EUROPEAN PARLIAMENT 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. PR\528730EN.doc PE 343.922 EN EN Introduction 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 PE 343.922 2/8 PR\528730EN.doc 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. PR\528730EN.doc 3/8 PE 343.922 EN 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.