The protection of biodiversity is one of the most important challenges of contemporary societies. Indeed, as scientists have noted, there is a clear decline in habitats and ecosystems and a rate of species disappearance that has not occurred until now. Climate change and the entry into a new era called “the Anthropocene” are already bringing deep changes in ecosystems, habitats, and species. The European Union (EU) adopted in 1979 the directive on the conservation of wild birds and in 1992 the directive on habitats reinforcing its commitment to protect these and different species of fauna and flora under the umbrella of the Natura 2000 network. The EU is also a Party to several international biodiversity conventions. These regulations have given rise to a significant number of judgments by the EU Court of Justice interpreting the strict obligations that fall on the authorities of the Member States. However, these rulings evince that the objectives to “halt” biodiversity decline or to bring nature “back into our lives” as now expressed in the EU Biodiversity Strategy for 2030 still require further efforts to achieve them. This book provides a legally rigorous analysis of EU biodiversity law exposing in a systematic way its scope, paying particular attention to its underlying structure and operation. It is an essential reading for all practitioners whose work involve an element of EU biodiversity law, for students on the subject and for any professionals who need to understand it.
Agustín García-Ureta is Professor of Administrative Law and Environmental Law at the University of the Basque Country. He holds a Degree in Law from the University of Deusto (1988), an LL.M. in European Legal Studies (1989) and a Ph.D. in Law from Exeter University (1992). He has lectured extensively in Spain and abroad and is current survey correspondent of Environmental Liability, published by Lawtext (Oxford) as well as a frequent collaborator of the Yearbook of European Environmental Law (Oxford) and the Environmental Law Yearbook Ingurumena eta Zuzenbidea (IEZ). He is the author of 8 monographic treatises, co-author of 6 books and has published over 25 articles and 60 commentaries on sentences in the areas of general administrative and environmental law. His most important works include Derecho Europeo de la Biodiversidad (Madrid: Iustel and Gómez-Acebo & Pombo, 2010), La potestad inspectora en el derecho comunitario. Fundamentos, sectores de actuación y límites (Madrid: Iustel, 2008), El domicilio y su régimen jurídico, (Bilbao: Lete, 2007), La potestad inspectora de las Administraciones Públicas, Madrid: Marcial Pons, 2006, La Comisión Arbitral del País Vasco (Oñati: IVAP, 2003), Procedimiento administrativo y derecho comunitario: silencio administrativo, nulidad y anulabilidad de los actos en la Ley 30/1992 (Oñati: IVAP, 2002), Espacios naturales protegidos (Oñati: IVAP, 1999), Protección de especies de flora y fauna en derecho comunitario europeo: Directivas 79/409 y 92/43, (Oñati: IVAP, 1997), Marco jurídico del procedimiento de evaluación de impacto ambiental: el contexto comunitario y estatal (Oñati: IVAP, 1994).
Contents vii
Abbreviations xx
Introduction 1
chapter 1 International Conventions on Biodiversity of Relevance to the European Union
I Introduction 10
II The Convention on the Conservation of European Wildlife and Natural Habitats 11
1 Introduction 11
2 Territorial scope 11
3 General measures and conservation policies 13
4 Habitats and species 14
4.1 Habitats 14
4.2 Species 14
5 Protection measures 16
6 Protected areas: the Emerald Network 16
7 Protected areas: The European Diploma 18
III The Convention on the Conservation of Migratory Species of Wild Animals 18
1 Introduction: the notion of migratory species and the
objectives of the Convention 18
2 Migratory species in danger (Annex I CMS) 20
3 Annex II CMS and AGREEMENTS 21
4 Other species: adoption of agreements 23
5 Legal nature of the AGREEMENTS, “agreements” and other
instruments 23
6 Implementation of the CMS 24
IV The Convention on Wetlands of International Importance Especially as Waterfowl Habitat 25
1 Introduction 25
2 Notion of wetland 26
3 Designation of wetlands of international importance 27
