On being appointed European Commission President in November 2014, Jean-Claude Juncker initiated a review into the potential for "merging" the EU's two 'nature directives' "into a more modern piece of legislation".
That kicked off a scrutiny process under the EU's 'Regulatory Fitness and Performance Programme' (REFIT), part of the drive to cut red tape under the 'Better Regulation' agenda.
Appointed to take charge of the review were First Vice-President Frans Timmermans, the Commissioner in charge of 'Better Regulation, and Environment Commissioner Karmenu Vella.
But the decision raised fears among nature-lovers cross Europe that the real purpose of the exercise was not so much to 'modernise' the nature directives, as to eviscerate them.
Amid the public outcry, more than half a million EU citizens responded to a Commission consultation on the review, a record number for any such consultation.
Consultants were appointed to carry out the review and they duly produced an advanced first draft on 4th January 2016. It was meant to be published in March, alongside a Commission 'working document' that would draw political conclusions from it, and in any event no later than the first week in June.
But the report itself and the political conclusion remain unpublished - to the embarrassment of the Dutch Presidency of the EU which was was forced to cancel an Amsterdam Conference on Future-Proof Nature scheduled for 28th to 30th June:
"Now that the Working Document will not be published before the end of June, the conference will have no substantive basis for discussions and will fail to add any substance to the debate at this moment. It is with regret that we are therefore forced to cancel the conference for now."
Now The Ecologist has received, via the specialist EU news agency Euractiv, a full 584-page copy of the report. And what it finds is astonishing: that the two nature laws, the Habitats & Species Directive and the Birds Directive, are entirely fit for purpose.
Here we publish in full the conclusions of the report (our emphasis shown by underling):
Are the Directives fit for purpose?
This evaluation concludes that the Nature Directives are fit for purpose. The majority of the evidence gathered across the five evaluation criteria shows that the legislation itself is appropriately designed and that, over time, implementation has improved, bringing important outcomes and impacts, as described below.
The Directives are effective where they are fully and properly implemented, and they are now making satisfactory progress towards their aims, particularly in the establishment of the Natura 2000 network (although more needs to be done in the marine environment). The Directives are especially effective in providing protection of sites within the network from developments and other damaging activities.
There are good reasons to expect more widespread improvements in conservation status when the Directives' measures are fully implemented. Although there has been limited progress towards improving the status of most European protected species and habitats, this needs to be considered in the context of the ongoing decline in natural / semi-natural habitats and wider biodiversity before the Directives came into force, the current stage of implementation of the legislation and the time needed for ecosystems and species populations to respond to conservation measures. Recent assessments suggest that many declines have been arrested during the lifetime of the Directives.
The Nature Directives are a cornerstone of EU biodiversity policy, as they make substantial contributions to the EU's biodiversity target and the implementation of the EU's Biodiversity Strategy. Natura 2000 sites, for example, are the backbone of EU Green infrastructure, an important strategic target for biodiversity.
There has been a substantial increase in the territory of land and marine protected areas in the EU, thanks to theestablishmentof Natura 2000 as a coherent network based on scientific information, the concept of FCS and a 'biogeographical regions' approach.
Implementation of the Directives represents an efficient use of resources, with the benefits of implementation exceeding their costs. While there are examples of disproportionate costs and unnecessary burdens, these can be reduced through more efficient implementation. Although there is little evidence to suggest that the Directives themselves create inefficient outcomes, examples suggest that efficiency could be improved by more cost-effective implementation, especially at national and regional level.
The Directives form a coherent legal framework and create important synergies with other EU policies, forming a key part of an environmental legislative framework, capable of ensuring that the impacts of economic and other activities are carried out in accordance with sustainable development principles and biodiversity goals. They also provide a framework for ensuring consideration of the impacts of development on protected habitats and species. This, in turn, encourages dialogue and cooperation between environmental, economic and other stakeholders, improving the likelihood of harmonious achievement of potentially contradictory objectives and priorities. At the same time, however, better integration of nature considerations into other EU policies is still required in some instances.
The Directives contribute towards ensuring a level playing field for nature protection standards across the EU, and provide economic operators with legal certainty. They also are vital in avoiding a 'race to the bottom' in environmental standards across the EU.
