Natura 2000 Case Study Collection 2007 Justice & Environment Natura 2000 Case Study Collection Contents Contents ...................................................................................................................................................... 2 Introduction................................................................................................................................................. 3 Estonia: Ropka Bridge .............................................................................................................................. 9 Czech Republic: R55 motorway(Breclav – Otrokovice) ................................................................ 23 Hungary: Municipal SewageTreatment Plant of Mártély .............................................................. 34 Austria: Lauteracher Ried ...................................................................................................................... 45 Acknowledgements ................................................................................................................................. 57 Page2 of 57 Justice & Environment Natura 2000 Case Study Collection Introduction Justice& Environment (J&E) is an association of public interest environmental law organizations based in theEU member states. J&E aims to uselaw toprotect people, theenvironment and nature. Our primarygoal is to ensuretheimplementation and enforcement of EU legislation through the useof European law and the exchange of information. Having started its work as informal network in 2003, thefirst full-year work-plan was implemented by J&E in 2006. Implementation and transposition of theHabitats Directive 1 (HD) was chosen byJ&E members as oneof threefirst legal areas tobeworked on. In 2006, J&E carried out an analysis on implementation and transposition of theHD, morespecificallythe implementation and transposition of Articles 6.3 and 6.4 of HD in Estonia, Czech Republic, Hungaryand Slovakia. On the basis of legal analysis on transposition of Article6.3 and 6.4 of HD intonational legislation of thefour EU Member States 2 and thecasestudies that represent typical cases of implementation of Article6.3 and 6.4 of HD in practice 3, J&E issued a position paper. This paper described problems with implementation of HD in new Member States and made suggestions for improvement 4. TheJ&E casestudycollection from 2006 described four cases in separateMember States that weconsidered examples of theincapabilityof new Member States tocomplywith requirements for assessment of plans and programs, according toArticle6(3) and 6(4) of the Habitats Directive. On the basis of thesecasestudies, weisolated common problems in implementing Habitats Directives, despitethefact that thestudies described development projects of different natures (a wind farm in Hungary, a marine port in Estonia, a cableway in Slovakia and a river canal in Czech Republic). Problems detected wereas follows: • Environmental impact assessments of the projects donot takeintoaccount that the projects are tobecarried out on Natura 2000 sites--research concerning values and impacts tothesites has been too limited and shallow. In somecases theinformation about values was provided onlyduring the courseof proceedings for permit. • Although it is clear that theprotected species or habitats will beharmed (in somecases destroyed, e.g. thecaseof Slavik Islands in Czech Republic), permits for the projects was issued bytheauthorities. • In nocases werelocation alternatives considered that might haveresulted in reduced negativeimpact. • In most of thecases nocompensatory measures to ensurethat the overall coherenceof Natura2000 is protected weretaken bytheauthorities, or theoffered measures are obviouslyinsufficient. 1 Council Directive92/43/EEC of 21 May1992 on theconservation of natural habitats and of wild fauna and flora 2 Thelegal analysis is electronicallyavailableat J&E webpage: http://www.justiceandenvironment.org/wp-content/wp-upload/JE2006Naturalegalanalyis.pdf 3 Thecomparativecase studycollection is availableat J&E webpage: http://www.justiceandenvironment.org/wp-content/wp-upload/JE2006Naturacasestudy.pdf 4 Theposition paper is availableat J&E webpage: http://www.justiceandenvironment.org/wp-content/wp-upload/JE2006Naturapositionpaper.pdf Page3 of 57 Justice & Environment Natura 2000 Case Study Collection However, taking intoaccount that all cases (more specifically, administrativeproceedings) wereinitiated beforethe accession dateand theobligation tofollow Articles 6(3) and 6(4) of theHabitats Directivewas questionable(taking intoaccount ECJ interpretation in several cases), thedescribed