Chapter VI
Towards EU Nature Restoration Law: a Boost for Biodiversity and Climate?
p. 113-140
Résumé
The Nature Restoration Law, which was proposed on 22 June 2022 by the European Commission, would require European Union Member States to revive forests, wetlands and other sea – and landscapes marred by human development. The proposal tabled includes legally binding restoration targets for various ecosystems across the EU, and offers a huge opportunity to put our degraded nature on the path toward recovery. Support for a strong and ambitious EU Nature Restoration Law from the Member States will be crucial to maintain the overall ambition level of the legislation. Recovering our degraded ecosystems, and above all those with the most potential for capturing and storing carbon, is key to achieving the EU’s climate and biodiversity goals, as well as its international commitments. The proposal adds a new level of legal strength to conservation and restoration efforts across Europe. Previous attempts to increase restoration have failed, both in the EU Biodiversity Strategy to 2020, and the global strategic plan for biodiversity to 2020. The overarching objective of the proposed law is to achieve continuous, long term and sustained recovery of biodiverse land and sea areas, and increase climate mitigation and adaptation through restoration. Nature-based solutions should be a cornerstone of these ongoing efforts. This chapter has identified: (i) the aim of the proposed law, (ii) legally binding targets for Member States, (iii) no ‘one-size-fits-all’ concept and consideration of the strengths and weaknesses of the proposed regulation.
Note de l’auteur
This study has been prepared as part of the scientific project carried out under the contract concluded with the National Science Centre in Kraków, Poland, on the basis of Agreement No UMO-2016/21/D/HS5/03841 (research project registration number 2016/21/D/HS5/03841).
Texte intégral
I. Introduction
1The European Green Deal contains an ambitious roadmap to ‘transform the EU into a fair and prosperous society, with a modern, resource-efficient and competitive economy where there are no net emissions of greenhouse gases in 2050, and where economic growth is decoupled from resource use.’1 This strategy – the Green Deal – updates the commitment of the Commission to address climate and environmental issues,2 including the restoration of Europe’s natural resources in the face of extinction.3
2Implementing the aforementioned plan in the area of nature conservation, the European Commission proposed on 22 June 2022 a new nature restoration law4 with binding targets on pollinators, wetlands, rivers, forests, marine ecosystems, urban areas, and peatlands. The new law aims to bring nature back across the continent for the benefit of biodiversity, climate, and the population. It could be a gamechanger if fully implemented. The legislative proposal for binding nature restoration targets presented by the European Commission can put the EU’s degraded ecosystems on the path toward recovery.
3The overarching objective of the law is to achieve continuous, long-term and sustained recovery of biodiverse land and sea areas, and increase climate mitigation and adaptation through restoration. Nature-based solutions should be the cornerstone of these ongoing efforts.
4The European Commission set an overarching target to restore 20 per cent of the EU’s land and sea area by 2030, and all ecosystems in need of restoration by 2050.5 Within this scope, 25,000 km of free-flowing rivers are to be restored, and a target set to reverse the decline of pollinator populations, both by 2030.6 The agricultural ecosystem restoration targets are also positive: increasing the share of high-diversity landscape features in agricultural land and soil organic carbon, as well as targets to increase the populations of grassland butterflies and farmland birds.7
5Chapter VII will discuss: (i) the need for the restoration of natural resources in Europe, (ii) the shortcomings of the current state of EU law on the protection of natural ecosystems, and finally (iii) the legal regime (objectives and legal instruments) for the restoration of natural ecosystems according to the Draft Regulation, with the strengths and weaknesses of the proposed regulation.
II. The Need to Restore Natural Resources in Europe
6Natural ecosystems worldwide, and especially on the European continent, are under threat. A recent report by the Intergovernmental Panel on Biodiversity and Ecosystem Services (IPBES) warns that ‘more species are threatened with extinction than at any time in history’.8 Within the EU, according to the European Environment Agency, 81 per cent of the natural areas included in the Natura 2000 network are in an unfavourable condition.9
7The degradation and disappearance of natural ecosystems in Europe has occurred in spite of the EU’s existing nature conservation laws. In the context of the above ‘failure’, the subject of criticism are the existing EU nature protection regulations (mainly the Habitats Directive and the Birds Directive). Indicated, on the one hand, are the shortcomings of the existing nature protection legislation, and on the other hand, the problem with the effective enforcement and application of existing legal instruments.10
8In the regulations of EU nature conservation law, the restoration of natural resources is only partially the responsibility of the Member States, according to the mandatory provisions (more on this below),11 but there are significant problems associated with the implementation of these obligations.12 There are both inadequacies in the existing regulations (e.g., lack of clear or binding targets and deadlines and definitions or criteria for the restoration or sustainable use of natural ecosystems),13 but also sizeable areas of natural resource restoration issues have not yet been regulated by EU law.14 These circumstances significantly impede the restoration and maintenance of natural ecosystems in Europe.15 Finally, the existing provisions of EU law do not require Member States to develop plans that are comprehensive and consistent with other environmental regulations or biodiversity restoration plans.16
9The European Green Deal explicitly formulated a commitment to the protection and restoration of nature, which equipped the European Commission directly with a mandate to prepare legal measures to ‘help Member States improve and restore damaged and carbon-rich ecosystems to a good ecological state’.17
10As part of the European Green Deal, the European Commission adopted the EU Biodiversity Strategy 2030.18 It points to two lines of action to protect and restore nature in the EU:
- first, improving and expanding the Natura 2000 network of protected areas, and
- second, developing an EU plan for the restoration of natural resources.19
11In pursuit of one of the above goals, in June 2022, the European Commission published a proposal for a Nature Restoration Regulation that complements existing schemes under nature conservation law, and introduces systems to restore biodiversity within the EU (hereinafter the ‘Draft Regulation’).
12The Commission’s proposal is based on the EU’s Biodiversity Strategy 2030, and also implements obligations under the international agenda under the Paris Agreement, the UN Convention on Biological Diversity,20 among others.
13The Draft Regulation complements existing regulations in the field of nature conservation, starting with the Birds and Habitats Directive, the Water Framework Directive, the Marine Strategy Framework Directive. The proposal also has other direct links to the EU Forest Strategy 2030, the Common Agricultural Policy, and the EU Pollinator Initiative, as well as EU climate law.21
14It stresses that the adoption of an EU ecosystem enclosure law is a response to the growing understanding that the current approach to ecosystem protection is insufficient.22 What is needed is, firstly, a greater integration of existing legal instruments to stop the negative trends in the state of the quality of natural ecosystems and the loss of biodiversity in the EU, and, secondly, the adoption of new legal solutions (a new legal instrument) covering the restoration of the natural resource in Europe. The latter element is to be implemented by the Draft Regulation.
