The Role of Case Law and Increasing Efficiency in Implementing the Birds and Habitats Directives
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The Role of Case Law and Increasing Efficiency in Implementing the Birds and Habitats Directives Introduction The Fitness Check of the Birds and Habitats Directives has resulted in increased attention being focused on case law at European and national levels concerning the Directives. The Birds Directive was adopted in 1979, with the Habitats Directive following thirteen years later in 1992. Ongoing delays in the transposition and implementation of the Birds and Habitats Directives, combined with high levels of public concern about the state of Europe’s wildlife, have resulted in higher numbers of complaints being sent to the Commission under these Directives than under other EU environmental legislation. Several of these complaints have resulted in infringement procedures against Member States, with eventual referral to the Court of Justice of the European Union (CJEU). This paper seeks to explain the importance of the judgments of the Court for interpreting EU Directives, while clarifying the relationship between these rulings, and the texts of these Directives. The detailed evidence presented in the annexes to this paper are provided by the RSPB but the paper is supported by the 100 organisations from the Joint LINKs. Importance of CJEU Rulings for implementation of the Birds and Habitats Directives The European Commission has recognised the importance of CJEU rulings for understanding and interpreting European directives, including the Birds and Habitats Directives.1 Civil society has also acknowledged that the various judgments of the Court are an essential tool in interpreting the Articles of the Nature Directives, and that CJEU rulings should guide their better transposition, implementation and enforcement at the national level.2 Nevertheless, the total number of CJEU rulings concerning the Birds and Habitats Directives is comparatively small. Annex I to this document provides an overview of the total number of CJEU rulings compared to those specifically concerning the Birds and Habitats Directives. Even this small volume of case law has been instrumental in providing certainty in the application of provisions of the Birds and Habitats Directives in all 28 Member States, as in the example of the CJEU’s preliminary ruling in the Waddenzee case3, further described in Annex I to this document. The implementation of the Nature Directives has been informed not only by CJEU judgments but also by domestic case-law and European Commission guidance, which have together provided greater certainty and confidence around the Nature Directives for governments, as well as for business. Importance of long-term regulatory stability The age of the Birds and Habitats Directives means that there has been time for Government and businesses alike to become familiar with, and to develop best practice in, their implementation. Businesses and investors place great value in the certainty that this provides, and their concerns tend to focus on issues associated with: 1 http://ec.europa.eu/environment/nature/info/pubs/docs/others/ecj_rulings_en.pdf 2 http://www.landmarkchambers.co.uk/userfiles/documents/resources/ecj_report_rspb_final.pdf 3 C-127/02 (reference for a preliminary ruling) – “Waddenvereniging and Vogelbeschermingsvereniging” A lack of implementation and the associated uncertainty (for example the implications of the failure to identify a coherent SPA and SAC network in UK seas and its implications for marine industries);4 Poor or inconsistent implementation;5 A lack of guidance on, or information to inform implementation (for example the lack of clear conservation objectives for Natura 2000 sites);6 A lack of resource and expertise within Government authorities and regulators to support effective implementation7. Indeed this point was emphasized by Dr. Elsa Nickel, Director General, Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMU), Germany at Green Week 2015. She pointed out that the Nature Directives are just beginning to work for biodiversity, and that governments and businesses have learned how to operate with the Directives, such that they have become a routine part of daily operations. “The EU Nature legislation is absolutely fit for purpose and indispensable – it is the backbone for everything we want to reach, the objectives of the EU biodiversity strategy 2020. We don’t see any reason why we should change it – we should implement better”. Dr Nickel emphasized both the need for regulatory stability for economic players and pointed out that, "This is really about our credibility in Europe - we have to fulfil the obligations from the convention on biodiversity, we have to meet the targets. If Europe does not meet them, who else will?". Experience with the Nature Directives has enabled progressive businesses to make them a routine part of their daily operations across the EU, while full transposition and implementation has delivered demonstrable positive outcomes for nature. Annex III provides evidence of the evolution of approaches