Habitats Directive 377 There is a tension here, however. Both Directives allow Member States to take socio-economic factors into account when implementing the Directives (Article 6 of the Habitats Directive sets out the circumstances in which Member States may take account of such factors in relation to Natura 2000 sites). The obvious dilemma is the sanctioning of renewable energy schemes (particularly on the coast and in the sea) that could destroy or damage Natura 2000 sites. There is no general approach applicable here as proposals must be considered on their merits. However, it is important to press for the full implementation of the requisite procedures for assessment and evaluation of alternatives and to recognise the role of spatial planning as a mechanism for ensuring infrastructure proposals are appropriately located 378 Article 3(2) states: “The preservation, maintenance and re-establishment of biotopes and habitats shall include primarily the following measures: (a) creation of protected areas; (b) upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones; (c) re-establishment of destroyed biotopes; and (d) creation of biotopes” 379 Recital 3 of the Birds Directive and recitals 4 and 11 of the Habitats Directive 86

more cost efficient in the longer term. Vitally, natural coastal defences, such as dune systems, can adapt in response to a changing climate.

For policy makers in all sectors, especially working at regional and national levels, there are valuable opportunities emerging to develop increasing cooperation and collaborative responses to climate change that also achieve gains for nature. This will include developing international/transboundary climate zones that facilitate long distance movements of species.

Conclusion

If the existing provisions of the BHDs were fully implemented, Member States would have a robust armoury of tools to address the causes and effects of climate change. Such provisions include: monitoring the effects of climate change (both within Natura 2000 sites and the wider land/sea scape); the employment of administrative and policy measures to address the causes of site deterioration and improve ecological coherence/connectivity between sites; the encouragement of large scale habitat restoration and recovery to mitigate the impacts of climate change in the longer term; and a forum for international collaboration and cooperation.

12.0 POLICY INTEGRATION – ENERGY AND TRANSPORT

The following section addresses certain elements of Mandate Question C4: Are provisions of EU Nature legislation sufficiently taken into account and integrated in to other EU sectoral policies, including transport and energy?

Article 6(4) of the Habitats Directive states:

“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.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.”

The concept of “Imperative Reasons of Overriding Public Interest” (IROPI) is not defined in Article 6(4) of the Habitats Directive and, thus far, the Court of Justice of the European Union (CJEU) has rarely been invited to rule on how it should be interpreted. In order to understand how the concept of IROPI applies in the field of transport and energy policy, reference is made to the following sources:

 Other fields of Community law;  Case-law of the CJEU (see extracts of relevant cases in the Annexes);  Opinions issued by the Commission on Article 6(4) of the Habitats Directive and IROPI (see extracts of relevant opinions in the Annexes);  Relevant commitments under EU and international law; and  EU Guidance on Article 6(4) and IROPI (relevant extracts in the Annexes).

Other fields of Community law

The "imperative requirement" concept was developed by the CJEU as an exception to the principle of free movement of goods. Among the imperative requirements that can justify national measures restricting freedom of movement, the Court recognised public health and environmental protection, as well as the pursuit of legitimate goals of economic and social policy.

Communication on services of general interest in Europe380, the Commission, taking account of case law on the matter, gave the following definition of services of general economic interest: "they describe activities of commercial service fulfilling missions of general interest, and subject consequently by the Member States to specific obligations of public service381. It is the case in particular of services in transport, energy, communication networks ".

Case-Law of the CJEU

The CJEU has only addressed the question of whether a Member State has lawfully applied the concept of IROPI in two cases, neither of which concern renewable energy projects.

In Case C-182/10 (Marie-Noëlle Solvay and Others v Région wallonne), the Court addressed whether, inter alia, a decree ‘ratifying’ building consents for various works relating to Liège-Bierset airport, Brussels South Charleroi airport and the Brussels-Charleroi railway constituted IROPI382. The CJEU held that Article 6(4) of the Habitats Directive must, as an exception to the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly383 and that the implementation of a plan or project must be both “public” and “overriding” (i.e. of such an importance that it can be weighed up against the Habitats Directive’s objective of the conservation of natural habitats and wild fauna and flora384). As such, works intended for the location or expansion of an undertaking will only satisfy those conditions in “exceptional circumstances”. The Court held that private projects serving public interests, in the absence of alternative solutions and in certain economic and social context, are capable of satisfying IROPI. However, in this situation, the mere construction of infrastructure designed to accommodate a management centre could not constitute an IROPI within the meaning of Article 6(4) of the Habitats Directive.

Secondly, in Case C-43/10 (Nomarchiaki Aftodioikisi Aitoloakarnanias and Others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and Others), the CJEU addressed IROPI in the context of both priority and non-priority features of the Habitats Directive. The case concerned a project for the partial diversion of the upper waters of the river Acheloos to Thessaly in Greece. The project intended to serve not only the irrigation and electricity production needs of the region of Thessaly but also the supply of water to towns and cities in that region. In this case, the Court held that irrigation and the supply of drinking water may constitute IROPI, but that where the integrity of an SCI hosting a priority natural habitat type and/or a priority species is adversely affected, the implementation of the project may, in principle, only be justified by the supply of drinking water. The Court also held that, in some circumstances, it might be justified by reference to beneficial consequences of primary importance which irrigation has for the environment, but that irrigation cannot, in principle, qualify as a consideration relating to human health and public safety.

While these are the only cases in which the Court has been required to address the concept in the particular, it has given guidance as to how the concept should be framed by Member States on several occasions. Firstly, in Case C-239/04 (Commission v Portugal, “Castro Verde”), the CJEU stated:

380 COM (96) 443, of the 11.09.1996 381 The public service obligations, in their turn, are characterised for the respect of some essential principles of operation, such as continuity, the equal access, universality and transparency, but can vary from one Member State to the other, according to different situations, such as geographical or technical constraints, political and administrative organisation, history and traditions 382 The case was a reference for a preliminary ruling under Article 267 TFEU from the Cour constitutionnelle (Belgium) concerning a Decree of the Walloon Parliament of 17 July 2008 383 See also Case C‑304/05 Commission v Italy, paragraph 82 384 See also Case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and Others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and Others, paragraph 121 89

“35 That provision, which permits a plan or project which has given rise to a negative assessment under the first sentence of Article 6(3) of the Habitats Directive to be implemented on certain conditions, must, as a derogation from the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly.

36 Thus, the implementation of a plan or project under Article 6(4) of the Habitats Directive is, inter alia, subject to the condition that the absence of alternative solutions be demonstrated”.

The requirement for Article 6(4) to be interpreted strictly was reinforced in Case C-304/05 (Commission v Italy), which also confirmed that Article 6(4) Habitats Directive can only be applied after the implications of a plan or project have been studied in accordance with Article 6(3). The Court held that “Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for application of Article 6(4) since, in the absence thereof, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified385”.

In Case C‑258/11 (Sweetman and Others), the Court held that the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by the Habitats Directive. Indeed, Article 6(2) and Article 6(3) are “designed to ensure the same level of protection of natural habitats and habitats of species, whilst Article 6(4) merely derogates from the second sentence of Article 6(3)386”. This approach was also confirmed in Case C-521/12 (T.C. Briels and Others v Minister van Infrastructuur en Milieu387).

The strict approach to the interpretation of IROPI is also underpinned by the application of the precautionary principle, inherent in recital 10 and Article 6 of the Directive and expressly discussed in Case C-127/02 (“Waddenzee”):

44 In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Article 174(2) EC, and by reference to which the Habitats Directive must be interpreted, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned (see, by analogy, inter alia Case C- 180/96 United Kingdom v Commission [1998] ECR I-2265, paragraphs 50, 105 and 107). Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised, and thereby contributes to achieving, in accordance with the third recital in the preamble to the Habitats Directive and Article 2(1) thereof, its main aim, namely, ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora.

385 See C-304/05 Commission v Italy, paragraph 83 386 See Case C-258/11 Sweetman and Others, paragraph 32 387 See Case C-521/12 (T.C. Briels and Others v Minister van Infrastructuur en Milieu), paragraph 19 90

To conclude, the case-law of the CJEU suggests that the test for IROPI under Article 6(4) of the Habitats Directive will only be satisfied if all of the following factors apply:

 The potential effects of a plan or project on the features of interest of the site(s) of Community Importance have been fully evaluated under Article 6(3) of the Habitats Directive;  As a derogation from the Article 6(3), IROPI is applied strictly and in the context of both the precautionary principle and sustainable development;  The project serves the public interest;  That interest is overriding; and  There must be no alternative solutions.

In the case of adverse effects on SCIs supporting priority natural habitat types and species, a more stringent test applies.

Opinions issued by the Commission on Article 6(4) of the Habitats Directive and IROPI

In accordance with the second paragraph of Article 6(4) of the Habitats Directive, the European Commission is obliged to provide Member States with an opinion as to whether a plan or project adversely affecting an SCI supporting a priority natural habitat type and/or a priority species satisfies the requirement for IROPI. The Commission has been asked to provide such an opinion on nineteen occasions between 1996 and 2013388.

The opinions concern a number of infrastructure proposals including road and motorway building/extensions, railways, port expansion, river deepening and the construction of a dam. As such, they have all required the Commission to balance the impact of the adverse effects on the features of interest of the SCI(s) (and hence the implications for the achievement of FCS in the bio- geographical region) against the public interest that would be realised by the plan or project in question. None of these cases have required the Commission to address the somewhat more complicated issue of a plan or project that will have an adverse effect on an SCI but which, in addition to providing economic or social benefits, also provides an environmental one, i.e. the reduction of CO2.

Two of the opinions concern airports. These include the approval of an extension to the Lübeck- Blankensee airport in Germany in 2009389 and the expansion of the Karlsruhe Baden/Baden airport in Germany in 2005390. The Commission was of the opinion that IROPI was satisfied in both of these cases. However, the coming into force of the Kyoto Protocol on 16th February 2005, to which the EU is a Party in its own right, is reflected in the Commission’s opinion on the Lübeck- Blankensee airport. While, on the basis of the information provided by the German authorities, the Commission was of the opinion that the adverse effects of implementing the extension of the Lübeck-Blankensee airport on two Natura 2000 sites were justified by IROPI, the Commission took the opportunity to remind the German authorities that: “projects such as the extension of the

388 Commission opinions available here: http://ec.europa.eu/environment/nature/natura2000/management/opinion_en.htm 389 Opinion dated 5th May 2009 available here: http://ec.europa.eu/environment/nature/natura2000/management/docs/c_2009_3218_en.pdf 390 Opinion dated 6th June 2005 available here: http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/baden_airport_en.p df 91

Lübeck airport which are based on an expected increase in air traffic must be seen in the wider context of Germany’s commitments to reduce greenhouse gas emissions in the light of EU objectives to mitigate climate change”.

The addition of climate change considerations as a factor to the Commission’s decision-making process under Article 6(4) is discussed further below.

EU Guidance on Article 6(4) of the Habitats Directive and IROPI

EU Guidance holds that competent national authorities have to make their approval of the plans and projects in question subject to the condition that the balance of interests between the conservation objectives of the site affected by those initiatives and the above-mentioned imperative reasons weighs in favour of the latter391. The Guidance maintains that IROPI should be determined according to the following considerations:

 The public interest must be overriding - not every kind of public interest of a social or economic nature is sufficient, in particular when seen against the particular weight of the interests protected by the Directive (see e.g. its 4th recital stating "Community’s natural heritage");

 The public interest can only be overriding if it is a long-term interest; short term economic interests or other interests which would only yield short-term benefits for the society would not appear to be sufficient to outweigh the long-term conservation interests protected by the Directive;

 Be of public interest - projects developed by private bodies can only be considered where such public interests are served and demonstrated.

As such, the Guidance holds that IROPI (including those of social and economic nature) refer to situations where plans or projects envisaged prove to be indispensable392:

 Within the framework of actions or policies aiming to protect fundamental values for the citizens' life (health, safety, environment);

 Within the framework of fundamental policies for the State and the Society;

 Within the framework of carrying out activities of economic or social nature, fulfilling specific obligations of public service.

The competent national authorities have to make their approval of the plans and projects in question subject to the condition that the balance of interests between the conservation objectives of the site affected by those initiatives and the above-mentioned imperative reasons weighs in favour of the latter.

391 Guidance on Article 6(4) of the Habitats Directive, section 1.3.2 available here: http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/new_guidance_art6 _4_en.pdf 392 As per page 8 of the 2007/2012 Guidance: http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/new_guidance_art6 _4_en.pdf 92

Human health, public safety and primary beneficial consequences for the environment constitute the most important IROPI. However, like that concept, these categories are not expressly defined in the Directive.

Community law refers to public health and public safety reasons as ones which can justify the adoption of restrictive national measures to the free movement of goods, workers and services as well as to the right of establishment. In addition, the protection of persons’ health is one of the fundamental objectives of Community policy in the field of the environment. In the same view, the primary beneficial consequences for the environment constitute a category which must be included in the aforementioned fundamental objectives of environmental policy.

Within the framework of the principle of subsidiarity, it rests with the competent national authorities to check whether such a situation occurs. Of course, any situation of this kind is likely to be examined by the Commission within the framework of its activity of control on the correct application of Community law.

As regards the concept of ‘public safety’, the EU Guidance refers to the judgement of the Court of Justice in Case C-57/89, Commission v Germany (‘Leybucht Dykes’). Although this decision preceded the adoption of the Habitats Directive, it is relevant because the Court’s approach influenced the drafting of Article 6. At issue were construction works to reinforce dykes on the North Sea at Leybucht. These works involved a reduction in the area of an SPA. As a matter of general principle, the Court stated that the grounds justifying such a reduction must correspond to a general interest which is superior to the general interest represented by the ecological objective of the Directive. In the specific case, the Court confirmed that the danger of flooding and the protection of the coast constituted sufficiently serious reasons to justify the dyke works and the strengthening of coastal structures as long as those measures are confined to a strict minimum. The national authorities can authorise the realisation of the plan or project only if the proof of the existence of the aforesaid reasons of overriding public interest is given and within the limits within which the plan or project in question proves necessary for the fulfilment of the public interest in question.

Relevant commitments under EU and international law

Prior to the EU’s ratification of the Kyoto Protocol in 2005, the situation with regard to IROPI was (whilst imprecise) relatively straight-forward. The case-law of the CJEU and guidance published by the Commission confirmed that IROPI must be interpreted strictly and is only satisfied if all of the following factors are present: (i) the potential effects of the plan or project on the features of interest of the site(s) of Community Importance are fully evaluated under Article 6(3) of the Habitats Directive; (ii) the project serves the public interest; (iii) that interest is overriding and long-term; and (iv) the other requirements of Article 6(4) are satisfied, i.e. there are no alternative solutions and compensatory measures to secure the coherence of the Natura 2000 network are secured.

However, the Kyoto Protocol imposes strict obligations on both the Member States and the EU itself393. As a result of these obligations, it is now incumbent on the Commission to consider the

393 Under the Kyoto Protocol, the 15 countries that were EU members before 2004 committed to reducing their collective emissions to 8% below 1990 levels by the years 2008-2012. For 2020, the EU has committed to cutting its emissions to 20% below 1990 levels. This commitment is one of the headline targets of the Europe 2020 growth strategy and is being implemented through a package of 93

potential impact of a plan or project on the achievement of those targets, alongside other national and EU targets on biodiversity, including those made under the BHDs and the EU Biodiversity Strategy, which includes ambitious targets to halt the loss of biodiversity by 2020394.

It is difficult to predict the extent to which EU commitments on climate change will impact on the application of the IROPI test (as each case will need to be assessed on its merits, taking into account the potential impact on the Natura 2000 site(s), whether there are any alternatives and the nature/extent of the compensatory measures proposed).

Conclusion

The case-law of the CJEU and guidance published by the Commission confirms that IROPI must be interpreted strictly and is only satisfied if all of the following factors are present: (i) the potential effects of the plan or project on the features of interest of the site(s) of Community Importance are fully evaluated under Article 6(3) of the Habitats Directive; (ii) the project serves the public interest; (iii) that interest is overriding and long-term; and (iv) the other requirements of Article 6(4) are satisfied, i.e. there are no alternative solutions and compensatory measures to secure the coherence of the Natura 2000 network are secured. However, it is clear that EU commitments on climate change will impact on the application of the IROPI test. The extent of change is difficult to predict (as each case will need to be assessed on its merits, taking into account the potential impact on the Natura 2000 site(s), whether there are any alternatives and the nature/extent of the compensatory measures proposed).

12.2 As regards the TEN-E Regulation on energy infrastructure395 what is the interrelationship between Art 7 - and more particularly Art 7(8) - and Art 6(4) of the Habitats Directive? Specifically as regards Art 7(8) what is the impact of ‘being of public interest from an energy policy perspective’ (Art 7.8 of TEN-E Regulation).

Article 7 of the TEN-E Regulation states:

“‘Priority status’ of projects of common interest

1. The adoption of the Union list shall establish, for the purposes of any decisions issued in the permit granting process, the necessity of these projects from an energy policy perspective, without prejudice to the exact location, routing or technology of the project.

binding legislation. In the climate and energy policy framework for 2030, the European Commission proposes that the EU set itself a target of reducing emissions to 40% below 1990 levels by 2030. For 2050, EU leaders have endorsed the objective of reducing Europe's greenhouse gas emissions by 80- 95% compared to 1990 levels as part of efforts by developed countries as a group to reduce their emissions by a similar degree 394 For more information on the targets see here: http://ec.europa.eu/environment/nature/biodiversity/comm2006/2020.htm 395 EU REGULATION 347/2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 at http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32013R0347&from=EN 94

2. For the purpose of ensuring efficient administrative processing of the application files related to projects of common interest, project promoters and all authorities concerned shall ensure that the most rapid treatment legally possible is given to these files.