15The Draft Regulation is intended to complement existing environmental protection systems. Therefore, it is necessary to ask the question to what extent have the previously identified problems within the framework of EU nature conservation law been effectively addressed, with a view to the restoration of natural ecosystems, in the Draft Regulation.
16Before analysing the basic legal instruments provided for in the Regulation, it is necessary to briefly outline the current instruments existing in EU law that can be used for ecosystem restoration.
III. Deficiencies of the Current State of EU Law on the Protection of Natural Ecosystems
A. The Natura 2000 Nature Network – the Habitats Directive and the Birds Directive
17The legal basis for the EU’s regime of legal protection of the Natura 2000 sites is Article 6 in conjunction with Article 7 of the Habitats Directive, which imposes on Member States ‘a series of obligations and specific procedures designed to guarantee […] the conservation or, where appropriate, the restoration, at a favourable state of conservation, of natural habitats and, in particular, of special areas of conservation’.23
18These obligations and procedures consist, first, in the obligation of Member States, established in Article 6(1) of the Habitats Directive, to take conservation measures including, ‘if need be, appropriate management plans specifically designed for the sites or integrated with other development plans’, and appropriate statutory, administrative or contractual measures corresponding to the ecological requirements of Annex I habitat types or Annex II species living on the sites.
19Second, the ‘general obligation of protection’ implied by Article 6(2) of the Directive, which includes the obligation to take appropriate measures to avoid the deterioration of habitats in special areas of conservation, as well as to avoid disturbance to species for which such areas have been designated24.
20Third, required by Article 6(3) of the Directive, a procedure for the appropriate assessment of a plan or project that is not directly related to or necessary for the development of the site, but which may significantly affect it, involving two stages, i.e. a preliminary assessment and a proper assessment.25 The obligation to conduct an assessment established in this provision is updated when a plan or project poses a risk (threat) to a protected area,26 and consent to the plan or project, under this provision, is possible only if the assessment demonstrates beyond any doubt that the plan or project does not adversely affect the integrity of the site in question.
21Fourth, the derogation provided for in Article 6(4) of the Directive, under certain conditions, allowing for the granting of approval for a plan or project despite the possibility of its adverse effects on the integrity of the site in question, which should be strictly interpreted27 and can only be applied after an appropriate Natura 2000 impact assessment.
22The system of protection provided for in Article 6 of the Habitats Directive serves to preserve, or, as the case may be, restore, at a favourable state of conservation, natural habitats and species of wild fauna and flora of interest to the European Union ‘in order to attain the directive’s more general objective, which is to ensure a high level of environmental protection as regards the sites protected pursuant to it’.28
23The Court of Justice has had numerous occasions to interpret the system of protection set forth in Article 6 of the Habitats Directive. The case law emphasises that Article 6(2) and (3) of the Habitats Directive ‘must be construed as a coherent whole in the light of the nature conservation objectives pursued by that directive’,29 ‘indeed Article 6(2) and Article 6(3) are designed to ensure the same level of protection of natural habitats and habitats of species’.30 The general obligation of protection (‘prohibition of deterioration’) established in Article 6(2) of the Directive ‘makes it possible to satisfy the fundamental objective of preserving and protecting the quality of the environment, including the protection of natural habitats and wild fauna and flora’.31
24The assessment procedure, established in Article 6(3) of the Habitats Directive, is to ensure, by means of prior examination, that permission for a plan or project that is not directly related to or necessary for the development of the site, but which may significantly affect it, is granted only if that plan or project will not adversely affect the site.32
25The material scope of the Natura 2000 impact assessment is defined broadly to include – unlike in Directive 2011/9233 or Directive 2001/42/EC34 – not only qualified plans or projects (likely to have a significant impact on the environment) due to their scale, location or extent, but any plan or project that is not directly related to or necessary for the development of the site, but which may significantly affect it, either separately or in combination with other plans or projects.
26The obligation to conduct an adequate assessment of a plan or project, updates in a situation of risk, the probability (possible impact) of violating the conservation objectives of the site (significant impact), both separately and in combination with other plans or projects.35
27To be applicable, the assessment must meet the criterion of comprehensiveness36 (the identification of all aspects of the plan or project that may separately or in combination with other plans and projects affect the conservation assumptions of the site,37 and taking into account the characteristics and specific environmental conditions of the site38), and must be carried out in accordance with the best scientific knowledge in the field.39 As a result of the assessment, a reasoned decision (either positive or negative) must be adopted.
28Finally, despite a negative assessment, the adoption of a plan or the approval of a project is not excluded; such a possibility exists exceptionally, in legally defined situations, and subject to the need to satisfy legally defined requirements regarding the absence of alternatives, the existence of an overriding public interest in the need for carry out the plan or project, as well as the obligation to take compensatory measures (Article 6(4) of Directive 92/43).
29In light of this system, the implementation of a plan or project falling within the scope of Article 6(3) of the Habitats Directive, without conducting an appropriate assessment, without obtaining assurance of the absence of adverse effects, or on the basis of a consent granted in violation of Article 6(4) of the Habitats Directive, constitutes a violation of Article 6(2), (3) or (4) of the Habitats Directive, respectively.40
30It may simultaneously constitute a violation of the provisions of the directives in question on species protection. Indeed, important instruments for achieving and implementing the objectives of the Habitats and Birds Directives are also the species protection obligations arising from the Habitats and Birds Directives (Articles 5–9 of the Birds Directive and Articles 12–16 of the Habitats Directive), which constitute a coherent system of norms requiring Member States to establish a protection system for certain species of flora and fauna. Species protection refers not only to direct impact on the species themselves, but also (in certain cases) on their breeding or resting areas, with no geographical restrictions,41 unlike in the case of the Natura 2000 sites. Species protection measures include the obligations of Member States to protect species universally or strictly, respectively, and to control the exploitation of specific species.
31The Habitats Directive is now more than thirty years old, and, with the passage of time, its shortcomings regarding the issue of ecosystem restoration have become apparent. J. Verschuuren and N. M. Hoek42 point to the shortcomings of the existing system of habitat protection, raising the following arguments:
- first, the lack of clear and precise standards in the Habitats Directive for restoring ecosystems containing references to historical data,
- second, the lack of standards for permissible levels of emissions of nitrogen, ammonia and other hazardous forms of substances to sensitive ecosystems, with the specification of monitoring methods,
- third, the lack of standards for adapting natural habitats to climate change, as well as for mitigating the effects of climate change by targeting the restoration of ecosystems to those that are strong absorbers of greenhouse gases,
- fourth, the lack of a clear term in the Habitats Directive to support its goals,
- fifth, the absence in the Habitats Directive of protection of wildlife values within natural habitats.
