1999 2004
29 April 2004
REPORT1
◄ on the Fact-finding mission to Finland, March 24 - 26, 2004. Petition 873/2002 by Niemelä and Sario Oy, on behalf of the Finnish Association for Nature Conservation.
To investigate the impact of the development of the Vuosaari Cargo Port, and related projects, on the Mustavuori/Östersundom area, specially protected under the Habitats Directive 92/43/EEC & the Birds Directive 79/409/EEC.
Committee on Petitions
Members of the delegation: Richard Balfe MEP Patsy Sörensen MEP David Lowe Secretariat, Committee on Petitions.
Ex-officio members: Astrid Thors MEP Uma Aaltonen MEP Matti Wuori MEP
and: Kjell Sevon, Adviser, Green Group secretariat, Linda Lindholm Ulriikka Aarnio Hannariikka Nieminen
1 presented to the Committee on April 26 & 27 2004.
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The construction of the Vuosaari Port and hinterland has been discussed by the Helsinki authorities and planned by them for over twenty-five years. Long before their membership of the European Union, the Finnish Government and Helsinki Municipal Council agreed that an alternative cargo port was required in order to relieve pressure on the three existing ports of Helsinki and their urban environment. The economy of the Helsinki region has always been linked to the functioning of the port facilities and competitive development of the Turku port, further to the west, imposed sharper economic considerations on the decision-making process in Helsinki.
Construction work finally began at the beginning of 2003 and it is the intention of the Helsinki authorities to complete the Vuosaari harbour and the related Vuoli traffic connections by 2008. The harbour is being built and financed by the Port of Helsinki and the costs of the hinterland transport links are further shared with the Finnish Government. The European Union has provided 4 million euros in funding so far, of which 2 million was for planning.
The Port Authorities maintain that not only will the new port be the most modern and technologically advanced of the Baltic region, it will also be unique on a European scale. They also state that it is a matter of honour and duty to implement the harbour in such a way that it will be in harmony with the surrounding natural environment, recreational areas and residential areas. Indeed, the promoters of the project fix as their objective that the harbour will be a model example of how efficient technology, functional logistics and respect for the environment can be combined in a creative manner. The new port plans to handle 12 million tonnes of cargo per year.
The removal of cargo business to Vuosaari will liberate the Jatkasaari island area, currently the home of one of the main cargo terminals, and permit extensive redevelopment of the whole maritime district. Similar developments will occur in Kalasatama district and other neighbouring areas. In short, there is much more at stake with the development of Vuosaari Port than one might imagine to begin with, and perhaps as a result, with the stakes being so high, complaints about the environmental impact of the development on sensitive conservation areas have not been given much credence.
The essential issues that are raised regarding the Vuosaari project by the petitioners, and in particular by the Finnish Association of Nature Conservation, are not related to the need to develop viable alternative cargo port facilities for Helsinki. The fundamental problem lies with the fact that the Vuosaari area was designated in 1998 as part of the Mustavuori herb- rich forest and Ostersundom bird wetlands area which are protected by the provisions of the Birds Directive 79/409/EEC, and the Habitats Directive 92/43/EEC as Natura 2000 areas. Accordingly, it is imperative that the rules thus established at European level be strictly applied by the Finnish authorities and the petitioners have sought the support of the Petitions Committee of the European Parliament in order to ensure that the objectives of Community Law are safeguarded. Any weakening of the rules governing the implementation of the
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EN Habitats Directive could constitute a very dangerous precedent which could undermine the Directive’s force and integrity. Given that the Helsinki authorities and the national authorities in Finland were fully aware that the port development and corresponding road and rail links were planned on a site protected by EU legislation, it is a subject of some concern to the Committee that a preliminary ruling was never requested from the European Court of Justice, under the terms of Article 234 of the Treaty.
The Environment Ministry informed the delegation in Helsinki that this had been considered, but was then deemed unnecessary by the Supreme Administrative Court. Had that course of action been pursued at the time, much of the ensuing controversy would not have arisen. As it is, the Supreme Administrative Court's ruling has the power of precedent as a 'yearbook ruling', and if it is allowed to stand unchallenged, it could considerably undermine the correct application of the Habitats Directive across Europe.
Obligations of the Finnish Authorities and European Law.
The Finnish Authorities did organise an assessment of the Vuosaari area which concluded, to begin with, that the building of the port and the related infrastructure development would significantly weaken the conservation value of the area which is an integral part of the Natura 2000 network since 1998.
As a result the Environment Ministry could have taken measures to obtain a derogation from the Habitats Directive (92/43/EEC) which is a perfectly legitimate exercise to undertake as long as all the conditions for such a derogation are met. (In fact in December 2001 a derogation proposal had been drafted but was withdrawn as a result of pressure from the Council of State's Justice Chancellor for reasons which remain, shall we say, obscure.) If there had been any doubt about the matter the precautionary principle should have been applied and a derogation sought.