4 Withdrawal of wetlands from the List 30
5 Planning for the conservation of listed wetlands: conservation and wise use 30
6 Surveillance 32
7 Concluding comments 33
chapter 2 European Union Environmental Bases and Their
Application in the Case of Biodiversity
I Introduction: Genesis of EU Environmental Policy 36
II Context And Purpose of EU Action In Environmental Matters 37
III Objectives 39
IV Principles 39
1 Sustainability 40
2 High level of protection 41
3 Principle of integration 42
4 Precautionary principle 44
5 Preventive action 48
6 Correction at source 48
7 The Polluter Pays principle 49
V Distribution of Powers Between the EU and Member States in
Environmental Matters 52
1 Types of competences 52
2 Principle of subsidiarity 54
3 International competence 54
4 Impact of WBD and HD on EU biodiversity competence 57
5 Criminal jurisdiction for the protection of the environment and biodiversity 57
VI Legal Bases for the Adoption of Measures for Environment
Protection 58
1 Importance of the legal bases 58
2 Environmental legal bases (Article 192 TFEU) 61
2.1 Actions 61
2.2 Areas subject to unanimous vote of the Member States 61
2.3 The action programmes 64
2.4 Other legal bases to be considered 64
2.4.1 Internal Market 64
2.4.2 Agriculture 65
2.4.3 Fisheries 66
2.4.4 Common commercial policy 67
2.4.5 Energy 67
2.5 The adoption of stricter measures 68
chapter 3 The Scope of the Wild Birds Directive
I Genesis and General Context of the Wild Birds Directive 72
1 Genesis of the WBD 72
2 Other international standards to be taken into account in the
WBD 75
II Structure of the WBD 75
III Scope of Application 76
1 Territorial scope 76
2 Material scope: the concept of “species” 77
2.1 All wild birds 77
2.2 The concept of “species” 77
3 Material scope: birds in the wild and in captivity 80
4 Cross-border scope 81
5 Wild birds as “common heritage” 82
5.1 General remarks 82
5.2 The notion of “common heritage” in the case law of the CJEU 86
6 Common responsibility 88
7 The stand still clause in Article 13 WBD 88
chapter 4 The Obligation to Classify SPAs: Substantive and Formal Matters
I General Framework for the Obligations Set Out in the WBD 92
II Legal Scope And Relationship Between Articles 3 & 4 WBD 93
1 General and priority measures to be adopted under Article 3 WBD 93
2 Relationship between Articles 3 and 4 94
III SPA Classification: Scientific Criteria, Member States’ Margin
of Appreciation and the Role of Zone Inventories 97
1 General matters 97
2 Member States’ margin of discretion in designating SPAs 99
2.1 Meaning 99
2.2 Case law derived from Case C-3/96, Commission v. the Netherlands 100
3 Legal status of the Inventories of Important Bird Areas (IBAs) in the EU 101
3.1 Doctrine established in Case C-3/96, Commission v. the Netherlands 102
3.2 Questioning of IBAs by Member States: unilateral amendments and gaps 103
4 Criteria for the classification of areas in IBAs 104
5 Role of state inventories 107
IV Number of Species And Most Suitable Territories for the
Designation of SPAs 107
1 Number of species for the purpose of SPA classification 107
2 Territories to be classified as SPAs 109
2.1 The reference to ‘the most suitable territories’ in Article 4(1) and (2) WBD 109
2.2 The ecosystem approach to SPA classification 112
2.3 Degraded areas and obligation to classify SPAs 113
2.4 Size of the most suitable territories 114
2.5 Ornithological criterion versus biogeographical regions 117
2.6 Territories eligible for designation as SPAs in a Member State compared with other Member States 118
3 The unavailability of taking socio-economic aspects into account when classifying SPAs 119
V Obligation to Classify SPAs: Formal Issues 121
1 Designation of SPAs and obligation to adopt specific rules 121
2 Timing of Member States’ obligations in respect of SPAs 122
2.1 Time frame for SPAs designation obligations 122
2.2 No time limit for SPAs designation 123
2.3 Designations subject to appeal and the time at which an SPA is
deemed to qualify as such 124
3 Duty to publish SPA delimitation maps and to submit
accurate cartography to the European Commission 125
VI Declassification of SPAs 126
1 General matters 126
2 International Law 126
2.1 Ramsar Convention on Wetlands of International