32Notwithstanding the above pertinent indications of the weaknesses of the Habitats Directive, it should be pointed out that the non-regression/standstill clause in Article 6(2) of the Habitats Directive, in the sense given to it by the jurisprudence of the Court of Justice, contains a legal obligation to take positive measures for the restoration of degraded Natura 2000 sites. As H. Schoukens43 aptly points out from Article 6(2) of the Habitats Directive, at least the following obligations exist for Member States to restore degraded ecosystems:
- first, the material scope of the obligation to avoid further degradation (for Member States ‘to take appropriate steps to avoid in […] special areas, the deterioration of natural habitats of species for which the special protection area was designated’) is broad and applies regardless of its source44 (this includes diffuse damage and pollution),
- second, in terms of the type and nature of obligations, the non-regression clause of Art. 6(2) of the Directive goes beyond the introduction of passive restoration measures only,45
- third, sometimes the non-regression clause of Article 6(2) of the Habitats Directive may require Member States to take active restoration measures, especially when this is necessary to halt progressive degradation.46
33The standstill clause contained in Art. 6(2) of the Habitats Directive in connection with the interpretation of the obligations of Member States arising therefrom may be the only one of the instruments (limited to the Natura 2000 network) supporting the enclosure of natural habitats,47 but not of a comprehensive and horizontal (universal) nature, as well as an instrument for achieving the objectives of restoration of natural ecosystems.
34Unlike the wording of Article 4(1) of the Water Framework Directive, which sets out the environmental objectives to be achieved for surface waters occurring in the EU, Article 6 of the Habitats Directive does not formulate such explicit objectives and deadlines for achieving them.48 H. Schoukens argues,49 referring to the Waser case50 (concerning the interpretation of Article 4(1) of the Water Framework Directive) that, since the Habitats Directive contains an obligation to improve degraded habitats, a threshold beyond which a violation of the obligation to prevent the deterioration of a Natura 2000 site is found, applying the same reasoning of the CJEU as in Waser case to the specific context of Natura 2000, it could therefore be argued that, as soon as a harmful activity violates one of the three criteria listed in the definition of favourable conservation status in Art. 1(e) of the Habitats Directive, this must amount to a violation of the standstill prohibition under Article 6(2) of the Habitats Directive.
B. The Damage Directive and the Obligation to Prevent and Remedy Environmental Damage (Directive 2004/35/EC51)
35Directive 2004/35 aims to establish a framework of environmental liability based on a high degree of environmental protection and the principles of precaution and ‘polluter pays’ to prevent and remedy environmental damage caused by economic operators.52 The environmental liability regime set by Directive 2004/35 is characterised by the following features:
- First, Directive 2004/35 does not have universal (horizontal)53 value in the sense that it does not establish a framework for liability in all situations in which environmental damage (its individual components) is caused (or risks being caused). According to Article 3, the Directive applies to: ‘environmental damage caused by any of the occupational activities listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities’; as well as ‘damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities, whenever the operator has been at fault or negligent.’54 Simultaneously, the concept of ‘environmental damage’ does not include all elements of the environment, but, as is clear from the definition in Article 2, is limited to damage to water, land surfaces, and protected species and natural habitats. This means that the material scope of damage within the meaning of Directive 2004/35 is not limited to the Natura 2000 network, and the definition of damage also includes all other areas where a species or habitat listed in one of the annexes to the EU Habitats or Birds Directive is present.55
- Second, the definition of ‘damage’ in the Directive is narrow in nature and includes the threshold criteria of ‘measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly’.56 Four essential elements can be distinguished in the structure of this definition: 1) measurability of the damage in relation to the initial status, determined by taking into account the criteria indicated in Annex I;57 2) the fact that it constitutes a change; 3) that this change is significantly negative for the achievement or maintenance of a favourable status (favourable conservation status in the case of habitats or species);58 and 4) it can manifest itself directly and indirectly. Only if the threshold criteria indicated above are exceeded, will it mean that we are dealing with environmental damage. In the case of species and natural habitats (according to Appendix I), adverse effects on the achievement or maintenance of a favourable conservation status are a long-term adverse effect on the status of a habitat type or species. Changes, in order to constitute harm, should exceed natural fluctuations or negative changes caused by natural factors and, moreover, should not be subject to regeneration in the short term and without intervention. This threshold has been set at a fairly high level.59 Damage identified in this way – as a measurable adverse change having a significant negative impact on achieving or maintaining favourable conservation status in species or habitats, requires reference-to-reference baseline data on the initial status of the habitat or species in question. This, in turn, means that the application of the liability mechanism established by the instant Directive 2004/35 will be predominantly derived from the quality and accuracy of information collected as part of monitoring the status of habitats and species in accordance with the requirements of the Habitats and Birds Directives.60
- Third, in order to assess the damage to protected species and habitats, the EU legislator created Annex I to the Directive. The criteria in this annex should refer to the initial state, i.e. the state before the damage occurred. These refer to measurable elements (number, area), and to measurable characteristics and abilities (reproduction, regeneration). The scope of application for certain types of damage is limited in Article 4(1), (2) and (4) of the Directive. In addition, the Directive, according to Article 4(6), does ‘not apply to activities the main purpose of which is to serve national defence or international security nor to activities the sole purpose of which is to protect from natural disasters’.
- Fourth, ‘not all forms of environmental damage can be remedied by means of the liability mechanism[established in Directive 2004/35 – MB]. For the latter to be effective, there need to be one or more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors’.61
- Fifth, in temporal terms, Directive 2004/35/EC does not apply to damage caused by an emission, event or accident occurring before 30 April, 2007;62 moreover, the Directive also provides for a type of statute of limitations – the liability regime provided for therein will not apply to damage caused by an emission, event or accident occurring more than 30 years ago.
- Sixth, the operator liable in the case of environmental damage is obliged to take, on the one hand, ‘all necessary steps to immediately control, reduce, remove or otherwise control the relevant pollution and/or any other harmful factors in order to limit the damage to the environment or prevent further damage and adverse effects on human health or further impairment of the utility,’ and, on the other hand, ‘necessary remedial measures’.63 What is meant by ‘remedial measures’64 is ‘an action or series of actions, including mitigation or interim measures taken to restore, rehabilitate or replace the damaged natural resources and/or their impaired utility, or to provide an equivalent alternative to those resources or utilities’ indicated in Annex II. Remedial measures include ‘primary’, ‘supplementary’ and ‘compensatory’ measures, with priority given to the former. They should realise the idea of restitution to the original state (initial conditions or similar – restitutio ad integrum) – this is the purpose of the basic remedies.65 The others (complementary and compensatory remedies66) are geared towards the realisation of the compensatory purpose.67 Complementary remediation measures are concerned with ensuring a similar level of natural resources and/or their utility that would have been provided had the affected site been restored to its original conditions, including, where appropriate, at an alternative site. Compensatory measures, on the other hand, include additional improvements to the conditions of protected natural habitats and species at the damaged or alternative site. Complementary measures are taken when natural resources and/or their utility – where the damage takes place – do not return to initial conditions, complementary remedial measures will be taken, and compensatory measures, if the initial remedial measures (and complementary remedial measures, if required) take some time to repair the damage to nature, then compensatory remedial measures should be implemented to take into account the losses incurred over time (interim losses).
