Judgement issued by CJEU on case C-444/21 EU Commission v Ireland

The Court of Justice of the European Union has issued its judgement in the case of C-444/21 EU Commission v Ireland - 2021/03933, known as the Measures Case.

The case concerns the implementation of the Habitats Directive, transposed in Ireland via S.I. No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011. The Directive requires Ireland to identify a network of sites (Natura 2000 sites) where important or endangered animal or plant species, or certain rare or vulnerable habitat types are present to a degree that is significant at a European level.

Minister of State for Heritage and Electoral Reform, Malcolm Noonan, said:

Director General of the National Parks and Wildlife Service, Niall O Donnchu, said:

The judgement can be accessed online.

What the Measures Case is about

The Habitats Directive , transposed in Ireland via S.I. No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011, requires Ireland to identify a network of sites (Natura 2000 sites) where important or endangered animal or plant species, or certain rare or vulnerable habitat types are present to a degree that is significant at a European level.

Once identified, there are four principal requirements under the Directive in relation to these sites:

a) To designate the sites formally and in a legally binding way for protection

b) To identify site-specific conservation objectives (SSCOs) for each site, having regard to the threats and pressures on the various species or habitat types on the site

c) To identify precise and specific conservation measures for each site, in order to deliver on the objectives

d) To implement the measures identified in (c) above

The current infringement application alleges that Ireland has not satisfactorily completed any of the above steps in respect of 423 Natura sites (Special Areas of Conservation) in its territory.

It is important to note that the allegations in the case relate to the position in Ireland in January 2019, and do not take account of actions we have taken since.

Progress we have made in addressing the matters raised in the case

In respect of designations, as of today more than 92% (406) of the sites have completed the full, formal designation process by statutory instrument, with the remainder progressing rapidly and on-schedule to be completed before the end of this year.

This has been a huge body of work by the NPWS, and it is in addition to managing the designation process for new sites (for example Ireland designated almost three million hectares in the offshore for reef, in recent months, as well as extending two important marine SPA sites at the Murrough and the Bull and Cow Rocks. The NPWS is managing a significant number of urgent priorities in this regard simultaneously.

In respect of site-specific conservation objectives (SSCOs), the case alleges an absence of these at 217 sites. As of today, SSCOs have been formally identified and published in respect of all 423 sites in the case. It is worth noting that across Member States, Ireland is to the fore in meeting this obligation, and indeed a recent Commission publication highlighted that less than half of the 27,000 Natura sites in Europe have these objectives in place.

In respect of the identification and implementation of site-specific conservation measures, the position is more complex. The case alleges that Ireland does not have the necessary conservation measures in place at any of the 423 sites. However, there are Activities Requiring Consent and/or Notifiable Actions in place for every site.

There is no doubt, that there is a need for better and more comprehensive measures to meet the objectives at many of our Natura sites. But to say there are no measures at all is not accurate, this would disregard the huge work done all across the country by not only the National Parks and Wildlife Service, but our colleagues in the Department of Agriculture, the EPA, Coillte, Bord na Móna, NGOs and community and civil society groups, and all those who work in our SAC network to protect nature.

With the restructuring of the NPWS, a new functional structure has been in place for some 12 months now, including a dedicated Nature Conservation Directorate, which in responsible for creating and managing a new Conservation Measures programme for Natura sites. This programme was established in 2022 and rolled out across some 26 sites. The number of sites covered is expected to increase by 50% in 2023, and the programme will grow and expand rapidly, greatly assisted by the additional resources provided by Government to implement the three-year Strategic Action Plan for the NPWS, approved by Government in May 2022.

What Conservation Measures are

The Commission has a guidance document on identifying meaningful conservation measures. Working from this guidance and from practice in this area generally, conservation measures can be:

• legal (statutory)
• contractual, or
• administrative

While appreciating that there’s a degree of overlap and sometimes the same measure might fit into more than one of the above categories, it can be useful to think of them in broad terms (bearing in mind that these are not legal definitions) as follows:

• legal or statutory measures - protections set down in law whereby if you behave in a certain way on a site (or affecting one) legal action may be taken against you
• contractual measures - agreements between parties about behaviours or activities affecting the site, especially those that have some kind of legal force (so, for example where one party could be pursued by the other for a breach)
• administrative measures - the broadest category and relate to things done under administrative powers

