Enforcement proceedings are the last bulwark for restoring meaning to EU environmental rules and regulations that have been so arduously negotiated. Often complaints submitted by NGOs to the European Commission set infringement procedures into motion, which sometimes make their way to the Court of Justice of the European Union (CJEU). We examine six recent examples below, with the aim of clarifying EU provisions, as well as to alert parties to arguments and bad faith practices that are destined to fail. It also shows that the tenacity of small, local NGOs can make an important difference.
CJEU decision: Sweden (joined cases C‑473/19 and C‑474/19)
In March 2022 the CJEU decided on a request for a preliminary ruling to interpret provisions of the Habitats (92 /43) and Wild Birds (2009/147) directives. The ruling was related to joined cases (C‑473/19 and C‑474/19) brought by Protect the Forest Sweden, Swedish Society for Nature Conservation in Härryda, and Gothenburg Ornithological Society. The organisations challenged local authorities decisions to take no action when notified of clear-felling in the natural habitat of various protected species. The referring court, Vänersborg District Court, noted the likelihood that protected species’ breeding sites would be destroyed by planned activities.
The CJEU underscored that EU environmental policy generally must aim at a high level of protection, based on the principles of precaution, and of preventive action. The ruling also demonstrated that the CJEU looks with disfavour on national restrictions of EU rules.
The CJEU ruled that national transposition of the Wild Birds Directive cannot cover only the species which are listed in Annex I, those which are at some level at risk or those which are suffering a long-term decline in population. Likewise, national interpretation of the Habitats Directive, cannot only apply when activities risk adversely affecting the conservation status of the species concerned. Furthermore, as the Directive seeks “to maintain” a favourable conservation status, its protections continue to apply even when a favourable status is attained.
In addition, the Habitat Directive’s requirement that Member States prohibit “deterioration or destruction of breeding sites or resting places” cannot be limited to situations where the conservation status of the species concerned is likely to deteriorate. Recalling its decision in Commission v Poland (Białowieża Forest), C-441/17, the CJEU stated that “the strict protection laid down in Article 12(1)(d) of the Habitats Directive applies regardless of the number of specimens of the species concerned that are present in the area in question”.
“Sweden has until now managed to get away with an interpretation that favours continued exploitation through forestry. The European Court now clearly states this interpretation to be incorrect. Responsible authorities will now have to raise their standards regarding different types of precautionary measures,” said Lina Burnelius, Protect the Forest Sweden.
CJEU decision: Slovakia (C-661/20)
After receiving complaints from WOLF and two other Slovak NGOs, the European Commission brought an action against Slovakia in December 2020; on 22 June 2022 the CJEU gave a decision (C-661/20) that underscored its aversion to general exemptions to EU obligations, and pointed out that piecemeal reactions to complaints from individuals or NGOs do not constitute a system of conservation.
One of the results of Slovakia’s failures to meet the obligations of the Wild Birds and Habitats directives, the Commission argued in its reasoned opinion, was that “the population of capercaillie (Tetrao urogallus), the largest grouse in the world, has halved in the Special Protection Areas (SPAs) since Slovakia joined the EU in 2004.”
In particular, Slovakia’s Law on Forests provided certain some exemptions from assessments for forest maintenance programmes, and the possibility to carry out emergency felling without requiring authorisation of the relevant nature conservation authority. As the Commission pointed out, in the past decade, ‘emergency felling’ accounted for some 40 - 65 per cent of Slovakia’s timber extraction.
Broad exemptions are not acceptable, the CJEU ruled. “Article 6(3) of the Habitats Directive does not authorise a Member State to enact national legislation which allows the environmental impact assessment obligation for certain types of plans or projects to benefit from a general waiver” (para. 69). Although the presumed consent regarding emergency fellings was later removed from the Law on Forests, the lesson against “general waivers” remains valid. The Court also made it clear that the consequences of natural disasters cannot be eliminated from assessment in light of conservation objectives.
Nor did the CJEU accept Slovakia’s argument that it was aware of the significant decrease in the capercaillie’s population, and was setting up programmes to remedy the situation. The CJEU noted that such measures were incomplete, adopted in isolated cases – often only after receiving NGO complaints – and did not constitute “a structural system designed to ensure the conservation of the capercaillie (Tetrao urogallus) by putting an end to the deterioration of its habitat” (para. 107). Therefore, the CJEU concluded that Slovakia had both failed to take appropriate steps to prevent the deterioration of the habitats, and had failed to take positive action, namely, the adoption of special conservation measures applicable to the capercaillie in the designated Special Protection Areas.
Letter of formal notice: Estonia (an update)
Acting on a complaint by Eestimaa Looduse Fond (Estonian Fund for Nature), in June 2021 the Commission sent a harshly worded letter of formal notice to Estonia (FW 273), pointing out that the nation’s “so-called protection rules” were insufficient to implement both the Habitats and Strategic Environmental Assessment directives, as they failed to require assessments prior to carrying out economic activities – logging, for instance – in sites protected under Natura 2000 (see also Slovakia, C-661/20, above). In response, Estonia’s Environmental Board instituted a 28-month ban on logging in Natura 2000 habitats, in February 2022. Yet it quickly became apparent that Estonia’s government lacked the political will to change the law permanently, and temporary measures are insufficient to meet EU obligations.