3. Where such status exists in national law, projects of common interest shall be allocated the status of the highest national significance possible and be treated as such in permit granting processes — and if national law so provides, in spatial planning — including those relating to environmental assessments, in the manner such treatment is provided for in national law applicable to the corresponding type of energy infrastructure.

4. By 16 August 2013, the Commission shall issue non- binding guidance to support Member States in defining adequate legislative and non-legislative measures to streamline the environmental assessment procedures and to ensure the coherent application of environmental assessment procedures required under Union law for projects of common interest.

5. Member States shall assess, taking due account of the guidance referred to in paragraph 4, which measures to streamline the environmental assessment procedures and to ensure their coherent application are possible, and shall inform the Commission of the result.

6. By nine months from the date of issue of the guidance referred to in paragraph 4, Member States shall take the non- legislative measures that they have identified under paragraph 5.

7. By 24 months from the date of issue of the guidance referred to in paragraph 4, Member States shall take the legislative measures that they have identified under paragraph 5. These measures shall be without prejudice to obligations resulting from Union law.

8. With regard to the environmental impacts addressed in Article 6(4) of Directive 92/43/EEC and Article 4(7) of Directive 2000/60/EC, projects of common interest shall be considered as being of public interest from an energy policy perspective, and may be considered as being of overriding public interest, provided that all the conditions set out in these Directives are fulfilled (emphasis added).

Should the opinion of the Commission be required in accordance with Directive 92/43/EEC, the Commission and the competent authority referred to in Article 9 of this Regulation shall ensure that the decision with regard to the overriding public interest of a project is taken within the time limit pursuant to Article 10(1) of this Regulation.”

There is, as yet, no CJEU case-law on the interpretation of Article 7(8) of the TEN-E Regulation on Trans-European Energy Infrastructure (“the Regulation”). However, in July 2013, the Commission issued Guidance on the streamlining of environmental impact assessment procedures for energy

infrastructure projects of common interest (PCIs)396 and Natura 2000 and Energy Transmission infrastructure397.

EU Guidance on the streamlining of EIA procedures for PCIs has a short section on the Habitats Directive. The Guidance reflects that Article 6(3) of the Habitats Directive requires an appropriate assessment of plans and projects that may adversely impact Natura 2000 sites and recognises that this process requires precise data and careful expert analysis. Additionally, it states that the requirement for assessment may apply to network development plans established by Transmission System Operators (TSOs) under Directive 2009/72/EC13 in which candidate PCIs are specified, depending on the nature, form and content of such plans. The Guidance confirms that the objective of the assessment process is to consider the conservation objectives of Natura 2000 sites and the need to preserve their integrity. The competent authorities can only authorise the plan or project if the assessment shows that it will not adversely affect the integrity of a Natura 2000 site. Any possible mitigation measures (e.g. in relation to location of the PCI, design, construction method and timing etc.) should therefore be taken so as to avoid PCIs adversely affecting the integrity of Natura 2000 sites.

The Guidance also confirms that should competent authorities wish to authorise a PCI for which the assessment has concluded a negative impact, they must demonstrate that all of the conditions of Article 6(4) of the Habitats Directive are met, i.e. no alternative solutions are available and that the PCI is necessary for IROPI. Competent authorities must also demonstrate that compensatory measures to ensure the maintenance of the overall coherence of the Natura 2000 network have been secured. When priority habitats or species are affected, the project can be authorised only after an Opinion from the European Commission (direct reference is made to the EU Guidance on the Habitats Directive).

Finally, the Guidance also notes that provisions related to species protection under Article 5 of the Birds Directive and Articles 12 and 13 of the Habitats Directive must be complied with, both within and outside Natura 2000 sites.

In particular, the Guidance states: “… PCIs may be considered as being of overriding public interest from an energy policy perspective within the meaning of Article 6(4) of the Habitats Directive (Article 7(8) of the new TEN-E Regulation).” (emphasis added).

EU Guidance on Natura 2000 and Energy Transmission infrastructure appears to comprise a power point presentation given by Commission staff in July 2013. The presentation refers to a non- legally binding EU Guidance document on electricity, gas and oil infrastructures & Natura 2000, focusing on the appropriate assessment of effects on Natura 2000 sites. The presentation sets out the steps to be taken in the appropriate assessment process and the requirements of Article 6(4) of the Habitats Directive, including IROPI. The Guidance also refers to the existence of EU Guidance on the Habitats Directive398.

To conclude, there is no case-law on this point yet. However, EU Guidance suggests that “being of public interest from an energy policy perspective" means that infrastructure projects of common

396 Available here: http://ec.europa.eu/energy/infrastructure/doc/assessment/20130919_pci-en- guidance.pdf 397 Available here: http://ec.europa.eu/energy/infrastructure/doc/assessment/20130724_natura_2000.pdf 398 Including Managing Natura 2000 Sites – the provisions of Article 6 of the Habitats Directive 92/43/EEC, Methodological Guidance on the provisions of Article 6(3) and (4), Wind Energy and Natura 2000 and Guidance document on the strict protection of animal species of Community interest under the 'Habitats' Directive 92/43/EEC" 96

interest have the potential to satisfy the IROPI test in Article 6(4) of the Habitats Directive, provided that all the conditions set out in the Habitats Directive are fulfilled, i.e. that there are no alternatives, that compensatory measures to ensure the coherence of the Natura 2000 network are secured and, in the event of adverse effects on priority natural habitat types and/or species, subject to an opinion from the European Commission.

13.0 COHERENCE WITH OTHER EU, INTERNATIONAL AND GLOBAL COMMITMENTS ON NATURE CONSERVATION:

How do the BHDs complement the other actions and targets of the biodiversity strategy to reach: (i) EU biodiversity objectives; (ii) the CBD Aichi Targets; and (iii) the EU 7th Environmental Action Programme?

13.1 The EU’s Biodiversity Strategy

The European Union and its Member States are contracting parties to the UN Convention on Biological Diversity (CBD), which opened for signature on 5th June 1992 at the United Nations Conference on Environment and Development (the Rio "Earth Summit"). The European Union ratified the CBD on 21st December 1993 and the Convention entered into force on 29th December 1993 (90 days after the 30th ratification). The EU became a signatory to the CBD only weeks before adopting the Habitats Directive in May 1992.

In 1998, the European Commission adopted a Communication on a European Biodiversity Strategy, which aimed to anticipate, prevent and attack the causes of significant reduction or loss of biodiversity at the source. However, biodiversity loss continued at alarming rates. In 2001, EU Heads of State and Governments undertook to halt the decline of biodiversity in the EU by 2010 and to restore habitats and natural systems. In 2002 at the World Summit for Sustainable Development, they also joined some 130 world leaders in agreeing to significantly reduce the rate of biodiversity loss globally by 2010. In May 2006, the European Commission adopted a Communication399 on "Halting Biodiversity Loss by 2010 – and Beyond: Sustaining ecosystem services for human well-being". The Communication underlined the importance of biodiversity protection as a pre-requisite for sustainable development, as well as setting out a detailed EU Biodiversity Action Plan (BAP) to achieve this. The EU BAP addressed the integration of biodiversity concerns into other policy sectors in a unified way, specifying a comprehensive plan of priority actions and outlining the responsibility of community institutions and Member States in relation to each. It also contained indicators to monitor progress and a timetable for evaluations.

The Tenth Conference of the Parties (CoP10) to the CBD (held in Nagoya in 2010) led to the adoption of a global Strategic Plan for biodiversity 2011-2020400, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (ABS Protocol401), and a strategy to mobilise resources for global biodiversity.

In 2011, the European Commission adopted an ambitious new strategy to respond to both mandates, including a halt to the loss of biodiversity and ecosystem services in the EU by 2020402.

399 See http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52006DC0216&from=EN 400 The global Strategic Plan 2011-2020 includes a 2050 vision, 2020 mission and 20 targets 401 On 11 February 2011, the Commission submitted a proposal to the Council for a Council decision on the signing, on behalf of the European Union, of the Nagoya Protocol 402 COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Our life insurance, our natural capital: an EU biodiversity strategy to 2020 COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Our life insurance, our natural capital: an EU biodiversity strategy to 2020 /* COM/2011/0244 final */ available at: http://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:52011DC0244&from=EN 98

The new Strategy included six main targets, and 20 actions. The 2020 headline target is "Halting the loss of biodiversity and the degradation of ecosystem services in the EU by 2020, and restoring them in so far as feasible, while stepping up the EU contribution to averting global biodiversity loss" and the 2050 vision: “By 2050, European Union biodiversity and the ecosystem services it provides – its natural capital – are protected, valued and appropriately restored for biodiversity's intrinsic value and for their essential contribution to human wellbeing and economic prosperity, and so that catastrophic changes caused by the loss of biodiversity are avoided.”

The six targets comprise the following:

 Target 1 (conserving and restoring nature) - to halt the deterioration in the status of all species and habitats covered by EU nature legislation and achieve a significant and measurable improvement in their status so that, by 2020, compared to current assessments: (i) 100% more habitat assessments and 50% more species assessments under the Habitats Directive show an improved conservation status; and (ii) 50% more species assessments under the Birds Directive show a secure or improved status.

 Target 2 (maintaining and enhancing ecosystems and their services) - by 2020, ecosystems and their services are maintained and enhanced by establishing green infrastructure and restoring at least 15 % of degraded ecosystems. Target 2 focuses on maintaining and enhancing ecosystem services and restoring degraded ecosystems by incorporating green infrastructure in spatial planning. This will contribute to the EU's sustainable growth objectives403 and to mitigating and adapting to climate change, while promoting economic, territorial and social cohesion and safeguarding the EU's cultural heritage. It will also ensure better functional connectivity between ecosystems within and between Natura 2000 areas and in the wider countryside. Target 2 incorporates the global target agreed by EU Member States and the EU in Nagoya to restore 15% of degraded ecosystems by 2020.

 Target 3 (ensuring the sustainability of agriculture, forestry and fisheries)

Agriculture: By 2020, maximise areas under agriculture across grasslands, arable land and permanent crops that are covered by biodiversity-related measures under the CAP so as to ensure the conservation of biodiversity and to bring about a measurable improvement404 in the conservation status of species and habitats that depend on or are affected by agriculture and in the provision of ecosystem services as compared to the EU2010 Baseline, thus contributing to enhance sustainable management.

Forests: By 2020, Forest Management Plans or equivalent instruments, in line with Sustainable Forest Management (SFM) [21], are in place for all forests that are publicly owned and for forest holdings above a certain size405 (to be defined by the Member States or regions and communicated in their Rural Development Programmes) that receive funding

403 Action 19: ‘Biodiversity proof’ EU development cooperation. The Commission will continue to systematically screen its development cooperation action to minimise any negative impact on biodiversity, and undertake Strategic Environmental Assessments and/or Environmental Impact Assessments for actions likely to have significant effects on biodiversity 404 For both targets, improvement is to be measured against the quantified enhancement targets for the conservation status of species and habitats of EU interest in Target 1 and the restoration of degraded ecosystems under target 2 405 For smaller forest holdings, Member States may provide additional incentives to encourage the adoption of Management Plans or equivalent instruments that are in line with SFM 99

under the EU Rural Development Policy so as to bring about a measurable improvement406 in the conservation status of species and habitats that depend on or are affected by forestry and in the provision of related ecosystem services as compared to the EU 2010 Baseline.

 Target 4 (ensuring the sustainability of agriculture, forestry and fisheries) Fisheries - achieve Maximum Sustainable Yield (MSY)407 by 2015. Achieve a population age and size distribution indicative of a healthy stock, through fisheries management with no significant adverse impacts on other stocks, species and ecosystems, in support of achieving Good Environmental Status by 2020, as required under the Marine Strategy Framework Directive.

 Target 5 (combating invasive alien species) – by 2020, Invasive Alien Species and their pathways are identified and prioritised, priority species are controlled or eradicated, and pathways are managed to prevent the introduction and establishment of new IAS.

 Target 6 (addressing the global biodiversity crisis) - by 2020, the EU has stepped up its contribution to averting global biodiversity loss. The EU has pledged to meet the international 2020 biodiversity goals and objectives agreed to under the CBD. This requires taking action within the EU, but also at global level since the EU derives significant benefits from global biodiversity and is at the same time responsible for some of the loss and degradation that occurs beyond its borders, notably due to its unsustainable consumption patterns.

The first target of the EU Biodiversity Strategy and the EU’s international treaty obligations can therefore only be achieved if the full and timely implementation of the BHDs is achieved. Indeed, one of the aims of the new Strategy is to achieve a significant and measurable improvement in the conservation status of species and habitats protected under the BHDs. While the absence of a specific deadline in the Habitats Directive for achieving FCS does not exempt Member States from improving status over time (as the HD is very clear in stipulating that Member States need to restore species and habitats to FCS where they are not408), having such a time-bound quantified target should assist in speeding up implementation. Thus, by 2020, 34% of the habitats and 26% of the species should either have reached FCS or shown a significant improvement in their status. Similarly for birds, the aim is for 80% of bird species to be either secure or improving by 2020.

Moreover, measures needed to avoid deterioration of BHDs targeted natural elements must be implemented as soon as the sites are classified as SPA under the Birds Directive or formally adopted by the Commission as a Site of Community importance (SCI) under the Habitats Directive. In particular, Member States cannot authorise interventions which may pose the risk of seriously compromising the ecological characteristics of an SCI. This is particularly the case when an intervention poses the risk of either significantly reducing the area of a site, the loss of priority species, or the destruction of the site or its representative characteristics (“Bund Naturschutz in Bayern eV409”).

The EU Biodiversity Strategy also pays particular attention to ensuring the effective management of Natura 2000 sites. It calls in particular for the establishment and timely implementation of site management plans and the further integration of species and habitat management requirements into key land and water use policies wherever possible. The full list of actions to achieve goal one

406 Supra, n.444 407 The EU signed up to a target of achieving MSY levels by 2015 at the World Summit on Sustainable Development in 2002 and to the new 2020 fisheries target adopted at CBD COP10 408 See Article 4(4) Habitats Directive 409 Case C-244/05 100

are set out in the Annex to Communication (COM(2011) 244) and are reproduced in the Annexes). However, to summarise they include:

 The completion of the Natura 2000 Network, especially in the marine environment;

 The provision of adequate financing for the conservation measures required for Natura 2000 sites at both EU and national/regional level;

 The integration of species and habitat protection and management requirements into key land and water policies, both within and outside Natura 2000;

 The promotion and sharing of experience, good practice and cross-border collaboration on the management of Natura 2000; and

 Increased cooperation with key sectors and stakeholder groups to improve the enforcement of the BHDs.

Target two of the EU Biodiversity Strategy focuses on maintaining and enhancing ecosystem services and restoring degraded ecosystems thus, inter alia, ensuring better functional connectivity between ecosystems within, and between, Natura 2000 areas and in the wider countryside. As such, the Strategy reinforces Articles 3(3) and 10 of the Habitats Directive, which encourage (but do not require) Member States to improve the ecological coherence of Natura 2000 by maintaining, and where appropriate developing, features of the landscape which are of major importance for wild fauna and flora.

Targets three and four are concerned with ensuring the sustainability of agriculture, forestry and fisheries and target five seeks to combat invasive alien species. As the achievement of FCS for species and habitats listed on the Directives is designed to be achieved primarily, but not exclusively, through the Natura 2000 network of sites, the realisation of targets 2, 3, 4 and 5 of the EU Biodiversity Strategy are directly relevant to the objectives of the BHDs. As such, the two instruments are inextricably linked and mutually supportive.

13.2 CBD Aichi Biodiversity Targets

In decision X/2410, the tenth meeting of the Conference of the Parties (held in October 2010, in Nagoya, Aichi Prefecture, Japan) adopted a revised and updated Strategic Plan for Biodiversity, including the Aichi Biodiversity Targets for 2011-2020.

The updated Plan provides an overarching framework on biodiversity, not only for the biodiversity- related conventions, but for the entire UN system and all other partners engaged in biodiversity management and policy development. Contracting Parties agreed to translate this overarching international framework into revised and updated national biodiversity strategies and action plans within two years.

The vision for the new Strategic Plan is: "Living in Harmony with Nature" where "By 2050, biodiversity is valued, conserved, restored and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people.”. The mission is to

410 See http://www.cbd.int/decision/cop/?id=12268 101

"take effective and urgent action to halt the loss of biodiversity in order to ensure that by 2020 ecosystems are resilient and continue to provide essential services, thereby securing the planet's variety of life, and contributing to human well-being, and poverty eradication. To ensure this, pressures on biodiversity are reduced, ecosystems are restored, biological resources are sustainably used and benefits arising out of utilization of genetic resources are shared in a fair and equitable manner; adequate financial resources are provided, capacities are enhanced, biodiversity issues and values mainstreamed, appropriate policies are effectively implemented, and decision-making is based on sound science and the precautionary approach."

The new Plan consists of five strategic goals (below) including twenty Aichi Biodiversity Targets (reproduced in the Annexes).

Strategic Goal A: Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society

Strategic Goal B: Reduce the direct pressures on biodiversity and promote sustainable use

Strategic Goal C: To improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity

Strategic Goal D: Enhance the benefits to all from biodiversity and ecosystem services

Strategic Goal E: Enhance implementation through participatory planning, knowledge management and capacity building.

