The Habitats and Birds Directives versus the Common Fisheries Policy: A Paradox

AuthorJaap Leijen
PositionLaw student at the University of Amsterdam, where he is currently finishing the LLM Programme in European Union Law. Previously, he studied European Studies at the University of Amsterdam and the University of Sussex
Pages19-45
e Habitats and Birds Directives versus the Common Fisheries
Policy: A Paradox
Jaap Leijen
Merkourios 2011 – Volume 27/Issue 73, Article, pp. 19-45.
URN: NBN:NL:UI:10-1-100931
ISSN: 0927-460X
URL: www.merkourios.org
Publisher: Igitur, Utrecht Publishing & Archiving Services
Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)
Keywords
Conservation of habitats, conservation of birds, sheries conservation, exclusive competence, Habitats Directive, Birds Di-
rective, CFP Basic Regulation, EU environmental policy, EU common sheries policy.
Abstract
e interaction between environmental conservation and sheries has never been easy. is is no less true for European Union
(EU) policy in these areas. Numerous EU Member States, and the European Commission, are struggling with the paradox in
EU law that emerges when EU environmental policy and EU sheries policy overlap. On the one hand, EU Member States
are required to take conservation or protection measures, if necessary, in specic areas to full their duties stemming from the
Habitats and Birds Directives. On the other hand, Member States are, to a great extent, deprived of their competence to full
these duties as soon as these measures possibly touch upon sheries. ere is an exclusive competence for the EU attached to
the common sheries policy of the EU. is article addresses this paradoxical situation by analysing the Habitats and Birds
Directives on the one side, and the exclusive competence of the EU in the area of sheries on the other. e article concludes
by examining possible solutions to the paradox, hopefully constituting worthwhile contributions to an ungoing discussion.
e article is a revised version of a report written on behalf of the Amsterdam International Law Clinic.
Author Aliations
Jaap Leijen is a law student at the University of Amsterdam, where he is currently nishing the LLM Programme in European
Union Law. Previously, he studied European Studies at the University of Amsterdam and the University of Sussex.
article
Merkourios - International and European Environmental Law - Vol. 27/73 19
Case Note
article
I. Introduction
On 3 August 2010 Gerda Verburg, then Minister of Agriculture, Nature and Food Quality of the Netherlands, received a letter
from both Janez Potocnik, European Commissioner for the Environment, and Maria Damanaki, European Commissioner
for Maritime Aairs and Fisheries.1 e letter was a response to a preceding letter of Gerda Verburg concerning measures to
regulate sheries in so-called Natura 2000 areas2 – special areas of conservation (SACs) established pursuant to the Habitats
Directive3 and special protection areas (SPAs) established pursuant to the Birds Directive4.5
In their letter, the Commissioners wrote that measures aecting sheries should, as a general rule, be taken under the common
sheries policy (CFP), even where they have nature protection as their objective.6 However, there was possibly a problem with
this arrangement. For the moment, the CFP does not provide the kind of national measures the Dutch Minister must take
in order to comply with her obligations under the Habitats and Birds Directive.7 According to the Commissioners, the CFP
needs to be to be changed to better integrate the environmental protection requirements put on Member States through the
Birds and Habitats Directives.8 For the time being, the Commission remains ready to assess and accept national measures
proposed on the basis of the Habitats and Birds Directives.9
e aforementioned letter reveals an imperfection in EU law. In short, the imperfection may be described as follows. On the
one hand, Member States of the European Union (EU) are required to take conservation or protection measures, if necessary,
in specic areas to full the duties stemming from the Habitats and Birds Directives.10 On the other hand, EU Member States
are, to a great extent, deprived of their competence to do so as soon as these measures possibly touch upon sheries. is is
caused by the fact that the CFP is an area of exclusive competence for the EU.11
e imperfection is, in essence, a paradox in EU legislation: Member States are prohibited from complying with their
obligations arising from the Habitats and Birds Directives when the necessary measures might aect sheries. is article will
address this paradox. e essential question to be answered is: how should the paradox of the Habitats and Birds Directives
and the CFP be resolved?
Before seeking possible answers, the paradox itself needs to be analysed. At this stage, the Habitats and Birds Directives and
the CFP will be considered as separate domains. Section II rst addresses the domain of the Habitats and Birds Directives.
It will detail relevant provisions of both Directives, their legal basis in the Treaty on the Functioning of the European Union
(TFEU)12, and the binding force of the Directives. Section II then addresses the domain of the CFP. Section II provides
insight into the exclusive competence in the eld of the CFP, by analysing its main instrument, the Basic Regulation of the
CFP13, the legal basis of CFP legislation in the TFEU, the origin of the exclusive competence, and the scope of the exclusive
EU competence. Section III presents possible answers to the question of how the paradox should be resolved. Section III
addresses action to full the obligations under the Habitats and Birds Directives within the CFP framework, action to full
the obligations outside the CFP framework, and inaction, i.e. non-fullment of the obligations. Section III indicates the
implications of each answer. Section IV includes examples of how the paradox has been resolved in practice.
On a nal note, many sources refer to the European Community (EC). However, with the entr y into force of the Treaty of
Lisbon,14 the EC denitively merged into the EU, the Community ceased to exist as an independent identity and became the
Union. In the interest of consistency, the article will consequently refer to the Union, also when original sources refer to the
Community, as far as appropriate.
1 Letter from Janez Potocnik and Maria Damanaki to Gerda Verburg (23 July 2010); on le with the author.
2 ibid.
3 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and ora [1992] OJ L206/7.
4 Directive 2009/147/EC of the European Parliament and the Council of 30 November 2009 on the conservation of wild birds (codied version) [2009] OJ
L20/7.
5 See Habitats Directive, art.3(1).
6 Letter from Potocnik and Damanaki (n 1).
7 ibid.
8 ibid.
9 ibid.
10 See Habitats Directive, art. 6 and Birds Directive, art. 4.
11 TFEU, art.3(1)(d).
12 Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47.
13 Council Regulation (EC) 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of sheries resources under the Common Fisheries
Policy [2002] OJ L358/59.
14 Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community [2007] OJ C306/01.
20 Merkourios - International and European Environmental Law - Vol. 27/73

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