WORKSHOP ON THE INTERACTION BETWEEN THE EIA AND THE NATURE DIRECTIVES Barcelona, October 2013 Case study based on Case C-342/05 And Case C-409/09 Matthieu Wemaëre Attorney at Law Brussels and Paris Bar Associations

Case n°1, the facts Authorities permitted the hunting of a fixed number of wolves in a well defined geographical area, but  without relying on an assessment of the conservation status of the species,  without providing a clear and sufficient statement of reasons as to the absence of a satisfactory alternative and  without specifically identifying the wolves causing serious damage which could be killed.

Case n°1, the Dispute Are the conditions set by article 16 (1) to derogate to article 12 (1) respected?

Case n°1, solution Article 16 (1) set 3 conditions: 1)The derogation is not detrimental to the maintenance of the populations of the species concerned at a favorable conservation status in their natural range; 2)There is no satisfactory alternative; 3)The derogation is (b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property; (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest; or for an other purpose detailed in article 16 Article 16 (1) must be interpreted strictly and impose on the authority taking the decision the burden of proving that the necessary conditions are met for each derogation

Case n°1, solution First grief: The issued hunting permits are contrary to Article 16(1) of the Habitats Directive because:  they are not based on an assessment of the effect of the killing of the wolves that they authorize on the maintenance at a favorable conservation status  And do not contain a clear and sufficient statement of reasons as to the absence of a satisfactory alternative

Case n°1, solution Second grief: The issued hunting permits are contrary to Article 16(1) of the Habitats Directive because:  It is not being established that the hunting is such as to prevent serious damage within the meaning of Article 16(1)(b)

Case n°2, the facts  Open-cast mines permits were issued before the site’s designation as special area of conservation (SAC)  The site was designated as SAC because of the presence of wolfs  The wolfs population present on site is declining

Case n°2, dispute Is there an obligation for J… to stop the open-cast mines exploitation in the SAC according to article 6 (2) of Habitats Directive 92/43/EEC?

Case n°2, solution  Article 6(2) applies to existing open-cast mines, –notwithstanding the fact that operation of the latter was authorised before the system of protection laid down by the Habitats Directive became applicable to the site (124). –although such projects are not subject to the requirements of article 6 (3)

Case n°2, solution According to article 6 (2): Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.  An activity complies with that provision only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of the Habitats directive, particularly its conservation objectives  The question is: Do the mines cause any significant disturbance to the wolfs?

Case n°2, solution The disturbances must be appreciated on a case-by-case basis : 1)Do the mines occupy surfaces which constitute appropriate habitats for the wolf but cannot be used by that species during the operation of those mines ? 2)Are the mining operations, by reason of the noise and vibrations which they produce, likely significantly to disturb the wolf population protected (the wolf’s sensitivity especially for its reproduction must be taken in account) 3)Do the mining activity create a barrier effect likely to contribute to the fragmentation of the habitat ? The circumstance that the decline in the populations of that species has also been observed outside the mining is non-relevant

Case n°2, solution Conclusion: If a disturbance can be demonstrated, the mines activity is contrary to article 6 (2) of the Habitats Directive and should be stopped.

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