European Environment Agency’s New Report Highlights Ongoing Challenges for EU Nature Legislation

Cover Photo Credits: Sperlingskauz (Glaucidium passerinum) im Nieselregen, Elsenborn, Ostbelgien. Frank Vassen 2015.

On 19 October, the European Environment Agency released a new report on the State of Nature in the EU, which contains its latest assessment of the conservation status of the Union’s species and habitats. The Report paints a bleak picture of the health of European ecosystems, and identifies the inadequate implementation of EU nature conservation legislation as one of the main obstacles to reversing the decline of biodiversity in the Union.

The State of Nature in the EU Report was compiled by the European Environment Agency based on the reports submitted by EU Member States from 2013 to 2018 under the requirements set by the Habitats and Birds Directives, as well as through subsequent biodiversity and ecosystem assessments conducted at both EU-wide and biogeographical levels. Its aim was to “identify successes and shortcomings in nature conservation, key pressures and threats, the status of current conservation measures and the restoration needed to further improve the conservation status of targeted habitats and species and the population status of birds“. In doing so, the Report also provided a new ‘fitness check’ on the state of the Natura 2000 network of protected areas and its contribution to the achievement of the Aichi Biodiversity Targets under the Convention on Biological Diversity.

Unfortunately, the Report highlights the ongoing deterioration of nature in the Union, with few success stories (e.g. improving population trends for breeding birds) and a clear increase in the number of species and habitats presenting a poor or bad conservation status. With respect to the 2008-2012 reporting period, this increase is of 7 percent for bird species and 6 percent for habitats, while a 4 percent increase in species presenting a conservation status under the Habitats Directive is mostly attributed to variations in data quality and measurement methods. Thanks to Member States’ own assessments, the Report also identifies agriculture, urbanisation and forestry activities as the most frequent pressures for European biodiversity, with climate change seen as a rising threat due to its impact on temperatures and precipitation.

Detail of a Figure contained in the State of Nature in the EU Report, summarising the results of reporting conducted the Habitats Directive. Source: European Environment Agency 2020 (p.34).

When it comes to the impact of the Natura 2000 network on the conservation status of European species and habitats, the European Environment Agency notes that the mandatory adoption of management plans and conservation measures inside protected sites, which is required by the Birds and Habitats Directives, can indeed improve the response to the above-mentioned pressures, for example by limiting land use change. Indeed, species and habitats covered by the network appear more likely to show a good conservation status and less declining trends. However, significant gaps remain in such coverage, with some species and habitats far less protected than others (e.g. breeding birds, marine fish and reptiles, forest habitats). Moreover, the Report suggests that in many cases conservation measures may have not been taken inside Natura 2000 sites, that they may have not been implemented fully, or that they may have been ineffective. Lastly, and perhaps most importantly, the overall ecological effectiveness of the network continues to be hindered by the lack of functional connectivity between sites, their limited capacity to adapt to the impacts of climate change, and an inadequate level of protection of biodiversity outside the sites themselves.

The European Environment Agency’s assessment clearly states that gaps in implementation at the level of Member States might be partly to blame. In doing so, the Agency aligns with the findings of the 2019 Environmental Implementation Review and the 2016 ‘Fitness Check’ evaluation of the Birds and Habitats Directives, both of which had identified implementation (including the adoption of management plans and assessment procedures), financing and policy integration at the national level as the main challenges to the effectiveness of nature conservation legislation. At the same time, the Report appears to highlight a series of more fundamental problems, implicitly suggesting that inadequate implementation is in many ways a consequence of the gaps that exist in the EU legal framework itself.

First, the fact that EU Member States seem to generally take limited measures to safeguard biodiversity outside of Natura 2000 sites can be linked to the fragmentation that continues to affect the Union’s approach to conservation. On the one hand, the Birds and Habitats Directives set very weak (and not easily enforceable) requirements for non-protected areas in the first place (for example, Article 4(1) of the Birds Directive, which requires States to ‘strive’ to protect bird habitats outside protected areas, and Article 10(1) of the Habitats Directive, which encourages Member States to integrate management measures in their land-use planning and development policies, “with a view to increasing the ecological coherence of the Natura 2000 network“). On the other hand, the lack of integration of biodiversity in other socio-economic sectors and sectoral EU policies prevents a comprehensive protection of ecological processes through greater policy coherence, a point raised in the Report which was also recently exemplified by the controversial votes on the proposed reform of the Common Agricultural Policy (CAP).