The goals and targets comprise both aspirations for achievement at the global level, and a flexible framework for the establishment of national or regional targets.

The BHDs directly support at least four of the Aichi targets (including 5, 10, 11 and 12) and indirectly support at least six (6, 7, 8, 9, 14 and 15). Thus, realising the objectives of the BHDs will contribute to the achievement of at least half of the Aichi Biodiversity Targets for 2015-2020.

13.3 7th Environment Action Programme

The 7th Environment Action Programme411 (EAP) entered into force in January 2014 and will guide European environment policy until 2020. In order to give more long-term direction it sets out a vision beyond that, of where it wants the Union to be by 2050: "In 2050, we live well, within the planet’s ecological limits. Our prosperity and healthy environment stem from an innovative, circular economy where nothing is wasted and where natural resources are managed sustainably, and biodiversity is protected, valued and restored in ways that enhance our society’s resilience. Our low-carbon growth has long been decoupled from resource use, setting the pace for a safe and sustainable global society."

The 7th EAP identifies three key objectives:

 To protect, conserve and enhance the Union’s natural capital;

411 Available at: http://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32013D1386&from=EN 102

 To turn the Union into a resource-efficient, green, and competitive low-carbon economy; and

 To safeguard the Union's citizens from environment-related pressures and risks to health and wellbeing.

The aim of the first Priority Objective of the 7th EAP412 is to protect, conserve and enhance the Union’s natural capital, thus providing immediate linkage to the BHDs. Paragraph 18 notes continuing declines in biodiversity, reinforcing the importance and relevance of the EU Biodiversity Strategy as a mechanism to improve the implementation of the BHDs. As agriculture and forestry, together, represent 78% of land cover in the Union, the realisation of Priority Objective one requires better integration of natural capital objectives in the development and implementation of other policies, such as agriculture, fisheries and cohesion policy413. Paragraph 21 reinforces the importance of the marine environment – recognising, however, that it is not adequately protected partly because completion of the Natura 2000 network is behind schedule. Paragraph 27 recognises the importance of action to restore degraded ecosystems and expand the use of Green Infrastructure in a bid to overcome land fragmentation and thus, in combination with the full implementation of the BHDs, further enhance natural capital and increase ecosystem resilience. Paragraph 28 lists the actions necessary to protect, conserve and enhance the Union’s natural capital, including:

 The loss of biodiversity and the degradation of ecosystem services … are halted, ecosystems and their services are maintained and at least 15 % of degraded ecosystems have been restored;

 The impact of pressures on transitional, coastal, marine and fresh waters (including surface and ground waters) is significantly reduced to achieve, maintain or enhance good status, as defined by the Water Framework Directive (WFD) and good environmental status, as required by the Marine Strategy Framework Directive (MSFD); and

 Forest management is sustainable, and forests, their biodiversity and the services they provide are protected and, as far as feasible, enhanced and the resilience of forests to climate change, fires, storms, pests and diseases is improved.

The 7th EAP confirms that this requires, inter alia:

 Stepping up the implementation of the EU Biodiversity Strategy without delay, in order to meet its targets;

 Increasing efforts to ensure that healthy fish stocks are achieved in line with the CFP, the MSFD and international obligations and completing the Natura 2000 network of marine protected areas; and

 Developing and implementing a renewed Union Forest Strategy that addresses the multiple demands on, and benefits of, forests and contributes to a more strategic approach to protecting and enhancing forests, including through sustainable forest management.

412 Paragraphs 17-28 of the 7th EAP 413 Paragraph 20, 7th EAP 103

Conclusion

The Aichi Biodiversity Targets under the CBD impose a duty on the EU to take urgent action to halt the loss of biodiversity in order to ensure that ecosystems are resilient and continue to provide essential services. The protection of the EU’s natural capital and maintenance of ecosystem services cannot be dissociated from the full and timely implementation of the BHDs, as required by Goal One of the EU’s Biodiversity Strategy. This is recognised in the 7th EAP, which recognises that “Stepping up the implementation of the EU Biodiversity Strategy without delay, in order to meet its targets” is an essential pre-requisite of protecting natural capital and securing ecosystem resilience.

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14.0 ANNEXES

Annex 7.A – Extracts of relevant CJEU judgments on Article 6(3) Habitats Directive

Case Operative or relevant parts of the judgment

Case C-538/09 … by not requiring an appropriate environmental impact assessment to be undertaken for certain activities, subject to a declaratory Commission v scheme, where those activities are likely to have an effect on a Natura Belgium 2000 site, the Kingdom of Belgium has failed to fulfil its obligations under Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

Case C-521/12 Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be T.C. Briels and interpreted as meaning that a plan or project not directly connected Others v with or necessary to the management of a site of Community Minister van importance, which has negative implications for a type of natural Infrastructuur habitat present thereon and which provides for the creation of an en Milieu area of equal or greater size of the same natural habitat type within the same site, has an effect on the integrity of that site. Such measures can be categorised as ‘compensatory measures’ within the meaning of Article 6(4) only if the conditions laid down therein are satisfied.

Case C-241/08 “ … first, by providing generally that fishing, aquaculture, hunting and other hunting-related activities practised under the conditions Commission v and in the areas authorised by the laws and regulations in force do France not constitute activities causing disturbance or having such an effect, and

– second, by systematically exempting works and developments provided for in Natura 2000 contracts from the procedure of assessment of their implications for the site, and

– by systematically exempting works and development programmes and projects which are subject to a declaratory system from that procedure,

the French Republic has failed to fulfil its obligations under Article 6(2) and Article 6(3) respectively of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

Case C-258/11 Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be Peter interpreted as meaning that a plan or project not directly connected Sweetman, with or necessary to the management of a site will adversely affect the Ireland, integrity of that site if it is liable to prevent the lasting preservation of Attorney the constitutive characteristics of the site that are connected to the General, presence of a priority natural habitat whose conservation was the 105

Minister for the objective justifying the designation of the site in the list of sites of Environment, Community importance, in accordance with the directive. The Heritage and precautionary principle should be applied for the purposes of that Local appraisal. Government v An Bord Pleanála (“Sweetman”)

Case C-127/02 Mechanical cockle fishing which has been carried on for many years but for which a licence is granted annually for a limited period, with Landelijke each licence entailing a new assessment both of the possibility of Vereniging tot carrying on that activity and of the site where it may be carried on, Behoud van de falls within the concept of ‘plan’ or ‘project’ within the meaning of Waddenzee and Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the Nederlandse conservation of natural habitats and of wild fauna and flora. Vereniging tot Bescherming 2.Article 6(3) of Directive 92/43 establishes a procedure intended to van Vogels v ensure, by means of a preliminary examination, that a plan or project Staatssecretaris which is not directly connected with or necessary to the management van Landbouw, of the site concerned but likely to have a significant effect on it is Natuurbeheer authorised only to the extent that it will not adversely affect the en Visserij integrity of that site, while Article 6(2) of that directive establishes an (“Waddenzee) obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive’s objectives, and cannot be applicable concomitantly with Article 6(3).

3. (a) The first sentence of Article 6(3) of Directive 92/43 must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects.

3. (b) Pursuant to the first sentence of Article 6(3) of Directive 92/43, where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site’s conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project.

4. Under Article 6(3) of Directive 92/43, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site’s conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect 106

the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.

5. Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of Article 6(3) of Directive 92/43, it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with, even though it has not been transposed into the legal order of the Member State concerned despite the expiry of the time-limit laid down for that purpose.

Case C-43/10 6. The areas which were listed in the national list of sites of Community importance transmitted to the European Commission Nomarchiaki pursuant to the second subparagraph of Article 4(1) of Council Aftodioikisi Directive 92/43/EEC of 21 May 1992 on the conservation of natural Aitoloakarnani habitats and of wild fauna and flora and were then included in the list as and Others v of SCIs adopted by Commission Decision 2006/613/EC of 19 July Ypourgos 2006 adopting, pursuant to Council Directive 92/43/EEC, the list of Perivallontos, sites of Community importance for the Mediterranean Chorotaxias kai biogeographical region were entitled, after notification of Decision Dimosion ergon 2006/613 to the Member State concerned, to the protection of that and Others directive before that decision was published. In particular, after that notification, the Member State concerned also had to take the protective measures laid down in Article 6(2) to (4) of the directive.

7. Directive 92/43, and in particular Article 6(3) and (4) thereof, must be interpreted as precluding development consent being given to a project for the diversion of water which is not directly connected with or necessary to the conservation of a special protection area, but likely to have a significant effect on that special protection area, in the absence of information or of reliable and updated data concerning the birds in that area.

Case C-06/04 “ … as a result of the failure to make land use plans subject to appropriate assessment of their implications for SACs, Article 6(3) Commission v and (4) of the Habitats Directive has not been transposed sufficiently UK clearly and precisely into United Kingdom law and, therefore, the action brought by the Commission must be held well founded in this regard.”

Case C-98/03 By failing, in respect of certain projects carried out outside special areas of conservation within the meaning of Article 4(1) of Council Commission v Directive 92/43/EEC of 21 May 1992 on the conservation of natural Germany habitats and of wild fauna and flora, to require compulsory assessment of the impact on the site, in accordance with Article 6(3) and (4) of that directive, whether or not such projects are capable of significantly affecting a special area of conservation;

– by authorising emissions in a special area of conservation, irrespective of whether they are likely to have a significant effect on that area …

the Federal Republic of Germany has failed to fulfil its obligations under Article 6(3) and Articles 12, 13 and 16 of Directive 92/43. 107

Case C-404/09 Declares that, by authorising the ‘Nueva Julia’ and ‘Ladrones’ open- cast mines but failing to subject that authorisation to an assessment in Commission v order to identify, describe and assess in an appropriate manner the Spain direct, indirect and cumulative effects of the existing open-cast mining projects, save, in relation to the ‘Ladrones’ mine, as regards the brown bear (Ursus arctos), the Kingdom of Spain has failed to fulfil its obligations under Articles 2, 3 and 5(1) and (3) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997;

2. Declares that, from 2000, the date of designation of the ‘Alto Sil’ area as a special protection area under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended by Commission Directive 97/49/EC of 29 July 1997,

– by authorising the ‘Nueva Julia’ and ‘Ladrones’ open-cast mining operations, without making the grant of the authorisations relating thereto subject to the carrying out of an appropriate assessment of the possible impacts of those projects, and, in any event, without complying with the conditions in which a project might be realised despite the risk posed by that project for the capercaillie, (Tetrao urogallus), which constitutes one of the natural assets which motivated the classification of the ‘Alto Sil’ site as a special protection area, namely the absence of alternative solutions, the existence of imperative reasons of major public interest and communication to the European Commission of the necessary compensatory measures to ensure the overall coherence of the Natura 2000 network, and

– by failing to adopt the necessary measures to prevent the deterioration of habitats including the habitats of species, and to prevent significant disturbance of the capercaillie, the presence of which on the ‘Alto Sil’ site was the reason for the designation of that area as a special protection area, caused by the ‘Feixolín’, ‘Salguero- Prégame-Valdesegadas’, ‘Fonfría’, ‘Ampliación de Feixolín’ and ‘Nueva Julia’ mines,

the Kingdom of Spain has failed to fulfil its obligations in relation to the ‘Alto Sil’ special protection area under Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in conjunction with Article 7 thereof;

Case C-226/08 Article 6(3) and (4) of Directive 92/43, as amended by Directive 2006/105, must be interpreted as meaning that ongoing maintenance Stadt works in respect of the navigable channels of estuaries, which are not Papenburg v connected with or necessary to the management of the site and which Bundesrepublik were already authorised under national law before the expiry of the Deutschland time-limit for transposing Directive 92/43, as amended by Directive 2006/105, must, to the extent that they constitute a project and are likely to have a significant effect on the site concerned, undergo an assessment of their implications for that site pursuant to those provisions where they are continued after inclusion of the site in the list of sites of Community importance pursuant to the third 108

subparagraph of Article 4(2) of that directive.

If, having regard in particular to the regularity or nature of those works or the conditions under which they are carried out, they can be regarded as constituting a single operation, in particular where they are designed to maintain the navigable channel at a certain depth by means of regular dredging necessary for that purpose, the maintenance works can be considered to be one and the same project for the purposes of Article 6(3) of Directive 92/43, as amended by Directive 2006/105.

Case C-2/10 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, Council Directive Azienda Agro- 79/409/EEC of 2 April 1979 on the conservation of wild birds, Zootecnica Directive 2001/77/EC of the European Parliament and of the Council Franchini Sarl of 27 September 2001 on the promotion of electricity produced from and Eolica di renewable energy sources in the internal electricity market and Altamura Srl v Directive 2009/28/EC of the European Parliament and of the Council Regione Puglia of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC must be interpreted as not precluding legislation which prohibits the location of wind turbines not intended for self‑consumption on sites forming part of the Natura 2000 European Ecological Network, without any requirement for a prior assessment of the environmental impact of the project on the site specifically concerned, on condition that the principles of non‑ discrimination and proportionality are respected.

Case C-209/02 Declares that, by authorising the proposed extension of the golf course in the district of Wörschach in the Province of Styria despite a Commission v negative assessment of its implications for the habitat of the Austria corncrake ( crex crex) in the Wörschacher Moos special protection area situated in that district and classified as provided for in Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Republic of Austria has failed to fulfil its obligations under Article 6(3) and (4), in conjunction with Article 7, of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

Case C-143/02 Article 6(3) of the habitats directive does not allow projects not directly connected with or necessary to the management of sites to be Commission v excluded from the scope of the directive where they are likely to have Italy a significant effect on those sites.

Case C-182/10 Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be Marie-Noëlle interpreted as not allowing a national authority, even if it is a Solvay and legislative authority, to authorise a plan or project without having Others v Région ascertained that it will not adversely affect the integrity of the site wallonne concerned.

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Annex 12.A – EU Case-law on Article 6(4) of the Habitats Directive and Imperative Reasons of Overriding Public Interest (IROPI)

Case Finding on IROPI

Case C-2/10 Reference for a preliminary ruling concerning the interpretation of Directive 2009/28 /EC on the promotion of the use of energy from renewable sources and the Habitats Directive. The case concerned a refusal to authorise the Azienda Agro- location of wind turbines not intended for self‑consumption on land situated Zootecnica within the confines of the Alta Murgia national park SCI and SPA, in the Franchini Sarl and absence of a prior assessment as to the environmental impact of the project on Eolica di Altamura the particular site concerned. Srl v Regione During the course of the main proceedings, Regional Law No 31 entered into Puglia force. Article 2(6) of that law prohibits the construction of new wind power plants not intended for self‑consumption on all Natura 2000 sites.

(Reference for a Question referred (essentially): Whether the Habitats and Birds Directives and preliminary ruling Directives 2001/77 and 2009/28 must be interpreted as precluding legislation from the Tribunale which prohibits the location of wind turbines not intended for self‑ amministrativo consumption on sites forming part of the Natura 2000 network without any regionale per la prior assessment of the environmental impact of the project on the specific site Puglia) concerned.

The Commission pointed out that Article 193 TFEU allows Member States to maintain or introduce, subject to certain conditions, more stringent environmental protective measures.

40 It should be noted, first, that, as observed by the parties to the main proceedings, the system of protection afforded by the Habitats and Birds Directives to sites forming part of the Natura 2000 network does not prohibit all human activity within those sites but simply makes authorisation of such activity conditional upon a prior assessment of the environmental impact of the project concerned. Thus, the first sentence of Article 6(3) of the Habitats Directive – applicable, in accordance with Article 7 of that directive, to areas classified pursuant to Article 4(1) of the Birds Directive or similarly recognised under Article 4(2) thereof – provides that 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, is to be subject to an assessment of its implications for the site in view of the site’s conservation objectives.

41 Moreover, according to established case‑law, in order for the mechanism for the protection of the environment provided for in Article 6(3) of the

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Habitats Directive to be triggered, there must be a probability or a risk that a plan or project will have a significant effect on the site concerned (see, inter alia, Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraphs 40 and 43, and Case C‑179/06 Commission v Italy [2007] ECR I‑8131, paragraph 33).

42 It is therefore clear that the European Union legislature intended to create a protection mechanism which is triggered only if a plan or project represents a risk for a site forming part of the Natura 2000 network.

43 It is in the light of those considerations that it is necessary to determine whether the Habitats and Birds Directives preclude national and regional legislation such as that at issue in the main proceedings.

44 It is apparent from the file before the Court that that legislation prohibits the construction of new wind turbines not intended for self‑consumption in SCIs and SPAs forming part of the Natura 2000 Network. That prohibition extends to a 200-meter buffer zone.

45 The effect of that legislation is that any plan or project for a new wind power plant on one of those sites is automatically refused, without any requirement for an assessment of the environmental impact of the individual plan or project on the particular site.

46 It is therefore clear that such legislation establishes a system for protecting sites forming part of the Natura 2000 network which is more stringent than that established by the Habitats and Birds Directives.

47 Consequently, as the Advocate General observed at point 33 of his Opinion, it is necessary, in order to answer the referring court’s question, to determine whether, and if so under what conditions, European Union law permits Member States to introduce stricter national protective measures than those laid down by those directives.

48 It should be noted in this regard that European Union rules do not seek to effect complete harmonisation in the area of the environment (see, inter alia, Case C‑318/98 Fornasar and Others [2000] ECR I‑4785, paragraph 46, and Case C‑6/03 Deponiezweckverband Eiterköpfe [2005] ECR I‑2753, paragraph 27).