36Within the context of compensatory measures as remedies under Directives 2004/35, it is also necessary to point out the compensatory measures provided for by Article 6(4) of the Habitats Directive for plans or projects significantly affecting Natura 2000 sites. The compensatory measures required by Article 6(4) of the Habitats Directive are ex ante measures, which are justified by the fact that the plan or project is to be implemented despite the negative assessment of the effects on the Natura 2000 site in question.68 The measures implemented are intended to offset the negative effects (of the plan or project), and the provision of compensation is at least equivalent to the negative effects of the plan or project on the species or habitat concerned.69
37Insofar, complementary measures as remedial measures under the Damages Directive are of a different nature.70 This is because they are taken ex post, if the primary remedial measures do not result in the full restoration of the damaged natural resources and/or services to their baseline condition. The purpose of complementary remedies is to provide a similar level of natural resources and/or services that would have been provided had the damaged site been restored to its baseline (before the damage occurred). Despite the indicated dissimilarities of compensatory measures taken on the grounds of the Habitats Directive, their experience can be used on the grounds of compensatory remedies as a way of the grounds of Directive 2004/35 of remedying environmental damage.71
38In the context of the analysed issue of restoration of damaged natural ecosystems, the instrument under Directive 2004/35 is limited in nature.72 In order for the remedies provided for by the Damage Directive to be implemented, the prerequisites, described above, for attributing responsibility for damage to habitats or species to a specific entity must be met. This, in turn, means that, if the prerequisites for liability under Directive 2004/35 are not met, the remedies provided for therein will not apply. In the case of damage to elements of the environment, other than those covered by the definition of damage from the directive in question, as well as diffuse damage, the liability regime provided by Directive 2004/35 does not apply.
39In this sense of the liability mechanism provided for by the Directive, damage is reactive (as it relates to damage to habitats or species that has already occurred and bears the characteristics of a significantly negative, measurable change – ‘defined and quantified’) and derivative (it’s a consequence of the liability of the operator – attributable to one or more ‘identified polluters’).73
C. Water Framework Directive (Directive 2000/60/EC74) and Marine Strategy Framework Directive (Directive 2008/56/EC75)
40Within the context of the obligations of Member States to restore habitats and species in aquatic and marine ecosystems, both the Water Framework Directive and the Marine Strategy Framework Directive formulate more detailed requirements compared to the Habitats Directive.76
41The primary objective of Directive 2000/60, according to Article 1(a), is ’to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which prevents further deterioration and protects and enhances the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems.77 In effect, the end goal of Directive 2000/60 is to achieve, through coordinated action, the ‘good status’ of all surface waters in the Union by 2015.78 The environmental objectives – the achievement of which is expected to lead to the realisation of the Directive’s goals – are specified in Article 4(1) of Directive 2000/6.79
42The environmental objectives that Member States are required to achieve are clarified in Article 4(1) of Directive 2000/60/EC. The Court of Justice in the Waser case, interpreting this provision, pointed out that it ‘provides [for] two different objectives, although in essence inseparable from one another’:80
- firstly, the obligation to prevent deterioration of water status (according to Article 4(1)(a)(i) and (1)(b)(i) Member States shall implement the necessary measures to prevent the deterioration of the status of all surface water bodies),
- secondly, the obligation to improve the status of water bodies (according to Article 4 (1) (a) (ii) and (iii) and (b) (ii), Member States shall protect, improve and restore all surface water bodies with the aim of achieving good surface water status by 2015 at the latest).81
43The environmental objectives indicated above are common to surface water (subject to modification of objectives for artificial and heavily modified waters) and groundwater.82
44The interpretation of Article 4 (1) of the Water Framework Directive – which indicates, as two equal objectives complementary to one another, both the obligation to improve and the obligation to prevent deterioration in the status of water bodies, is justified by the need to ensure the implementation of the qualitative objectives of the Directive (i.e.: protection and restoration of the good status, good ecological potential and good chemical status of surface waters83), as it avoids the risk that ‘a body of water classified under a category higher than “good status” could be degraded precisely to “good status”’.84
45In order to ensure that the environmental objectives formulated in Article 4 (1) of the Directive are realised by the Member States, the various provisions of Directive 2000/60/EC (especially Articles 3, 5, 8, 11 and 13 and Annex V and VI) by their construction (content), as well as the obligations imposed on the Member States in the form of specifically defined stages, are intended to enable them to implement the necessary measures adequate to the specific characteristics and nature of the waters found in their respective territories,85 including the restoration of certain habitats (Article 11 (3) and Annex VI Part B).
46Of the two possible directions of interpretation of the provisions of Directive 2000/60/EC,86 the first is the minimalist approach,87 which would treat the directive merely as an instrument for large-scale water planning, and the second, the maximalist approach, which detaches the Water Framework Directive from the level of planning, and sees it as an instrument for the implementation of binding environmental objectives, which is expressed in the adoption of specific measures to guarantee good water status and avoid deterioration in its status,88 the Court of Justice in Case C-461/13 Waser favoured the latter (maximalist) approach. Confirmation of such lines of interpretation of the provisions of Directive 2000/60 is the judgment of the Court of Justice where, from the phrase ‘Member States shall implement the necessary measures to prevent deterioration in the status of all bodies of surface water’, it follows:
- firstly, that the adoption of such measures by those states is mandatory, and
- secondly, moreover, that the authorisation of a specific project is to be viewed ‘as such implementation’ within the meaning of the provision of Article 4(1) of the Directive.89
47The above interpretation of Article 4(1) of Directive 2000/60/EC – granting to this provision the value of normativity (obligation of result) and not merely a programmatic character in terms of water management planning objectives – leads to a conclusion, ‘at each stage of the procedure assigned by the Directive’,90 of outlining the binding character of the obligations of the Member States (first and foremost: the prohibition of deterioration and the obligation to improve the status of waters), as soon as the ecological status (class) of a given type of water is established.91 The above conclusion is further supported by recital 25 of Directive 2000/60/EC, according to which environmental objectives should be set in order to ensure the achievement of good status of surface and groundwater throughout the European Union, as well as to prevent deterioration at the Union level.
48As for the environmental objectives referred to in Article 4 of Directive 2000/60/EC, as the Court emphasised in Nomarchiaki, ’protect, enhance and restore all bodies of surface water… with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7, without prejudice to paragraph 8’.92 The above – in view of the commonality of objectives and the content of the subsequent paragraphs of Article 4 of Directive 2000/60/EC – should also be applied to groundwater.