Secondly, the Agency emphasises the need for urgent action on the restoration and re-creation of habitats in order to expand their surface area and protect ecosystem services and functions. While the importance of a natural area for restoration purposes is indeed mentioned among the criteria that can lead to that site being adopted as a ‘site of Community importance’ under Annex III the Habitats Directive, there is no general obligation in EU law to restore biodiversity, nor is there guidance on which restoration measures should be taken in practice inside Natura 2000 sites. The European Commission seems to be keenly aware of this gap. As a consequence, restoration has now been included as a key pillar of its EU Biodiversity Strategy to 2030, which forecasts the introduction of legally binding nature restoration targets by 2021 as well as a series of thematic strategies and action plans for forests, soils, fisheries and marine ecosystems, among other measures. To assume that this target-setting approach alone will suffice, however, is premature. Moreover, it should be noted that the above-mentioned debate on the reform of the CAP will also have an impact on restoration ambitions. For example, the negotiating mandates agreed in October 2020 by the Agriculture and Fisheries Council and the European Parliament have both been described as significantly watering down the proposal that had been previously advanced by the European Commission, including by weakening the biodiversity-related standards governing conditional payments to farmers and by reducing the amount of money ring-fenced for so-called eco-schemes (which would, among other things, reward farmers for agricultural and land management practices that support habitat protection and restoration). This is particularly worrying, as the Report of the European Environment Agency confirms that land use change to make space for permanent crops and arable land constitutes a major driver of biodiversity loss both inside and outside the Natura 2000 network.

Third, it is important to realise that country-level challenges in selecting Natura 2000 sites and enacting effective management and monitoring measures cannot be seen in isolation from the wider normative framework that has been built around the Birds and Habitats Directives. While domestic variables such as political commitment, financial resources and capacity at the national level certainly play a role, some of the recommendations adopted by the European Environment Agency seem more directly addressed to European institutions themselves. For example, the Agency lists a series of problems affecting Natura 2000 site selection (e.g. a bias towards protecting remote areas, low prioritisation of conservation objectives compared to socio-economic objectives, incoherent planning) and management (e.g. inadequate consideration of human activities inside protected areas, insufficient implementation of management plans). Rather than merely pointing the finger at Member States, these findings also raise the question of whether EU nature conservation legislation should be tightened to restrict their discretionality in site selection processes and limit the possibility of using economic considerations as a means of ‘circumventing’ their conservation obligations, a struggle that is well-illustrated by the jurisprudence of the Court of Justice of the European Union on Article 4 and Article 6 of the Habitats Directive, respectively. In addition, in order to strengthen national capacity and fill knowledge gaps, the Agency suggests that the European Commission harmonise Natura 2000 monitoring frameworks and methodologies, which are presently fragmented and essentially overlooked in the Birds and Habitats Directives. Lastly, the Agency highlights the importance of providing more specific guidance on how all Natura 2000 sites can incorporate an ‘ecological‘ (ecosystem-based) approach to implementation and monitoring as well as more specific, quantifiable conservation and restoration objectives, thus further reducing the flexibility afforded to Member States.

In other words, while many of the concerns contained in the Report on the State of Nature in the EU are indeed reflected in the novel commitments of the EU Biodiversity Strategy, the European Environment Agency itself appears to recognise that more will be needed. While the Report does not explicitly state so, it is clear that there is a need to take a deeper look at existing legal and policy instruments, recognise some of their outstanding (and inevitable) shortcomings, and take urgent steps to maximise their potential. Even assuming that the Birds and Nature Directives are still fit for purpose, expecting them to remain so throughout the next decade might be a risky bet, given the ongoing struggle to reform other areas of the EU legal order and the worsening trends affecting European biodiversity and ecosystems.

Dario Piselli is the Programme Manager of the Jean Monnet Module in European and International Environmental Law. He is a Ph.D. candidate in International Law at the Graduate Institute of Geneva (IHEID), an affiliated researcher at its Centre for International Environmental Studies, and an independent sustainability consultant.

Riccardo Pavoni is the Academic Coordinator of the Jean Monnet Module in European and International Environmental Law. He is a Professor of International and European Union Law at the University of Siena, Italy.