European Court of Justice rules against Ireland for failing to provide protection to cetaceans

17th Jan 2007 On 11 January 2007 the European Court of Justice (ECJ) has ruled that Ireland has failed to implement the Habitats Directive with regard to cetaceans. All cetaceans are on Annex IV of the Habitats Directive and entitled to strict protection.

Background

On 18 October 2002, following complaints, the Commission sent Ireland a letter of formal notice in which it informed it of its doubts regarding several aspects of that Member State's implementation of Articles 12, 13 and 16 of Directive 92/43. As the Commission did not consider the Irish authorities' response of 20 December 2002 to be convincing, on 11 July 2003 it sent Ireland a reasoned opinion calling on it to take the requisite measures to comply with its terms within two months of the date of its notification. Ireland responded to the reasoned opinion by letters of 12 September 2003 and 8 January 2004. However, the Commission did not consider that response to be satisfactory and decided to bring the present action. The Commission withdrew the first complaint (relating to the incomplete transposition of Articles 12(2) and 13(1)(b)) during the procedure in the light of Ireland's response to that point in its statement in defence.

Rulings

TheCommission also submits that the measures taken by Ireland in respect of monitoring the species listed in Annex IV are, on the whole, disparate and patchy and cannot be regarded as effectively implementing the system of strict protection. The Commission points out that the species action plans which Ireland intends to prepare for the species listed in Annex IV may, on condition that they are correctly established and applied, constitute an effective means of implementing the requirements regarding protection.

The Commission submits that, the Irish authorities are not in possession of the necessary information in relation to several of the species listed in Annex IV, their resting places and breeding sites and the threats to which those species are subject, which prevents the effective implementation of the system of strict protection.

In the present case, the existence of a network of full-time rangers and officers responsible for monitoring and protecting species does not, in itself, demonstrate effective implementation of the system of strict protection for all of the species listed in Annex IV that occur in Ireland. It is the opinion of the Advocate General that those species are not covered by an appropriate monitoring system. Such is the case for the otter, the Kerry slug, various species of bats other than the horseshoe bat, and cetaceans.

The Commission submits that, although environmental impact assessments on the assessment of the effects of certain public and private projects on the environment can play a useful role in alerting the competent authorities to specific threats to the breeding sites and resting places of the species listed in Annex IV only a limited number of projects are subject to such assessments in Ireland. In addition, even where such assessments are undertaken, the Irish authorities require property developers to provide information on protected species only after development consent has been granted for the project concerned. Therefore, that procedure does not prevent certain developments, which may be harmful to the environment. The Commission refers, in particular, to three projects having negative impacts on bat populations, horseshoe bat roosts and the breeding sites and resting places of cetaceans (the project for the construction of a gas pipeline in Broadhaven Bay).

Consequently, as regards the projects put forward by the Commission in its application, it cannot be concluded that all measures have been taken to implement effectively the system of strict protection. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.

Full text from the ECJ can be downloaded from