New EIEL Guest Lecture: Sabrina Brizioli on Greening Agri-Food Systems Through Codes of Conduct and Environmental Product Declarations

We are proud to announce the first EIEL guest lecture of the 2021/2022 academic year, which will take place on 15 September 2021 at 14.00 CEST. For the lecture, which will be live-streamed online through YouTube Live, we will welcome Dr Sabrina Brizioli, Post-Doctoral Fellow at the Department of Law of the University of Perugia, Italy.

Her lecture will explore the role of Environmental Codes of Conduct and Environmental Product Declarations, which are increasingly used in the agri-food sector to enhance both business-to-business and business-to-consumer communication, and whose aim is to record the environmental impacts and performance of products, in achieving the objective of sustainable agri-food systems in both the European Union and at the international level.

The lecture will follow the perspective of some relevant international and EU environmental instruments, i.e. the Agenda 2030 and its Sustainable Development Goals, the European Green Deal and its “From Farm to Fork” strategy, the Common Agricultural Policy and its eco-schemes. Moreover, it will scrutinise the commitment of local and regional entities to develop sustainable food policies and renew their strategies in order to put the food and farming at the heart of environmental matters and health emergencies as recently highlighted by the Glasgow Food and Climate Declaration and the preparatory documents for COP26.

Dr Brizioli will articulate international environmental law issues into a regional dimension and discuss whether the improvement of sustainability of food processing, as requested by the global response to climate and biodiversity emergency, could effectively reduce the environmental footprint of agri-food systems, drive positive changes and ensure resilience to shocks at local and rural levels. Such an approach underlines that actions should be aligned vertically (between different levels of governance) and horizontally (across economic sectors and stakeholders) to accelerate an integrated/just transition to sustainable food systems.

Sabrizina Brizioli holds a Ph.D (cum laude) in Legal Sciences (2020) and a five-year law degree (cum laude-2012) from the Università degli Studi di Perugia where she is cultore della materia (expert in the field) in International Law, Advanced International Law and EU Law. She is also a qualified lawyer and expert in Legal Professions (“Scuola di Specializzazione L.Migliorini” Diploma – Università degli Studi di Perugia).

She is a member of the Scientific Board for Europe of the Review Diritto e Processo, Rights & Remedies-Derecho Y Proceso and she coordinates the Focus: Environmental Law and Policy. She has recently been selected for a Visiting Research Fellowship at the Historical Archives of the European Union, which are housed at the European University Institute (Florence). Sabrina’s research interests lie in international environmental law, climate change law, environmental justice and food law.

The lecture will be open to all interested participants, and will be available at this link.

New EIEL Guest Lecture announced: Maria Cristina Carta on the European Green Deal

We are proud to announce the first guest lecture of the EIEL Jean Monnet Module in the 2020/2021 academic year. On 3 May 2021, starting at 3pm CEST, we will welcome Dr Maria Cristina Carta, Research Fellow in European Union Law at the Department of Law of the University of Sassari.

Her lecture, which will take place online in the light of the ongoing COVID-19 restrictions affecting the University of Siena, will examine the legal aspects of the European Green Deal, the new EU’s growth strategy presented by the Commission in December 2019 aimed at achieving climate neutrality by 2050 through a better coordination of environmental, economic and social policies. Dr Carta will devote special attention to the sectors of intervention, the financial instruments and the social perspectives of this strategy, with particular reference to the recent proposal for a European climate law and to the Just Transition Mechanism. Moreover, she will discuss whether or not the Deal constitutes a useful tool to achieve full recognition of the right to a healthy environment in the EU.

At the University of Sassarsi, Carta currently teaches International and EU law and Protection of Human Rights in the European Union. She has been a visiting research fellow at several European institutions and universities, and is a member of a number of international research groups in the areas of international and European law and human rights. In addition to several peer-reviewed articles and book chapters, she published her first monograph in 2018 (Dalla Libertà di Circolazione alla Coesione Territoriale nell’Unione Europea, Jovene Ed.)

