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Poland: EU Court of Justice ruling is a twofold victory for environmental organisations and forest defenders

15 March 2023

Poland: EU Court of Justice ruling is a twofold victory for environmental organisations and forest defenders

Six years after initial complaints were filed by Polish NGOs, the Court of Justice of the European Union (CJEU) decision of 2 March 2023 is a victory for the environmental organisations on two fronts. The first concerns broad assumptions in Polish forest legislation that undermine the protective intent of EU Habitats and Birds Directives. The second addresses environmental organisations and other litigants’ ability to challenge forest management decisions. The judgment should resonate with EU Member States that have also barred access to justice regarding forest management decisions.

The first part of the judgment concerned the Polish government’s claim, as per an assumption embedded in the Polish Law on forests and its Regulation on good practice, (since changed) that forest management “carried out in accordance with the requirements of good forestry practice does not infringe the provisions of the Law on nature protection”. In the CJEU litigation, Poland asserted that its Law and regulation meant that it was no longer necessary to adopt and implement conservation measures targeting specific areas. 

The Court disagreed. 

Threatened habitats and species are part of the EU’s common natural heritage; and Member States have a particular duty to ensure a clear, precise and “faithful transposition into national law”. Derogations from EU prohibitions are permitted only where there is “no satisfactory alternative”; however, the CJEU said, the Polish law itself could be viewed as permitting a general derogation from the national law implementing Habitats and Birds Directives. As for dispensing with conservation measures targeting specific areas, the CJEU said that to satisfy EU requirements, clear, comprehensive and precise conservation measures must correspond to the ecological requirements of the specific site. 

The Court also insists on the practical application of these conservation measures. Reiterating statements from its previous judgment against Poland five years ago (Białowieża Forest) it held that, if the provisions of the Habitats and Birds Directives arenot to be rendered redundant”, site-specific conservation measures must “not only be adopted, but also, and above all, be actually implemented”. 

The second complaint examined broader EU relevance as it considered Poland’s view that measures approving forest management plans are “exclusively of an internal nature”. Therefore, Poland argued, they are not viewed as requiring public participation, nor do environmental organisations have any right to challenge such measures. Poland’s Supreme Administrative Court upheld that interpretation. 

Again, the CJEU disagreed: any plan or project likely to have a significant impact on a Natura 2000 site, even if not directly connected to the site’s management, is subject to appropriate assessment in light of conservation objectives, and must involve appropriate consultation. 

Furthermore, the Court stated, both EU Law and the Aarhus Convention provide for “wide access to justice” to the concerned public and that, not only can environmental organisations challenge measures approving forest management plans, so can a “broader category of litigants”. Finally, the Court attempted to forestall the next problem by reminding that legislation providing access to a court must satisfy the requirements of clarity and precision laid down in environmental law. 

The judgment carries a warning to Member States such as Croatia, Czechia, Estonia and Romania, that similarly block challenges to forest management decisions. It is a significant victory for forests and environmental organisations. 

But we have been here before, and the underlying issue concerns bad faith in the application of environmental rules. The CJEU repeatedly pointed out where it “has already had the opportunity to examine a forest management plan”, in particular one instance where Poland chose to rely on a lower, Regional Administrative Court’s decision – knowing that it had already been “disowned by the national supreme court”.  

Cases such as these take years to bring to the CJEU, during which time environmental infringements continue, undermining climate and biodiversity goals. Augustyn Mikos, forest campaigner with Association Workshop for All Beings, one of the NGOs that filed the original complaint, describes the impact of the problem: “It has not been possible in Poland to review decisions approving forest management plans in administrative courts. As a consequence, even if the plans provided for illegal activities, there was no possibility to stop them in court. This was the case of the infamous logging in Białowieża Forest in 2017. We tried to stop the logging, but the Polish court rejected our complaint. The logging was halted only after an intervention of the European Commission, which referred our complaint to the CJEU. This took months, and before the logging was stopped, 200,000 trees were felled in Białowieża Forest, half of them in old-growth forest stands.” 

In this case, Poland was ordered to pay the Commission’s costs; the costs to forests and climate cannot be recuperated.

 

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Category: Forest Watch

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