49 Article 14 of the Birds Directive provides that Member States may introduce stricter protective measures than those provided for under that directive.

50 There is no provision in the Habitats Directive that is equivalent to Article 14 of the Birds Directive. Nevertheless, since that directive was adopted on the basis of Article 192 TFEU, it should be noted that Article 193 TFEU provides that Member States may adopt more stringent protective measures. Under that provision, such measures are simply required to be compatible with the FEU Treaty and notified to the Commission. The Court has thus held that ‘in connection with the Community’s environmental policy, to the extent that a

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measure of domestic law pursues the same objectives as a directive, Article 176 EC makes provision for and authorises the minimum requirements laid down by that directive to be exceeded, in the conditions set by that article’ (see Deponiezweckverband Eiterköpfe, paragraph 58).

51 It is apparent from both the file submitted to the Court and the parties’ arguments at the hearing that the essential purpose of the national and regional legislation at issue in the main proceedings is the conservation of the areas forming part of the Natura 2000 network, and in particular the protection of the habitats of wild birds against the dangers which wind turbines may represent for them.

52 It follows that legislation such as that at issue in the main proceedings which, with a view to protecting wild bird populations inhabiting protected areas forming part of the Natura 2000 network, imposes an absolute prohibition on the construction of new wind turbines in those areas, pursues the same objectives as the Habitats Directive. To the extent that it provides for a stricter system of protection than that established by Article 6 of that directive, it therefore constitutes a more stringent protective measure within the meaning of Article 193 TFEU.

53 It is, admittedly, not apparent from the documents submitted to the Court that the Italian Government communicated those measures to the Commission in accordance with Article 193 TFEU. Nevertheless, it should be noted that, while that provision requires Member States to communicate to the Commission the more stringent protective measures which they intend to maintain or introduce in environmental matters, it does not make implementation of the planned measures conditional upon agreement by the Commission or its failure to object. In that context, as the Advocate General noted at point 38 of his Opinion, neither the wording nor the purpose of the provision under examination therefore provides any support for the view that failure by the Member States to comply with their notification obligation under Article 193 TFEU in itself renders unlawful the more stringent protective measures thus adopted (see, by analogy, Case 380/87 Enichem Base and Others [1989] ECR 2491, paragraphs 20 to 23; Case C‑209/98 Sydhavnens Sten & Grus [2000] ECR I‑3743, paragraph 100; and Case C‑ 159/00 Sapod Audic [2002] ECR I‑5031, paragraphs 60 to 63).

54 The fact none the less remains that the more stringent protective measures put in place by the national and regional legislation at issue in the main proceedings must also comply with the other provisions of the FEU Treaty.

55 The applicants in the main proceedings have submitted in this regard that the objective of developing new and renewable forms of energy, as established for European Union policy by Article 194(1)(c) TFEU, should take precedence over the environmental-protection objectives pursued by the Habitats and Birds Directives.

56 Suffice it to observe in that connection that Article 194(1) TFEU states that European Union policy on energy must have regard for the need to preserve

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and improve the environment.

57 Moreover, a measure such as that at issue in the main proceedings, which prohibits only the location of new wind turbines not intended for self- consumption on sites forming part of the Natura 2000 network, with the possibility of exemption for wind turbines intended for self-consumption with a capacity not exceeding 20 kW, is not, in view of its limited scope, liable to jeopardise the European Union objective of developing new and renewable forms of energy.

58 It must therefore be concluded that the Birds and Habitats Directives, in particular Article 6(3) of the Habitats Directive, do not preclude a more stringent national protective measure which imposes an absolute prohibition on the construction of wind turbines not intended for self-consumption within areas forming part of the Natura 2000 network, without any requirement for an assessment of the environmental impact of the individual project or plan on the site concerned forming part of that network.

Interpretation of Directives 2001/77 and 2009/28

59 It is necessary to examine whether Directives 2001/77 and 2009/28 must be interpreted as precluding legislation such as that at issue in the main proceedings.

60 As regards, first, Directive 2001/77, Article 1 thereof states that the purpose of the directive is to promote an increase in the contribution of renewable energy sources to electricity production in the internal market for electricity and to create a basis for a future Community framework thereof.

61 To that end, Article 6(1) of Directive 2001/77 requires Member States to evaluate the legislative and regulatory framework with regard to administrative procedures, in particular authorisation procedures, which are applicable to production plants for electricity produced from renewable energy sources. The objectives of that evaluation procedure are to streamline and reduce administrative barriers and to ensure that the rules applicable to that type of production plant are objective, transparent and non‑ discriminatory.

62 It is apparent, however, that the referring court entertains doubts as to whether the national and regional legislation at issue in the main proceedings complies with those criteria. At the hearing, the applicants in the main proceedings also argued that such legislation discriminates against wind turbines by comparison with other industrial activities which are subject to the rules requiring prior assessment laid down in Article 6(3) of the Habitats Directive.

63 In that connection, it should be pointed out, first, that a total ban on the construction of new wind turbines in areas forming part of the Natura 2000 network, deriving from a legislative provision, is not contrary to the objectives of streamlining and reducing administrative barriers and, in

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principle, constitutes a sufficiently transparent and objective procedure.

64 Next, as to whether the measure is discriminatory, it should be recalled that the prohibition of discrimination laid down in Article 6(1) of Directive 2001/77 is simply a specific expression of the principle of equality, which is one of the fundamental principles of European Union law and requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraph 67; Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 56; and Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraph 23).

65 In the present case, it is for the referring court to determine whether the difference in treatment between the projects for the construction of wind turbines and projects relating to other industrial activities proposed for sites forming part of the Natura 2000 network may be justified on the basis of objective differences between those two kinds of project.

66 In that context, the referring court must have regard to the particular features of wind turbines, taking account in particular of the dangers which they may represent for birds, such as the risk of collision, disturbances and displacement, barrier effects forcing birds to change direction and habitat loss or degradation.

67 As regards, second, Directive 2009/28, Article 13(1) thereof provides that ‘Member States shall ensure that any national rules concerning the authorisation, certification and licensing procedures that are applied to plants and associated transmission and distribution network infrastructures for the production of electricity, heating or cooling from renewable energy sources … are proportionate and necessary’. In particular, Member States are required to take appropriate steps to ensure that those rules are ‘objective, transparent, proportionate, do not discriminate between applicants and take fully into account the particularities of individual renewable energy technologies’.

68 It is true, as pointed out by the Commission in its observations, that the period for transposition of Directive 2009/28, which ended on 5 December 2010, had not yet expired at the date on which the order for reference was made, that is to say, 23 September 2009.

69 However, as the Court has already held and in so far as Directive 2009/28 had already entered into force at the time of the facts in the main proceedings, the interpretation of that directive sought by the referring court must be regarded as being useful to that court (see, to that effect, Joined Cases C‑ 261/07 and C‑299/07 VTB-VAB and Galatea [2009] ECR I‑2949, paragraphs 29 to 41).

70 First, it follows from the case-law that not only the national provisions specifically intended to transpose a directive but also, from the date of that directive’s entry into force, the pre-existing national provisions capable of 114

ensuring that the national law is consistent with it must be considered to fall within the scope of that directive (see, to that effect, Case C‑81/05 Cordero Alonso [2006] ECR I‑7569, paragraph 29).

71 Second, in any event, it follows from established case-law that, during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Case C‑ 129/96 Inter‑Environnement Wallonie [1997] ECR I‑7411, paragraph 45; Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 58; and Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 67).

72 For those reasons, contrary to the Commission’s submission, it is necessary to reply to the part of the referring court’s question concerning the interpretation of Directive 2009/28, in particular in the light of the principle of proportionality which Article 13 of that directive introduces with regard to administrative procedures for the authorisation of plants producing renewable energy.

73 In this regard, the principle of proportionality referred to in Article 13 of Directive 2009/28, which is one of the general principles of European Union law, requires that measures adopted by Member States in this field do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, inter alia, Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 13, and Joined Cases C‑133/93, C‑300/93 and C‑ 362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraph 41).

74 It is for the referring court to determine whether the national measure at issue is proportionate. That court must take account in particular of the fact that the legislation at issue in the main proceedings is confined to wind power plants and does not extend to other forms of renewable energy production, such as photovoltaic plants. Moreover, the prohibition applies solely to new wind turbines for commercial purposes, as wind power plants intended for self-consumption and having a capacity not exceeding 20 kW are excluded from the scope of that prohibition.

75 It follows from all of the foregoing that the Habitats and Birds Directives and Directives 2001/77 and 2009/28 must be interpreted as not precluding legislation which prohibits the location of wind turbines not intended for self- consumption on sites forming part of the Natura 2000 network, without any requirement for a prior assessment of the environmental impact of the project on the site specifically concerned, on condition that the principles of non‑ discrimination and proportionality are respected.

On those grounds, the Court (First Chamber) hereby rules:

Council Directive 92/43/EEC of 21 May 1992 on the conservation of

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natural habitats and of wild fauna and flora, Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market and Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC must be interpreted as not precluding legislation which prohibits the location of wind turbines not intended for self‑consumption on sites forming part of the Natura 2000 European Ecological Network, without any requirement for a prior assessment of the environmental impact of the project on the site specifically concerned, on condition that the principles of non‑discrimination and proportionality are respected.

Case C-404/09 109 The Kingdom of Spain, which has invoked the importance of mining activities for the local economy, needs to be reminded that, whilst that consideration is capable of constituting an imperative reason of overriding public interest within the meaning of Article 6(4) of the Habitats Directive, Commission v that provision can apply only after the implications of a plan or project have Spain been studied in accordance with Article 6(3) of that directive. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for application of Article 6(4) since, in the absence thereof, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified (Commission v Italy, paragraph 83).

110 It is clear from the considerations above that the national authorities did not have those data at the time the decisions to grant the authorisations in question were taken. It follows that those authorisations cannot be based on Article 6(4) of the Habitats Directive.

111 Consequently, those authorisations did not comply with Article 6(4) of the Habitats Directive.

Case C-304/05 The second complaint, alleging breach of Article 6(4) of Directive 92/43 in conjunction with Article 7

74 The Commission takes the view that it was clear that the works which Commission v 116

Italy were proposed could well seriously harm the integrity of the area in question. However, no alternative was seriously suggested. Regional Decree No 13879 of 30 May 2000 raised the possibility that the ‘Bucaneve’ and ‘Edelweiss’ ski runs might not be modified but rather maintained, so far as possible, in their current route, departing from that route further on.

75 The Commission deduces therefrom that the project was authorised although there were other solutions less harmful to the environment in that area, which, however, were not taken into consideration by the national authorities.

76 The Commission also submits that the carrying out of the works was not justified by imperative reasons of overriding public interest. In addition, provision was not made for any compensatory measures.

77 The Italian Republic points out that the disputed works were the subject of a double authorisation procedure. Thus, the initial part of the routes and installations between Santa Caterina and Plaghera were considered compatible with the environment by virtue of Regional Decree No 13879 of 30 May 2000, supplemented by a later, favourable opinion from the Regional Council of Lombardy. A revision phase, for that part of the project sited between Plaghera and Valle dell’Alpe, was begun after the guidance contained in the IREALP report, in order to initiate an environmental impact assessment procedure.

78 The Italian Republic points out that the Region of Lombardy had imposed the condition, laid down in Regional Decree No 20789 of 28 November 2003 which contains an environmental impact assessment with regard to the area between Plaghera and Valle dell’Alpe, that an impact study be submitted for all the works, relating also to the area between Santa Caterina and Plaghera.

79 The Italian Republic adds that the competent authorities had become certain that it was necessary to subject all the works, including those authorised by the regional decree, to an environmental impact assessment.

Findings of the Court

80 Having regard to the fact that the complaint alleging breach of Article 6(3) of Directive 92/43 is well founded, it must be ascertained whether the authorisation of 14 February 2003 complied with the requirements set out in Article 6(4) of the directive.

81 That provision states that, if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, and there are no alternative solutions, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.

82 As the Court has pointed out in paragraphs 35 and 36 of the judgment in

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Castro Verde, Article 6(4) of the directive must, as a derogation from the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly.

83 Furthermore, Article 6(4) of Directive 92/43 can apply only after the implications of a plan or project have been studied in accordance with Article 6(3) of that directive. Knowledge of those implications in the light of the conservation objectives relating to the site in question is a necessary prerequisite for application of Article 6(4) since, in the absence thereof, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified.

84 It follows from the foregoing that the national authorities did not have that information at the time of the decision to grant the authorisation of 14 February 2003. Accordingly, that authorisation cannot be based on Article 6(4) of Directive 92/43.

85 Consequently, the authorisation of 14 February 2003 did not comply with Article 6(4) of the directive.

86 The Commission’s action is therefore also well founded in this regard.

by authorising such measures, without complying with the provisions which allow a project to be carried out, in spite of a negative assessment of the implications and in the absence of alternative solutions, only for imperative reasons of overriding public interest and then only after adopting and communicating to the Commission of the European Communities all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.

Case C-521/12 19 In paragraph 32 of its judgment in Case C‑258/11 Sweetman and Others EU:C:2013:220, the Court held that the provisions of Article 6 of the Habitats

Directive must be construed as a coherent whole in the light of the T.C. Briels and conservation objectives pursued by the directive. Indeed, Article 6(2) and Others v Article 6(3) are designed to ensure the same level of protection of natural habitats and habitats of species, whilst Article 6(4) merely derogates from the Minister van second sentence of Article 6(3). Infrastructuur en Milieu 29 However, protective measures provided for in a project which are aimed at compensating for the negative effects of the project on a Natura 2000 site cannot be taken into account in the assessment of the implications of the project provided for in Article 6(3).

30 This is the case of the measures at issue in the main proceedings which, in a situation where the competent national authority has in fact found that the A2 motorway project is liable to have – potentially permanent – adverse 118

effects on the protected habitat type on the Natura 2000 site concerned, provide for the future creation of an area of equal or greater size of that habitat type in another part of the site which will not be directly affected by the project.

31 It is clear that these measures are not aimed either at avoiding or reducing the significant adverse effects for that habitat type caused by the A2 motorway project; rather, they tend to compensate after the fact for those effects. They do not guarantee that the project will not adversely affect the integrity of the site within the meaning of Article 6(3) of the Habitats Directive.

32 It should further be noted that, as a rule, any positive effects of a future creation of a new habitat which is aimed at compensating for the loss of area and quality of that same habitat type on a protected site, even where the new area will be bigger and of higher quality, are highly difficult to forecast with any degree of certainty and, in any event, will be visible only several years into the future, a point made in paragraph 87 of the order for reference. Consequently, they cannot be taken into account at the procedural stage provided for in Article 6(3) of the Habitats Directive.

33 Secondly, as rightly pointed out by the Commission in its written observations, the effectiveness of the protective measures provided for in Article 6 of the Habitats Directive is intended to avoid a situation where competent national authorities allow so-called ‘mitigating’ measures – which are in reality compensatory measures – in order to circumvent the specific procedures provided for in Article 6(3) and authorise projects which adversely affect the integrity of the site concerned.

34 It is only if, in spite of a negative assessment carried out in accordance with the first sentence of Article 6(3) of the Habitats Directive, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, and there are no alternative solutions, that Article 6(4) of the Habitats Directive provides that the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected (see Case C‑ 304/05 Commission v Italy EU:C:2007:532, paragraph 81; Case C‑182/10 Solvay and Others EU:C:2012:82, paragraph 72; and Sweetman and Others EU:C:2013:220, paragraph 34).

35 As an exception to the authorisation criterion laid down in the second sentence of Article 6(3) of the Habitats Directive, Article 6(4) can apply only after the implications of a plan or project have been analysed in accordance with Article 6(3) (Case C‑239/04 Commission v Portugal EU:C:2006:665, paragraph 35, and Sweetman and Others EU:C:2013:220, paragraph 35).

36 Knowledge of those implications in the light of the conservation objectives relating to the site concerned is a necessary prerequisite for application of Article 6(4) since, in the absence thereof, no condition for application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful 119

alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site must be precisely identified (Case C‑404/09 Commission v Spain EU:C:2011:768, paragraph 109).

37 In such a situation, the competent national authority can, where appropriate, grant authorisation under Article 6(4) of the Habitats Directive, provided that the conditions set out therein are satisfied (see, to that effect, Sweetman and Others EU:C:2013:220, paragraph 47).

38 It should be observed in that regard that, in the application of Article 6(4), the fact that the measures envisaged have been implemented on the Natura 2000 site concerned has no bearing on any ‘compensatory’ measures for the purposes of that provision. For the reasons set out by the Advocate General in point 46 of her Opinion, Article 6(4) of the Habitats Directive covers any measure liable to protect the overall coherence of Natura 2000, whether it is implemented within the affected site or in another part of the Natura 2000 network.

39 Consequently, it follows from the foregoing considerations that Article 6(3) of the Habitats Directive must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site of Community importance, which has negative implications for a type of natural habitat present thereon and which provides for the creation of an area of equal or greater size of the same natural habitat type within the same site, has an effect on the integrity of that site. Such measures can be categorised as ‘compensatory measures’ within the meaning of Article 6(4) only if the conditions laid down therein are satisfied.

Case C-239/04 34 Article 6(4) of the Habitats Directive provides that, if, in spite of a negative assessment carried out pursuant to the first sentence of Article 6(3) and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, the Member Commission v State is to take all compensatory measures necessary to ensure that the Portugal overall coherence of Natura 2000 is protected.