All EIEL keynote and guest lectures are usually held in Italian and hosted by the Department of Law of the University of Siena, where they are open to the public but also constitute a part of the EIEL module’s teaching programme. Until COVID-19 restrictions on live events are lifted, EIEL keynote and guest lectures take place online. Unlike EIEL webinars, which are broadcasted directly on YouTube Live, lectures take place in a Google Meet’s virtual classroom, and require registration.

To register for this lecture, visit the following Eventbrite link.

Leave the dead (trees) alone? Revisiting the ongoing controversy over the Białowieża forest

Cover photo credits: Bialowieża National Park. Mariusz Cieszewski 2019.

In March 2021, the Polish government announced an update of the logging quotas contained in the management plan for the Białowieża forest in eastern Poland, parts of which are variably protected as a UNESCO World Heritage Site, a Natura 2000 site, and a national park by virtue of the area hosting one of the last primeval lowland forests in the European continent, as well as Europe’s largest free-roaming population of the European bison (Bison bonasus).

While popular with some economic sectors and the government, logging in and around the Białowieża national park has been hugely controversial in recent years, particularly as the area has benefited from a growing influx of tourists and researchers which is threatened by the expansion of forestry activities. In 2016, despite increasing local and international pressure, the Ministry of the Environment of Poland adopted an Appendix to its 2012-2021 forest management plan for the three districts of Białowieża, Browsk and Hajnówka, tripling the harvesting volume authorised in the Białowieża district. At the same time, a decision by the State Forest Office (so-called Decision No 51) urgently requested the competent local authorities to begin logging operations in all three districts to protect public safety from the risk of falling trees and ensure the ecological integrity of the site, in the light of an “extraordinary and catastrophic situation caused by the spread of the spruce bark beetle.”

The rationale underpinning the Appendix and the Decision was immediately disputed by some experts, advocacy groups and the European Commission, especially since the new harvesting volume had been raised precisely as the original quotas set in the 2012-2021 plan had nearly been exhausted (within just four years). Moreover, the fact itself that the Białowieża ecosystem relies on the presence of large amount of dead wood and decaying trees, which provide a key habitat to several species of insects and birds, suggested that a spruce bark beetle outbreak should not have been considered a risk to the integrity of the primeval areas of the forest, but rather as a critical part of their natural cycle. 

Following the opening of an infringement procedure against the country, and an unfruitful pre-litigation procedure, the Commission brought an action before the Court of Justice of the EU (CJEU). In 2018, the Court held that by increasing logging quotas in the Białowieża district, the 2016 Appendix and Decision No 51 had violated several articles of the Habitats and Birds Directives, which form the core of the EU’s nature conservation legislation. More specifically, the ruling (Commission v Poland, C-441/17) found that Poland had infringed Art.6(3) of the Habitats Directive, by failing to appropriately ascertain whether the logging operations resulting from the 2016 Appendix would negatively affect the ecological integrity of the Natura 2000 site ‘Puszcza Białowieska’. Secondly, the Court found that Poland had violated Art.6(1) of the Habitats Directive and Art.4(1)-(2) of the Birds Directive, by failing to implement the conservation measures that are required to protect the habitat types and species covered by those instruments. In particular, not only did the Court recognize that the 2016 Appendix could not constitute a form of implementation of the conservation measures that had been established by a 2015 management plan adopted by the regional authorities, it also made clear that the Appendix had made that plan fundamentally redundant. Thirdly, the CJEU held that Poland had infringed Art. 12(1)(a) and (d) of the Habitats Directive, because the authorised active forest management operations had resulted in the deterioration or destruction of breeding sites or resting places of several species of beetles protected under Annex IV(a) to that directive. Finally, Poland was found in breach of Art. 5(b) and (d) of the Birds Directive, in that the removal of dead or dying trees, as well as of old trees colonised by the spruce bark beetle, had violated the country’s obligation to ensure a general system of protection of bird species (in this case, the pygmy owl, the boreal owl, the white-backed woodpecker and the three-toed woodpecker). According to the breached provisions, this system should have included a prohibition on the deliberate destruction of, or damage to, the nests and eggs of protected birds, the removal of their nests, as well as their deliberate disturbance – all actions that had in fact been a likely result of the logging operations.

