European Nature’s Debt to the Faceless ‘Lawocrats’ of Luxembourg
Wildlife has no concept of political borders. The cuckoo (and its descendants) that calls every summer in the farmland next to the village where I live in Eastern England makes no distinction between foraging habitats here and those which it stops off at on its spring and autumn migrations in France and Italy. The rare wildflowers and insect species in the ancient wood behind my house have ranges that extend over large parts of Atlantic Europe. This is why, if we are to protect the range and diversity of Europe’s nature, we need to act supra-nationally. Acting in such a way also promotes the economic objectives of the single market in Europe, by providing a ‘level playing field’ for business – so economic activity in the UK conforms to the same environmental standards as it would in France or Slovenia. In this way no country can gain advantage from degrading its natural environment for short-term economic gain, and business has certainty over the environmental rules it will have to comply with in different places.
The Birds and Habitats Directives, provide this supra-national legislative backbone for nature conservation, with the aim to keep Europe’s flora, fauna and habitats in ‘Favourable Conservation Status’. In the Birds Directive’s case, this has now been in force for more than 35 years. In this time, the European Court of Justice (ECJ) has had a key role in providing legal interpretation of the nature directives and the final enforcer to ensure their proper translation into law and execution in member states.
It was the ECJ that confirmed that the Important Bird and Biodiversity Areas (IBA) networks identified by BirdLife partners should be the basis for member states’ Special Protection Areas (SPA) under the Birds Directive. As such, it ensured that Member States designated the most important sites for birds as protected areas, using objective, scientific reasoning. It was the ECJ that ensured that member state’s didn’t exclude important areas from SPAs due to economic or political expediency through cases such as Lappel Bank in the UK, where an area of internationally important mudflat was excluded from an SPA so that it could be converted into a port car park, or at Santona Marshes in Spain where an area of wetland was excluded to allow road construction.
ECJ judgements such as that at the Waddenzee in the Netherlands ensured that ongoing economic activities (in this case cockle fishing) need to be properly controlled and regulated and not cause long-term ongoing damage to Natura 2000 sites. Judgements have also ensured that the strict rules governing projects that might impact on Natura 2000 sites are implemented properly, for example in the cases of the M-501 road in Spain and the Kaliakra windfarms in Bulgaria. Here the court ruled that the consenting procedures to protect the habitats and species in the affected Natura 2000 sites from damage and disturbance had not been followed, and the subsequent damage from the projects needed to be put right.
The court has also been crucial in enforcing the regulation of hunting in Europe, ensuring that birds are not taken out of season, and that any derogations on what species can be hunted are properly justified and enforced. In some instances it has even imposed interim measures to quickly stop illegal hunting in Italy and Malta.
The pre-litigation infringements system and the ECJ process can be ponderous; sometimes the damage has already been done by the time the court process finishes, or fines are imposed. However, there is no doubt that the ECJ, interpreting and enforcing the nature directives and the rest of Europe’s environmental acquis has slowed and arrested the decline, or sometimes restored the fortunes of our common natural heritage. Without the actions of the ECJ since 1979, Europe’s nature would now be in a much poorer place. Hopefully, the result of the REFIT process of the Birds and Habitats Directives will be a renewed emphasis on full implementation and enforcement of the nature directives to make this protection even more effective, and mean that the ECJ is relied on less and less. In the UK we need to ensure that whatever legal framework for nature emerges from the Brexit process, it enshrines the UK’s universal duty to protect our common European natural inheritance, in line with EU member states.