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Ireland has lost a case brought to the European Court of Justice by the European Commission over its failure to implement the Habitats Directive. The judgement occurred on the 29th of June after a lengthy case and highlights Ireland’s consistent failure to protect nature on land and at sea.
Recap
In 2004, 423 sites of conservation importance (SCIs) were identified which Ireland had six years to designate into Special Areas of Conservation (SACs). In 2013 the Commission asked Ireland to provide details of the measures taken and it was found that they had failed to do this. In 2015 the European Commission (EC) formally notified Ireland that they had failed to deliver on three objectives.
There has been a back and forth between Ireland and the Commission on this matter since then with the Commission giving Ireland a final deadline to have fulfilled their obligations by January 2019. To see a more detailed analysis of this timeline, read Fair Seas explainer blog here. Ireland did not meet this deadline and so the case progressed to the European Court of Justice.
Findings of the Court
In objective 1 (designating SACs from SCIs) Ireland acknowledged that there were 423 SCIs and it had only designated 212 SACs (six of which were not part of the original SCI list). Ireland claims however, that the sites which it did not formally designate still enjoyed the same protection as SACs due to obligations under the European Communities Regulations 2011 with regard to activities, plans or projects which may affect European sites. This doesn’t call into question the fact that they had failed under Article 4(4) of the Habitats Directive to designate these SACs. Ireland also emphasised the complexity of informing landowners and dealing with appeals. To formally designate the sites as SACs Ireland would need to engage with 18,516 landowners and deal with 674 appeals already lodged. The Commission has stated that Member States cannot plead that complexities within its national legal system is a reason for failure to designate SACs.
Judgement on objective 1 – Complaint upheld
Objective 2 sees the Commission claim that Ireland failed to set site specific conservation objectives in respect of 140 of the 423 sites at issue. Ireland has acknowledged that it has not completed the process of identifying and publishing specific conservation objectives for all 423 sites of Community importance, although it claims to have been making considerable efforts to rectify this but then the COVID 19 pandemic delayed finalisation of these efforts.
Ireland acknowledges that by the final deadline given by the Commission for the 9th January 2019, it did not have detailed site specific conservation objectives for the sites.
Judgement on objective 2 – Complaint upheld
The Commission claims Ireland failed to adopt any conservation measures in 230 sites and had incomplete conservation measures in 149 sites. In the 44 sites with complete measures, the Commission claims these are not valid due to being adopted prior to the setting of conservation objectives.
The Commission also states that Ireland has a consistent record of failing to hit conservation objectives in all sites by showing an assessment of two important priority habitat types – blanket bogs and coastal lagoons and a particularly endangered species the freshwater pearl mussel. For coastal lagoons, Ireland’s conservation measures had vague timelines and lacked quantitative terms identification of people responsible for implementation . For blanket bogs there was the same vagueness in the measures and it did not take into account pressures on bogs from agriculture, peat extraction or drainage. Again, with pearl mussels the examples for protection were vague and did not take into account the site by site pressures faced by this species. The Commission has basically stated that Ireland has failed to specify who does what, where and when across the board.
Judgement on objective 3 – Partially upheld
It was found that the mere fact that conservation objectives were adopted before conservation objectives were defined does not mean that they did not meet the requirements for the site and so this is not an infringement of Article 6(1) of the Habitats Directive.The Court also stated that the Commission failed to demonstrate that Ireland consistently fails across all sites to hit conservation targets by only using blanket bogs, coastal lagoons and freshwater pearl mussels as examples as they are not representative of all Sites of Community Importance.
However, Ireland has failed to fulfil its obligations under Article 6(1) by failing to adopt any conservation measures for 230 of the 423 sites and failing to adopt complete measures for 149 of the remaining 193 sites.
Penalties
Ireland was ordered to pay the costs incurred by the Commission during this case, although the issue of fines has not been confirmed as of yet and a grace period may be granted for Ireland to rectify its infringements. This case brings to the forefront how important the EU Nature Restoration Law is for restoring and safeguarding our degraded habitats and also how timely it is that the new Irish MPA bill be enacted into government. There is no more time left to waste to designate protected areas and enact site specific, ecosystem based approaches to conservation and restoration. The current Government has made some progress in addressing the reasons behind our failure to protect biodiversity and there have been positive initiatives implemented. However it is plain to see that our landscapes have degraded, our waterways are polluted and our seas have been emptied. The positive actions taken by our Government need to be amplified if we are to see any substantial change.
Grace Carr Marine Policy Officer