Unfortunately, details about the new announcement are still scant in international media, thus preventing a more detailed analysis of its relationship with the 2015 management plan, the Birds and Habitats Directives, and the CJEU ruling. However, on the basis of certain statements attributed to the Polish Ministry of Climate and Environment, it is already possible to see how the updated logging quotas might also run afoul of the complaints raised by the European Commission and endorsed by the CJEU with respect to the 2016 Appendix and Decision No 51.

In short, it seems that the plan, which essentially replaces the 2016 Appendix and adopts two new Appendices for the Białowieża and Browsk districts, tries to find a way around the CJEU ruling by, among other things, reducing the volume of wood planned to be harvested by 60 percent, excluding areas of forest that are over 100 years old from active forest management operations, postponing the start of logging activities until the wild bird breeding season has ended, and framing half of those activities as part of an ecological restoration scheme. In Polish media, the announcement has indeed been portrayed as proof that the national government is implementing that ruling in earnest – with added emphasis on the fact that the European Commission has allegedly not raised objections to the new plans as they relate to the Białowieża and Browsk districts (it apparently has with respect to the Hajnówka district, which is why a third Appendix has not been adopted for the latter yet).

At the outset, it should be noted that the timing of the announcement is problematic for a number of reasons. The new Appendices were adopted just a few weeks after the Commission had sent a formal letter of notice to the Polish authorities, arguing that the 2018 ruling has largely not been implemented and that “actions envisaged by Poland are not in line with the Directives nor with the Court ruling.” Moreover, the 2012-2021 forest management plan for the Białowieża forest is expected to expire anyway at the end of this year, and it has not been replaced yet (according to the Ministry of Climate and Environment, it is unclear if a 2022-2031 plan will be ready by then). In other words, it may be the case that the new Appendices are simply an attempt to buy some time and authorise logging activities for a few extra months, evading further proceedings before the CJEU for possible financial sanctions under Art. 260 of the Treaty on the Functioning of the EU.

In any event, the statements used to justify the updated logging quotas also appear very weak if compared with the findings of the 2018 ruling. Revisiting such findings may thus be important to understand the current situation of stalemate and prepare for potential new developments, particularly if the European Commission takes issue with the recent Appendices and decides not to close its infringement procedure against Poland.

The press conference during which the new Appendices to the 2012-2021 forest management plan were announced by the Polish authorities. Cover photo credit: Government of Poland.

First of all, the claim of a 60 percent reduction in the volume of wood planned to be harvested, compared with the 2016 Appendix, clashes with the aforementioned consideration that the original quotas for the Białowieża district for the period 2012-2021 had already been exhausted by 2016, and that extensive logging continued until the 2018 ruling. Consistent with the Court’s reasoning with respect to the 2016 Appendix, any expansion of those quotas through the forest management plan must be considered as a ‘plan or project not directly connected with or necessary to the management of the site’ under the Habitats Directive (paras 122-127 of the CJEU judgment), and therefore needs to be evaluated against the conditions set by Art. 6(3) of that Directive, which requires an appropriate assessment to be carried out in order to ascertain that the activities will not ‘adversely affect the integrity of the site’. This is all the more important because in 2018 the CJEU found that no such assessment had been conducted for the Browsk and Hajnówka districts, and that the one conducted for the Białowieża presented a series of substantial lacunae. The Polish authorities have claimed that the adoption of the new Appendices indeed meets the requirements of Art. 6(3), in that new impact assessments and even stakeholder consultations have been carried out – however it is unclear whether these documents (and the Appendices themselves) have been publicly shared at this stage.