49For marine ecosystems, on the other hand, the Marine Strategy Framework Directive forms a framework, within which Member States shall take the necessary measures to achieve or maintain good ecological status of the marine environment by 2020 at the latest (Article 2(1)). Their implementation is carried out by developing and implementing a marine strategy to:
- protect and preserve the marine environment, prevent its degradation or, when feasible, restore marine ecosystems in areas where they have been adversely affected, and
- prevent and progressively eliminate pollution of the marine environment, so as to preclude significant impacts on or the significant threat to marine biological diversity, marine ecosystems, human health and legitimate uses of the sea (Article 2(2)).
50Each Member State shall develop, for each relevant marine region or subregion, a marine strategy for its marine waters in accordance with an action plan (Article 5(1)). It follows from Article 5(2) of Directive 2008/56 that ‘Member States sharing a marine region or subregion shall cooperate to ensure that, within each marine region or subregion, the measures required to achieve the objectives of this Directive, in particular the different elements of the marine strategies […], are coherent and coordinated across the marine region or subregion concerned, in accordance with […] plan of action for which Member States concerned endeavour to follow a common approach’. In addition, according to Article 5(2)(a)(i) – (iii) of that Directive, each Member State should develop, no later than by 15 July 2012, an initial assessment of the current environmental status of the waters concerned and the impacts on them resulting from human activities, and secondly, establish good environmental status for the waters concerned, and thirdly, set a series of environmental objectives and related indicators.93
51Member States, as explained in recital 34 of Directive 2008/56, should update marine strategies regularly, which is justified by ‘the dynamic nature of marine ecosystems and their natural variability, and given that the pressures and impacts on them may vary with the evolvement of different patterns of human activity and the impact of climate change’.
IV. Legal Regime (Objectives and Legal Instruments) for Restoration of Natural Ecosystems According to the Draft Regulation
52The overarching goal of the legal regime for the restoration of natural ecosystems is to contribute to the continuous, long-term and sustainable restoration of biodiverse and resilient nature in the Union’s terrestrial and marine areas through ecosystem restoration.
53To ensure its implementation, Member States will introduce restoration measures to cover a total of at least 20 per cent of the Union’s land and marine areas by 2030, and by 2050 – all ecosystems in need of restoration.94 This is also to fulfil the EU’s international obligations. The draft Regulation assumes that the restoration of natural resources will make a significant contribution to the EU’s goals for climate change mitigation and adaptation, disaster prevention, and mitigation.95
54The Draft Regulation for the realisation of its goal use, in the first instance, lists habitat types protected under the Habitats Directive, for which methods are already in place to determine whether their condition is good. In turn, this makes it possible to set targets for the restoration of such habitats.96 For habitat types or ecosystems not covered by the Habitats Directive, what constitutes their good condition has not yet been defined.97
55The Draft Regulation sets targets for the restoration of terrestrial, coastal and freshwater ecosystems, as well as marine ecosystems (which include other marine areas in addition to those covered by the Habitats Directive).98 These concern not only the conservation, restoration and sustainable use of areas, as well as restoration of habitats, but also protection and the obligation to ensure that the condition of ecosystems does not deteriorate (from the existing status) before or after their restoration.
56An interesting element of the Draft Regulation are the goals and obligations regarding:
- restoration of urban ecosystems in terms of increasing urban green spaces and tree stands,99
- restoration of the natural connectivity of rivers and natural functions of associated flood plains in terms of removing barriers to the longitudinal and lateral connectivity of surface waters,100
- restoration of pollinator insect populations in terms of reversing the trend of the decline in pollinator insect populations, and subsequently achieving and maintaining an upward trend in pollinator insect numbers,101
- restoration of agricultural ecosystems in terms of increasing the biodiversity of these ecosystems,102
- restoration of forest ecosystems in terms of increasing the biodiversity of these ecosystems.103
57The restoration goals and obligations set forth in Articles 6–10 of the Draft Regulation are in addition to those set forth in Articles 4 and 5, so they will also affect areas occupied by habitat types protected under the Habitats Directive.
58The primary instrument for achieving the Draft Regulation’s ecosystem restoration goals are to be national restoration plans.104 The Draft Regulation, based on the experience of regulations in other spheres of environmental protection, binds the realisation of long-term goals through the basing and implementation of relevant restoration plans for natural ecosystems.
59Articles 11 and 12 of the Draft Regulation detail the requirements for Member States regarding the elements that should be included in the national restoration plans. Member States will be required to draft restoration plans within 24 months of the entry into force of the Draft Regulation.105 An interesting solution providing an opportunity to ensure the adequate (substantive) quality of national reconstruction plans is the obligation to submit their drafts to the European Commission for evaluation. The Draft Regulation formulates substantive criteria, which the Commission should be guided by when evaluating draft reconstruction programmes. This concerns both the completeness of the elements of the programmes required by the Draft Regulation, the adequacy for achieving the individual restoration goals of each type of ecosystem, as well as the achievement of the overarching goal.106 If, in connection with the draft restoration plan submitted by a Member State, the Commission formulates comments on its content, the State should duly take into account any of the Commission’s comments in the national restoration plans finally adopted.107 The Draft Regulation, in addition to providing a maximum timeframe for Member States to develop draft reconstruction plans, also sets a maximum timeframe, both for the Commission’s evaluation of the draft plan and also for Member States to adopt their final content.108
60The Draft Regulation stipulates the necessity for Member States to review their national restoration plans at least once every ten years, in order to take into account progress in their implementation, the best available scientific evidence, and the available knowledge on the occurring or expected changes in environmental conditions due to climate change.109 If, based on the monitoring of the state of natural habitats, it turns out that the measures set forth in the national restoration plan are insufficient to meet the goals and obligations of the Draft Regulation, Member States should make applicable amendments and updates to the national restoration plan, also adding complementary measures to its content.110 Finally, an update may be made to the national reconstruction plan as a result of a request from the Commission if it finds, based on information from the import of countries and monitoring of their posters, that the progress made by the Member State is insufficient to meet the objectives and obligations of the Draft Regulation.111 Then the Member State must, within six months of the date of receipt of the Commission’s request, adopt an updated draft national reconstruction plan with complementary measures.112
61The Draft Regulation, modelled on an analogous provision113 in Directive 2011/92 on environmental impact assessment, provides for access to justice (regardless of the role played by members of the public in the process of preparing and establishing the national reconstruction plan), for members of the public (appeal procedures) to challenge the substantive or procedural legality of national reconstruction plans, and any failure to act on the part of the competent national authorities.114 This is a precursor to this, since, until now, EU law, in the case of planning documents (as this is the nature of national restoration programmes) has not formulated so broadly, for members of the public, in accordance with national law, the requirement to ensure access to a review procedure before a court of law. Such a requirement for access to appeal procedures with respect to plans is not provided for, e.g., by Directive 2001/42/EC or Directive 2000/60/EC.