35 That provision, which permits a plan or project which has given rise to a (“Castro Verde”) negative assessment under the first sentence of Article 6(3) of the Habitats Directive to be implemented on certain conditions, must, as a derogation from the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly.

36 Thus, the implementation of a plan or project under Article 6(4) of the Habitats Directive is, inter alia, subject to the condition that the absence of alternative solutions be demonstrated.

37 In the present case, it is common ground that the Portuguese authorities examined and rejected a number of solutions whose routes bypassed the settlements of Alcarias, Conceição, Aivados and Estação de Ourique but 120

crossed the western side of the Castro Verde SPA.

38 On the other hand, it is not apparent from the file that those authorities examined solutions falling outside that SPA and to the west of the settlements referred to above, although, on the basis of information supplied by the Commission, it cannot be ruled out immediately that such solutions were capable of amounting to alternative solutions within the meaning of Article 6(4) of the Habitats Directive, even if they were, as asserted by the Portuguese Republic, liable to present certain difficulties.

39 Accordingly, by failing to examine that type of solution, the Portuguese authorities did not demonstrate the absence of alternative solutions within the meaning of that provision.

40 In those circumstances, it must be held that, by implementing a project for a motorway whose route crosses the Castro Verde SPA, notwithstanding the negative environmental impact assessment and without having demonstrated the absence of alternative solutions for the route concerned, the Portuguese Republic has failed to fulfil its obligations under Article 6(4) of the Habitats Directive.

Case C-43/10 118 By its twelfth question, the referring court seeks, in essence, to ascertain whether Directive 92/43 must be interpreted as meaning that grounds linked, on the one hand, to irrigation and, on the other, to the supply of drinking water, relied on in support of a project for the diversion of water, may Nomarchiaki constitute imperative reasons of overriding public interest capable of Aftodioikisi justifying the implementation of a project which adversely affects the Aitoloakarnanias integrity of the sites concerned. and Others v Ypourgos 119 Article 6(4) of Directive 92/43 provides that if, in spite of a negative Perivallontos, assessment carried out in accordance with the first sentence of Article 6(3) Chorotaxias kai thereof, a plan or project must nevertheless be carried out for imperative Dimosion ergon reasons of overriding public interest, including those of a social or economic and Others. nature, and there are no alternative solutions, the Member State is to take all compensatory measures necessary to ensure that the overall coherence of

Natura 2000 is protected (see Commission v Italy, paragraph 81, and Solvay and Others, paragraph 72).

120 As is clear from paragraphs 100, 101, 107 and 108 of this judgment, such a provision applies both to SPAs and to SCIs in the list adopted by the Commission in accordance with the third subparagraph of Article 4(2) of Directive 92/43.

121 An interest capable of justifying, for the purposes of Article 6(4) of Directive 92/43, the implementation of a plan or project must be both ‘public’ and ‘overriding’, which means that it must be of such an importance that it can be weighed against that directive’s objective of the conservation of natural habitats and wild fauna, including birds, and flora (see, to that effect, Solvay and Others, paragraph 75).

121

122 Irrigation and the supply of drinking water meet, in principle, those conditions and are therefore capable of justifying the implementation of a project for the diversion of water in the absence of alternative solutions.

123 However, where the SCI concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised, under the second subparagraph of Article 6(4) of Directive 92/43, are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.

124 Since the Commission has not, in the present case, been asked to give an opinion, the Court must examine whether irrigation and the supply of drinking water may fall within the considerations stated in the preceding paragraph.

125 As regards irrigation, it is evident that it cannot in principle qualify as a consideration relating to human health or public safety. On the other hand, it appears more plausible that irrigation may, in some circumstances, have beneficial consequences of primary importance for the environment.

126 In contrast, the supply of drinking water is, in principle, to be included within considerations relating to human health.

127 In any event, it is for the referring court to assess whether the project at issue in the main proceedings does in fact adversely affect the integrity of one or more SCIs hosting a priority natural habitat type and/or a priority species.

128 In the light of the foregoing, the answer to the twelfth question is that Directive 92/43, and in particular Article 6(4) thereof, must be interpreted as meaning that grounds linked, on the one hand, to irrigation and, on the other, to the supply of drinking water, relied on in support of a project for the diversion of water, may constitute imperative reasons of overriding public interest capable of justifying the implementation of a project which adversely affects the integrity of the sites concerned. Where such a project adversely affects the integrity of a SCI hosting a priority natural habitat type and/or a priority species, its implementation may, in principle, be justified by grounds linked with the supply of drinking water. In some circumstances, it might be justified by reference to beneficial consequences of primary importance which irrigation has for the environment. On the other hand, irrigation cannot, in principle, qualify as a consideration relating to human health or public safety, justifying the implementation of a project such as that at issue in the main proceedings.

134 By its fourteenth question, the referring court seeks, in essence to ascertain whether Directive 92/43, interpreted in the light of the objective of sustainable development, as enshrined in Article 6 EC, permits, in relation to sites which are part of the Natura 2000 network, the conversion of a natural fluvial ecosystem into a largely man-made fluvial and lacustrine ecosystem.

135 Even if the conversion of a natural fluvial ecosystem into a largely man- made fluvial and lacustrine ecosystem were to have a negative impact on the 122

integrity of sites which are part of the Natura 2000 network, it does not necessarily follow that consent may not be given to the project which causes that conversion.

136 As stated in paragraph 119 of this judgment, under Article 6(4) of Directive 92/43, which concerns sites which are part of the Natura 2000 network, consent might be given to that project provided that the conditions referred to in that provision are satisfied.

137 According to the third recital in the preamble to Directive 92/43, as the main aim of that directive is to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements, the directive makes a contribution to the general objective of sustainable development. The maintenance of such biodiversity may in certain cases require the maintenance, or indeed the encouragement, of human activities.

138 Accordingly, the first subparagraph of Article 6(4) of Directive 92/43, and in particular the condition that the Member State is to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected, must be applied in the light of the objective of sustainable development as referred to in the third recital in the preamble to that directive and enshrined in Article 6 EC.

139 Consequently, the answer to the fourteenth question is that Directive 92/43, and in particular the first subparagraph of Article 6(4) thereof, interpreted in the light of the objective of sustainable development, as enshrined in Article 6 EC, permits, in relation to sites which are part of the Natura 2000 network, the conversion of a natural fluvial ecosystem into a largely man-made fluvial and lacustrine ecosystem provided that the conditions referred to in that provision of the directive are satisfied.

Operative part of the judgment

8. Directive 92/43, and in particular Article 6(4) thereof, must be interpreted as meaning that grounds linked, on the one hand, to irrigation and, on the other, to the supply of drinking water, relied on in support of a project for the diversion of water, may constitute imperative reasons of overriding public interest capable of justifying the implementation of a project which adversely affects the integrity of the sites concerned. Where such a project adversely affects the integrity of a site of Community importance hosting a priority natural habitat type and/or a priority species, its implementation may, in principle, be justified by grounds linked

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with the supply of drinking water. In some circumstances, it might be justified by reference to beneficial consequences of primary importance which irrigation has for the environment. On the other hand, irrigation cannot, in principle, qualify as a consideration relating to human health and public safety, justifying the implementation of a project such as that at issue in the main proceedings.

9. Under Directive 92/43, and in particular the first sentence of the first subparagraph of Article 6(4) thereof, for the purposes of determining the adequacy of compensatory measures account should be taken of the extent of the diversion of water and the scale of the works involved in that diversion.

10. Directive 92/43, and in particular the first subparagraph of Article 6(4) thereof, interpreted in the light of the objective of sustainable development, as enshrined in Article 6 EC, permits, in relation to sites which are part of the Natura 2000 network, the conversion of a natural fluvial ecosystem into a largely man-made fluvial and lacustrine ecosystem provided that the conditions referred to in that provision of the directive are satisfied.

Case C-127/02 44 In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Article 174(2) EC, and by reference to which the Habitats Directive must be Landelijke interpreted, such a risk exists if it cannot be excluded on the basis of objective Vereniging tot information that the plan or project will have significant effects on the site Behoud van de concerned (see, by analogy, inter alia Case C-180/96 United Kingdom v Waddenzee and Commission [1998] ECR I-2265, paragraphs 50, 105 and 107). Such an Nederlandse interpretation of the condition to which the assessment of the implications of a Vereniging tot plan or project for a specific site is subject, which implies that in case of doubt Bescherming van as to the absence of significant effects such an assessment must be carried out, Vogels v makes it possible to ensure effectively that plans or projects which adversely Staatssecretaris affect the integrity of the site concerned are not authorised, and thereby van Landbouw, contributes to achieving, in accordance with the third recital in the preamble Natuurbeheer en to the Habitats Directive and Article 2(1) thereof, its main aim, namely, Visserij ensuring biodiversity through the conservation of natural habitats and of (“Waddenzee”) wild fauna and flora.

Case C-209/02 23 It is common ground that, in 1998, in the course of the investigations preceding the adoption of the decision of 14 May 1999, an expert's report was produced, at the request of the authorities of the Province of Styria, by Mr Gepp of the Graz Institute for the Protection of Nature and Ecology. This 124

Commission v report is reproduced as part of that decision. Austria 24 The report stated that a corncrake population was present in the SPA where the disputed extension to the golf course was to be created. The extension would entail in particular the loss of part of the feeding and resting (“Wörschacher areas of the species in question, the destruction of the functional links by the Moos SPA”) splitting up of the different zones used by the corncrake and the elimination of, and disturbance to, elements of habitat. The measures which might counter the disturbance liable to be caused by the disputed project would be only partially effective, difficult to implement and of doubtful long-term effectiveness. In short, the creation of the two holes in question could well threaten the continued existence of the corncrake population in the Wörschacher Moos SPA, the only population in the Central Alps likely to reproduce. It is for this reason that the report suggests some alternative sites for the extension to the golf course.

25 At the request of the authorities of the Province of Styria, Mr Lentner produced a report, on 26 June 1999, assessing the value of Mr Gepp's report, in the light of the conclusions drawn from it by the Styrian authorities. According to Mr Lentner, the proposition contained in the decision of 14 May 1999 that the measures laid down would enable negative effects on the corncrake population to be avoided and ensure its continuation was not in any way supported by Mr Gepp's report or by other ornithological reports or opinions available to the authorities. In reality, those measures, laid down as compensatory measures, had to be considered inappropriate for avoiding those negative effects with a margin of safety.

26 Having regard to the content of those expert's reports and in the absence of evidence to the contrary, the inevitable conclusion is that at the time of the adoption of the decision of 14 May 1999, the Austrian authorities were not justified in considering that the planned extension of the golf course in question in the present case, coupled with the measures prescribed by that decision, was not such as significantly to disturb the corncrake population in the Wörschacher Moos SPA and would not adversely affect the integrity of that SPA.

27 The fact that the note dated 15 July 2002 produced by Mr Gepp at the request of the Government of the Province of Styria regarding the interpretation of the assessments and conclusions contained in his own report seems to soften somewhat their implications cannot affect the finding made in the previous paragraph of this judgment. The same is true of the surveys of the corncrake population in the Wörschacher Moos SPA carried out in 2000 and 2002 and recording the presence, respectively, of three and two parading males, to which the Austrian Government refers to show that the creation of the extension of the golf course has not caused a significant reduction in that population.

28 It is apparent from the above that the decision of 14 May 1999 was not adopted in compliance with the requirements of Article 6(3) of the Habitats Directive. It is also established that the conditions laid down in Article 6(4)

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thereof have not been fulfilled in the present case.

29 Accordingly, it must be held that, by authorising the proposed extension of the golf course in the district of Wörschach in the Province of Styria despite a negative assessment of its implications for the habitat of the corncrake ( crex crex) in the Wörschacher Moos SPA situated in that district and classified as provided for in Article 4 of the Birds Directive, the Republic of Austria has failed to fulfil its obligations under Article 6(3) and (4), in conjunction with Article 7, of the Habitats Directive.

Case C-182/10: 6. Article 6(4) of Directive 92/43 must be interpreted as meaning that the creation of infrastructure intended to accommodate a management centre cannot be regarded as an imperative reason of overriding public interest, such reasons including those of a social or economic nature, within the Marie-Noëlle meaning of that provision, capable of justifying the implementation of a plan Solvay and Others or project that will adversely affect the integrity of the site concerned. v Région wallonne

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Annex 12.B – European Commission Opinions relevant to Article 6(4) of the Habitats Directive414

Site IROPI Commission Opinion

deepening and widening The German authorities According to the information submitted of the ship submitted well-founded by the German Authorities, the fairway of the river Main arguments concerning the deepening and widening of the ship at the sections Wipfeld, economic importance of the fairway of the river Main at the sections Garstadt and river. Main functioning as a Wipfeld, Garstadt and EN 5 EN Schweinfurt cross-border traffic route for Schweinfurt is justified as an important (Bavaria/Germany) goods connecting Rotterdam project of overriding public interest for (NL) and Konstanza (RO). which there are no alternatives. 5.04.2013 The river Main is part of the Mitigation measures will be Trans-European Network implemented which will limit the (TEN) and is the only inland negative effects of the project. However, waterway connecting several the project will have significant impact Member states with the south- on the integrity of two Natura 2000 east of Europe. The project is sites, in particular on the priority one of the last missing links habitat type 91E0* 'alluvial forests with needed to adjust this fairway Alnus glutinosa and Fraxinus excelsior' to the changed political and and the habitat type 6510 'lowland hay economic developments and meadow'. requirements of an enlarged European Union. Currently, The negative effects will be this part of the river Main still compensated for by the designation of creates a bottleneck of 30 km additional Natura 2000 surface and the where ships are still limited in creation of equivalent habitats on a their dimension in width and total area that will be significantly deep. larger than the area that will be affected. The German authorities have committed themselves to implement a concrete and timed monitoring and implementation scheme. The protection of the overall coherence of the Natura 2000 network will in this way be ensured.

On the basis of the detailed information and explanations provided by the German authorities and taking into account in particular the issues set out in the present document, the Commission is of the opinion that the adverse effects of the deepening and widening of the ship fairway of the river Main at the sections Wipfeld, Garstadt and Schweinfurt (Bavaria/Germany) are justified by imperative reasons of

414 Available here: http://ec.europa.eu/environment/nature/natura2000/management/opinion_en.htm

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overriding public interest.

Construction of the B The National Road B 252 is an According to the information 252/B 62, bypass of the important north-south submitted, the construction of the B municipalities connection between the 252/B 62 bypass for the Münchhausen, Wetter regions Münchhausen, Wetter and Lahntal and Lahntal Paderborn-Korbach and municipalities is justified as an (Germany/Hesse) Marburg-Gießen. The important project of overriding public National Road B 62 links interest for which there are no 29.05.2012 Biedenkopf via Cölbe to the alternatives. Mitigation measures will long-distance axes Gießen- be implemented which will limit the Marburg-Kassel. negative effects of the construction of the project. The project will however The German authorities have significant impact on the integrity submitted a sound forecast for of one Natura 2000 site, in particular the year 2020 showing that on priority habitat type 91E0* alluvial the bypass has importance for forests with Alnus glutinosa and long-distance traffic: Without Fraxinus excelsior. the bypass the daily traffic load is estimated in The negative effects will be Münchhausen to be from compensated for by the creation of 13,100 to 13,900, in Wetter equivalent habitats on a total area that from 13,900 to 15,900 and in will be larger than the area that will be Lahntal-Göttingen from affected. The German authorities 19,200 to 24,900 vehicles. committed themselves to implement a After completion of the concrete and timed monitoring and project, traffic will decrease in implementation scheme. The protection Münchhausen to a daily level of the overall coherence of the Natura of from 1,800 to 4,400, in 2000 network will therefore be Wetter to a level of from 800 ensured. to 2,800 and in Lahntal- Göttingen to 5,800 to 6,700 On the basis of the detailed information vehicles. and explanations provided by the German authorities and taking into On average, this represents a account in particular the issues set out reduction of between 68% and in the present document, the 94% in the municipalities Commission is of the opinion that the concerned. This figure shows adverse effects of the construction of the dominance of long- the B 252/B 62, bypass of the distance traffic on the existing municipalities Münchhausen, Wetter National Road and that it has and Lahntal (Hesse) are justified by a national rather than just a imperative reasons of overriding public local importance. interest.

Deepening and widening The German authorities According to the information submitted of the ship fairway submitted detailed analyses of by the German Authorities, the Unter- and Außenelbe the economic importance of deepening and widening of the ship (river Elbe) to the port the Hamburg port for the fairway Unter- and Außenelbe (river of Hamburg (Germany) Hamburg metropolitan region Elbe) to the port of Hamburg is justified as well as for the whole as an essential project of overriding 6.12.2011 country and its function as a pubic interest for which there are no major transport hub for viable alternatives. international and EU trade. Mitigation measures will be It is apparent that there are implemented which will limit the 128

hundreds of thousands of jobs negative effects of the project. However, directly or indirectly the project will still have significant dependent on its prosperity. impact on the integrity of Natura 2000 The assessment calculated sites, in particular on the priority plant that the loss of 1 mio TEU species Oenanthe conioides and on the (Twenty-foot Equivalent Unit; habitat type 1130 "Estuaries". These standard container) per year effects will be compensated for by the leads to direct loss of 10.500 creation of equivalent habitats on a jobs. This figure represents a total area that will be larger or more realistic scenario aimed at ecologically valuable than the area that avoiding further diminishing will be affected. The measures will be the economic weight of the implemented during the construction Hamburg port which might be period but outside of the breeding and caused by not adjusting the resting season. fairway of the river Elbe to the needs of increased ship Taking into account that Germany has a capacities. particular responsibility to ensure the conservation of the species Oenanthe conioides as it is an endemic plant species which only occurs at the Unterelbe, the Commission furthermore appreciated the fact that the German Authorities have decided to develop additional measures in favour of Oenanthe conioides. The area of "Alter Moorburger Hafen" will be restored and cleaned up as this territory is known of having been a habitat for Oenanthe conioides in the past. The area of "Spadenländer Spitze" and "Overhaken" will be ecologically adjusted by the creation of a tidal channel restoring a suitable habitat for Oenanthe conioides. These additional measures include authorisation, land preparation, financial coverage and appropriate monitoring and reporting to the broad public via internet and to the European Commission. The protection of the overall coherence of the Natura 2000 network will be ensured.