Secondly, the CJEU ruling noted that the 2015 management plan does not consider the felling of pines and spruces that are over a century old as the sole threat to the integrity of the Natura 2000 site. Other types of active forest management operations, including the removal of other species of dead or dying trees, are also mentioned in that plan as potential threats to the protected habitats and species of Białowieża (paragraphs 166-168 of that ruling). This means that even if logging activities did indeed exclude areas of the forest in which at least 10 percent of tree specimens are over 100 years old, this by itself would not make such activities compliant with the conservation measures set in the 2015 management plan (and, by extension, with Art. 6(1) of the Habitats Directive and Art. 4 of the Birds Directive). Now, it is true that the Polish government has framed most of the new interventions as necessary to improve the conservation status of the Natura 2000 site (this time including ecological restoration efforts aimed at replacing coniferous species with deciduous species), but it is equally true that this same argument was also used (and rejected) during the procedure before the CJEU.

Third, the position that logging will not violate EU law because felling will not start during breeding season of wild birds has two main flaws. On the one hand, it is immaterial to Poland’s obligation to take positive measures to protect bird habitats under Art. 4 of the Birds Directive, which does not merely impose the avoidance of external anthropogenic interference or disturbance but also requires a duty to preserve or improve the state of these sites. Incidentally, this point was also touched upon in the CJEU ruling (paras 215-218), which recognised that the conservation measures adopted in the 2015 management plan had never been applied, and they had been in fact rendered meaningless by the same logging operations that are being once again proposed through the new announcement. On the other hand, the decision to postpone felling remains contrary to the formulation of both Art. 4(2) and Art. 5(b) and (d) of the Birds Directive: these obligations – more specifically, the obligation to take special conservation measures to protect breeding areas of migratory species, the obligation to prohibit the deliberate destruction or damage of nests of all species of birds, and the obligation to prohibit the deliberate disturbance of birds – do not only apply to the breeding season of protected wild birds. This point was also reiterated by the CJEU in its 2018 ruling, which recalled a 1988 judgment in which the Court had stated that to suspend protection “throughout a particular period of the year cannot be considered […] compatible” with Art.5 of the Birds Directive (Commission v France, C-252/85, para 9).

Lastly, the use of the spruce bark beetle infestation as a justification for logging operations, together with the argument that the removal of dead or dying trees is necessary to protect public safety along forest paths, already lay at the core of the 2018 ruling. There, both justifications were repeatedly dismissed by the CJEU. According to the Court, the 2016 Appendix and Decision No 51 had not provided any specific conditions under which logging would be justified on grounds of public safety, and had actually authorised the removal of all species of trees, not only those colonised by the spruce bark beetle (paras 160-163). Perhaps most importantly, the Court also noted that until the adoption of the 2016 Appendix, the beetle outbreak had never been flagged as a threat to the integrity of the Natura 2000 site, including in the 2015 management plan – which had instead considered forest management operations as an expression of such a threat (para 173). To these two justifications, the Polish government has now added the need to reduce the fire risk posed by the accumulation of dead (dry) wood in the forest  – an issue that was already mentioned in the 2016 Appendix but not addressed in the CJEU ruling. Increased fire risk due to climate change has indeed been flagged as a potential future threat to Białowieża in the most recent IUCN World Heritage Outlook. However, at present the risk is considered relatively low. In addition, some of the studies cited in the Outlook have actually pointed to anthropogenic changes in hydrology, as well to the logging activities themselves, as contributing factors to fire hazard.

By means of conclusion, the recent announcement seemingly represents the new chapter of a decade-long effort by the Polish government to muddle the waters and avoid international scrutiny over the conservation of the invaluable ecosystem of Białowieża, rather than a serious attempt at resolving the dispute with the European institutions. Now, is such a stance worth it? While some of the cultural and socio-economic motivations for continuing to exploit the forest have been discussed in the past, some researchers have also pointed out that the revenues from birdwatching and other forms of tourism by now eclipse the unprofitable forestry sector. Similarly, it has been emphasised that the dependence of local communities on the ecosystem services offered by the Białowieża forest is vast and goes beyond timber extraction, which is often distributed outside the region anyway, as well as the provision of firewood for fuel, which is only important because (and as long as) the area remains one of the least developed in the EU. As a matter of fact, such dependence may well include a strong regulating function on air quality, local climate, and water; the support provided to ecosystem processes and biodiversity conservation; a range of cultural services and opportunities for recreation; and a significant provision of locally-consumed goods such as mushrooms, berries, game, and herbs. As hinted at by the European Commission in its recent letter of notice to the Polish authorities, there is ample scope to put this array of ecosystem services at the centre of the sustainable development of the region and of the implementation of the EU Biodiversity Strategy in Poland. It is unclear how a continued confrontation over logging in Białowieża helps this cause, and local communities as a result.