Instead they subsequently appear to have revised their findings to understate the impact, claiming certain species were no longer present anyway. The revised findings were held to be spurious by all qualified experts who were consulted, except one.
They were also criticised strongly by the European Environment Bureau for this, which addressed a stern reminder to the Environment Ministry stating: "The conditions of a Natura 2000 site should not be allowed to degrade and should certainly not be expected to do so in such a short period of time. Member States are expected to maintain and guarantee favourable conservation status".
Directive 92/43/EEC of 21 May 1992.
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Paragraph 3 of Article 6 of the Habitats Directive states inter alia "In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it would not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
Paragraph 4 of Article 6 states inter alia "If in spite of a negative assessment of the implications of 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 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."
With regard to the above paragraphs, some preliminary remarks are important, and they refer to the role of the European Commission in this process. At no time since the Committee referred this petition to the Commission in July 2002, has the Committee been told by the Commission that it has been informed by the Finnish authorities of any possible compensatory measures related to this project. Secondly, as far as we know, the Commission has not been requested for its opinion by the Finnish authorities, in order to prepare the way for a possible derogation. None of the four written replies from the Commission to the Committee so far received mention a derogation request. Has the Commission raised this option with the Environment Ministry? Or have they been left completely outside the loop? On what basis did they agree for EU funding to be made available? Why has the Commission still not reached any conclusions?
We know that in July 2000 the Commission had questioned the way in which the protected area was delimited because it drew the attention of the Finnish authorities to the fact that ten species of Annex 1 birds were excluded from the site.1 The European Court of Justice has moreover referred in its rulings to the fundamental importance of ornithological criteria for site delimitation. Why did the Commission not draw this to the Committee's attention?
Plans or projects involving special protection areas should not be carried out at all, without an agreed derogation, unless it can be proved with a high degree of certainty that they would not adversely affect the integrity of the Natura 2000 site. Clearly, to most people we met, this project does dramatically affect such a site. Many highly respected ornithologists and ecologists have made this very clear to members of the delegation in very detailed reports and full discussions.
1 letter dated 14 July 2000.
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They have also pointed to serious shortcomings in the original environmental impact assessment conducted for the Environment Ministry which omitted, amongst other things, to investigate the actual dockyard area. Subsequently, it has emerged that the old dockyard seabed contains extremely high levels of toxic substances, including TBT, TphT, PCBs, and organotins. These substances were left over from the past activities of the ship repair yard and all these chemicals are now banned. The dredging process has released these extremely dangerous substances into the sea environment with very worrying consequences for the local fishermen with whom the delegation met in Sipoo.
An additional significant factor which does not appear to have been properly considered by the Finnish authorities is the cumulative effect or impact of other projects or plans in the vicinity of the Vuosaari programme on the Mustavuori-Östersundom Natura site. Such plans do exist, including the East Bay commercial centre which is intended by the developers in the Uusimaa region to become the second largest shopping centre in Finland. This would hit Kapellviken Bay, the most diversified and richest of all bird wetlands in Östersundom.
This would further weaken the conservation values of the Natura site beyond those which the port development already threatens, and further fragment the habitat of endangered species. Indeed BirdLife Finland has calculated that the cumulative effects of the combined projects would produce a 19% - 42% environmental deterioration of bird species listed in the site's data and included in Annex 1 of the Bird Directive.(Corncrake, barred warbler, wood sandpiper, nightjar, spotted crake, western marsh harrier and the red-backed shrike) Several other vulnerable species of bird not listed in the original site data would also be under severe threat.
Governmental response.
The Environment Ministry, its Director General and senior advisers, met with the European Parliament delegation and provided a written response 1concerning the impact assessments, the planning of further developments in the Itäsalmi areas, and the problem of TBT as well as fielding our many questions.
They indicate that their earlier studies showed probable adverse effects on named bird species and on "large shallow inlets and bays". Two out of three experts asked for opinions concurred that the integrity of the site would be adversely affected, while one expert, who is now employed by the Port Development Authority, said that two bird species would not be significantly affected in the Porvarinlahti bridge area where the rail connection is planned (visited by the delegation with a team of experts who totally disagreed).
In recognition of the possible negative impact on vulnerable bird species the Ministry
1 Ministry of the Environment, 25 March 2004.
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The Port's response.
In a written document submitted by their legal attorney, the Port of Helsinki Development Authority states that there have been over twenty administrative legal proceedings.1 All of the court cases concluded that the Vuosaari project has an 'insignificant impact on the Natura 2000 site', hence there was no need to seek any derogations according to the Habitat Directive's provisions.
Regarding TBT, the legal counsel considers that without the port development the TBT problem would not have been resolved. The dredging will, he maintains, remove the TBT sediment from the seabed. In discussions, the delegation was told that an an experienced enterprise had been employed to manage this task.
Conclusions.
