Italy fails to protect wildlife
A designated area designed to give extra protection to rare birds and wildlife has not been properly protected itself, according to the European courts.
Commission v Italy
An Opinion of the Advocate General indicates that Italy has failed in its obligations under Article 4(4) of the Birds Directive and Article 6(2) of the Habitats Directive.
The case concerned the special protection area (SPA) Valloni e steppe pedegarganiche in the Apulia region of Italy, which comprises one of the main steppe areas in Italy. It is also the only station on the Italian peninsula of one Annex I species, and is a habitat for a further six species of Annex I Birds. It was classified as an SPA by Italy in 1998.
In relation to Article 4(4), the Commission sought a declaration that Italy had failed in its obligations by failing to take steps to avoid pollution or deterioration of habitats, in so far as the regional agreement, which authorised the various industrial and property development projects in the SPA, and the projects outlined therein were likely to have an impact on the habitats and species in the SPA, and had in fact brought about a deterioration of habitats and resulted in serious disturbances affecting the birds inhabiting the area.
The Advocate General noted that while Member States had a margin of discretion in relation to the choice of SPAs, classification was also subject to ornithological criteria, such as the presence of birds listed on Annex I of the Birds Directive.
He also noted that the ECJ has held that IBA Catalogue 89 can, due to its acknowledged scientific value, be used by the Court as a basis for reference when assessing the extent to which the Member State has complied with its obligation to classify SPAs.
He stated that it was therefore clear that before classifying the area as an SPA in 1998, Italy was under an obligation to classify it as an SPA, and as such was obliged to take appropriate steps to avoid pollution or deterioration of habitats and disturbances to species. He was therefore of the opinion that until it designated the area as an SPA, Italy failed in its obligations under Article 4(4).
In relation to Article 6(2), the Commission sought a declaration that Italy had not taken appropriate steps to avoid the deterioration of natural habitats and the habitats of species and the disturbance of the species in the SPA arising from the projects in the regional agreement that had already been completed.
The Advocate General indicated that Article 7 of the Habitats Directive provided that Articles 6(2) – (4) of the Habitats Directive replaced the obligations under Article 4(4) of the Birds Directive where an area was classified as an SPA.
This meant that after the classification of the area in 1998, the Articles of the Habitats Directive applied. As a result of the deterioration and continuing negative effects of the projects on the habitats in the area, Italy had failed in its obligations under Article 6(2) of the Habitats Directive.
In relation to Article 6(3) of the Habitats Directive, the Commission sought a declaration that Italy had not conducted an ex ante assessment of the projects in the regional agreement that had been completed and were likely to have a significant effect on the SPA.
In relation to Article 6(4) of the Habitats Directive, the Commission sought a declaration that Italy had not applied the procedure which allowed a project to be carried out for imperative reasons of overriding public interest, in spite of negative assessments of the implications for the site and the lack of alternative solutions. It also sought a declaration that Italy had not communicated to the Commission all compensatory measures necessary to ensure the overall coherence of Natura 2000 was protected.
The Advocate General referred to the Basses Corbières case, which stated that Articles 6(2) – (4) of the Habitats Directive only applied when an area had been classified as an SPA. He pointed to the fact that when the area in question was classified as an SPA work on various projects had already started, and that therefore Articles 6(3) and (4) of the Habitats Directive did not apply at the point at which an ex ante assessment would have been pertinent.
The Advocate General did not consider that the provisions could be applied retrospectively, and as such there was no breach on Italy’s part in respect of the projects that had already been both planned and implemented.
However, if and to the extent that there were further projects or further stages of the same global project that could be distinguished from earlier stages without artificiality, then these would be subject to the Article 6(3) obligation, and could also potentially benefit from the provisions of Article 6(4) on overriding public interest. Due to the presentation of the information, however, it was not possible to confidently carry out such an analysis.
The text of the case is available at the following link.