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.

Calendar of EIEL core teaching activities announced

The EIEL staff is happy to announce that the calendar of EIEL core teaching activities for the second semester of the current academic year has now been finalised.

The upcoming start of the activities represents the second major implementation milestone of the EIEL Jean Monnet Module, after the launch of the 2020/2021 EIEL Webinar Series which saw the participation of Prof Marjan Peeters and Dr Leonie Reins as guest speakers.

On 1 March, the general course of European Union law taught by Prof Riccardo Pavoni at the Department of Law of the University of Siena will start. Following several weeks of preliminary lectures about general themes of EU law, on 23 and 26 April Prof Elisa Morgera will give two lectures covering essential aspects of international environmental law. They will be followed by an in-depth analysis of EU environmental law within a series of lectures given by Prof Riccardo Pavoni and Mr Dario Piselli until 14 May. These lectures will explore an extensive range of important thematic and cross-cutting issues, including the historical evolution, legal basis and key principles of EU environmental law; the relationship of EU environmental law and the European internal market; and the most recent normative developments in policy areas such as climate change and biodiversity.

Within the same time frame, the EIEL Module will also host its first keynote lecture, by Dr Maria Cristina Carta (University of Sassari). This keynote lecture will illustrate and discuss the legal aspects of the European Green Deal launched by the European Commission in December 2019.

Lo staff EIEL: potenziale sito in Val d’Orcia incompatibile con un Deposito Nazionale di Rifiuti Radioattivi

Lo staff EIEL si associa alle critiche che in questi giorni sono state rivolte all’inclusione di un sito della Val d’Orcia all’interno della Carta Nazionale di Aree Potenzialmente Idonee (CNAPI) ad ospitare un Deposito Nazionale di Rifiuti Radioattivi.

Lo scorso 5 Gennaio è stata resa pubblica la Carta Nazionale di 67 siti potenzialmente idonei ad ospitare un Deposito Nazionale di Rifiuti Radioattivi, elaborata alcuni anni fa dalla società statale Sogin come primo passo per la realizzazione di un sito unico di stoccaggio e messa in sicurezza. La creazione di tale deposito nazionale è stata richiesta a ciascuno Stato Membro dell’Unione Europea dalla direttiva 2011/70/Euratom, in modo da consentire la messa in sicurezza di diversi tipi di scorie radioattive che in Italia sono oggi ospitate in depositi temporanei o esportate all’estero.

La pubblicazione della CNAPI apre una lunga fase di consultazione pubblica, volta ad approfondire gli aspetti critici relativi alle varie aree ritenute potenzialmente idonee e ad arrivare ad una decisione definitiva entro il 2025. In tale contesto, desideriamo associarci alle critiche che in questi giorni sono state avanzate alla scelta di includere un sito della Val D’Orcia, ubicato tra i comuni di Pienza e Trequanda ed identificato con il codice SI-5, all’interno della suddetta lista.

In primo luogo, va sottolineato come la stessa relazione tecnica che accompagna la pubblicazione della CNAPI evidenzi gli ‘elementi naturali ad alta valenza ecologica’ che caratterizzano la località interessata, inclusa la presenza reale o potenziale di una ‘fauna di interesse conservazionistico’. Più nello specifico, viene segnalata la presenza di diverse specie protette dalle Direttive Habitat e Uccelli all’interno dell’area individuata, nonché la sua prossimità a quattro siti Natura 2000 ed una Important Bird Area (tutte situate in un raggio di 10 chilometri). In secondo luogo, riteniamo in ogni caso imprescindibile dare risalto al fatto che il sito scelto sarebbe perfettamente adiacente al territorio attualmente tutelato dalla World Heritage Convention dell’UNESCO come parte del World Heritage Site ‘Val d’Orcia’.

