The Influence of European Union Law on the Conservation of Estonian Biological Diversity - the Case of Natura 2000 Areas

Author:Hannes Veinla
Position:Docent of Environmental Law, University of Tartu

1. Introduction to the subject - 2. The main principles of European Union nature conservation law: Member States as keepers of the common European nature heritage - 3. Formation of the nature conservation network Natura 2000 in Estonia - 4. Ensuring protective measures for Natura sites: Critical analysis of Estonian law - 4.1. What is a plan or project in the meaning of Article 6 (3) of the... (see full summary)

1. Introduction to the subject

Section 5 of the Constitution of the Republic of Estonia 1 provides: "The natural wealth and resources of Estonia are national riches which shall be used economically." The riches of Estonian nature are indeed remarkable. A variety of valuable and unique aspects of Estonian biodiversity are worth mentioning. The diversity of Estonian flora and fauna when compared to that of other territories north of the latitude 57° N is among the greatest in the world. This is due to climate conditions and climatic diversity in Estonia that are related to the country's geographic position, the fact that there are both islands and mainland territory in Estonia, the abundance of sea and inland waters, and the versatility of soil conditions. Plant colonies can be found in Estonia with the largest small-scale diversity of species in the world. There are plant colonies in Eastern Estonian wooded meadowland that have been in use for a long time; that are still thriving; and where, for instance, the number of tracheophytes amounts to 74 species per square metre. 2 The general diversity of landscape is great in Estonia as well. These riches must be cherished.

Nature conservation is one of the priorities of European Union environmental policy. It has now been five years already since Estonia joined the EU. Analysis of Estonian legal practice, especially administrative practice, often seems to indicate that we have not joined the European Union yet, as only Estonian law is known and implemented, even when it is in direct contradiction with Community law. European Union law has affected different areas of law differently. Environmental law is undoubtedly one area where the influence of European Union law can be felt at every step, although conflicts between Estonian law and European Union law are not uncommon. A good example is the so-called Suurupi logging case in the Tallinn Administrative Court 3 , where Estonian law could not find a reason to prohibit logging, whereas the decision for a ban was quite obvious under European Union law, as the case concerned an area of valuable natural habitats to be conserved, not logged. The court pointed out that the same. Natura 2000 network areas taken under protection pursuant to the European Union nature conservation directives are often a collision ground for nature conservation with economic and related social interests. Such conflicts are not uncommon also in other European Union Member States and have been brought also before the European Court of Justice.

The analysis that follows is largely based on European Court of Justice case law. The European Court of Justice has demonstrated its dedication to nature conservation and regularly given priority to nature conservation considerations. The European Court of Justice called for radical implementation of the precautionary principle in several cases analysed below. At the same time, an infantile understanding prevails in Estonia that economic concerns always outweigh environmental values. Even the Supreme Court found, in the so-called Paluküla sacred grove case, that nature conservation does not prevail at Natura sites but that the need to ensure sustainable development does. 4 The objective of this article is to consider which instructions the European Court of Justice's case law provides to the Member States for resolving the conflict of economic and environmental interests at Natura sites. There are plenty of legal problems with Natura sites; therefore, the primary aim of this article is to determine whether Estonian law provides sufficient protection to Natura sites - i.e., protection in the meaning of the European Court of Justice's interpretations. Attention is paid primarily to the selection of Natura sites and the so-called Natura assessment. The article begins with an examination of the principles of EU nature conservation law.

2. The main principles of European Union nature conservation law: Member States as keepers of the common European nature heritage

The Supreme Court has touched on the relationship between Estonian law and EU law in the Paluküla sacred grove case, noting that in that particular case there were no grounds for the direct application of European Union law, as Estonian law provides sufficient protection to the pre-selected Natura 2000 Kõnnumaa landscape protection site in accordance with European Union law. This article does not address the direct legal effect of the EU nature conservation directive's provisions. It does underscore, though, that interpretation of the Natura network protective measures derives from EU law. 5

The two pillars of EU nature conservation law are Council Directive 79/409/EEC, on the conservation of wild birds 6 (hereinafter 'the Bird Directive'), and Council Directive 92/43/EEC, on the conservation of natural habitats and of wild flora and fauna 7 (hereinafter 'the Habitats Directive').

Harmonisation of bird protection measures via the adoption of the Bird Directive is a good example of the application of the principle of subsidiarity. Birds know no 'state borders'; therefore, national protective measures cannot be sufficient. The Bird Directive compels all Member States to maintain the population of all species of naturally occurring birds at a level that corresponds in particular to ecological, scientific, and cultural requirements, while taking account of economic and recreational requirements. For that the Member States have to establish protected areas and maintain or re-establish habitats for the bird species. Thus, a situation arises wherein the aim of protection of natural resources requires the regulation of certain areas and evaluation of how the environmental impact of various types of activities affects protection of birds and conservation of their natural habitats. 8

The Habitats Directive is regarded as the most important legal instrument for nature conservation in the EU. The aim of the Habitats Directive is to ensure the protection of biodiversity in the territory of the Member States through the conservation of natural habitats and of flora and fauna. The directive is based on the following considerations. In the European territory, natural habitats are continuing to deteriorate and an increasing number of wild species are seriously endangered. As the endangered habitats and species are part of the Community's natural heritage and the threats to them are often of a trans-boundary nature, it is necessary to take measures at Community level in order to conserve them. In order to ensure the restoration or maintenance of natural habitats and species of Community interest with a favourable conservation status, the Member States have to designate areas of conservation and create a coherent European ecological network: Natura 2000. The directive foresees criteria for the designation of conservation sites, and it lists animal and plant species and types of natural habitats of European interest. The main criterion for successful implementation of the directive is maintenance of a favourable conservation status for natural habitats and species. For this purpose, appropriate measures have to be implemented - with regard to not only conservation sites but also any activities outside conservation sites that might adversely affect that area. 9

One of the most problematic provisions is Article 2 of both directives is foreseeing that the measures taken pursuant to the Birds Directive and the Habitats Directive should take account of economic and related social circumstances. Many Member States have leaned on that and tried to give preference to development activities over the establishment of conservation areas, preferring economic interests to nature conservation. As shown below, this has been done in Estonia. N. de Sadeleer refers to several cases wherein the European Court of Justice has clearly expressed that nature conservation interests prevail for nature conservation areas established under EU law and that other interests are clearly subordinate to that. 10 Many Member States are reluctant to implement that principle. By contrast, in the Supreme Court judgment in the case of the Paluküla sacred grove 11 , the court indicated that the aim of the Natura 2000 network created under the European Union nature conservation directives is to support sustainable development, not to rule out all economic activity. The court is right in the sense that, indeed, the Natura conservation scheme does not rule out all economic activity, but it remains unclear what the court regards as sustainable development. The classical concept of sustainable development refers to the balance of economic, social, and environmental interests. That definition does not apply for Natura sites. Several European Court of Justice cases mentioned below prove that nature conservation interests are to be given clear preference over other interests at Natura sites.

The Habitats Directive indicates that the creation of the European Natura network is "an essential objective of general interest pursued by the Community". The conservation areas that constitute that network are "sites of Community interest". Thus, EU nature conservation law regards Member States as...

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