1

Danish Forest and Nature Agency
Division for Sea and Habitats /

Den 31 March 2003

J.nr. SN 2001-802/42-0007

Ref. LAR

Draft minutes of the 4th meeting 11 March 2003 of the Article 12 Working Group

Present: Delegates from 9 MS (AT, BE, DE, DK, FI, FR, NL, SE, UK), European Habitats Forum (EHF), Forum Natura 2000 and representatives from the European Commission, DG-Env., representatives from several enlargement countries participated as observers.

  1. Adoption of draft minutes of the last meeting

FI, has in a comment to the draft minutes, issue no 5 on the species profiles exercise, suggested a categorisation of the species involved. This suggestion will be integrated in the minutes.

The European Commission has by email of 27 January 2003 sent comments to the draft minutes, especially on issue no 6 “Natural range”. As suggested by the Commission these comments will be written directly in the minutes as reservations on the conclusions.

NL wished it clearly reflected in the minutes from the meeting that the coming “Interpretation Guide on Article 12” will be published under the sole responsibility of the European Commission, and not the WG. DG Env. clearly stated that differences of opinion are likely to occur and that it is expected that WG participants may not agree with every single word in the future guidance document of which the Commission will be the author and will therefore take its responsibility. It also was recalled that a final interpretation of the directives' provisions rests with the Court.

Generally it was agreed that the minutes in case of disagreements should reflect the different views on the issues discussed.

The revised minutes from the 3rd meeting, reflecting the abovementioned comments, are enclosed.

  1. Adoption of the draft agenda

It was agreed to finish the discussion on “Natural range” as issue no 3 before taking the broader discussion on the EC-paper on the strict protection system.

  1. Discussion of the revised paper on “Natural range”

There was general support from the WG to the parts of the paper, which deals with the definition of “natural range” (the first 1½ page).

DK and FR noted that natural range for migratory species should not include areas that are purely crossed over or overflown without actual use. DG Env. explained that this part of the definition is based on the principles established in the Bonn Convention and makes sense in ecological terms (eg. resting places on migration).

It was agreed to include the following text (bold) in the 3rd sentence of the 2nd paragraph under the chapter “definition”:

“…When a species spreads naturally to a new area/territory or when a reintroduction consistent with the procedures of the Habitats Directive has taken place of a species into its former natural range…”

On request of the Chairman about the reference date of 1994, DG Env. explained its view that the date of when the directive came into force in 1994 can be seen as a reference point if the dynamic character of "natural range" is accepted as described in the Commission paper ie. that the spreading of a species is increasing its natural range and that if man induced reductions of the natural range has contributed to an unfavourable conservation status (before or after 1994) restoration of natural range needs to be considered by Member States according to art.22, and in the context of the overall objectives of the Directive..

Further AT suggested that the specific examples on species should be chosen out carefully, concentrating on species only on Annex IV, in order to give as clear a picture of the provisions as possible.

No conclusions were taken on the parts of the paper, which deal with the restoration of natural range by reintroduction, based on Article 22 of the Habitats Directive. It was agreed that a more thorough discussion of the implications of Article 22 naturally can be included in the work of the WG when having finished the broader discussion of the provisions of Article 12/16.

Given the need for members of the WG to make internal consultations before approving the definitions of natural range as reflected in the paper, it was agreed that final comments to the paper should be sent by email to Angelika Rubin, DG-ENV, not later than 15th April 2003. Please note that only comments to the definition of natural range are needed within this deadline.

  1. Presentation of Legal Considerations on Article 12 by DG-ENV, followed by a discussion

A paper was distributed before the meeting. The paper was presented by Stephanos Ampatzis and Nicholas Hanley, DG-Env. DG-Env. informed the WG that the paper was based on the advice of the Commission central Legal Services (LS), and that DG-Env. would scrutinise if the LS advice without breaching the Commission rules on publication of internal papers could be distributed to the WG.

As the key subject of the following discussion could be predicted to be to what extend the provisions include proactive measures in relation to Annex IV-species, Nick Hanley emphasised the following 3 conclusions on what MS in the DG-Env. interpretation are expected to include in a proactive management:

1)Establish a knowledge of where the protected species actually are (eg. inventories) in order to ensure a protection of the species, see also art.11 of the directive.

2)Avoid deterioration and destruction of breeding and resting sites: this might in a specific cases (species-by-species approach) lead to the need for active management (eg. where species depends on semi-natural habitats, example pasture and butterfly). The Articles 12/16 must be interpreted based on Article 2.2. The latter Article does not include autonomous legal provisions but constitutes a framework within which the MS have to work actively to achieve favourable conservation status for Annex II-species as well as for Annex IV-species, especially for species at an unfavourable conservation status which are not falling under other provisions of the directive.

3)For species which are only listed on Annex IV Article 12 is the only instrument to achieve the objective of the Directive, therefore such an active approach is even more important for them.