In conclusione, al di là degli specifici criteri di esclusione evidenziati nella relazione tecnica, appare pertanto evidente come l’eccezionale valore ambientale e culturale del territorio interessato renda incompatibile una sua eventuale designazione come sede del Deposito Nazionale. Auspichiamo pertanto che il processo decisionale tenga conto di questi elementi, e segnaliamo una delle petizioni al Ministro dell’Ambiente lanciate in merito su Change.org.

Dr Leonie Reins announced as next guest of EIEL Webinar Series

The academic staff of the Jean Monnet Module in European and International Environmental Law (EIEL) is pleased to announce its second EIEL webinar, which will take place on January 15, 2021 at 2pm Central European Time (14.00).

For this second session of the 2020/2021 EIEL Webinar Series, we will welcome Dr Leonie Reins, Assistant Professor at the Tilburg Institute for Law, Technology and Society (TILT), Tilburg University. Her online presentation will examine the interpretation of the “environmental guarantee” set in Article 193 of the Treaty on the Functioning of the European Union (TFEU) by the Court of Justice of the European Union (CJEU), and its potential for providing effective protection of the objectives of EU environmental policy.

In order to ensure a high level of environmental protection and the preservation, protection and improvement of quality of the environment, the “environmental guarantee” enables EU Member States to unilaterally maintain or introduce “more stringent protective measures” beyond environmental measures adopted at the EU level under Article 192 TFEU. However, her analysis of case law shows that the need to develop EU environmental law as a coherent body of law, which is preserved by the CJEU, implies that some constraints are put on the ability of EU Member States to act more protectively than EU environmental law through Article 193. This seems to align with the intention of the drafters of the environmental guarantee, as introduced by the European Single Act, but what are the implications for the achievement of the objectives of the Union environmental policy?

Dr Leonie Reins joined Tilburg Law School as an Assistant Professor at the Tilburg Institute for Law, Technology and Society (TILT). Prior to joining TILT, she worked as a PhD Candidate and then as a Post-Doctoral Researcher at KU Leuven (Belgium). Her research project on “the coherent regulation on energy and environment – using shale gas as a case study”, was financed by the Research Foundation Flanders (FWO). In addition Leonie worked as Legal Advisor at a Brussels-based environmental law and policy consultancy, where she was involved in projects relating to environmental, energy and climate change law and policy. Leonie holds and LL.M. in International, European and Comparative Energy and Environmental Law. She has been part of, and managed, several complex multi-country legal and policy studies for the European Institutions.

These projects dealt with a range of topics, such as the precautionary principle and risk management, unconventional gas and environmental claims. Leonie’s work has been published in leading journals, such as Environmental Liability and the Review of European, Comparative & International Environmental Law. Her 2017 monograph on the regulation of shale gas, Regulating shale gas: The challenge of coherent environmental and energy regulation, was published with Edward Elgar. In 2017, she co-authored the volume EU Environmental Law (Edward Elgar) with Prof Geert van Calster.

The webinar will be streamed below or at the following link: https://www.youtube.com/watch?v=rovL5nVWV0E.
The slides prepared by Dr Reins are available here: https://eieljeanmonnet.files.wordpress.com/2021/01/leonie-reins_-where-eagles-dare.pdf.

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.

Marjan Peeters to Join Inaugural EIEL Module Webinar

The academic staff of the Jean Monnet Module in European and International Environmental Law (EIEL) is pleased to announce its inaugural EIEL webinar, which will take place on October 30 at 2pm Central European Time (14.00).

