The EU-Nature Directives have over time been successfully transposed into Member State legislation and regulation. However, there remain significant issues with the implementation and enforcement of these measures at national and local level.

One problem is that there is no systematic inspection system to ensure compliance with the Directives in either the Member States or in the European Commission. In many countries there is no mechanism to regulate hunting on the ground, or resources to ensure that land management practices are not degrading Natura 2000 sites.  Although Member State regulators may comply with the stringent ‘Article 6’ impact assessments of the Habitats Directive when giving consent to potentially damaging development, they often do not have the procedures or resources in place to ensure that projects are developed according to the consent given, including the proper and successful implementation, on time, of any mitigation or compensation measures required in order to avoid impacts on, or to maintain the integrity of, the Natura 2000 network.

Added to this, the European Commission, despite being the ‘Guardian of EU-Law’, has very limited capability to do its own inspections to ensure that the Nature Directives are being implemented properly on the ground in Member States.  At present, it has no powers of inspection, and relies on its limited desk officer staff resource or ad hoc private consultant contracts to investigate potential infringements in-country even when it has been informed of a specific breach by civil society.  This often leaves the Commission struggling to get to the bottom of counter claims coming from a complainant and the member state government with no means of independent verification.

As well as inspections on the ground, another potentially important tool which is currently missing is the use of remote sensing information from satellites.  This type of information has been a crucial resource for monitoring and enforcement of illegal forest clearance in SE Asia, West Africa and especially by the Brazilian authorities.  It has great potential to be used to monitor land-use change in the EU, particularly in relation to the Natura 2000 network.

• Via Baltica, Poland
• Valloni e Steppe Pedegarganiche, Italy
• Windfarms in Dobrudzha, Bulgaria

Implementation and enforcement of the sites and species safeguards in the Nature Directives can also be hampered by poor understanding by Member State regulators, judiciary or law enforcement services of the necessary processes and requirements.  For example, this includes the proper application of the precautionary principle in Appropriate Assessment under Article 6(3) of the EU-Habitats Directive, and the strict tests applied to damaging development under Article 6(4). Regulators may not have training in application of the Directives, or have expertise in ecology or environmental assessment.

Very often, environmental regulators are also under-resourced, further limiting their capacity to enforce the Nature Directives properly, or have a high turn-over of staff meaning that it is hard to retain knowledge and experience.  In many Member States there is not a national-level ombudsman or complaint mechanism to allow aggrieved parties or civil society to address enforcement issues outside of the court system, which means more cases end up being sent to the European Commission to be dealt with.

Finally, the European Commission’s complaint and infringement mechanisms themselves sometimes fail to provide an effective enforcement effect on member states that do not transpose or implement the Nature Directives properly.  As well as the lack of inspection powers, the Commission staff resource is often overstretched and it can take years before complaints either proceed onto formal infringements, or are alternatively closed. Even when formal legal mechanisms are pursued, cases will generally take several years to progress to the European Court, and some cases languish in a limbo where the obfuscation of a government can almost indefinitely stall a case being taken to court.

Further reading:

BirdLife leaflet on protection of Natura 2000 sites and economic development

Contact:

RSPB (BirdLife Partner in the UK)

Daniel Pullan, Daniel.Pullan(at)rspb.org.uk