Now, given the collapse of Estonia’s governing coalition in early June 2022, both EU and national actors seem to be awaiting political movement. “There are signals that the environmental issue was discussed during political negotiations,” says Siim Kuresoo, of the Estonian Fund for Nature. “Although the previous government downplayed the situation as a technical infringement, the serious practical consequences of logging in protected areas is getting discussed in the press, and the media have even mentioned considerable financial penalties for non-compliance.” Most hopefully, a new government coalition could lay the groundwork for permanent legislation, to be enacted by the new government elected in March 2023. Many are not so optimistic, however. Thus far, the Commission has not sent a reasoned opinion.
In May 2022, French NGO Canopée submitted a complaint to the Commission alleging that implementation of France’s Plan pour la reprise et la resilience (PRR), a framework recovery plan 40 per cent financed by the EU, does not respect the environmental conditions set by the European Commission.
The detailed complaint indicates that no serious impact assessment or analysis has been carried out, notably in Natura 2000 areas where 25 per cent of the projects are concentrated; rather, a positive evaluation of the programme’s projected impact is affirmed in the PRR itself. French forest management documents do not take up the environmental criteria established by the Commission in any judicially binding manner; as a result, only cursory descriptions of the environmental considerations are sought about projects. As for integrating biodiversity criteria into forest management, this was deliberately set aside as regards private forests.
Some 87 per cent of the projects that the PRR financed in 2021 involved plantations after clear-cuts, and heavy machinery that compacts soils and causes immediate releases of carbon. The tree-planting that has occurred are mostly monocultures, or only minimally diversified tree species, generally favouring Douglas pines that are poorly suited to a changing climate; and no measures are taken to preserve the denuded soils. Despite the French Government’s lack of transparency concerning information about the projects financed, the complaint provides detailed case studies to illustrate that, to avoid environmental harm, conditioning finance on a non-binding forest management document is inadequate.
While the Commission has not yet issued a formal response, it has informed Canopée that an inquiry is underway; French Member of the European Parliament Marie Toussaint (Greens) also asked the Commission a question for written answer related to this situation.
On 22 June 2022, the Swedish Society for Nature Conservation (SSNC) submitted a complaint to the Commission concerning access to justice and the inadequacy of impact assessments under Swedish law. Swedish environmental NGOs have legal standing to challenge decisions that affect species protected by the Habitats and Birds directives, if the Forest Agency bases those decisions on provisions of Sweden’s Environmental Code – but not those based on the Forestry Act. Notably the Environmental Code was used to protect species in only 105 of 70,434 clear-felling notifications in 2021. SSNC contends that this is a clear violation of the Aarhus Convention and the Treaty of the EU.
Sweden’s Forestry Agency also considers it sufficient to limit, not prevent, harm to species protected by the prohibitions in Article 5 of the Birds and Article 12.1 of the Habitats directives; this would seemingly contravene the CJEU’s emphasis on prevention and precaution, as well as its assertion that “strict protection laid down in Article 12(1)(d) of the Habitats Directive applies regardless of the number of specimens of the species” (see C-473/19 and C-474/19, and C-661/20, discussed above).
Furthermore, when deciding whether an assessment is required to evaluate the impact of clear-felling on a Natura 2000-site, the Agency takes mitigation measures into account, in addition to taking the shortcut of ‘examining’ notifications only digitally; SSNC views that this violates the Habitats Directive assessment obligation, as interpreted by the CJEU in C-323/17.
Finally, SSNC alleges that the Forestry Act and its secondary legislation do not impose a duty for the Forest Agency to act, undermining the entire point of the directives (effet utile); nor do the legal provisions implement concrete and specific protection measures to prevent harm to the protected animal species, or even require forest owners to provide information about protected species present; again in C-473/19 and C-474/19, the CJEU interpreted that, under the Habitats Directive Article 12(1)(a) to (c), “Member States must not only adopt a comprehensive legislative framework, but also implement concrete and specific protection measures”.
Urgent alert, complaint likely: Sweden
In a 7 July 2022 open letter, NGOs Protect the Forest, and the Swedish Society for Nature Conservation chapters in Roslagen and Örebro County alerted the European Commission and Parliament to “authorities acting irresponsibly”. At issue is the Swedish Forest Agency’s deregistration of a calcareous coniferous forest in Vamby as a woodland key habitat of a type featured in the Habitats Directive, and their later unwillingness to re-evaluate their failure to prioritise Vamby for formal protection. The County Administrative Board, also, initially did not respond to the NGOs’ demand for formal protection of the area and, when logging began months later, issued a decision saying they intended to take no action. Of a type listed under the Habitats Directive, this forest was also home to 28 species of ground-living fungi of conservation concern, including 14 IUCN red-listed species which, the NGOs argue, Sweden had a global responsibility to protect. That forest has now been logged, but the NGOs invoke the CJEU’s decision in C-473/19 and C-474/19 (see discussion, above), in the hope that the EU will take action to prevent the deterioration of the conservation status protected species and the destruction of a similar calcareous coniferous forest in Garphytteklint in Örebro municipality, which is home to 35 red-listed species and part of an important water protection area; felling could begin there this month.