to implementation of the Birds and Habitat Directives in the UK over time and in response to the development of case law. Should CJEU jurisprudence be incorporated into the texts of Birds and Habitats Directives? The Birds and Habitats Directives set out the results that Member States must achieve, without necessarily dictating the means of achieving these results, leaving a certain amount of leeway to Member State governments as to the exact rules to be adopted. CJEU judgments do not qualify or restrict this leeway. Seeking to derive hard and fast rules from such CJEU rulings and to incorporate these into an EU Directive, effectively defining the “correct” approach to implementation, could potentially breach the subsidiarity principle. Annex II to this document provides an overview of how the CJEU operates, and the importance of the Court’s CJEU’s case law for the implementation of EU Directives. CJEU rulings do not, and are not intended to, prescribe the precise approach all Member States must take to implementing EU Directives. EU CJEU case law provides clarity as to interpretation and confirms whether Member States have acted lawfully in transposing/implementing their requirements. A judgment does not always mean that a particular approach is the only way to achieve compliance. 4 http://www.wcl.org.uk/docs/link_response_to_nature_directives_060212.pdf 5 http://ec.europa.eu/environment/nature/natura2000/management/docs/AA_final_analysis.pdf 6 Review of Favourable Conservation Status and Birds Directive Article 2 interpretation within the European Union (NECR176), Natural England March 2015: http://publications.naturalengland.org.uk/publication/4852573913743360 7 http://www.rspb.org.uk/Images/rspb2ndsubmissiontodefrahrrcasestudycommentaryandanalysis_tcm9-305620.pdf P.18 2 Conclusions Reporting information compiled for the European Environment Agency’s State of Nature report8 shows that while much of Europe’s nature is still in trouble, we are nevertheless at the beginning of a success story. Scientific data shows that where European laws are being effectively implemented, nature is recovering. The development of case law and guidance at national and EU levels has been key to developing the consistency of transposition and implementation needed to achieve this. Thirty years of experience and case law has clarified how the processes and procedures set out in the Birds Directive and Habitats Directive apply to situations on the ground. Experience has shown how effective and efficient these measures have been once properly transposed and implemented. There is no pressing need to incorporate case law and guidance into the texts of the Birds and Habitats Directives - indeed there are strong legal and practical reasons not to do so. Such a move would be likely to fall foul of the EU’s subsidiarity principle, by limiting Member States’ freedom to implement. Any opening of the legislation would also inevitably negate the experience, case law and guidance that have been accumulated. Under that scenario, the whole process of establishing jurisprudence and developing guidance would simpl start again. Experience with CAP reform and other legislative instruments has shown just how far from an initial European Commission proposal the co-decision process can take adopted EU policy instruments. Opening the Birds and Habitats Directives to amendment by the European Parliament and the Governments of the 28 Member States would reset the evolutionary clock in transposition and implementation terms, and return nature conservation and business to the “bad old days” of uncertainty. This would be bad for nature, as progress towards the EU and global 2020 biodiversity targets would be at best put on hold, at worst set back by decades. It would also be bad for business, as the certainty built up over time would be lost. Finally, it would be disastrous for Europe’s people who, as research has shown, benefit from a multitude of ecosystem services generated by the Natura 2000 network. The Birds and Habitats Directives are an excellent example of EU regulation that is not only smart, effective where transposed and implemented, and efficient, but also highly relevant to the daily lives of Europeans. 8 http://www.eea.europa.eu/publications/state-of-nature-in-the-eu 3 Annex I Number of CJEU Rulings Concerning the Birds and Habitats Directives Statistics on the judicial activity of the CJEU, available from the www.curia.europa.eu website, confirm that the court has, over time, significantly increased its levels of activity. However, in the same period the number of rulings relating specifically to the Birds and Habitats Directives has remained low, and relatively stable over time. Table A: Total Number of New CJEU Cases and CJEU Rulings over time Year 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 New Cases 474 537 581 593 562 631 688 632 699 622 Rulings 574 546 570 567 588 574 638 595 701 719 BHD Rulings9 8 8 11 2 3 7 10 7 1 While it is possible to search the CJEU’s case database to identify individual cases concerning the Birds and Habitats Directives, the CJEU does not itself catalogue such cases separately.