62It is stipulated (as in Directive 2011/92) that any non-governmental organisation promoting environmental protection and meeting the criteria of national law shall be deemed to have rights that may be affected, and their interest shall be deemed sufficient in terms of access to justice.115 Appeals procedures, to which members of the public should be given access, should be impartial, based on the principle of equality, timely, and free of charge, or non-discriminatory in terms of cost, and provide for adequate and effective remedies, including injunctions where appropriate.116
63In view of the above-mentioned gaps and inadequacies of the current legal status in the field of nature restoration, as well as violations by Member States of their obligations to ensure the proper condition of natural habitats, the question arises whether the Draft Regulation has the possibility of changing this status.
64The Draft Regulation is intended to supplement and remove any shortcomings of existing EU regulations in the field of nature protection. This is confirmed by those solutions contained in the Draft Regulation, which:
- refer to obligations related to the restoration, as well as improvement of the state in order to achieve good status (which extends far beyond the maintenance of proper conservation status – as results from today’s obligations under the Habitats Directive);
- introduce obligations for Member States concerning restoration, which are not limited to the habitats and species that make up the Natura 2000 network, but extend far beyond them when they also apply to urban ecosystems, the restoration of the natural connectivity of rivers and natural functions of associated flood plains, pollinating insects, and agricultural and forest ecosystems;
- introduce obligations on Member States to improve connectivity between natural habitats,117
- introduce clear timeframes, both intermediate deadlines (such as 2030 and 2040) and 2050, as the maximum deadline for the restoration of all degraded ecosystems in Europe, to achieve the goals of restoring natural habitats;118
- formulate requirements for reference to historical data (historical baselines) in national restoration plans, as a reference criterion for establishing the proper state of natural ecosystems119 – a historical approach in nature conservation practice;
- introduce clarified standards for data collection and research for monitoring status and trends, with regard to relevant ecosystems;120
- introduce solutions positively protecting the value of wildlife and landscape (a place devoid of the effects and impact of human activity), for example, in terms of removing barriers to surface water;121
- take into account the need to improve connectivity between natural habitat types;
- explicitly link the restoration of natural ecosystems with climate protection and mitigation,122 as well as adaptation to climate change.123
65The Draft Ordinance breaks with the previous sectoral approach to nature conservation in favour of a holistic concept. Objectives in the form of a perimeter of natural ecosystems are to be implemented on the basis of national restoration plans, requiring constant cyclical reviews. The Commission is authorised to adopt delegated acts to amend the annexes of the regulation.124
66The draft also envisages the gradual restoration of ecosystems, establishing in a sense a prioritisation (sequencing of restoration measures) among the targets, as restoration measures needed to restore areas of habitat types to good condition by 2030 must be in place for at least 30 per cent of the areas of each group of habitat types that are not in good condition, by 2040, with respect to at least 60 per cent of these areas, and by 2050, with respect to at least 90 per cent of these areas. With its scope, the Draft Regulation reaches beyond the Natura 2000 network – and the most notable examples of this are urban and agricultural ecosystems.125
V. Conclusions
67The Commission’s proposal is a huge milestone; it is the first major piece of EU biodiversity legislation since the Habitats Directive in 1992. The proposal adds a new level of legal strength to conservation and restoration efforts across Europe. Previous attempts to increase restoration have failed, both in the EU Biodiversity Strategy to 2020, and the global strategic plan for biodiversity to 2022.126
68It represents the result of a review of the suitability of the current nature conservation legislation to achieve EU goals for restoring and preventing further degradation of natural ecosystems in Europe.
69Importantly, the Draft Regulation aims to improve and restore a wider range of habitat types beyond the Natura 2000 network, and includes specific standards for cities and agricultural ecosystems, which are generally not covered by nature conservation law. This is due to a holistic approach to biodiversity restoration.
70Finally, the Draft Regulation further improves the status quo with regard to climate change adaptation and mitigation, habitat connectivity, monitoring and reporting requirements, while setting specific targets for species and habitats most at risk in the short term, such as pollinators and farmland birds. And, moreover, it formulates specific obligations, relating in terms of the state of ecosystems from historical data, and introducing specific deadlines for tasks concerning the restoration of natural ecosystems.
71The Draft Regulation grows out of the philosophy that existing contemporary threats to the natural ecosystem should not be treated as inevitable judgements of destiny. Identifying these threats should be, first and foremost, an impetus to challenge and confront problems through actions that are vital to the wellbeing and future of the entire planet. It is worthwhile for Member States to keep in mind, in this context, the message contained in the World Conservation Strategy announced in 1980: ‘We did not inherit the earth from our parents, but borrowed it from our children’.127
Notes de bas de page
1 Commission, ‘The European Green Deal’ (Communication) COM(2019) 640 final, point 1.
2 See: Sources: i) Intergovernmental Panel on Climate Change (IPCC): Special Report on the Effects of 1.5°C Global Warming; (ii) Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Functioning: Global Assessment Report 2019 on Biodiversity and Ecosystem Services; (iii) International Resource Panel: Global Resources Outlook 2019: Natural Resources for the Future We Want; (iv) European Environment Agency: The European Environment – State and Outlook 2020 in the Context of the Transition to a Sustainable Europe.
3 Commission, ‘The European Green Deal’ (n 1 above), point 2.1.7; H. Schoukens, ‘Legal considerations in operationalizing eco-restoration in the European Union. A Sisyphean task or unlocking existing potential?’ in A. Akhatar-Khavari and B. J. Richardson (eds), Ecological restoration law. Concepts and case studies (New York, Routledge, 2019) 167 et seq and literature therein.
5 Commission, ‘Proposal for a regulation on nature restoration’ (Draft Regulation) COM(2022) 304 final, Art. 1(2).
6 Ibid., Art. 7(1).
7 Ibid., Art. 8 and 9.
8 See: IPBES, ‘Global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services’ E. S. Brondizio, J. Settele, S. Díaz and H. T. Ngo (eds) (Bonn IPBES secretariat, 2019): www.doi.org/10.5281/zenodo.3831673.
9 European Environmental Agency, Conservation Status of Habitats, EEA (25 June 2022): www.eea.europa.eu/ims/conservation-status-of-habitats-under. Most of the habitats and species that already had an unfavourable conservation status maintain that condition, and some have deteriorated even further. Moreover, across the broader landscape, the progressive deterioration of valuable nature has not been halted. The sheer failure of Member States to meet their obligation to establish national restoration regulations, and the many examples of inadequate management of Natura 2000 sites over past decades, indicate that no improvement in this area is expected anytime soon, unless there is a change in the legal status, and the imposition of clear and enforceable obligations on Member States in this regard. S. Leemans, ‘Preventing paper parks: How to make the EU Nature Laws work’, WWF UK (2017): https://wwfeu.awsassets.panda.org/downloads/wwf_preventing_paper_parks_full_report.pdf; J. Cortina-Segarra et al., ‘Biodiversity: Speed restoration of EU ecosystems’ (2016) 535 Nature: https://doi.org/10.1038/535231d; H. Schoukens ‘Non-Regression Clauses in Times of Ecological Restoration Law: Article 6(2) of the EU Habitats Directive as an unusual ally to restore Natura 2000?’ (2017) 1 Utrecht Law Review, 152–54; see also the European Commission calls on Poland to take the necessary measures to protect and manage its Natura 2000 networks: https://ec.europa.eu/commission/presscorner/detail/pl/inf_21_2743.
