Habitats Directive - lessons from case-law of Court of Justice of European Union since 1999

1. Habitats Directive - lessons from case-law of Court of Justice of European Union since 1999 European Commission, DG Environment

2. Overview • Why are legal cases necessary? • Commission enforcement policy • Why is the Court of Justice of the European Union (CJEU) important? • Commission enforcement: nature in context • CJEU decisions in Commission actions, 1999-2012 • CJEU rulings in preliminary references, 2000-2011 • Lessons from case-law – interpretation • Lessons from case-law – Commission and Member States • Future challenges • Future policy • Future policy – questions for discussion

3. Why are legal cases necessary? European Commission • Duty as guardian of Treaties to address implementation gaps – Article 17 of TEU • Powers to act under Articles 258, 260 and 279 of TFEU Member States • Competent authorities need to take enforcement action – public enforcement • Decisions against decisions, acts and omissions – private enforcement through access to justice • Preliminary references to the Court of Justice for interpretation – Article 267 of TFEU

4. Commission enforcement policy • Partly defined in policy communications, see 2007 “A Europe of Results”, COM(2007)502and 2008 Communication on implementing environment law, COM(2008)773 • Enforcement is within context that includes compliance promotion, e.g. guidance documents, LIFE funding, EU Pilot • Enforcement related to citizen complaints/European Parliament petitions – Directive 92/43/EEC frequently cited • Trend towards strategic use of enforcement powers confirmed by 2008 Communication

5. Why is the Court of Justice of the European Union important? • Final arbiter in disputes between Commission and Member States (80% of cases) • Can order interim measures (rare, only one case concerning Directive 92/43/EEC) • Definitively interprets in references from national courts (20% of cases)

6. Commission enforcement

7. CJEU decisions in Commission actions, 1999-2012

8. CJEU rulings in preliminary references (1) • 2000: C-371/98, First Corporate Shipping, scientific basis of Natura 2000 sites • 2004: C-127/98, Waddenzee, duty of appropriate assessment • 2005: C-117/03, Dragaggi, duty of interim protection • 2006: C-244/05, Bund Naturschutz, duty of interim protection • 2010: C-226/08, Stadt Papenburg, duty to prevent deterioration

9. CJEU rulings in preliminary references (2) • 2011: C-115/09, Trianel, access to justice rights for Impact Assessment allow Directive 92/43/EEC issues to be raised • 2011: C-240/09, Slovak Bears, rights of e-NGOs in cases concerning Directive 92/43/EEC • 2011: C-2/10, Azienda Agro-Zootecnica Franchini and Eolica d Altamura, prohibition on wind-turbines, proportionality • 2012: C-182/10, Solvay and others, need for appropriate assessment where projects adopted by legislation, IROPI

10. Lessons from case-law – interpretation • Interpretations found in judgments as well as in preliminary rulings • Interpretations tend to be rigorous and teleological, importance of objective science-base • Interface with other directives, notably Birds, 79/409/EEC, e.g. on interim measures, and Impact Assessment, 85/337/EEC; • Interface with access to justice, role of private enforcement • Still room for future interpretation • Helpfulness of Commission guidance documents

11. Lessons from case-law – Commission and Member States • Court cases a last resort • Positive role of EU Pilot? • Commission success rate– 80% • National legislation • Dominant category • Not complaint-driven • New Member States try to resolve sooner • National list • Very limited need for court action • Positive influence of bio-geographic process? • Site protection and species protection • Strong link with complaints • Access to justice an alternative? • Advantages of national complaint-handling criteria?

12. Future Challenges • Monitoring systems • Designation of SACs, implementation of Article 6(1) • Site protection • Public enforcement at national level • Private enforcement at national level

13. Future Policy 2012 Implementation Communication, COM(2012)95 • Implementation one of 3 priorities of Commissioner Potočnik • Objective to complement rather than replace earlier communications • Not an infringement communication • Focus on improving information systems and checks and balances at national level • 2 themes: Knowledge and responsiveness • Adopted 7 March 2012 • Helps set scene for 7th Environmental Action Programme

14. Future policy – questions for discussion • What are the strengths and weaknesses of existing policy? Have we right balance between enforcement and compliance promotion? • Knowledge: • How can we build on existing active dissemination of information about Directive 92/43/EEC, such as Natura 2000 maps, Natura Barometer? • Responsiveness: • How to ensure establishment of best practice and best methodologies for inspections and surveillance in the field of nature? • Can trans-network cooperation (inspectors, prosecutors, judges) improve how the enforcement chain functions in relation to wildlife crime? • How to ensure consistent, structured exchanges between complainants and national authorities? • How to provide access to justice in nature cases in response to Slovak Bears?