|Date National and European Union targets for the protection of biodiversity. How can the Commission increase the level of their convergence? The Birds, Habitats and Environmental Liability Directives and gold plating in the Dutch legal order Lorenzo Squintani, LL.M.

|Date Content of the presentation: 1.Gold plating concept (6 min.) 2.EU and NL law for the protection of biodiversity (3 min.) 3.Analysis’ results (9 min.) 4.Conclusions (2 min.)

|Date Gold Plating – 1 › European directives leave to the Member States the option to maintain or introduce more stringent protective measures › Convergence v. National sovereignty › Gold plating can affect the achievement of Union targets:  It can affect the balance established at Union level between environmental goals and other goals  It can affect the protection of the environment

|Date Gold Plating – 2 › Adding to the level of protection required by the Directives › Ex-ante v. ex-post gold plating › In practice gold plating means:  set stricter standards than those established by the Union  do not take advantage of exceptions allowed by the Union  achieve Union goals earlier than required  enlarge the field of application of a Union measure  interpret Union vague concepts more stringently than required

|Date Gold Plating – 3 › Gold plating influenced by 2 factors:  Upload of national standards that leads to options in EU Directives  National policies restricting gold plating (Jans, Squintani, Aragão, Macrory & Winter, Gold Plating of Environmental Measures?, in JEEPL, vol. 6.4, 2009)

|Date Upload of national standards - 1

|Date Upload of national standards - 2

|Date Upload of National standards - 3

|Date Second factor - Dutch Policy on gold plating (koppen): › Since 2003 › No gold plating unless important reasons do not require otherwise › To foster the competitive position of the Dutch industry in EU market industry (market based trend) › Since 2004 it applies to ex-ante & ex-post cases of gold plating › Since 2004 it applies also in other fields than the environmental one

|Date EU and NL law for the protection of biodiversity – 1 : › Until 1970’s - nature conservation regulated by national and international law, e.g. Dutch Birds Act 1937, Dutch Nature Conservation Act 1967, Benelux Agreement 1970 › 1979 – Birds Directive › 1992 – Habitats Directive › 2004 – Environmental Liability Directive

|Date EU and NL law for the protection of biodiversity – 2: › BD aims to protect all wild bids in EU territory of the Member States from direct and indirect threats › HD aims to protect all wild species of flora and fauna in EU territory of the Member States from direct and indirect threats  In addition, it protects given habitats › The Netherlands had already acts for the protection of species and habitats; BA 1936 and NCA 1967 › Commission and Court of Justice considered the Dutch system insufficient › FFA 1998 (in force since 2002) & NCA 1998 (in force since 2005)

|Date EU and NL law for the protection of biodiversity – 3: › ELD establishes positive obligations upon operators and public authorities to prevent or restore damages to biodiversity and to bear the costs of such actions › The Netherlands already regulated damages to the environment by means of the Environmental Managing Act (EMA) and the Soil Protection Act › Ad hoc transposition: new Title 17.2 EMA

|Date Status presentation: 1.Gold plating concept 2.EU and NL law for the protection of biodiversity 3.Analysis’ results 1. Any case of gold plating? 2. Any case of gold plating implemented an option in a directive? 3. Did the Dutch policy restrict gold plating? 4.Conclusions

|Date Any case of gold plating? – Yes – 1 › For example:  Art. 5 BD prohibits only deliberate actions  FFA prohibits also non-deliberate actions › Another example:  Art. 8(4) ELD allows permit defence  NL allows them only if their results are reasonable

|Date Any case of gold plating? – Yes – 2 › For example, Art. 3 juncto 10 HD allows Member States to take measures to assure the coherence of Natura-2000

|Date Any case of gold plating? – 3 In National Ecological Network - Ecological connections areas No-damage, unless regime

|Date Any case of gold plating implemented an option in a directive? - Yes › For example:  Ecological connection areas implement the option in Art. 10 HD  NL tried to make Art. 10 bindings and to add the concept ‘ecological corridor’ to the HD › Another example:  NL did not fully make use of exception allowed by Art. 8(4) ELD  NL tried to delete permit defence from ELD

|Date Did the Dutch policy restrict gold plating? – Yes – 1 (Ex-ante)

|Date

|Date Did the Dutch policy restrict gold plating? – 2 (Ex-post)

|Date Summary/findings: 1.The Netherlands gold plated the Union Directives 2.Some case of gold plating derived from the implementation of options inserted in the Directives following an attempt of the Dutch delegation to upload its national law 3.Ex-ante & ex-post cases of gold plating affected by Dutch policy on gold plating in order to protect the Dutch industry (market based trend)

|Date Conclusions, how can the Commission prevent gold plating? › Less options in Directives or at least, more specific e.g. by indicating which value may be pursued and in which circumstances › A motivation duty could be established upon the Member States › Write reports on the presence of cases of gold plating › Perform a strict legal review of those cases that cannot be solved by means of market based instruments

|Date Thank you for your attention! 23