10 See eg: N. Hoek, ‘Have the problems been solved? A Critical Analysis of the Proposed EU Regulation on Nature Restoration: Have the Problems Been Resolved?’ (2022) 5 European Energy and Environmental Law Review 320–24.
11 These include, in particular: Birds Directive (Directive 2009/147/EC), Habitats Directive (Directive 92/43/EEC), Water Framework Directive (Directive 2000/60/EC), and Marine Strategy Framework Directive (Directive 2008/56/EC).
12 These problems are exacerbated by the fact that there are implementation gaps preventing the achievement of the goals set out in the current legislation – see the assessment of the adequacy of EU nature conservation legislation (SWD(2016) 472) and the assessment of the adequacy of EU water legislation (SWD(2019) 439). See also below, Section 3; see also European Green Deal, point 2.2.1; N. Hoek, ibid., 320–24.
13 Commission, ‘The European Green Deal’ (n 1 above), Section 2.2.1.
14 Commission, ‘EU Biodiversity Strategy for 2030, “Bringing nature back into our lives”’ (Communication) COM(2020) 380 final, point 2.2.1.
15 See: Commission staff working document fitness check of the EU Nature Legislation (Birds and Habitats Directives) (SWD(2016) 472) and Commission staff working document fitness check of the Water Framework Directive, Groundwater Directive, Environmental Quality Standards Directive and Floods Directive (SWD(2019) 439).
16 Commission, ‘The European Green Deal’ (n 1 above), point 2.1.
17 Ibid., point 2.1.7.
18 Commission ‘EU Biodiversity Strategy for 2030’ (n 14 above).
19 Ibid., point 2.
20 Convention on Biological Diversity [1993] OJ L309/1.
21 Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (European Climate Law) [2021] OJ L243/1.
22 See eg: Commission, ‘The European Green Deal’ (n 1 above), point 2.2.1; N. Hoek, ‘Have the problems been solved?’ (n 10 above) 320–24.
23 See: M. Baran and B. Iwańska, ‘Judicial review of the requirement to integrate the Natura 2000 sites protection system in a sustainable forest economy (illustrated with the example of the Białowieża Forest Management Plan)’ (2019) 4 European Energy and Environmental Law Review 112–14.
24 Case C-258/11, Sweetman, ECLI:EU:C:2013:220, para 36.
25 Ibid, para 28–35.
26 Case C-2/10, Azienda Agro-Zootecnica, ECLI:EU:C:2011:502, para 42.
27 Case C-399/14, Grüne Liga Sachsen, ECLI:EU:C:2016:10, para 73 and case-law cited therein.
28 Case C-441/17, Commission v Poland (Białowieża Forest), ECLI:EU:C:2018:255, para 106.
29 Case C-258/11, Sweetman, para 32.
30 Case C-399/14, Grüne Liga Sachsen (n 27 above), para 52 and C-258/11 Sweetman, (n 24 above) para 32.
31 Case C-226/08, Stadt Papenburg v Bundesrepublik Deutschland, ECLI:EU:C:2010:10, para 49.
32 Case C-182/10, Solvay, para 66 and C-441/17, Commission v Poland (Białowieża Forest), (n 28 above) para 108 and case law cited therein.
33 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2012] OJ L26/1.
34 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30.
35 Case C-127/02, Waddenzee, ECLI:EU:C:2004:482, paras 39–49.
36 Case C-441/17, Commission v Poland (Białowieża Forest), (n 28 above) paras 113–14.
37 Case C-127/02, Waddenzee (n 35 above), paras 53–54.
38 Ibid., para 54 and case C-258/11 Sweetman, (n 24 above), para 30.
39 Ibid.
40 Case C-304/05, Commission v Italian Republic, ECLI:EU:C:2007:532, para 95.
41 See the Guidance document on the strict protection of animal species of Community interest under the Habitats Directive: www.eur-lex.europa.eu/legal-content/EN/TXT/?uri=PI_COM:C(2021)7301, 12.
42 N. Hoek, ‘Have the problems been solved?’ 321–24.
43 H. Schoukens, ‘Non-Regression Clauses’ (n 9 above) 152–54.
44 Case C-117/00, Commission v Ireland, ECLI:EU:C:2002:366, para 33; case C-418/04, Commission v Ireland, ECLI:EU:C:2007:780, para 208.
45 H. Schoukens, ‘Non-Regression Clauses’ (n 9 above) 130 et seq and the literature and case law therein.
46 Ibid.
47 Ibid., 152–53.
48 Case C-461/13, Bund für Umwelt und Naturschutz Deutschland, ECLI :EU:C:2015:433, para 67–68; see: D. Salm, ‘The Case for Smart Governance in European Water Law’ in B. Vanheusden and L. Squitani (eds), EU Environmental and Planning Law Aspects of Large-Scale Project (Cambridge-Antwerp-Portland, Intersentia, 2016) 215–35.
49 H. Schoukens, ‘Non-Regression Clauses’ (n 9 above) 142.
50 CoJ in case C-461/13 indicated that ‘the notion of “deterioration in the status”’ of a body of surface water, as referred to in Article 4(1)(a)(i) of Directive 2000/60, is to be interpreted as meaning that deterioration occurs as soon as at least one of the quality elements within the meaning of Annex V to the Directive is downgraded by one class, even if that deterioration is not expressed in an overall change in the classification of the body of surface water. However, if a given quality element within the meaning of that annex is already in the lowest class, any deterioration of that element constitutes a ‘deterioration in the status’ of a surface water body within the meaning of Article 4(1)(a)(i).’
51 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56.
52 Case C‑297/19, Naturschutzbund Deutschland, ECLI:EU:C:2020:533, para 31; Case C‑129/16, Túrkevei Tejtermelő Kft., EU:C:2017:547, paras 47, 53 and case law cited therein.
53 See J. Thornton and S. Beckwith, Environmental Law (2nd edn, London, Sweet & Maxwell, 2004) 91.
54 The definition of ‘environmental damage’ is given by Article 2(1) of Directive 2004/35/EC. On the relationship between Directive 2004/35 and Directive 2000/60, see: M. Baran ‘The Concept of Environmental Damage According to Directive 2004/35 and the Derogation Under Article 4(7) of Directive 2000/60: How to Effectively Remedy Water Damage’ in M. Boeve, S. Akerboom, C. Backes and M. van Rijswick (eds), Environmental Law for Transitions to Sustainability (Cambridge-Antwerpia-Chicago, Intersentia, 2021) 281–97.
