Implementing EC conservation law

Journal of Environmental Law

Volumn 18, Issue 1, 2006, Pages 135-160

  Reid, Colin T ^a   Woods, Michael ^b  

^a UNIVERSITY OF DUNDEE   (United Kingdom)

^b Stephenson Harwood   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CONSERVATION; ENVIRONMENTAL POLICY; LEGISLATIVE IMPLEMENTATION;

EID: 33644985156     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqi053     Document Type: Article

References (59)

1. Conservation (Natural Habitats Etc.) Regulations 1994, SI 1994 No. 2716.
2. The notes taken by one of the authors (Prof. Reid) at a meeting held in September 1994 by the Nature Conservation Working Group of the UK Environmental Law Association show that in discussing the extent to which the draft Regulations did implement the Directive, the flaws identified included the absence of monitoring obligations, the inadequacy of provisions for marine conservation and the fact that the exception for harm caused as the incidental consequence of lawful operations was 'far too wide', all defects now confirmed by the Court.
3. According to the most recent published survey of the implementation of EC environmental law, of the 15 Member States in 2003 only the Netherlands was not subject to ongoing infringement proceedings based on either the Birds or the Habitats Directives; see the Tables at the end of the Fifth Annual Survey on the Implementation and Enforcement of Community Environmental Law (SEC (2004) 1025).
4. Cf the recent report by the National Audit Office (NAO) Lost in Translation? Responding to the challenges of European Law which describes the tendency of the UK to 'elaborate' European legislation compared with the 'copy-out' approach followed by some other Member States; available at http://www.nao.org.uk/publications/nao_reports/ 05-06/050626es.pdf
5. Cf the recent fines imposed on the French government for failures to remedy breaches of fishery conservation requirements, amounting to nearly €60M for every six months of continued breach and a lump sum of €20M (Commission v France (C-304/02) ECJ 12 July 2005).
6. 4 Conservation Regulations, reg. 3(2), (3).
7. Cf the unsuccessful argument by the Greek government that the state's constitutional duty to protect the environment could make up for the absence of specific implementing measures under the Birds Directive: Commission v Greece (C-166/04) ECJ 27 October 2005.
8. Para 27 of the judgment.
9. Para 113 of the judgment.
10. Para 25 of the judgment.
11. Opinion of Advocate General Kokott, 9 June 2005, para 9; this possibility, at least in relation to the habitat protection parts of the Directive, was discussed at the September 1994 meeting referred to in n 2 above, where it was noted that if Ministers were in fact to be willing to exercise their existing powers of compulsory purchase to ensure that land was managed appropriately, then most of Part II of the 1994 Conservation Regulations was unnecessary.
12. Opinion of Advocate General, para 104.
13. L. Ramsey, 'Copy Out Technique - more of a cop out than a solution?' (1996) 17 Stat.LR 218.
14. Over 2,000 amendments were proposed as the Bill that became the 1981 Act went through Parliament.
15. Directive 93/13/EEC, implemented by the Unfair Terms in Consumer Contracts Regulations 1994, SI 1994 No. 3159, superseded by the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999 No. 2083.
16. Law Commission and Scottish Law Commission: Unfair Contract Terms in Contracts, Joint Consultation Paper (2002: Law Commission Consultation Paper No. 166; Scottish Law Commission Discussion paper No. 119) esp. pp 13-15 and Report (2005, Cm 6464: Law Com No. 292, Scot Law Com No. 199).
17. Directive 2004/35/EC.
18. With apologies to our colleagues in Northern Ireland especially, the authors plead constraints of space for being guilty of the same failing here.
19. Para 48 of the judgment.
20. See paras 9 et seq. of the judgment.
21. The Concordats agreed with the devolved authorities make it clear that although it is the UK that may be fined in the event of continued non-compliance with Community law, this liability will be transferred to any devolved administration that is at fault (Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly far Wales and the Northern Ireland Executive Committee (2002), para B4. 25 (see http://www.scotland.gov.uk/library2/memorandum)).