On the basis of the detailed information and explanations provided by the German authorities and taking into account in particular the issues set out in the present document, the Commission is of the opinion that the adverse effects of the deepening and widening of the ship fairway Unter- and Außenelbe (river Elbe) to the port of Hamburg (Germany) are justified by imperative reasons of overriding public interest.

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Replacement The replacement construction According to the information submitted construction of the of the "Schiersteiner Brücke" by the German Authorities, the motorway bridge between Wiesbaden and replacement construction of the "Schiersteiner Brücke", Mainz is indispensable, in "Schiersteiner Brücke" crossing the the extension of the particular in view of safety river Rhine between Wiesbaden and motorway A 643 from 4 aspects. In regard to the load Mainz in Hesse is justified as an lanes to 6 lanes and the of traffic by 92.800 motor essential project of overriding pubic enlargement of the vehicles per 24 hours the interest for which there are no viable motorway junction, extension from four to six alternatives. Hesse (Germany) lanes is also essential. Mitigation measures will be 14.09.2011 implemented which will limit the negative effects of the construction of the bridge. The project will however have adverse effects on the priority habitat type 91E0* Alluvial forests. These effects will be compensated for by the creation of equivalent habitats on a total area that will be three times larger than the area that will be affected. These compensation measures will have taken place before the damages occur. The protection of the overall coherence of the Natura 2000 network will therefore be ensured.

On the basis of the detailed information and explanations provided by the German authorities and taking into account in particular the issues set out in the present document, the Commission is of the opinion that the adverse effects of the replacement construction of the "Schiersteiner Brücke" on the Natura 2000 site DE 5915-301 “Rettbergsaue bei Wiesbaden” are justified by imperative reasons of overriding public interest.

Modification of the The planned investment will Based on the information submitted by development plan of the play an essential role in the competent Hungarian authorities, Győr town (Hungary) sustaining and securing the the Commission concludes that the long-term employment level authorisation of the modification of the 25.01.2011 in the region. According to the Győr town development plan in order to estimates, the project will expand the existing economic area and create approximately 10,000 to allow development of a car new workplaces (directly or manufacturing complex together with through suppliers). Additional the necessary infrastructure which 5,000 jobs could be created overlaps with the Natura 2000 site indirectly through the HUFH20009 "Gönyűi-homokvidék" is multiplier effect. It has a justified by imperative reasons of potential to prevent the labour overriding public interest and it appears force from leaving the region that there are no viable alternatives to in search for job the planned investment. opportunities. It will also have a positive impact on the Eighteen alternative locations for the 130

higher education and investment have been assessed, but vocational training none of them would seem to meet the institutions in the region by requirements of the project such as offering new training end availability of sufficiently large plot of employment opportunities to land, links to the transportation the students and graduates of infrastructure, presence of trained the Győr University and of the labour force. These alternative locations local vocational schools. would not benefit from a number of critical synergies with the existing According to the Hungarian factory either, thus creating a higher authorities the project will environmental impact than the have a significant positive proposed project. The Commission impact on regional and therefore holds the view that the national economy and it will assessment of possible alternatives to contribute to the Hungarian the development plan was carried out in gross national product by a satisfactory way and that it can be 1.8%. As a result of the accepted that there exists no better investment, the total annual alternative to the proposed plan. budget revenue of the Hungarian State is expected to The Commission considers (on the basis increase by 19.95 billion HUF of the available information) that (approx. 73.4 million EUR), despite the mitigation actions foreseen, and by 23.25 billion HUF the project will have adverse effects on (approx 85.6 million EUR) the integrity of the site, in particular on after the expiry of the priority habitat types 6260 (Pannonic development tax allowance. sand steppes), 91I0 (Euro-Siberian steppic woods with Quercus spp.), 91N0 It will therefore play a major (Pannonic inland sand dune thicket role in the Hungary's efforts to (Junipero-Populetumalbae)) and on the increase the GDP per capita to species of Community interest, Carabus the level of the EU-27 average hungaricus, Iris humilis ssp. arenaria, (the GDP per capita in the Cerambyx cerdo and Lucanus cervus. West-Transdanubian region These effects will be compensated by where the investment will be adding 343 ha of the habitat type 6260 located accounts only for to the Natura 2000 network in 63.75% of the EU-27 average). Hungary; 230 ha of which will be The increase in the national subsequently subject to restoration revenue resulting from the measures. Additionally, 258 ha of the investment will also Pannonic sand steppes will be either significantly facilitate the established or restored within existing accomplishment of the Natura 2000 sites. Compensatory Hungarian convergence measures aimed at this habitat type will programme and the also offset negative impacts on Iris repayment of the stand-by humilis ssp. arenaria and Carabus credit provided by the IMF hungaricus. As regards the habitat type and the EU. 91I0, 14 ha will be added to the network and 31 ha will be subject to restoration Furthermore, the positive measures. Compensatory measures impacts on growth and aimed at the steppic woods will also employment will help the offset negative impacts on Cerambyx Hungarian government to cerdo and Lucanus cervus. Additionally, accomplish the goals of the 13 ha of the habitat type 91N0 will be EU 2020 programme. The established on the "Gönyűi- investment will also have a homokvidék" site. According to the significantly positive effects Hungarian authorities these on the Hungarian foreign compensatory measures will safeguard trade balance and thus on the the coherence of the Natura 2000 131

balance of payment due to the network in Hungary. In the light of the fact that 99.8-99.9% of the above, the Commission considers that manufactured products will be the proposed compensatory measures sold outside Hungary. are acceptable and appropriate to protect the overall coherence of the Natura 2000 network.

On the basis of the detailed information and explanations provided by the Hungarian authorities, the Commission is of the opinion that the adverse effects of the modification of the Győr town development plan are justified by imperative reasons of overriding public interest.

Construction of the As part of the trans-European Based on the information submitted by extension of the road network, the A 49 has the the competent German authorities, the motorway A 49 by objective of enhancing the Commission concludes that the linking the end of development of the region, extension of the A49 and its cutting the completed A 49 at and in particular the through the western part of the Natura Neuental with A 5 in development of the economic 2000 site "Herrenwald östlich Hesse (Germany) centre of Stadtallendorf. Stadtallendorf" in Hesse as well as the Regional economic models bridging of the Joßklein river are 3.12.2010 suggest that this development justified by imperative reasons of will create up to 13.600 jobs in overriding public interest and that there different companies. As an are no viable alternatives to the planned important positive result, project. Twelve alternatives have been traffic density on the assessed, but the objectives pursued subordinate road network will with the construction of the motorway, be reduced by 100.000 such as transport safety and regional vehicles/day. This will reduce development would not be achieved local air pollution by up to 75 without affecting the Natura 2000 site. %. Also the noise levels will be Therefore the planned route for the reduced by almost 10 dB(A). extension of the A49 results as the only The probability of accidents possibility to reach the objectives of the will be decreased by 60 %. The project in the context of the trans- construction of the new European road-network. The section of the A 49 is therefore Commission holds the view that the considered to be of overriding assessment of possible alternatives to public interest. the project was carried out in a satisfactory way and that it can be accepted that there exist no alternatives to the project. With regard to mitigation measures, the Commission considers (on the basis of the available information) that the actions to be implemented will limit the negative effects of the construction and operation of the motorway. The mitigation measures are adequate and follow the precautionary approach.

The project will however have adverse effects on the priority habitat type '91E0* Alluvial forests'. These effects 132

will be compensated by the creation of equivalent habitats on a total area of 12,84 ha. This will increase the local area of the habitat type 91EO* by 23%. The location of the compensation areas will protect the coherence of the Natura 2000 network. No significant impacts are expected on species present in the Natura 2000 site and listed in Annex II and IV to the Habitats Directive (Myotis bechsteini, Myotis myotis and Triturus cristatus). In the light of the above, the Commission considers that the proposed compensatory measures are acceptable and appropriate to protect the overall coherence of the Natura 2000 network.

On the basis of the detailed information and explanations provided by the German authorities and taking into account in particular the issues set out in the present document, the Commission is of the opinion that the adverse effects of building the new section of the motorway A 49 on the Natura 2000 site DE 5120303 “Herrenwald östlich Stadtallendorf” are justified by imperative reasons of overriding public interest.

construction of the new The German government gave Based on the information submitted by section 3 of the top priority to the A 20 the competent German authorities, the motorway A 20 motorway project. As part of Commission concludes that the crossing 'B 206 West of the trans- of the “Travetal” in the South of Bad Wittenborn to B 206 European road network the A Segeberg in Schleswig-Holstein by the West of Weede' south of 20 has the objective, as an new section of the A20 highway is Bad Segeberg in important link, of justified and that there are no viable Schleswig- contributing to establishing alternatives to the planned project. Holstein (Germany) the internal market and strengthening the economic Three alternatives have been assessed 11.06.2010 and social cohesion in the but the objectives pursued with the European Union. construction of the motorway as transport safety, traffic clearing, linking The construction of the peripheral or isolated regions to central section of the A 20 between Community regions and the east-west- Wittenborn and Weede as connectivity would not be achieved continuation of the without affecting the Natura 2000 site. “Ostseeautobahn" and the Therefore the chosen route of the A20 "Nord-West-Umfahrung results as the only possibility to reach Hamburg" is the objective of contributing to the without alternatives and establishing the internal market and to indispensable, in particular in strengthening the economic and social view of coping with the cohesion in the European Union. The European and Commission holds the view that the national traffic flows as well as assessment of possible alternatives to 133

with the development of the the project was carried out in a fully economically underdeveloped satisfactory way and that it can be areas in Schleswig-Holstein, accepted that there exist no alternatives Mecklenburg-Vorpommern, to the project. the harbours and the the beaches of the Baltic Sea. With regard to mitigation measures, the Commission considers (on the basis of In this respect, an East-West the available information) that the link has to be created in actions to be implemented will limit the Mecklenburg-Western negative effects both of the construction Pomerania in order to connect and the operation of the motorway. The the region with the central mitigation measures are adequate and European countries. In its follow the precautionary approach. The opinion of 18 December 1995 project will however have adverse on the crossing of the Peene effects on three priority habitat types, Valley by the A 20 (L 006 of which need to be compensated. The 09/01/1996) the Commission damages that will be caused to the recognized the overriding priority habitat types 7220* Petrifying public interest of the A20. springs , 91E0* Alluvial forests and 9180* Tilio-Acerion forests of slopes, screes and ravines will be compensated by the creation of equivalent habitats on a total area that will be three times larger than the areas that will be affected. According to the German authorities these measures will have taken place before the damages occur. The location of the compensation areas will contribute to the coherence of Natura 2000. No significant impacts are expected on fish species present in the Trave river and listed in Annex II to the Habitats Directive (Cobitis taenia, Lampetra fluviatilis, Lampetra planeri, Petromyzon marinus) and on Lutra lutra and Unio crassus since appropriate mitigation measures will be implemented. A possible impact on the migrating bats will be minimised through the construction of collisions barriers.

Approval of the The claim that there exist Based on the information submitted by extension of the Lübeck- compelling reasons of an the competent German authorities, the Blankensee airport overriding public interest is Commission concludes that an increase based on the arguments the in airport capacity is justified in the 5.05.2009 extension of the Lübeck- context of the regional development Blankensee airport will be plan and that there are no viable indispensable for the further alternatives to the expansion of the economic development of the Lübeck- Blankensee airport. region, due to the better connection of Lübeck to Various alternatives have been national and international air assessed, and the chosen extension of traffic. This is seen as the airport results as the best fundamental precondition for alternative ensuring a sustainable air 134

the promotion of the region in traffic growth in the region whilst economic, research and minimising the environmental effects of touristic terms. Regional intensified air traffic, airport economic models management and construction works. suggest that the extension Neither the possible extension of nearby could create up to 5.300 direct Hamburg airport, nor the null and indirect jobs up to 2020 alternative would achieve these targets and to the same extent. With regard to beyond. mitigation measures, the Commission considers (on the basis of the available information) that the least damaging alternative has been selected, and the actions to be implemented will limit the negative effects both of the construction and the operation of the enlarged airport. The mitigation measures are adequate and follow the precautionary approach. The project is however still likely to have disturbance effects to two habitat types, which need to be compensated. The damage that will be caused to transition bog and old oak forest habitats will be compensated by the creation of equivalent habitats on a total area that will be 2 to 3 times larger than the areas that will be affected. The location of the compensation areas will contribute to the coherence of Natura 2000. In the light of the above, the Commission considers that the proposed compensatory measures are acceptable under the following conditions: The species Leucorrhinia pectoralis, Triturus cristatus, Vertigo angustior and V. moulisiana, which are strongly associated with the affected habitat type 7140 (transition mires and quaking bogs) will be closely monitored, and if their protection would be at stake, all measures should be taken to ensure the presence of a viable population in the area. The management plan for the Natura 2000 site should take into account the dynamic nature of the natural processes shaping the nature of the site such as to allow appropriate adaptation of the foreseen compensation measures where necessary. For the affected habitat types 2310, 2330, 4010, 4030 and 6230*, the actions foreseen under the current Art. 6(4) procedure, and the measures to be financed and implemented by the foundation, shall restore the conservation status of the concerned habitats and take measures to increase 135

the population of the affected bird species. Special consideration should be given to the improvement of the conservation status of priority habitat 6230* within the heath and grassland habitat complex. On the basis of the detailed information and explanations provided by the German authorities and taking into account in particular the issues set out in the present document, the Commission is of the opinion that the adverse effects of implementing the extension of the Lübeck-Blankensee airport on the Natura 2000 sites DE 2130491 "Grönauer Heide" and DE 2130391, "Grönauer Heide, Grönauer Moor und Blankensee", are justified by imperative reasons of overriding public interest.

In reaching this opinion, the Commission has taken particular account of the detailed assessment of ecological impacts when drawing up the planning documents, and the participation of the relevant stakeholders, which has been made in that process. The Commission also takes note of the creation of a foundation, which is accepted by the main participatory groups in the area, and which will ensure the sustainable management of Natura 2000 in that area. The Commission would take this opportunity to remind the German authorities that projects such as the extension of the Lübeck airport which are based on an expected increase in air traffic must be seen in the wider context of Germany’s commitments to reduce greenhouse gas emissions in the light of EU objectives to mitigate climate change.

Construction project of Notwithstanding the On the basis of the arguments set out the new port of information and the above, the Commission holds the view Granadilla (Tenerife) arguments presented in the that the new port of Granadilla project, preceding sections, it remains as described in the documents the case that the Granadilla submitted to the Commission by the port project is expected to Spanish authorities, can be executed for have a significant negative reasons of overriding public interest on impact upon a priority species the condition that all necessary and its habitat and a priority compensatory measures to ensure habitat under the habitats overall protection of the coherence of directive. As the main purpose Natura 2000 be taken in good time, as of project is not concerned established in point VIII. With regard 136

with improvements to human to the opinion expressed in this health or public safety and nor document, the Commission notes that: is it expected to have any beneficial consequences of – this opinion is valid for this particular primary benefit to the project, as described in the documents environment, justification for submitted to the Commission by the the projects should be based Spanish authorities5 and cannot be on "other imperative considered as applicable to any other reasons of overriding public similar kind of development in a Natura interest." and the Commission 2000 site. should give its opinion on these – this opinion presumes that the results considerations (Article 6.4 of accompanying monitoring Habitats Directive). The programmes regarding Natura 2000 Commission services have will be taken into account in that they analysed all the information may, if need be, lead to appropriate available to them. They have rectifications to project design or to also taken account of the additional compensation and mitigation advice of independent measures. external bodies in relation to the imperative reasons of overriding public interest presented by the Spanish Authorities. The Commission accepts that as an island, Tenerife is highly dependent upon maritime transport and an efficient port system. However, the main port, currently located in the capital, Santa Cruz is subject to increasing congestion especially in relation to container traffic which is forecast to increase significantly. The proposed port of Granadilla would add needed capacity to accommodate future growth in container, dry bulk and general freight traffic in the island while at the same time de-congesting the existing port of Santa Cruz. The new port is expected to generate a sound economic rate of return and it will also provide the island with the possibility of attracting international container transhipment traffic. In the light of the conclusions from section VI and taking into account the considerations presented above, the Commission recognises that there is a demonstrated need to 137

increase and develop port capacity in order to promote economic and social development in the island of Tenerife and the surrounding region. The Commission therefore accepts the arguments put forward by the Spanish authorities that there exist imperative reasons of overriding interest that may justify the execution of this project on condition that appropriate compensatory measures are provided for.

