European Court of Justice ruled against Ireland on cetacean monitoring

22nd Sep 2006 Advocate-General Leger of the European Court of Justice delivered his preliminary opinion in the case taken by the European Commission against Ireland in April 2005 that there was no protection under Irish law for certain listed species that are not 'native' to Ireland, as required by the 1992 EU Habitats Directive. Among the species highlighted by the Commission are cetaceans.

The Advocate General concluded that Ireland had failed to meet its obligations under the Habitats Directive on this front.

This is just a preliminary opinion and the final ruling will be handed down by the ECJ in approximately four to six months. Should the ECJ concur with this opinion, then the Government would be obligated to bring national legislation into line. After that, if after a certain period of time the Commission is of the view that Ireland hasn't done so or making sufficient progress in doing so, it would have the right to refer Ireland again to the ECJ, but this time it could ask the ECJ to impose fines, possibly amounting to tens of thousands of euros a day, for each day that Ireland remains in breach.

Details extracted from the jugment

67. Lastly, the Commission criticises Ireland for failing to put in place a comprehensive, adequate, ongoing monitoring programme for cetaceans that could enable a system of strict protection for that species to be devised. Whilst the Commission welcomes the active monitoring programme and cetacean recording programme carried out around the Irish coast by a voluntary group, it submits that those programmes cannot qualify as a comprehensive monitoring system.

68. In the same way, whilst the Commission welcomes the funding by the NPWS of a monitoring project on small cetaceans in Galway Bay and its involvement in the monitoring of cetaceans in Roaringwater Bay, it submits that such ad hoc projects and programmes cannot constitute a comprehensive monitoring programme as they are geographically limited and their long-term future is not guaranteed.

69. Moreover, the Commission maintains that an analysis carried out in 2005 shows gaps in knowledge of cetaceans found in Irish waters, even though action taken by Ireland is particularly important for cetaceans, given the extent of that Member State's offshore and inshore waters and the number of species found there. The Commission adds that the NPWS's marine conservation resources are especially meagre. Wildlife rangers are focused on terrestrial duties and do not have any or any meaningful seagoing capacity or experience.

And

77. With regard to cetaceans, Ireland relies on a series of monitoring programmes along the Irish coast. It also maintains that, since the report of 6 April 2005 (28) on the interpretation of the strict protection of species under the Habitats Directive shows that policy at Community level is still at the development stage, the existing measures are adequate and meet the requirements of that directive.

78. Moreover, Ireland maintains that, following the entry into force of Regulation (EC) No 812/2004, (29) it has been collecting observer data on incidental catches of cetaceans in a number of fisheries and it was to report on that data in an annual report due on 1 June 2006. Ireland also points out that the Bord Iascaigh Mhara (Irish Sea Fisheries Board) is involved in a Europe-wide project which commenced in March 2004 and aims at reducing incidental catches of cetaceans.

79. Ireland also relies on its decision to establish a national biological records database and the setting up of the National Biological Records Centre, a facility intended to make available databases of records for those who are researching or wish to obtain information on the distribution of species.

80. By way of evidence of the strict protection of the species under Article 12(1) of the Habitats Directive, Ireland relies on a programme of recording that was under way in the Shannon Estuary, Ro