cases cannot beconsidered direct violations of EU Directives. In 2007, our primarygoal was toascertain whether theviolations of provisions of Habitats Directives in these cases werebecausefulfillment of Articles 6(3) and 6(4) was not obligatory. J&E members found continuing cases of non-fulfillment of therequirements of HD. In order to ascertain thenature and possiblecommon reasons for such violations, wecollected a new set of casestudies. Comparative analysis: Thefollowing cases havebeen selected byJ&E members as representativeexamples of implementation of theHabitats Directive: Case Country Description of theplan Timeline Ropka Bridge Estonia A motorwaybridge over 2005 -… Emajõgi River and Ropka- Ihaste floodplain toconnect both sides of Tartu City R55 motorway Czech HighwayR55 connecting city 1994 -… (Breclav-Otrokovice) Republic agglomeration at south-east of CZcloseto borders with Slovakia Municipal Sewage Hungary Construction of a municipal 2005 -… Treatment Plant of sewagetreatment plant at a Mártély Natura 2000 area Lauteracher Ried Austria Construction of federal S18 1992 -… dual carriageway On the basis of case studies, relevant problems and aspects regarding implementation of Article6(3) and 6(4) of HD arehighlighted and analyzed below. Timing of implementation: Theinitial purpose of thecase studycollection was toanalyzecases initiated after accession totheEU. However, such cases may berarely found among new Member States, especially cases with major impact toNatura sites. There are manyprojects that mayimpact adversely theintegrityof Natura sites, but such projects areonlypart of a decision-making process, initiated before accession. Decision-making may in somepart bepolitical and not administrative. Therefore, a question arises about what should beconsidered as “initiation” or “application for authorization” for such projects, especiallyfor big infrastructureprojects. Page4 of 57 Justice & Environment Natura 2000 Case Study Collection For example, in the Czech case(highwayR55) therelevant land-use plans wereenacted during theyears1994-1998. In the Estonian case, thelocation for a bridgewas included in a comprehensiveplan of Tartu City, enacted after theaccession (2005), but initiated before (2002). At thesametime, theEIA or SEA was, in both Estonian and Czech cases, initiated only for further administrativeproceedings in 2005. Is the Habitats Directive then applicable? TheAustrian casestudy in this collection reflects an ECJ judgment in caseC-209/04 (Lauteracher Ried) which illustrates fundamental positions about timing of theapplication of theHabitats Directive. ECJ refers toearlier judgments about thetiming of theapplication of EIA Directive85/337/EEC. ECJ claims theprinciple (that projects likelytohavesignificant effects on the environmental must be subjected toan environmental assessment) does not apply where the application for authorization for a project was formally lodged before the expiry of the time-limit for transposition of a directive . However, in thecaseC-209/04, Advocate General Kokott pointed out several significant differences between Habitats Directiveand EIA Directive(theformer laying out substantive requirements regarding approval of a project, whilethelatter onlycontains procedural provisions). It sets nobinding environmental standards, so it does not obligethecompetent authorities todraw particular conclusions from thefindings of theenvironmental impact assessment. Wetook intoaccount thefact that land-useplans donot giveauthorization for a project, but createmerepossibilityfor a project tobecarried out in a certain area. Therefore, it must be concluded in all cases analyzed in present collection, HD was applicable. Weexcept the Austrian case (as stated byECJ) which serves as good exampleof problems with the timing of application of HD. Appropriate assessment: According to Article6(3) of HD, 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, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives . Thecases in question concern different plans and projects, although theissueis in general road-building in theCzech, Austrian and Estonian cases. However, in all cases theplans or projects are undoubtedly“plans or projects” in themeaning of Article6(3) of HD. Furthermore, in all cases, theplan or project will be carried out in or near to Natura sites (SPA in all cases, pSCI in Estonian and Hungarian case). It is alsoobvious that theplans or projects in question mayhavesignificant effect upon the Natura sites in question. According to theECJ decision in “Waddenzee” case 5; triggering of the environmental protection mechanism provided for in Article 6(3) of HD does not presume