Importance 126
2.2 The Convention on the Conservation of European Wildlife
and Natural Habitats 129
2.3 Biosphere Reserves 129
2.4 Barcelona Protocol concerning specially protected areas in the
Mediterranean 131
3 The WBD 132
3.1 Cases C-57/89 R and C-57/89, Commission v. Germany
(Leybucht): application for interim relief for the cessation of
work on a site 132
3.2 Case C-57/89: CJEU’s doctrine on the possible
declassification of an SPA 133
3.3 Subsequent case law concerning the declassification of SPAs 135
3.4 The application of Article 6 (3 and 4) HD for a possible
declassification of an SPA 136
chapter 5 Measures for the Protection of SPAs
I General Matters 140
1 Measures required by Article 3 WBD 140
2 Measures required by Article 4 WBD 140
II CJEU Case Law on Measures for the Protection of SPAs 141
1 Application of Member States’ categories of protected areas 142
2 Application of general rules 143
3 Specific measures for birds 144
4 The duty to avoid deterioration: Scope of Article 4(4) WBD 144
4.1 Structure of Article 4(4) WBD 144
4.2 The notion of deterioration 145
5 The duty to avoid deterioration: relevant case law 148
5.1 Case C-355/90 (Santoña marshes) 148
5.2 Case C-166/97 (Seine Estuary) 151
5.3 Case C-96/98 (Marais Poitevin) 151
5.4 Case C-418/04, Commission v. Ireland 152
5.5 Case C-186/06, Commission v. Spain 153
5.6 Case C-441/17, Commission v. Poland 154
chapter 6 Protection of Wild Birds in the WBD: Prohibitions and
Exemptions
I Structure of Prohibitions and Exemptions and Obligations to Transpose the WBD 156
1 Structure of prohibitions and exemptions in the WBD 156
2 Accurate implementation of WBD obligations 157
3 Application of different regulatory instruments and their adaptation to the WBD 158
4 The adoption of administrative and criminal penalties 159
II General Prohibitions in Article 5 WBD 161
1 General prohibition against killing or capturing or disrupting 162
2 Prohibition of intentional destruction or damage to nests and eggs and the removal of nests, as well as the collection of eggs in the wild and their retention, even if empty 162
3 Keeping bird species, the hunting and capture of which is prohibited 163
4 Continual nature of some of the obligations in Article 5 WBD 164
5 Deliberateness of the activities prohibited in Article 5 WBD 164
III The WBD and Hunting: General Issues 165
1 Introduction 165
2 Material object: wild birds that can be hunted 166
3 Guarantees regarding hunting in Article 7 WBD 167
3.1 General guarantees 167
3.2 Specific guarantees 168
3.2.1 Principles of wise use and ecologically balanced control 168
3.2.2 The compatibility of hunting with Article 2 WBD 170
IV The WBD and Hunting Season 170
1 General remarks 170
2 General CJEU jurisprudence: Case C-435/92, Association pour la protection des animaux sauvages 172
2.1 Principle of complete protection and criteria for setting out closing periods 172
2.2 Difficulties in setting out staggered dates for different wild bird species 175
2.3 Hunting ban on different dates depending on different “regions” 178
3 Hunting ban and artificial division of the territory 179
4 The mating period as part of the breeding period of wild birds 180
5 Opening of hunting periods after the end of the “different” breeding and rearing stages 180
V Prohibited Hunting Methods 181
1 General matters 181
2 Relevant CJEU case law 183
2.1 Cartridges in the gun magazine 183
2.2 Use of nets 184
VI Trade in Wild Birds 185
1 General considerations 185
2 Material scope and content of the marketing ban 186
3 Marketing of wild birds and cross-border protection 187
3.1 Case C-169/89 (Van den Burg) 187
3.2 Contradictions in the Van den Burg judgment and cross-border protection 189
VII Exceptions to the Prohibitions of the WBD 193
1 Introduction 193
2 The obligation to adopt another “satisfactory solution” 195
2.1 The requirement for transposition into Member State law 195
2.2 The “specific” nature of the other “satisfactory solution” 196
2.3 Case law on the application of the “other satisfactory solution” requirement 197
2.3.1 Breeding of birds in captivity 197
2.3.2 Hunting of birds beyond available hunting periods and replacement of some species by others 198