22. These provisions apply not just to Special Areas of Conservation under the Habitats Directive but also to Special Protection Areas under the Birds Directive (79/409/EEC), although these are not mentioned in the judgment.
23. See the piecemeal extension of environmental impact assessment to cover certain agricultural activity, old mining permissions and irrigation: Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations 2001, SI 2001 No. 3966 (for Scotland and Wales SSI 2002 No. 6 and SI 2002 No. 2127, respectively), Town and Country Planning (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2000, SI 2000 No. 2867 (for Scotland SSI 2002 No. 324), Water Resources (Environmental Impact Assessment) (England and Wales) Regulations SI 2003 No. 164 (for Scotland SSI 2003 No. 341).
24. Directive 2000/60/EC.
25. Especially in view of the statutory requirement to determine applications 'in accordance with the plan unless material considerations indicate otherwise': Planning and Compulsory Purchase Act 2004, section 38(6); Town and Country Planning (Scotland) Act 1997, section 25.
26. Opinion of Advocate General, para 41.
27. Para 55 of the judgment; see now the Planning and Compulsory Purchase Act 2004, section 38(6) and in Scotland the Town and Country Planning (Scotland) Act 1997, section 25.
28. Landelijke Vereniging tot Behoud van de Waddenzee & Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-7405.
29. Environmental Assessment of Plans and Programmes Regulations 2004, SI 2004 No. 1633 (for Scotland and Wales SSI 2004 No. 258 and SI 2004 No. 1546, respectively); Environmental Assessment (Scotland) Act 2005.
30. The same applies to water abstraction procedures.
31. Biodiversity and Geological Conservation (Circ. ODPM 06/2005) paras 54-55
32. Natural Heritage (NPPG 14), especially paras 64, 69 and 71.
33. Habitats Directive, Articles 11 and 14(2).
34. Ibid, Article 12(4).
35. The existing powers under the Wildlife and Countryside Act 1981 (as separately amended for England and Wales and for Scotland) will not cover all aspects of these new tasks.
36. Habitats Directive, Articles 12(2) and 13(1).
37. Cf the similar non-contested finding against the UK in relation to the unduly limited application of these provisions to only those species found in Great Britain in Commission v UK (C-131/05) ECJ 17 November 2005.
38. 1994 Conservation Regulations, reg. 41.
39. Habitats Directive, Article 15.
40. Opinion of Advocate General, para 101.
41. Waste Management Licensing Regulations 1994, SI 1994 No. 1056.
42. 1981 Act, ss. 4(2)(c), 10(3)(c)
43. 1994 Regulations, reg. 40(3)(c).
44. Habitats Directive, Article 16.
45. Para 112 of the judgment.
46. 1994 Conservation Regulations, reg. 44.
47. Commission v UK (C-434/01) [2003] ECR I-13239.
48. [2005] Env LR 16
49. for an analysis of the decision at first instance, now overturned by the Court of Appeal, see Holder (2004) 16 JEL 377.
50. See also Biodiversity and Geological Conservation (ODPM Circ. 06/2005) paras 112-116
51. C.T. Reid, 'European Protected Species and Development Sites' (2001) 88 SPEL 122.
52. R v Secretary of State for Trade and Industry, ex parte Greenpeace [2000] 2 CMLR 94.
53. See also D. Owen, 'The Application of the Wild Birds Directive beyond the Territorial Sea of European Community Member States' (2001) 13 JEL 39.
54. SI 2001 No. 1754.
55. E.g. Consultation on regulations to this effect was expected 'later this year' in the strategy document published in April 2002 by DEFRA and the devolved authorities: Safeguarding Our Seas (DEFRA, 2002) p 17.
56. In the Scottish Executive's latest strategy paper the list of expected outputs has the date 2008 against the item 'Network of Natura sites extended into the marine environment' (Seas the Opportunity: A Strategy for the Long Term Sustainability of Scotland's Coasts and Seas (Scottish Executive, September 2005), p 31) whilst other documents mention an aim of laying before Parliament Offshore Marine Conservation Regulations to implement the Birds and Habitats Directives after further consultation in 2006 (Safeguarding Sea Life: The Joint UK Response to the Review of Marine Nature Conservation (DEFRA et al., December 2005), p 26).
57. Cf Chapter 4 of the Royal Commission on Environmental Pollution's report 'Turning the Tide - Addressing the Impact of Fisheries on the Marine Environment'; available at http://www.rcep.org.uk/fishreport.htm.
58. See the information on progress towards a Marine Bill at http://www.defra.gov.uk/environment/water/marine/uk/policy/marine-bill/ index.htm.
59. See n 50, above.