There is no evidence that any significant problems derive from the objectives of the Directives or their associated legislative provisions. Their interpretation by the CJEU and the Commission Guidance documents has safeguarded the coherence of the legislative framework. Although there are some reasons for updating the annexes (e.g. to improve the coverage of some threatened taxa and to take account of changes in the status of some species) it seems highly likely that this would be currently counter-productive, as it would retard implementation measures and lead to additional costs and burdens for national authorities, businesses and other stake-holders.
The Directives are relevant to EU citizens: While the online public consultation revealed many contrasting views, over 500,000 Europeans stated that the Directives are important for conserving nature. Furthermore, the Directives have contributed to increasing awareness of the value of nature conservation among the general public, as well as stakeholders.
The Directives' legal system is stronger than most national legal systems as their provisions are more precise and strict, establishing harmonised protection standards and a consistent and flexible approach to socio-economic considerations within and outside Natura 2000 sites. The species protection standards set up under the Directives have led to the control of illegal hunting practices and to the reversing of declines across a range of bird species, which would have been more difficult, if not impossible, to achieve by Member States acting independently.
The Directives have generated a fundamental change, with deeper stakeholder involvement in site management and development of conservation measures. While more systematic involvement is still needed in certain Member States and, in particular in relation to business and industry sectors, certain innovative and flexible initiatives have been developed that are effective in promoting more substantial involvement of private sector stakeholders in nature conservation practices outside Natura 2000.
The Directives' obligations and requirements have stimulated research and monitoring activities, generating a substantial increase in knowledge on habitats and species in most Member States. This was driven by the need to designate the Natura 2000 network and to ensure the FCS of habitats and species in the EU. Some inventories of Member States have been financed with EU funds. Despite this, knowledge gaps persist, leading to delays in designation, implementation problems and contributing to higher costs and burdens.
A major factor in the Directives being fit for purpose is the crucial role of enforcement of the requirements of the Birds and Habitats Directives by the Commission and the CJEU. EU enforcement has been instrumental in ensuring transposition and implementation of the Nature Directives, and stakeholders recognise that without pressure from the EU on the implementation of the Nature Directives, unsustainable management practices would most likely have prevailed.
Generally, the evidence shows that conflicts are most frequently due to practical implementation problems. Guidance documents issued by the Commission, Member States and others have improved practice and ensured greater consistency in implementation in some cases. However, more remains to be done to clarify issues and improve practices on the ground, in order to promote more robust and efficient implementation of the Directives across the EU.
So why the delay?
Conservation NGOs have suspected all along that the only purpose of the 'fitness test' applied to the directives was to brand them as unfit for purpose, an obstruction to growth, development and prosperity, and a luxury that Europe was unable to afford.
The plan would then be to either:
- replace them with deliberately weak and ineffective legislation;
- allow member states widespread 'derogations' from the directives, allowing them to do pretty much as they wanted in the interests of economic growth;
- or to 'devolve' the entire question of nature protection to member states, with no 'level playing field' across the EU.
The leaking of the report has effectively quashed those options, making it clear that the laws are working well, achieving their purposes, and preventing the kind of 'race to the bottom' that their deconstruction would entail.
As for the delay in publishing the report, there are two likely causes of the obstruction, both residing in the Commission itself:
- a rift between Commissioners running the process, with Environment Commissioner Karmenu Vella wishing to support the report and stand by its conclusion, and First Vice-President Frans Timmermans (backed by President Juncker) insisting on pursuing the all-important deregulation agenda;
- the Commissioners are united wishing to scrap the nature directives, but in conflict with civil servants who are refusing on grounds of professional integrity to write a 'political conclusions' report that directly and overtly contradicts all the findings of the 'fitness test' report.
Either way NGOs are getting increasingly upset and frustrated at the delay. "We urgently call on the Vice-President Timmermans to save the credibility of this Fitness Check and the whole agenda of 'better regulation'", Konstantin Kreiser, head of EU nature policy at NABU, a German NGO, told Euractiv.
"The final evaluation study of the Nature Directives must be published now, together with the political conclusions on keeping them. Otherwise a terrible image of the EU is painted for all those who care for the environment, including, by the way, millions of people who care for nature in the UK.
"The environment is a success story of the EU, and it must continue to be one."
The report: 'Evaluation Study to support the Fitness Check of the Birds and Habitats Directives Draft', Final Report 4 January 2016.
Oliver Tickell is Contributing Editor at The Ecologist.