2.3.3 Hunting of birds beyond permissible hunting periods and artificial division of territory: initial case law and questionable subsequent changes 199
2.3.4 Hunting birds using prohibited methods and the comparison with other regions 201
VIII Exceptions to the Prohibitions of the WBD 202
1 Public health and safety 202
2 Prevention of significant damage to crops, livestock, forests, fisheries and water 203
3 Protection of flora 204
4 The capture, keeping or other “judicious” use of certain birds in small numbers. 205
4.1 Possible justifications 205
4.2 Legal meaning of “small numbers”: burden of proof and effects 207
4.3 CJEU case law on Article 9(1)(c) WBD 210
5 Hunting periods absolutely incompatible with the exceptions of the WBD 212
IX Administrative Requirements When Adopting Exemptions to the Prohibitions of the WBD 213
1 Requirements referred to in Article 9(2) WBD 213
2 Timing of exceptions and automatic renewals 213
3 System of appeals against decisions taken under
Article 9 WBD 214
4 The European Commission’s monitoring and data on the
application of derogations 215
X Other Relevant Rules in the WBD 216
1 Scientific research 216
2 The introduction of species 217
3 Reports on the implementation of the WBD 217
chapter 7 Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora: Genesis, Structure and Scope
I General Issues of Directive 92/43 220
1 Genesis 220
2 Structure 221
2.1 Definitions 221
2.2 Objectives 222
2.3 Legal system of protection 224
II Scope of the Directive 225
1 Territorial scope 225
2 Material scope 226
chapter 8 Special Areas of Conservation
I Special Areas of Conservation: Relationship Between SCIs,
SACs and SPAs 228
II The Natura 2000 Network 230
1 The notion of “network” 230
2 The “coherence” of the Natura 2000 network 231
III The Classification of SACs: General Matters 234
IV Classification of SACs: Stages of the Procedure 235
1 First stage: Submission of the sites chosen by the Member
States to the Commission 235
1.1 Designation criteria and biogeographical regions 235
1.2 Member States’ margin of appreciation in the selection of SCIs. Possible reductions in specific cases 236
1.3 Time of classification: Submission of lists of SCIs to the Commission and information included 237
1.4 Lack of reference to a Member State’s procedure for the selection of SCIs 238
2 Second stage: Lists of SCIs to be adopted by the Commission in agreement with the Member States. Bilateral consultation and flexibility mechanism in special cases 239
2.1 Bilateral consultation procedure between the Commission and the Member States 239
2.2 Flexibility in special cases 241
2.3 Legal effect of the approval of the lists of SCIs by the Commission 241
3 Third stage: Final approval of the list of SCIs 242
4 Position of those affected by the adoption of the lists of SCIs 243
4.1 Standing to appeals against the lists of SCIs 243
4.2 The Sahlstedt case 246
V Declassification of SACs 247
1 General remarks 247
2 Affected areas 247
3 Criteria for declassification 250
4 Level of decision 253
5 Declassification and reduction of SPAs, SCIs and SACs: The
relationship between Articles 9 and 6.3 HD 254
chapter 9 Protection of Special Areas of Conservation
I Introduction 256
II Management Measures and Protected Sites 257
1 Management 257
2 Planning 260
3 Regulatory, administrative and contractual measures 261
3.1 Regulatory and administrative measures 261
3.2 Contractual measures 262
4 Remarks on ownership rights and Natura 2000 sites 265
4.1 Property law and protection of biodiversity 265
4.2 Ownership rights and the Habitats Directive 269
5 Time for the adoption of the measures required by
Article 6(1) HD 272
III Obligation to Avoid Deterioration and Alterations 273
1 Differences between Article 6(2) HD and Article 4(4) (first
sentence) WBD 273
2 Objective of protection and territorial scope 273
3 Measures to be taken by Member States 274
4 Time-frame of Article 6(2) HD 275
5 The meaning of “deterioration” and “alterations” 276
6 The role of the Directive’s objectives in the case of alterations 278
chapter 10 Protection of Natura 2000 Sites: Environmental Impact Assessment
I Introduction 280
II The Relationship Between Paragraphs 2 and 3 of
Article 6 HD 282
III Affected Sites 283
IV Plans, Programmes and Projects 285