So these include things like:

• programmes
• physical work carried out on the ground
• formal procedures
• policies
• inspections
• training and education programmes
• handbooks and guidance
• networks for information or knowledge sharing and exchange
• permits (including where there are consequences or sanctions for breaching the parameters of the permit)
• licences and permissions (including where these can be refused or withdrawn as a sanction)
• inspections
• local government plans (especially spatial or development plans – are our sites in those?)
• standards and codes
• controls on activities affecting the site (including ability to shut down an activity)
• subsidies
• compensation

Chronology: Why we are in this position

There are a number of reasons. Ireland has traditionally not approached its conservation measures on a site-by-site basis, despite the requirements of the Directive. It is clear that there are significant and appropriate conservation measures operating on many of the 423 sites in question, for a substantial number of Annex I and II habitats and species at those sites. However, there may not be full coverage of all qualifying interests at many of the sites.

Like many member states, Ireland has struggled with the challenge of providing clear, tailored information available to the Commission on a site-by-site basis as to the extent of those conservation measures, especially in a coherent form that is tied to site identity across many hundreds of sites in private ownership. In reality, Ireland has tended to work and furnish information about measures on a programme basis, and on a habitats and species basis, rather than on a site by site basis.

The case at hand has undoubtedly arisen in some part because of a struggle on Ireland’s part historically to record comprehensive information about the work on these sites across the constellation of bodies with responsibilities for their management and protection, and to communicate that position coherently. This is a considerable information-management challenge, as well as an ICT challenge.

However, there are a large number of programmes and initiatives, not least the hugely successful LIFE projects and the Farm Plan schemes for example, as well as many, many species or habitat-specific programmes like the Raised Bog restoration programme, or the Lesser Horseshoe Bat programme and so forth, that clearly constitute measures at Natura sites.

Ireland’s Natura Network

The Irish Natura Network includes 165 Special Protection Areas (under the Birds Directive) and 441 Special Areas of Conservation (under the Habitats Directive) forming an overall network of 606 sites, covering approximately 13% of the land mass of the country. 423 of these sites, all Special Areas of Conservation, were in scope for this case.

Ireland differs significantly from the majority of its European neighbours in terms of the proportion of Natura sites that are composed of privately owned land, and in terms of the very high numbers of private landowners (who enjoy strong legal protections in terms of property rights) on these sites. For example, in respect of the five most recent sites to be formally designated by statutory instrument, more than ten thousand private landowners were notified.

Context and historic operating environment

Protection of Natura 2000 sites in Ireland is led and overseen by the National Parks and Wildlife Service. The global financial crisis of 2008-2014 resulted in an almost complete collapse in funding for NPWS and consequently a serious impingement on its work to protect nature. Funding was reduced by some 80%. Recovery in resources has been gradual, with the 2020 budget still languishing at around 30% of 2008 levels. However, the picture in recent years is much more hopeful, with a the appointment of a Minister of State for Heritage and the government’s dedicated Action Plan for the NPWS which has seen significant budgetary improvements and a clear commitment to increases in staffing, albeit from a low base, and against a backdrop of the recruitment and retention challenges which apply across the board in the ecology sector generally.

Ireland faces particular challenges in managing its Natura sites, and is undoubtedly among a small group of outliers in terms of the proportion of land within its Natura sites that is owned by private landowners, and the extent to which that land is farmed. This is markedly different to countries that have large tracts of land in national ownership, much of which is untouched by human influence and is truly wild. Ireland effectively has no land that is truly wild in the sense that it has never come under human influence.

Across the EU there are clear challenges in integrating nature conservation priorities into sectoral policies, including in areas of policy which are hugely significant in terms of their impact, such as agriculture, land use, water, renewable energy and forestry. Many of the pressures affecting Natura 2000 sites arise from socio-economic drivers across the entire EU region. Increasing competition, the need to move to renewable energy, intensification of agriculture, water management, growing transport needs and investment in the energy and data processing sectors are all creating a degree of pressure on ecosystems.

From a nature conservation perspective, the current work by the Commission to ensure that incentives and policy positions in all sectors support rather than undermine objectives on Nature, Biodiversity and Climate Action, is welcome. This type of EU-level coherence, and where available, guidance, can be a very significant support to national efforts, especially in Ireland where such a high proportion of its Natura network is farmed land.