Approval of an The claim that there exist The Commission notes that the operational master plan compelling reasons of an competent German authorities claim (“Rahmenbetriebsplan”) overriding public interest is that the approval of the proposed of the Prosper Haniel based on the argument that operational master plan was necessary Colliery operated by the closure of the Prosper to allow for the continuation of the Deutsche Steinkohle AG Haniel mine would have mining activities of the Prosper Haniel (DSK), for the period unacceptable direct and colliery and that the German authorities 2001-2019 indirect economic and social found no alternative for this plan. With consequences at the regional regard to the mitigation and 24.04.2003 level with a direct loss of up to compensatory measures the 4.400 jobs in coal mining and Commission notes that mitigation another 6.000 jobs in up- measures have been implemented by stream industries and voluntarily reducing the planned downstream services. The extraction area and that a compensation German authorities underline concept was proposed taking into that, because of its geological account all habitat types and species and infrastructure qualities that will be affected by the project. For the Prosper Haniel coal mine the replacement of alluvial forests (15 and the continuation its ha or 2.5 km of riverside), the very long mining activities contribute to time periods that will be necessary to achieving the general re-establish habitats with a nature value objectives of the German long equivalent to that which will be term energy policy at the destroyed will be compensated by the federal and regional level, and creation of equivalent habitats by in particular the interest of afforestation and improvement of supply security and to existing forests on a total area that will maintain the leading position be 2.5 to 3 times larger than the areas of European mining and coal that will be affected or destroyed. energy technologies. When compared to the 95 hectares of land with high nature conservation value (including approx. 16 ha of priority habitats), which will be destroyed or affected by the project, the planned compensation measures can be considered as an acceptable compensation for the habitats that will be lost, at least from a quantitative point of view. In the long term, some of the affected or destroyed habitats will evolve towards new habitats with high 138

nature value, such as bog woodland, oligotrophic to mesotrophic standing waters and hydrophilous tall herb fringe communities. These new habitats will also contribute to the coherence of Natura 2000. Both the monitoring system and the implementation and coordination agency will allow to take into consideration the actual dynamic processes that will occur in the affected habitats and consequently to adapt the compensation measures where necessary. This will contribute to achieving an efficient management and monitoring of the planned measures. Considering the above, the Commission estimates that the proposed compensatory measures are appropriate to protect the overall coherence of Natura 2000. With regard to the overriding public interest of the project: 1. As regards the overall economic and social consequences, coal mining in Germany requires large public subsidy to remain in operation. Employment in the German coal industry is projected to decline, so that the issue is when, not if, the workers in question lose their jobs. The financial resources freed by closing the mine (together with the savings on the proposed compensatory measures which would no longer be needed) could be used, for example, to retrain the workers, or relocate them to other mines, the operation of which causes less environmental damage, or to attract new employers to the region. Such actions would help to offset the localised short-term negative economic and social effects of accelerated closure of the mine. 2. Concerning security of energy supply, the mine accounts for about 10% of German coal production, or about 1% of overall German energy needs. Coal is readily available on the world market, from a variety of countries, so that the risks of physical disruption of supplies or price instability may be judged as very small. Consequently, the contribution of the Prosper Haniel mine to security of energy supply is minimal. 3. Irrespective of whether maintaining the leading position of European mining and coal energy technologies may be an imperative reason of 139

overriding public interest, it is unlikely to require the extension of a single specific mine. Nevertheless, the Commission accepts the fears expressed by the competent authorities that an accelerated closure of the Prosper Haniel colliery could have in the short- term significant social and economic effects at the local and regional level. Considering the factual situation as well as its assessments as described above, the Commission is of the opinion that the adverse effects of implementing the Master Plan 2001-2019 of the Prosper Haniel Colliery (operated by Deutsche Steinkohle AG) on the proposed sites of Community importance ‘Kirchheller Heide und Hiesfelder Wald’, DE- 4407-301 and ‘Gartroper Mühlenbach’, DE-4306-304, are justified by imperative reasons of overriding public interest. In reaching this opinion, the Commission has taken particular account of the exceptional nature of this case, in which the tardy notification of the site in question as a proposed Site of Community Importance may have contributed to inadequate account being taken of ecological impacts when drawing up the operational master plan for the Prosper Haniel colliery. Accordingly, the Commission’s opinion in this case does not constitute a precedent. Notwithstanding what has been said before, the Commission expresses its concern about the compatibility of extending or even maintaining current levels of coal mining activities with the EU's objective of reducing green-house gases. A continued reliance on coal has to be judged in the wider context of the security of energy supply and will have to imply a maximal use of techniques like gasification and carbon sequestration to minimise harmful environment impacts. It will also require supplementary efforts in other areas. The Commission would not want the German government to see this opinion in a way reflecting approval of any relaxation in German national efforts to achieve agreed greenhouse gas reduction targets. The Commission also does not wish the German government to assume that this opinion in any sense prejudices future 140

Commission decisions on State aids to the coal industry, nor the obligation of the German authorities to conform with the principles announced in the Council Regulation (EC) No 1407/2002 of 23 July 2002 and applying until 31 December 2010, with review measures to be implemented as from 1 January 2008, in particular those concerning the notification, appraisal and authorization procedures.

Project Mainport In the notification, the Dutch Taking into account the arguments Rotterdam Development Government has advanced mentioned above, the Commission Plan several elements on which it holds the view that the land reclamation has based its declaration that project, as described in the notification 24.04.2003 the land reclamation project and further illustrated in the has to be executed for an documentation listed in annex 3 of this imperative reason of text, particularly so in document VIIIb, overriding public interest can be executed for reasons of other than those related to overriding public interest on the human health, public safety or condition that all necessary beneficial consequences of compensation measures to ensure the primary importance for the overall protection of the coherence of environment. Natura 2000 be taken in due time. With These elements are: regard to the opinion expressed in this – the fact that the portuary document the Commission notes the and industrial activity in the following: Rotterdam area is one of the – This opinion is valid for this main pillars of the Dutch particular project, as described in the economy, which is illustrated above mentioned additional documents in docs. I and VII; submitted to the Commission by the – the fact that the expected Dutch authorities and cannot be growth in global container considered as applicable to possible handling and chemical effects of the PMR land reclamation industrial activity will lead to project on other Natura 2000 areas. increased demand for space – This opinion presumes that the which will have to be met if compensatory measures will be the competitive position of the implemented and monitored as Rotterdam harbour in the described in the above-mentioned Hamburg – Le Havre range documents submitted to the has to be maintained; Commission by the Dutch authorities. – the fact that the harbour of – This opinion presumes that the Rotterdam is an essential results of accompanying monitoring multimodal crossroads in the programmes regarding Natura 2000 TEN-T Network as established are taken into account in the sense that by “Decision No 1692/96/EC they may, if need be, lead to of the European Parliament appropriate rectifications in project and of the Council of 23 July design or to additional compensation 1996 on Community and mitigation guidelines for the measures. development of the trans- European transport” network and is therefore of Community importance; – the fact that the PMR 141

project has to be considered as a project of common interest according to the provisions of art. 1 (5b) of “Decision No 1346/2001/EC of the European Parliament and of the Council of 22 May 2001 amending Decision No 1692/96/EC as regards seaports, inland ports and intermodal terminals as well as project No 8 in Annex III”; – the fact that the project approach that was chosen, which combines better use of available space, improvement of living conditions and development of new space by land reclamation, appears to find the best balance between the human and the natural environment in the Rotterdam urban and portuary area.

Creation of a new The claim that there exist The Commission holds the view that the industrial and imperative reasons of above mentioned sites may represent commercial area overriding public interest is relevant alternatives for providing “Siegerland” within the based on the arguments that, additional areas for industrial former military training following an assessment settlement to the city of Siegen. The area Trupbach near carried out in 1993 by the Commission also believes that existing Siegen/Freudenberg government of the District industrial areas, which are already (North Rhine-Westfalia) Arnsberg “Bezirksregierung”), available but currently not in use, there exists an overall deficit should be better integrated in the 24.04.2003 of industrial areas for the planning, before deciding on the district of Arnsberg (cities of creation of new industrial areas. Siegen, Freudenberg and Following a local citizens initiative, Kreuztal) of 158 ha, whereof more than 370 ha of such unused about only 50 ha can be industrial areas are still available in the covered by two other planned district of Siegen-Wittgenstein. sites. The creation of a new Moreover, the search for alternative industrial area of more than sites for industrial and commercial 100 ha within the former development must not be limited by the military training site of boundaries of local municipalities. Trupbach would allow to fill Alternative sites in neighbouring this deficit and contribute to municipalities and ‘inter-communal’ the economic development of sites could also provide additional space the region by improving its for industrial settlement in the region. economic structure. Disadvantages resulting from such This new area would therefore alternatives, e. g. with regard to be essential for maintaining taxation revenue, cannot justify to and securing employment in ignore them. It is the responsibility of the region. The concentration the Member State concerned to resolve of commercial and industrial such difficulties. Consequently, the activities on one single site Commission holds the view that the would have advantages from assessment of possible alternatives to 142

the economic and traffic point the project was not carried out in a fully of view and enhance the inter- satisfactory way and that it cannot be communal co-operation accepted that there exist no alternatives between the cities of Siegen, to the project, as requested by Art. 6 (4) Freudenberg and Kreuztal. of the Directive 92/43/EEC. With regard to the public interest of the project, the Commission holds the view that the effective need for additional industrial areas in and around the city of Siegen, as evaluated in 1993, needs to be re-evaluated while better taking into account the areas which are already available but currently not in use, as well as the economic situation of today, some 10 years after the latest evaluation of the situation was carried out. Even if the existence of a certain public interest for making available additional industrial areas in the Siegen region could be acknowledged, the Commission nevertheless holds the view that there are no particular imperative reasons of overriding public interest for creating one single additional industrial area on the Trupbach site, whereas there is no convincing proof for the absence of alternative sites in the region. The Commission is furthermore not convinced of the argument that, as far as the employment situation is concerned, one single industrial area would represent a significant advantage when compared to step by step development of several smaller areas. On the basis of its assessment of the information available, the Commission is of the opinion that the adverse effects of creating a new industrial and commercial area within the former military training area Trupbach on the proposed Site of Community Importance “Heiden und Magerrasen Trupbach”, N° DE 5113-301, are not justified by imperative reasons of overriding public interest.

Intersection of the As the Commission has Adverse effects on the protection area Peene Valley (Germany) outlined in its 'Peenetal vom Kummerower See bis by the planned A 20 abovementioned opinion of 27 Schadefähre` through the planned A 20 motorway April 1995, Mecklenburg- motorway east of Jarmen are justified Western Pomerania suffers by imperative reasons of overriding 18.12.1995 from an exceptionally high public interest. unemployment. Its unemployment rate almost doubles the one of the old 143

Länder already since several years. The gross national product created in Mecklenburg-Western Pomerania, as compared to the percentage of the population, is significantly lower than the gross national product created on average. The Community takes account of the special situation of Mecklenburg-Western Pomerania by specially promoting its development through the Structural Funds. The A 20 is furthermore part of the trans-European road network. The Structural Funds as well as the trans- European networks have the aim of establishing the internal market and of strengthening the economic and social cohesion of the Community. In this respect, an east-west link has to be created in Mecklenburg- Western Pomerania in order to link it with central regions of the Community. The special value of the A 20 as part of the Deutsche Einheit transport projects is reflected in the top priority given to it by the German Government as well as in the Bundestag's classification of this motorway link as a necessity. An alternative solution has not been found. Due to its length and location, it is not possible to avoid an intersection of the protection area; the objectives pursued with the construction of the motorway as well as the desired grouping of traffic would not be achieved.

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Annex 12.C – EU Guidance on Article 6(4) of the Habitats Directive and IROPI

Extracts from EU Guidance document on Article 6(4) of the 'Habitats Directive' 92/43/EEC415

The concept of "imperative reason of overriding public interest" is not defined in the Directive. However, Article 6 (4) second subparagraph mentions human health, public safety and beneficial consequences of primary importance for the environment as examples of such imperative reasons of overriding public interests. As regards the "other imperative reasons of overriding public interest" of social or economic nature, it is clear from the wording that only public interests, irrespective of whether they are promoted either by public or private bodies, can be balanced against the conservation aims of the Directive. Thus, projects developed by private bodies can only be considered where such public interests are served and demonstrated.

So far the European Court of Justice has not given clear indications for the interpretation of this specific concept. It may therefore be helpful to refer to other fields of Community law, where similar concepts appear.

The "imperative requirement" concept was worked out by the Court of Justice as an exception to the principle of free movement of goods. Among the imperative requirements which can justify national measures restricting freedom of movement, the Court recognised public health and environmental protection, as well as the pursuit of legitimate goals of economic and social policy.

In addition, Community law also recognises the concept of "service of general economic interest", evoked in Article 86(2) (ex 90(2)) of the Treaty, within the framework of the exception to the rules of competition envisaged for companies responsible for the management of such services. In a communication on services of general interest in Europe416, the Commission, taking account of case law on the matter, gave the following definition of services of general economic interest: "they describe activities of commercial service fulfilling missions of general interest, and subject consequently by the Member States to specific obligations of public service. It is the case in particular of services in transport, energy, communication networks417".

Having regard to the structure of the provision, in the specific cases, the competent national authorities have to make their approval of the plans and projects in question subject to the condition that the balance of interests between the conservation objectives of the site affected by those initiatives and the above-mentioned imperative reasons weighs in favour of the latter.

This should be determined according to the following considerations: a) the public interest must be overriding: it is therefore clear that not every kind of public interest of a social or economic nature is sufficient, in particular when seen against the particular weight of the interests protected by the Directive (see e.g. its 4th recital stating "Community’s natural heritage") (see Annex I point 10).

415 Available here: http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/new_guidance_art6 _4_en.pdf 416 COM (96) 443, of the 11.09.1996 417 The public service obligations, in their turn, are characterised for the respect of some essential principles of operation, such as continuity, the equal access, universality and transparency, but can vary from one Member State to the other, according to different situations, such as geographical or technical constraints, political and administrative organisation, history and traditions. 145

b) in this context, it seems also reasonable to assume that the public interest can only be overriding if it is a long-term interest; short term economic interests or other interests which would only yield short-term benefits for the society would not appear to be sufficient to outweigh the long-term conservation interests protected by the Directive.

It is reasonable to consider that the "imperative reasons of overriding public interest, including those of social and economic nature" refer to situations where plans or projects envisaged prove to be indispensable:

- within the framework of actions or policies aiming to protect fundamental values for the citizens' life (health, safety, environment);

- within the framework of fundamental policies for the State and the Society;

- within the framework of carrying out activities of economic or social nature, fulfilling specific obligations of public service.

In order to provide readers with a more precise indication of what might legitimately considered as potential imperative reasons of overriding public interest, some examples have been extracted from the Opinions delivered by the Commission in the framework of Article 6(4) and are related to the reasoning given by Member States.

Intersection of the Peene Valley (Germany) by the planned A 20 motorway (Germany)

The A20 motorway is part of the trans-European road network. An east-west link has to be created in Mecklenburg-Western Pomerania in order to link it with central regions of the Community.

Mecklenburg-Western Pomerania suffers from an exceptionally high unemployment. For several years its unemployment rate has been almost the double of that in the old Länder. The gross national product created in Mecklenburg-Western Pomerania, as compared to the percentage of the population, is significantly lower than the average gross national product.

Project Mainport Rotterdam” Development Plan (The Netherlands)

Portuary and industrial activity in the Rotterdam area is one of the main pillars of Dutch economy. The harbour of Rotterdam is an essential multimodal crossroads in the TEN-T Network and is therefore of Community importance. Expected growth in global container handling and chemical industrial activity will lead to increased demand for space which will have to be met if the competitive position of the Rotterdam harbour in the Hamburg – Le Havre range has to be maintained.

The development of the Rotterdam port, also brings into focus the question of promoting modal- shift particularly in relation to freight transport. It is clear that shifting freight from road to water will have considerable benefits in terms of reduced green-house gas emissions, reduced atmospheric pollution and reduced congestion. These benefits should be recognised in assessing questions of public interest.

Extension of the site of Daimler Chrysler Aerospace Airbus Gmbh in Hamburg- Finkenwerder (Germany)

Outstanding importance for the region of Hamburg and northern Germany and the European aerospace industry. Project will contribute to the technological advance and foster the European

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cooperation in the aviation business. Positive effect on the economic and social situation of the ordering regions and positive impact on the competitiveness of the European aeronautic industry. Important number of highly qualified new jobs, needed to counterbalance the considerable loss of jobs in the industrial sector of the region.

High speed line (TGV East) (France)

Lack of options for linking the existing lines. The European TGV East project was viewed favourably in the Council of Ministers of the European Community on 1990 and was chosen as a priority project by the European Council in 1994, having benefited from Union decisions regarding the priority of infrastructure projects to be implemented.

Operational master plan (“Rahmenbetriebsplan”) of the Prosper Haniel Colliery (Germany)

Due to its geological and infrastructure qualities the Prosper Haniel coal mine and the continuation of its mining activities contribute to achieving the general objectives of the German long term energy policy at the federal and regional level, and in particular the interest of supply security and to maintain the leading position of European mining and coal energy technologies. The closure of the Prosper Haniel mine would have unacceptable direct and indirect economic and social consequences at the regional level with a direct loss of jobs in coal mining and in up-stream industries and downstream services.

La Breña II Reservoir Project (Spain)

Provide enough water for human consumption, industrial uses and agriculture, which cannot be available in the current situation of the River Guadalquivir basin.

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Annex 13.A – Extract from (COM(2011) 244) showing Actions to achieve Goal 1

Action 1 Complete the establishment of the Natura 2000 Network and ensure good management

1a) Member States and the Commission will ensure that the phase to establish Natura 2000, including in the marine environment, is largely complete by 2012.