Referring to the opinion of the Advocate General and several parts of the Court judgement in the Caretta caretta-case (C-103/00), DG-Env. emphasised that the concept of a strict protection system “consists in a set of coherent and co-ordinated measures, preventive in nature, aimed at maintaining the species in the long term or restoring its population in the type of natural habitat to which it belongs and which must be large enough for the species under consideration.”

AT, DE, DK, FR, SE, FI and UK took the floor and expressed their concerns regarding this very broad interpretation, especially regarding the obligations to take proactive action in relation to Annex IV species. The general views were that it is necessary to differ between the objectives (Art. 2.2.) and the obligations (Art. 12/16), and that therefore the restoration of a favourable conservation status cannot be an obligation. MS were missing the flexible approach advocated for by the nature directors. It is difficult to see that this interpretation recognises the difference between the regimes of Article 6 (Natura 2000 sites) and of Article 12/16, as the strict protection system in DG-Env. concept is very similar to the conservation system set up under Article 6. It was suggested that for species, which needs more than prohibitive measures in achieving favourable conservation status, the directive gives the possibility to amend the annexes, including transfer of species from Annex IV to Annex II.

DG-Env. stated that, according to an established case law, all interpretation of Community legislation should take into account the aims of that legislation. It was stressed that the “strict protection” measures are intended to relate to actions that directly threaten the species and the defined elements of their habitats, consistent with Article 12. Besides, the types of measures to be taken should be decided according to the particular circumstances of each situation and taking account of the specificity of each species.

Furthermore, FI, DE and the Natura 2000 Forum stated that in a strictly legal context it is not acceptable to use an opinion of the Advocate General as a basic legal argument in an interpretation, in cases where the ECJ has not consolidated the AG’s opinion. DG-ENV pointed out that the Court had adopted the approach proposed by the Commission and by the Advocate General and accepted to take into account the arguments of the MS when further examining the comments to the paper.

NL supported together with the EHF-representative the DG-ENV interpretation that the objectives of the directive are clearly linked with the specific provisions of the directive, including Article 12, and that flexibility lies in a species-by-species approach. NL suggested that it would be helpful to have a more elaborate paper on the differences and similarities of the systems under art.6 and 12. SE asked for more examples and practical advice to be included in the Commission paper.

Concerning the definition of “deterioration” in relation to Article 12 1 d), several MS referred to differences in the different language translations of the directive. In several languages (German, Danish and Dutch), the word “deterioration” is translated with a word, that best can be translated as “damage”, which indicates that prohibitive measures are to be taken against active deteriorating actions, and not gradual deterioration as suggested by DG-Env. As the DG-Env. interpretation of “deterioration” is based on the interpretation of “deterioration” in Article 6.2, several MS pointed out that Article 6.2 obliges the MS to “avoid deterioration”, whereas Article 12, 1 d, obliges MS to establish a strict protection system, “prohibiting deterioration”, which indicates different legal implications.

DG-Env. is investigating the consequences of the different translations of the term “deterioration”, as all language versions of the directive in principle are valid.

Concerning the derogation regime of Article 16, DG-Env. has the opinion that, given the wording of the Directive and the restrictive case law of the Court on derogations, the possibilities for granting derogations are constrained, especially in the case of species at an unfavourable conservation status. This interpretation was challenged by several MS, which found that it should be possible to give derogations, which not would influence the actual status of conservation. MS expressed their surprise that the paper on derogation prepared by the UK and accepted by the WG, was not more clearly reflected in the Commission paper (however the Commission paper on p.26 clearly states in a box that it needs to be developed further based on the paper of UK). Bilateral contacts between UK and DG Env. on this were agreed. It was also suggested by NL that this topic should be discussed based on concrete examples.

The Commission concluded that it will await written comments from the members of the WG. It was agreed that written comments should be sent to DG-ENV, Angelika Rubin, not later than 4th May 2003. As there afterwards would be a need for further consultations with the LS, a revised paper could not realistically be prepared until after summer holiday.

The Commission had sent out a document suggesting a draft structure for the Commission interpretation guide on Article 12. No detailed discussions were taken on this document, but it was agreed to use the draft structure as a checklist for the future work of the WG.

5)Next steps

Due to the necessary process on the DG-Env. paper on the strict protection system, and with the progress in the species profiles exercise, next meeting will be focused on the more ecological aspects of the species profiles, based on a presentation by Ian Hepburn.

A meeting in autumn (preferably back-to-back to the Habitats Committee meeting) will focus on a follow-up on the discussion of the strict protection system, a flexible approach in derogations and reintroduction of species.

6) Any other business

Ian Hepburn gave a short presentation of the status of the species profiles exercise.

DG-Env. has not been granted financial support to pay the travel costs of the members of the different WGs in 2003. Due to the limitations this could cause for the participation of the WGs members and to the overlap between representatives of the different committees under the nature protection directives and the WGs, it is the intention to arrange WG meetings back-to-back to committee meetings.

7) Next meeting

Next meeting is suggested to be held on 25 June 2003, on the day before the coming Ornis Committee meeting.