The enforcement of European Biodiversity Law at the National Level
As part of the International Year of Biodiversity 2010, several judges met in Brussels on 18 and 19 October to discuss European biodiversity law. The annual conference of the European Forum of Judges for the Environment aims not only at encouraging the exchange of information based on experience but also to assess EU biodiversity law and make recommendations regarding its proper implementation in Member States.
The judiciary plays a crucial role in ensuring that environmental law is properly implemented not only by the public authorities but also by private companies and citizens. The European ecosystem, which has a rich fauna and flora, requires homogeneous protection, conservation and management measures to be taken.
In this respect, non-compliance with biodiversity law must lead to civil and criminal sanctions at the national and international level. It was but natural that the proper national-level implementation of European biodiversity law should be at the centre of the debates of the meeting held by the Judges’ Forum, which met on 18 and 19 October. The Belgian Presidency of the EU Council actively supported this initiative, which was organised with the EU Commission’s endorsement.
It was possible during this event to examine two major Directives: The Birds Directive, which is one of the EU’s oldest Directives (79/409/EEC) and the Habitats Directive (92/43/EEC). These two Directives provide a legal framework for the Natura 2000 network, which includes around 26,000 protected areas covering slightly more than 850,000 km2 on land and at sea, i.e. about 18% of the surface of the European Union.
It is up to the public and private bodies to introduce protection and management measures. As for natural habitats, their protection, which helps to protect the fauna and flora, is ensured by designating sites of Community importance. However, the judges insist upon the importance of considering the role of the Member States in the protection of biodiversity as a whole and not just when it is associated with certain habitats or certain species which enjoy a special protection status.
The Judges’ Forum particularly highlighted the increasing number of violations of the measures aimed at protecting the fauna and flora. It also pointed out that they are not treated on an equal footing at the national levels as it is up to Member States to set up the type and the level of penalties. Furthermore, it was observed that most often, fines are applied whereas criminal sanctions could have been imposed.
The judges have also mentioned violation of the biodiversity law committed by organised crime networks. In Spain, about a hundred eggs of protected bird species were stolen in the early years 2000. Their estimated value was about 415,000 Euro!
The judges have also underlined the importance of the role of the European Court of Justice. Indeed, ever since the entering into force of the Birds Directive, the Court has entered no less than 42 judgements regarding the protection of species. In certain cases, this interpretation has shown that the framework of these directives is inadequate to cover the all aspects of biodiversity. For example, species born in captivity are not considered to be protected species: The golden eagle born in captivity is not protected under the Birds Directive!
During the meeting, the Environment DG of the European Commission has presented new guidelines in connection with certain activities that can affect the sites of the Natura 2000 network. In this regard, the Commission recommends that States must take compensatory measures when, in spite of negative conclusions regarding a plan or a project following the environmental impact assessment, its implementation is nonetheless deemed necessary for reasons of greater public interest.
For the first time, an extraordinary session has also brought together prosecutors specialising in Environment law of the Member States of the Union. This first meeting only confirmed the necessity to structurally exchange information based on experience between prosecutors at the European level.
