Overview of EU Nature Protection Regime
Common Conservation Objectives
The specific objectives of both Directives aim to create a conservation framework, for species, habitats and sites protected by the Directives:
- A. Ensuring that the most important sites are protected and managed and form a coherent whole relates to the Natura 2000 network, established for species and habitat types listed in Annex I and II of the Habitats Directive and Annex I of the Birds Directive, as well as for migratory birds. This is made up of Sites of Community Importance (SCIs) adopted by the Commission then later designated by Member States as Special Areas of Conservation (SACs) under the Habitats Directive as well as Special Protection Areas (SPAs) classified by Member States under the Birds Directive.
- B. The Directives also require and encourage Member States to take habitat conservation measures beyond the Natura 2000 network.
- C. Member States must establish a strict protection regime for all naturally occurring wild bird species and other endangered species listed in Annex IV of the Habitats Directive, both inside and outside Natura 2000 sites. Certain bird species listed in Annex II may be hunted and other species listed in Annex V of the Habitats Directive may be exploited, but Member States must ensure that this exploitation is sustainable and does not jeopardise conservation efforts.
- D. Member States must also ensure adequate knowledge, data availability and awareness to underpin implementation of the Directives.
Regarding the enforcement of both Directives, there have been significant challenges with transposition and implementation of their provisions. In response to non-communication of the national transposition measures, the Commission launched 68 infringement procedures, of which 23 concern only the Birds Directive, 14 only the Habitats Directive and 31 both. Conformity checks of the national measures transposing both Directives resulted in 43 infringement procedures related to the Birds Directive, 39 cases to the Habitats Directive and 15 cases concerning both Directives. All of these procedures were closed following legislative measures put in place by Member States to correctly transpose both Directives.
There have been delays in selection of sites to be designated as SCIs and SPAs in all Member States, which has caused delays in the adoption of SCIs by the Commission, according to the procedure laid down in Article 4(2) of the Habitats Directive. This has had a cascade effect also in terms of timing of designation of SACs, according to Article 4(4) as well and to the establishment of the necessary conservation measures according to Article 6(1) of the Habitat Directive. Moreover, the incorrect selection of sites has led to several legal disputes, even before the CJEU. For example, in Case C-141/14 Commission v Bulgaria, the CJEU confirmend, inter alia, that Bulgaria had failed to classify as SPAs the most suitable territories of various bird species by failing to include all the territories of the important bird areas in the special protection area covering the Kaliakra region. As a consequence, also approving the implementation of numerous in the territory of the important bird area covering the Kaliakra region which was not classified as a SPA, although it should have been, resulted in a breach of obligations under the Birds Directive.
If the designation of the site is questioned, the national court may make a preliminary reference to the CJEU, either for interpretation of EU law or as a reference on the validity of EU acts (Art. 267 TFEU), provided there are well founded arguments for the invalidity of EU law. In that case, the national court is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity. It may never take a final decision in conflict with EU law unless the CJEU has declared it invalid (Case 314/85 Foto-Frost; Case C-461/03 Gaston Schul Douane-expediteur, para. 15-25, Case C-344/04, IATA and ELFAA, para. 27-32). For example, in Case C-281/16 Vereniging Hoekschewaards Landschap, the Dutch Council of State asked the CJEU to rule on the validity of a Commission implementing decision under the Habitats Directive: a decision to reduce the size of the SCI. The CJEU eventually found that the Commission had exceeded its discretion: The Netherlands had not invoked the existence of a ‘scientific error’ at the time it submitted to the Commission its proposal to reduce the size of the SCI and, for its part, the Commission had provided to the CJEU no conclusive scientific evidence capable of proving that such an error had vitiated the initial proposal. Therefore, the Commission could not, lawfully, rely on the existence of an initial scientific error in order to reduce the size of the SCI at the occasion of the update of the list of SCIs.
There have been many complaints addressed to the Commission in relation to alleged poor implementation of some provisions of the Nature Directives, notably in relation to the protection and procedural safeguards applying to Natura 2000 sites under Article 6(2) and 6(3) of the Habitats Directive and to hunting activities under Article 7 of the Birds Directive. Some of those complaints have led to the opening of bad application infringement procedures, in addition to those launched by the Commission acting on its own initiative. More details are given in the following sections, in relation to each of the specific objectives of the Directives.