55 Art. 2(3) of Directive 2004/35/EC; cf. G. M. van den Broek ‘Environmental liability and nature protection areas. Will the EU Environmental Liability Directive actually lead to the restoration of damaged natural resources?’ (2009) 1 Utrecht Law Review 130.
56 Art. 2(2) of Directive 2004/35/EC.
57 Understood as the ability to identify the replacement, allowing a comparison of two states of affairs, see: B. Rakoczy, Odpowiedzialność za szkodę w środowisku (Toruń, Wydawnictwo TNOiK Dom Organizatora, 2010) 33.
58 The literature points out the lack of precision and a certain discretion inherent in this concept: see: J. Chrapkiewicz-Zienkiewicz ‘Odpowiedzialność za środowisko’ (2005) 3 Prawo i Środowisko 87–88; M. M. Kenig-Witkowska, Prawo środowiska Unii Europejskiej. Zagadnienia systemowe (Warszawa, Wolters Kluwer Polska, 2011) 204.
59 G. M. van den Broek ‘Environmental liability’ (n 55 above) 130.
60 Ibid.
61 Recital 13 of Directive 2004/35/EC; see Art. 4(5) and Art. 11(2) of Directive 2004/35/EC.
62 Art. 17 in conjunction with Art. 19 of Directive 2004/35/EC.
63 Art. 6(1)(a) and (b) of Directive 2004/35/EC.
64 Art. 2(11) of Directive 2004/35/EC.
65 Point 1.1.1 of Annex II of Directive 2004/35/EC WE.
66 Point 1.1.2. and 1.1.3. of Annex II of Directive 2004/35/EC.
67 See: M. Gimpel-Hinteregger, Environmental Liability and ecological damage in European law (Oxford, Cambridge – New York, Cambridge University Press, 2008) 18; B. Rakoczy, Odpowiedzialność za szkodę (n 57 above) 129.
68 See: European Commission, ‘Guidance document on Article 6(4) of the Habitats Directive 92/43/EEC’, January 2007 10–11; G. M. van den Broek ‘Environmental liability’ (n 55 above) 129.
69 Ibid.
70 Ibid.; see also: REMEDE, Deliverable No 5: Legal Analysis, 30 November 2006, 17–22 (document is available at http://www.envliability.eu/).
71 Ibid.
72 G. M. van den Broek, ‘Environmental liability’ (n 55 above) 129–30.
73 See: H. Schoukens, ‘Legal considerations (n 3 above) 179.
74 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (2000) OJ L327/1.
75 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) [2008] OJ L164/19.
76 H. Schoukens, ‘Legal considerations’ (n 3 above) 179.
77 See: case C-461/13, (n 48 above) paras 35–39.
78 Ibid., para 37.
79 Ibid., para 38.
80 Ibid., para 38.
81 Ibid., para 39.
82 Case C-535/18, Il v Land Nordrhein-Westfalen, ECLI:EU:C:2020:391, para 90.
83 Case C-461/13, Bund für Umwelt und Naturschutz Deutschland, (n 48 above), para 41.
84 Ibid., para 40.
85 Ibid., para 42.
86 The two possible lines of interpretation of the provisions of Directive 2000/60 indicated above are pointed out by Advocate General N. Jääskinen in his opinion in the case C-461/13 Bund für Umwelt und Naturschutz Deutschland, ECLI:EU:C:2014:2324, paras 4–5.
87 The concept proposed by Advocate General N. Jääskinen in his opinion in case C-461/13 Bund für Umwelt und Naturschutz Deutschland, para 4.
88 Ibid.
89 Case C-461/13, Bund für Umwelt und Naturschutz Deutschland, ECLI:EU:C:2015:433, paras 31, 32, 35.
90 Ibid., para 43.
91 Ibid.
92 Case C-43/10, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others v Ypourgos Perivallontos and Others, ECLI:EU:C:2012:560, para 61.
93 Case C-510/20, Commission v Republic of Bulgaria, ECLI:EU:C:2022:324, paras 35–38.
94 Art. 1(2) of the Draft Regulation (n 5 above).
95 Ibid., Art. 1(1).
96 Ibid., Art. 4 and 5.
97 Ibid., Art. 6–10.
98 Ibid., Art. 5.
99 Ibid., Art. 6.
100 Ibid., Art. 7.
101 Ibid., Art. 8.
102 Ibid., Art. 9.
103 Ibid., Art. 10.
104 Ibid., Art. 11 and 12.
105 Ibid., Art. 13.
106 Ibid., Art. 14(2).
107 Ibid., Art. 14(5).
108 Ibid., Art. 14(1) and (6).
109 Ibid., Art. 15(1).
110 Ibid., Art. 15(2).
111 Ibid., Art. 15(3).
112 Ibid., Art. 15(3)(2).
113 See: Art. 11 of Directive 2011/92/UE (n 32 above).
114 Art. 16(1) of the Draft Regulation (n 5 above).
115 Ibid., Art. 16(2) sentence 2.
116 Ibid., Art. 16(3).
117 It is about restoring the natural connectivity of rivers and floodplains (Art. 7), and Art. 10 specifically refers to forest connectivity.
118 See: N. Hoek, ‘Have the problems been solved?’ (n 10 above) 331.
119 Art. 11(2) of the Draft Regulation (n 5 above).
120 Ibid., Art. 4–10.
121 Ibid., Art. 7(3); see also: N. Hoek ‘Have the problems been solved?’ (n 10 above) 329.
122 Art. 12 of the Draft Regulation for national restoration plans requires that they also take into account climate change; and the provisions of the Draft Regulation on urban ecosystems (Art. 6) provides standards for adaptation to climate change in cities, as legally binding targets for tree cover, with potential climate change mitigation benefits.
123 On the negative side, Member States may deviate from the specific goals of the Draft Regulation if habitat conversion due to climate change is unavoidable, see Recital 35; Arts 4(8) and (9) and arts 5(8) and (9). This can be used, as N. Hoek writes, by Member States as a way to ‘escape’ from restoration obligations in the event of climate change damage (N. Hoek, ‘Have the problems been solved?’ (n 10 above) 329).
124 Art. 19 of the Draft Regulation (n 5 above).
125 N. Hoek, ‘Have the problems been solved?’ (n 10 above) 331.
126 www.cbd.int/doc/strategic-plan/2011-2020/Aichi-Targets-EN.pdf; see: Strategic Plan for Biodiversity 2011–2020 includes Aichi Biodiversity Targets.
127 https://portals.iucn.org/library/efiles/documents/wcs-004.pdf; these are the words spoken by Antoine de Saint-Exupéry.
Auteur
PhD, Assistant Professor, Jagiellonian University, Cracow, Poland
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