For the first session, the EIEL module will welcome Prof Marjan Peeters, Professor of Environmental Policy and Law at Maastricht University and its Maastricht Centre for European Law (MCEL). Her online presentation will try to unpack the achievements and challenges facing the EU environmental legal order as the Union’s institutions seek to operationalise the European Green Deal. Prof Peeters will particularly delve into the concerns related to the compliance with, and enforcement of, EU environmental law, highlighting the important role of civil society and of the Court of Justice of the European Union. In addition, Prof Peeters will discuss the question of how to teach this complex and dynamic field at a time of critical policy developments, and points at the great possibility of using webinars for teaching purposes.

Prof Peeters holds her position at Maastricht University since April 2008. She started in 1987 with studying environmental law. Since then, she has been focusing on understanding how a high level of environmental protection can be effectively and efficiently reached based on the rule of law and in the context of sustainable development. Core research attention goes to legal aspects of climate change, regulatory instruments for emission reduction, and the way how law deals with uncertain risks. Prof Peeters has co-edited more than 6 books in the field of EU environmental and climate law, and she has supervised – and is still supervising – several PhD projects.

Her latest books are Climate Change Law (2016), co-edited with Daniel A Farber, and the Research Handbook on EU environmental law (2020), co-edited with Mariolina Eliantonio.

The webinar will be streamed below or at the following link: https://www.youtube.com/watch?v=U5vuoWjQFfM. At this link, it will be possible to download the slides used by Prof Peeters.

Announcing the New Jean Monnet Module in European and International Environmental Law (EIEL)

The academic staff of the Jean Monnet Module in ‘European and International Environmental Law‘ (EIEL) is excited to announce that the European Commission, through its Education, Audiovisual and Culture Executive Agency (EACEA), has awarded them with an Erasmus+ grant for Jean Monnet Activities, as part of its 2020 call for proposals.

The EIEL module is closely related to, and builds upon, the activities of the Jean Monnet Module in ‘European Union Law and Sustainable Development‘ (EULawSD), which was similarly hosted by the Department of Law of the University of Siena (Italy) and was implemented from 2017 to 2020. In particular, the new module aims to provide students, practitioners and civil society with in-depth knowledge about the state of the art of European and international environmental law and policy, its achievements and challenges, and its interaction with emerging environmental issues and landmark intergovernmental processes.

Two overarching themes will run through the module, informing the discussion of both cross-cutting and sectoral topics in all project activities. The first is the importance that will be attributed to the most pressing and/or emerging issues in European and international environmental law, with an emphasis on the Union’s approach to the two major planetary crisis of climate change and biodiversity loss and its role in the implementation of the relevant international legal instruments (i.e. the Paris Agreement, the Convention on Biological Diversity and its post-2020 framework). The second will be represented by a particular focus on implementation and enforcement at the level of the EU and its Member States, consistent with the outstanding needs outlined in the Commission’s latest Environmental Implementation Review (2019).

The EIEL module will be implemented for three years starting on September 1st, 2020. Module activities will consist of the following: (i) 50 hours of lectures, group discussions and seminars across four courses offered by the Department of Law; (ii) engagement of academics, practitioners and civil society through public keynote lectures, webinars and a final conference; and (iii) a dedicated website, social media pages, a newsletter and at least two publications which will facilitate the dissemination of the project’s research outputs.

Riccardo Pavoni and Dario Piselli, previously academic coordinator and programme manager of EULawSD, respectively, will retain their roles for the new module, while Sonia Carmignani will remain a key teaching staff member. The EIEL team will also include two new key teaching staff members who were not part of the EULawSD project, Professor Elisa Morgera and Gabriele Salvi. Elisa Morgera is widely recognised as one of the world’s foremost experts in the field of international environmental law. She is currently Professor of Global Environmental Law at the University of Strathclyde Glasgow and Co-Director of the Strathclyde Centre for Environmental Law and Governance. Gabriele Salvi is a Senior Researcher in Civil Law at the University of Siena, and brings a specific expertise in the private law aspects of European environmental law to the team.

Photo credits: contains modified Copernicus Sentinel data (2019), processed by European Space Agency, CC BY-SA 3.0 IGO.