1 Projects 285
2 Plans 287
3 Plans or projects not directly related to or necessary for the management of the site 288
V The Location Criterion 289
VI Likelihood of Effects 290
VII Adequate EIA and Site’s Conservation Objectives 293
VIII Content of an “Adequate Assessment” 295
IX Public Information 299
X Exceptions to Negative Environmental Assessments: General Issues 299
1 The consideration of alternatives: Principles and case law 299
2 Obligation to take compensation measures 301
2.1 Obligation of compensation and distinction with mitigation
measures 301
2.2 Range of compensation measures 305
2.3 The obligation to compensate and its relationship with the exceptions invoked under Article 6(4) HD 307
2.4 Location of compensation measures 307
2.5 Timing of compensation measures 309
2.6 Procedural timing of the notification of compensatory measures 311
2.7 Conservation banks and compensatory measures 312
XI Exceptions That Can Be Invoked to Carry Out Activities Having
a Negative Environmental Assessment 315
1 Introduction 315
2 Non-priority habitats and species 316
3 Priority habitats and species 318
3.1 Health, public safety and positive environmental impact 318
3.2 “Other” imperative reasons of overriding public interest 319
4 Cases covered by the Commission under Article 6(4) (second
paragraph) HD 320
4.1 Projects included in trans-European transport networks 321
4.2 Consideration of socio-economic aspects as imperative
reasons of overriding public interest 323
4.3 The importance of alternatives and compensation measures
in the Commission’s opinions 325
4.4 Data on the Commission’s opinions under Article 6(4) HD 326
chapter 11 Species Protection in the HD
I General Remarks 330
II Need For Literal Transposition and Relationship to
Prohibitions Set Out in the CCEW 331
III Strict Protection: Annex IV Species 332
1 System of prohibitions: Species 333
1.1 Fauna species 333
1.2 Flora species 335
1.3 Protection of species not linked to protected areas: The
consequences of Case C-103/00, Commission v. Greece 336
2 System of protection: “deliberateness” of acts and the case of
legal activities 337
3 Deliberateness and legal activities 339
4 Criminal law protection 343
5 Prohibited means of capture, killing and transport 344
6 Less stringent protection: Annex V HD species. Conditions and Member States’ margin of appreciation 346
7 Promotion of education on the protection of species 346
IV Derogations From The Prohibitions on Species 347
1 Obligations of the Member States and derogations that may be invoked 347
2 Conditions for the application of the derogations 349
3 Relevant case law: progressive tightening of the conditions
of Article 16 HD 350
3.1 Case C-342/05: Conservation status of the species and administrative practices 350
3.1.1 FCS and administrative practice in Finland 351
3.1.2 Hunting as a preventive measure 352
3.1.3 Specimen limits 353
3.2 Case C-674/17, Commission v. Finland: the toughening of the conditions for the application of Article 16 HD 354
3.2.1 Insufficiency of the reasons for granting a derogation 354
3.2.2 The role of conservation status and the precautionary principle 355
4 Reports on the application of Article 16 356
V Species Introduction 357
1 Invasive Species: Overview 357
2 The case of the WBD and HD 361
3 The case of Regulation 2014/1143, on the prevention and
management of the introduction and spread of invasive alien species 363
2.1 Relevant case law on invasive species 365
2.1.1 Protection of native bee species 365
2.1.2 Purported protection of mussels 367
3 Reintroduction of native species from Annex IV 369
chapter 12 Natura 2000 and the Environmental Liability Directive
I Introduction 372
II Scope 373
1 Damage 373
2 Environmental damage: habitats and species, conservation status and potential for damage 373
2.1 Habitats and species 373
2.2 Significant adverse effects 375
2.3 Relationship to other damages 377
2.4 Imminent threat of environmental damage 378
2.5 Activities causing damage or threat of damage 378
3 The operator 378
4 Derogations from the scope of the ELD 379
5 Preventive and remedial measures for habitats and species 381
6 Prevention and remediation costs 383
Bibiography 386
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