In the course of the visit the delegation had the opportunity of meeting with the former Minister of the Environment, Satu Hassi, who contested the original government decision - it was her deputy who signed the decision while she was abroad. Discussions were also held with the Chairman and members of Environment Committee of the Finnish Parliament, with the Senior clerk of Helsinki Town Council, with the Managing Director of Helsinki Port Vuosaari project, the project director and project manager and members of Helsinki road administration, with local fishermen affected by developments in Sipoo. Many discussions were held and briefing papers provided by the Finnish Association for Nature Conservation, BirdLife Finland, and experienced academics2.
The members of the fact-finding mission also spent some time visiting the Vuosaari port development area, thanks to the hospitality of the Managing Director Heikki Nissinen, in order to gauge the expanse of the project; and visiting the most sensitive area around Porvarinlahti accompanied by the petitioners and experts.
There is no doubt that Helsinki requires new cargo harbour facilities. The authorities also had every interest in securing a suitable site within their own administrative region if they were to
1 Memorandum 24 March 2004 by Kari Marttinen. 2 Dr Heikki Hirvonen, Wildlife Biology, Conservation & Management, University of Helsinki, Dr Mikael Kilpi, Finnish Ornithological Society & Aronia Environment Abo University & Sydväst Polytechnic, Mr Eero Yrjö- Koskinen Director, and Tapani Veistola, Finnish Association for Nature Conservation; Mr Margus Ellermaa, Dr Tapio Solonen from BirdLife Finland and the petitioners on behalf of FANC Sakari Niemelä, Juha Sario and Lauri Nordberg.
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EN be in a position to benefit alone from the resources generated by the project - and not share their revenues with other neighbouring regions where alternatives may have been found outside the Natura site. In a country which prides itself of the strength of its regions, in particular the capital region, national considerations are perhaps of secondary significance. European considerations and the full respect for the implementation of the provisions of the Habitats Directive might also fit into this secondary category.
From the European perspective however, great care must be taken that European legislation is enacted with the same care and the same integrity in each member state - especially when environmental matters are concerned because mistakes made here can cause irreversible damage.
It is therefore hard to share the convictions of the Helsinki authorities and the Finnish government on this issue. It was the Finnish authorities who designated the Natura sites in full knowledge, one must suppose, of the implications of their decision. It was the same authorities who designated the Vuosaari development on a vulnerable and protected site. This was their right for as long as full respect was given to the provisions of the Directive which allows such projects to proceed where there is an overriding public interest and a derogation is granted.
By minimising the impact of the project and ignoring the precautionary principle (for which there exists ample ECJ rulings) and by failing to proceed along the path set out by Article 6 of the Habitats Directive the Finnish authorities may have placed themselves in infringement with EU law.1 There are implications which must be realised for this course of action both for Finland and for other member states. If Finland is able to undermine the integrity of such an important Directive, an unfortunate precedent will be set which would deliver the wrong signals as Europe welcomes ten new member states.
The question concerning the existence of TBT is a separate but nevertheless extremely important issue. The authorities should publish clear and authoritative information to local people to explain not only the real extent of the problem but also what they are actually doing about it, and when, as well as what safeguard measures are being taken to protect such toxic substances entering the food chain.
Recommendations.
Having regard to the investigation conducted by the fact-finding visit, authorised by the Bureau of the European Parliament on February 25th 2004, and having further deliberated on the matter in Committee on April 26th 2004, the Committee on Petitions formulates the following recommendations:
1 cf. Judgement of the ECJ, 29 January 2004, in case number C-209/02, brought by the Commission against Austria for failure to comply with obligations under the Habitats Directive.
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• Calls upon the European Commission, with reference to the findings of this report, to conduct an urgent review of the Vuosaari project with the Finnish authorities in order to ensure that the provisions of the Habitats Directive (92/43/EEC) and the Birds Directive (79/409/EEC) have been properly complied with, particularly as regards the application of Articles 4, 5 and 6 of the Habitats Directive, and to report back to the Committee on Petitions no later than July1st 2004. • Calls upon the Finnish authorities to insist upon the exercise of restraint with the development of the project until at least such times as the review is completed. • Urges the Finnish authorities to immediately identify, in conjunction with recognised ornithological experts and with the Finnish Association for Nature Conservation, alternative compensatory special protection sites within the Helsinki region, so as to further protect and preserve vulnerable species of birds, animals and flora, and so demonstrate their commitment to and respect for the provisions of the Habitats Directive and its objectives. • Requests that full details are provided by the Finnish authorities to the inhabitants of the Sipoo area, and in particular to communities close to the Vuosaari port area who are involved in fishing and leisure activities, concerning the discovery of TBT and other banned toxic substances. Regular and frequent fully representative sampling of coastal water should be conducted and the results published, including by the local press. Dates when dredging takes place, if this continues, should also be published. • Measures, including compensatory measures, should be initiated to prevent contamination of the food chain for humans and for wildlife, minimising all risks for local inhabitants.
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