1b) Member States and the Commission will further integrate species and habitat protection and management requirements into key land and water use policies, both within and beyond Natura 2000 areas.

1c) Member States will ensure that management plans or equivalent instruments which set out conservation and restoration measures are developed and implemented in a timely manner for all Natura 2000 sites.

1d) The Commission, together with Member States, will establish by 2012 a process to promote the sharing of experience, good practice and cross-border collaboration on the management of Natura 2000, within the biogeographical frameworks set out in the Habitats Directive.

Action 2 Ensure adequate financing of Natura 2000 sites

2) The Commission and Member States will provide the necessary funds and incentives for Natura 2000, including through EU funding instruments, under the next Multi-annual financial Framework. The Commission will set out its views in 2011 on how Natura 2000 will be financed under the next Multi-annual Financial Framework.

Action 3 Increase stakeholder awareness and involvement and improve enforcement

3a) The Commission, together with Member States, will develop and launch a major communication campaign on Natura 2000 by 2013.

3b) The Commission and Member States will improve cooperation with key sectors and continue to develop guidance documents to improve their understanding of the requirements of EU nature legislation and its value in promoting economic development.

3c) The Commission and Member States will facilitate enforcement of the nature directives by providing specific training programmes on Natura 2000 for judges and public prosecutors, and by developing better compliance promotion capacities.

Action 4 Improve and streamline monitoring and reporting

4a) The Commission, together with Member States, will develop by 2012 a new EU bird reporting system, further develop the reporting system under Article 17 of the Habitats Directive and improve the flow, accessibility and relevance of Natura 2000 data.

4b) The Commission will create a dedicated ICT tool as part of the Biodiversity Information System for Europe to improve the availability and use of data by 2012.

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Annex 13.B – The Aichi Biodiversity Targets (2015-2020)

Strategic Goal A: Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society

Target 1 - by 2020, at the latest, people are aware of the values of biodiversity and the steps they can take to conserve and use it sustainably.

Target 2 - by 2020, at the latest, biodiversity values have been integrated into national and local development and poverty reduction strategies and planning processes and are being incorporated into national accounting, as appropriate, and reporting systems.

Target 3 - by 2020, at the latest, incentives, including subsidies, harmful to biodiversity are eliminated, phased out or reformed in order to minimize or avoid negative impacts, and positive incentives for the conservation and sustainable use of biodiversity are developed and applied, consistent and in harmony with the Convention and other relevant international obligations, taking into account national socio-economic conditions.

Target 4 - by 2020, at the latest, Governments, business and stakeholders at all levels have taken steps to achieve or have implemented plans for sustainable production and consumption and have kept the impacts of use of natural resources well within safe ecological limits.

Strategic Goal B: Reduce the direct pressures on biodiversity and promote sustainable use

Target 5 - by 2020, the rate of loss of all natural habitats, including forests, is at least halved and where feasible brought close to zero, and degradation and fragmentation is significantly reduced.

Target 6 - by 2020 all fish and invertebrate stocks and aquatic plants are managed and harvested sustainably, legally and applying ecosystem based approaches, so that overfishing is avoided, recovery plans and measures are in place for all depleted species, fisheries have no significant adverse impacts on threatened species and vulnerable ecosystems and the impacts of fisheries on stocks, species and ecosystems are within safe ecological limits.

Target 7 - by 2020 areas under agriculture, aquaculture and forestry are managed sustainably, ensuring conservation of biodiversity.

Target 8 - by 2020, pollution, including from excess nutrients, has been brought to levels that are not detrimental to ecosystem function and biodiversity.

Target 9 - by 2020, invasive alien species and pathways are identified and prioritized, priority species are controlled or eradicated, and measures are in place to manage pathways to prevent their introduction and establishment.

Target 10 - by 2015, the multiple anthropogenic pressures on coral reefs, and other vulnerable ecosystems impacted by climate change or ocean acidification are minimized, so as to maintain their integrity and functioning.

Strategic Goal C: To improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity

Target 11- by 2020, at least 17% of terrestrial and inland water, and 10% of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are 149

conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes.

Target 12 - by 2020 the extinction of known threatened species has been prevented and their conservation status, particularly of those most in decline, has been improved and sustained.

Target 13 - by 2020, the genetic diversity of cultivated plants and farmed and domesticated animals and of wild relatives, including other socio-economically as well as culturally valuable species, is maintained, and strategies have been developed and implemented for minimizing genetic erosion and safeguarding their genetic diversity.

Strategic Goal D: Enhance the benefits to all from biodiversity and ecosystem services

Target 14 - by 2020, ecosystems that provide essential services, including services related to water, and contribute to health, livelihoods and well-being, are restored and safeguarded, taking into account the needs of women, indigenous and local communities, and the poor and vulnerable.

Target 15 - by 2020, ecosystem resilience and the contribution of biodiversity to carbon stocks has been enhanced, through conservation and restoration, including restoration of at least 15% of degraded ecosystems, thereby contributing to climate change mitigation and adaptation and to combating desertification.

Target 16 - by 2015, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization is in force and operational, consistent with national legislation.

Strategic Goal E: Enhance implementation through participatory planning, knowledge management and capacity building

Target 17 - by 2015 each Party has developed, adopted as a policy instrument, and has commenced implementing an effective, participatory and updated national biodiversity strategy and action plan.

Target 18 - by 2020, the traditional knowledge, innovations and practices of indigenous and local communities relevant for the conservation and sustainable use of biodiversity, and their customary use of biological resources, are respected, subject to national legislation and relevant international obligations, and fully integrated and reflected in the implementation of the Convention with the full and effective participation of indigenous and local communities, at all relevant levels.

Target 19 - by 2020, knowledge, the science base and technologies relating to biodiversity, its values, functioning, status and trends, and the consequences of its loss, are improved, widely shared and transferred, and applied.

Target 20 - by 2020, at the latest, the mobilization of financial resources for effectively implementing the Strategic Plan for Biodiversity 2011-2020 from all sources, and in accordance with the consolidated and agreed process in the Strategy for Resource Mobilization, should increase substantially from the current levels. This target will be subject to changes contingent to resource needs assessments to be developed and reported by Parties.

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Annex 13.C – 7th Environmental Action Plan

THEMATIC PRIORITIES

Priority objective 1: To protect, conserve and enhance the Union’s natural capital

17. The Union’s economic prosperity and well-being is underpinned by its natural capital, i.e. its biodiversity, including ecosystems that provide essential goods and services, from fertile soil and multi-functional forests to productive land and seas, from good quality fresh water and clean air to pollination and climate regulation and protection against natural disasters. A substantial body of Union legislation seeks to protect, conserve and enhance natural capital, including the Water Framework Directive (14), the Marine Strategy Framework Directive (15), the Urban Wastewater Directive (16), the Nitrates Directive (17), the Floods Directive (18), the Priority Substances Directive (19), the Air Quality Directive and related directives (20) and the Habitats and Birds Directives (21). Legislation to tackle climate change, chemicals, industrial emissions and waste also contributes to easing the pressures on soil and biodiversity, including ecosystems, species and habitats as well as reducing nutrient releases.

18. However, recent assessments show that biodiversity in the Union is still being lost and that most ecosystems are seriously degraded (22) as a result of various pressures. For example, invasive alien species pose greater risks to plant, animal and human health, the environment and the economy than previously estimated. The EU Biodiversity Strategy to 2020 sets out targets and actions needed to reverse those negative trends, to halt the loss of biodiversity and the degradation of ecosystem services by 2020 and restore them as far as feasible (23). It is necessary to step up the implementation of that Strategy, and meet the targets contained therein in order to enable the Union to meet its biodiversity headline target for 2020. Whereas the Strategy includes built-in measures to improve the implementation of the Birds and Habitats Directives, including the Natura 2000 network, reaching the headline target will require the full implementation of all existing legislation aimed at protecting natural capital.

19. Despite the requirement in the Water Framework Directive to protect, enhance and restore all bodies of surface and ground water, and considerable efforts to date, the objective of ‘good ecological status’ by 2015 is likely to be met only for 53 % of surface water bodies in the Union (24). The Marine Strategy Framework Directive target to achieve ‘good environmental status’ by 2020 is coming under severe pressure, due to, inter alia, continued overfishing, pollution (including underwater noise and marine litter) as well as the effects of global warming such as acidification, in Europe’s seas. In particular in the Mediterranean and the Black Sea, where the majority of coastal states are not Union Member States, close collaboration within the Union and with its neighbours will be essential to tackle such challenges effectively. And while Union air and industrial emissions policies have helped to reduce many forms of pollution, ecosystems continue to suffer from excess nitrogen and sulphur deposition and ozone pollution associated with emissions from transport, power generation and unsustainable agricultural practices.

20. Protecting, conserving, enhancing and valuing the Union’s natural capital therefore also requires tackling problems at source through, inter alia, better integration of natural capital objectives in the development and implementation of other policies, and ensuring that policies are coherent and deliver mutual benefits. The environment-related elements set out in the Commission’s reform proposals, in particular for Union agriculture, fisheries and cohesion policy, backed by the proposals for greening the Union budget under the Multi-Annual Financial Framework 2014–2020 are designed to support those objectives. Since agriculture and forestry

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together represent 78 % of land cover in the Union, they play a major role in maintaining natural resources, especially good quality water and soil as well as biodiversity and diverse cultural landscapes. Greening of the CAP will promote environmentally beneficial agricultural and forestry practices such as crop diversification, the protection of permanent grassland and grazing land, and sustainable agroforestry, and will also promote the establishment and maintenance of ecologically valuable farmland and forest areas, including through extensive and traditional practices. It will also increase the land use, land-use change and forestry sector’s capacity to act as a carbon sink. An essential element in sustainable agriculture is farming with a sense of responsibility for future generations, while at the same time remaining resource-efficient and productive.

21. The Union has the world’s largest maritime territory and therefore has a significant responsibility for ensuring the protection of the marine environment. In the case of the marine environment, while the maritime sector offers economic opportunities, from fishing, shipping and aquaculture to raw materials and offshore energy and marine biotechnology, care needs to be taken to ensure their exploitation is compatible with the conservation and sustainable management of marine and coastal ecosystems. In conjunction, maritime spatial planning and integrated coastal management within and between Member States can play an effective role in coordinating sustainable use of marine waters and coastal zones, when applying the ecosystem-based approach to the management of different sectoral activities in those areas. The marine environment is not adequately protected partly because completion of the Natura 2000 network is behind schedule, requiring further efforts from Member States. Marine-protected areas also need to be managed more efficiently.

22. Ecosystem-based approaches to climate change mitigation and adaptation which also benefit biodiversity and the provision of other ecosystem services should be used more extensively as part of the Union’s climate change policy, while other environmental objectives such as biodiversity conservation and the protection of soil and water should be fully taken into account in decisions relating to renewable energy. Finally, measures to address transport-related air pollution and CO2 emissions will need to be taken (25).

23. The degradation, fragmentation and unsustainable use of land in the Union is jeopardising the provision of several key ecosystem services, threatening biodiversity and increasing Europe’s vulnerability to climate change and natural disasters. It is also exacerbating soil degradation and desertification. More than 25 % of the Union’s territory is affected by soil erosion by water, which compromises soil functions and affects the quality of freshwater. Soil contamination and sealing are also persistent problems. More than half a million sites throughout the Union are thought to be contaminated and until they are identified and assessed, they will continue to pose potentially serious environmental, economic, social and health risks. Every year more than 1 000 km2 of land are taken for housing, industry, transport or recreational purposes. Such long-term changes are difficult or costly to reverse, and nearly always involve trade-offs between various social, economic and environmental needs. Environmental considerations including water protection and biodiversity conservation should be integrated into planning decisions relating to land use so that they are made more sustainable, with a view to making progress towards the objective of ‘no net land take’, by 2050.

24. Varying levels of progress have been made at Member State level to ensure soil protection, including with regard to contaminated site identification, awareness-raising, research and the development of monitoring systems. However, progress with risk-based and other remediation efforts is uneven, and results and Union level reporting are limited. In response to concerns such as adverse impacts on the natural water cycle, the Commission has developed guidelines on soil sealing (26). Further efforts to strengthen the regulatory context, develop networks, share 152

knowledge, produce guidelines and identify examples of best practice can also contribute to better soil protection. The Commission has submitted a proposal for a Directive establishing a framework for the protection of soil and amending Directive 2004/35/EC (27).

25. To reduce the most significant man-made pressures on land, soil and other ecosystems in Europe, action will be taken to ensure that decisions, relating to land use, at all relevant levels give proper consideration to environmental as well as social and economic impacts. The Rio + 20 outcome, recognising the economic and social significance of good land management, called for a ‘land degradation neutral world’. The Union and its Member States should reflect on how best to make such a commitment operational within their respective competencies. The Union and its Member States should also reflect as soon as possible on how soil quality issues could be addressed using a targeted and proportionate risk-based approach within a binding legal framework. Targets should also be set for sustainable land use and soil.

26. Although nitrogen and phosphorus inputs to the Union environment have decreased considerably over the past 20 years, excessive nutrient releases continue to affect air and water quality and to have a negative impact on ecosystems, causing significant problems for human health. In particular, ammonia release from inefficient fertiliser management and inadequate waste water treatment urgently need to be tackled to achieve further significant reductions in nutrient releases. Further efforts to manage the nutrient cycle in a more cost-effective, sustainable and resource-efficient way, and to improve efficiency in the use of fertilisers are also required. Such efforts call for investments in research and improvements in the coherence and implementation of Union environment legislation to address those challenges, tightening standards where necessary and addressing the nutrient cycle as part of a more holistic approach which integrates and creates links between existing Union policies that play a role in tackling eutrophication and excessive nutrient releases, and avoids a situation whereby nutrient emissions are shifted across environmental media.

27. Action under the EU Biodiversity Strategy to restore at least 15 % of degraded ecosystems in the Union and to expand the use of Green Infrastructure (a tool for providing ecological, economic and social benefits through natural solutions, incorporating green spaces, aquatic ecosystems and other physical features in terrestrial and marine areas) will help to overcome land fragmentation. Such action will, in combination with the full implementation of the Birds and Habitats Directives, supported by Prioritised Action Frameworks, further enhance natural capital and increase ecosystem resilience, and can offer cost-effective options for climate change mitigation and adaptation and disaster risk management. Meanwhile, Member States’ efforts to map and assess ecosystems and their services will improve data availability, and, along with the ‘no net loss’ initiative planned in 2015, will contribute to maintaining the stock of natural capital at a variety of scales. The integration of the economic value of ecosystem services into accounting and reporting systems at Union and national level by 2020 will result in better management of the Union’s natural capital.

28. In order to protect, conserve and enhance the Union’s natural capital, the 7th EAP shall ensure that by 2020:

(a) the loss of biodiversity and the degradation of ecosystem services, including pollination, are halted, ecosystems and their services are maintained and at least 15 % of degraded ecosystems have been restored;

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(b) the impact of pressures on transitional, coastal and fresh waters (including surface and ground waters) is significantly reduced to achieve, maintain or enhance good status, as defined by the Water Framework Directive;

(c) the impact of pressures on marine waters is reduced to achieve or maintain good environmental status, as required by the Marine Strategy Framework Directive, and coastal zones are managed sustainably;

(d) air pollution and its impacts on ecosystems and biodiversity are further reduced with the long- term aim of not exceeding critical loads and levels;

(e) land is managed sustainably in the Union, soil is adequately protected and the remediation of contaminated sites is well underway;

(f) the nutrient cycle (nitrogen and phosphorus) is managed in a more sustainable and resource- efficient way;

(g) forest management is sustainable, and forests, their biodiversity and the services they provide are protected and, as far as feasible, enhanced and the resilience of forests to climate change, fires, storms, pests and diseases is improved.

This requires, in particular:

(i) stepping up the implementation of the EU Biodiversity Strategy without delay, in order to meet its targets; (ii) fully implementing the Blueprint to Safeguard Europe’s Water Resources (28), having due regard for Member States’ specific circumstances, and ensuring that water quality objectives are adequately supported by source-based policy measures;

(iii) urgently increasing efforts, inter alia, to ensure that healthy fish stocks are achieved in line with the Common Fisheries Policy, the Marine Strategy Framework Directive and international obligations. Combating pollution and establishing a Union-wide quantitative reduction headline target for marine litter supported by source-based measures and taking into account the marine strategies established by Member States. Completing the Natura 2000 network of marine protected areas, and ensuring that coastal zones are managed sustainably;

(iv) agreeing and implementing an EU Strategy on adaptation to climate change (29), including the mainstreaming of climate change adaptation into key Union policy initiatives and sectors;

(v) strengthening efforts to reach full compliance with Union air quality legislation and defining strategic targets and actions beyond 2020;

(vi) increasing efforts to reduce soil erosion and increase soil organic matter, to remediate contaminated sites and to enhance the integration of land use aspects into coordinated decision-making involving all relevant levels of government, supported by the adoption of targets on soil and on land as a resource, and land planning objectives;

(vii) taking further steps to reduce emissions of nitrogen and phosphorus, including those from urban and industrial wastewater and from fertiliser use, inter alia, through better source control, and the recovery of waste phosphorus;

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(viii) developing and implementing a renewed Union Forest Strategy that addresses the multiple demands on, and benefits of, forests and contributes to a more strategic approach to protecting and enhancing forests, including through sustainable forest management;

(ix) enhancing Union public information provision, awareness and education on environment policy.

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