1
Danish Forest and Nature AgencyDivision for Sea and Habitats /
2003
J.nr. SN 2001-802/42-0007
Ref. LAR
Draft minutes of the 5th meeting 25 June 2003 of the Article 12 Working Group
Present: Delegates from 9 MS (AT, BE, DE, DK, FI, FR, NL, SE, UK), observers from several candidate countries, the European Habitats Forum (EHF), Forum Natura 2000 (FN2000) and representatives from the European Commission, DG-ENV - in all 25-30 participants.
- Adoption of draft minutes of the last meeting
The draft minutes were adopted
- Adoption of the draft agenda
A slightly revised agenda was distributed and adopted.
- Update on legal issues
Stephanos Ampatzis (SA), DG-ENV, gave an update on the comments received from the Working Group on the draft discussion paper presented by DG-ENV at the 4th meeting of the WG. Written comments have been given by: AT, DE, DK, FR, NL, SE, UK, EFH and FN2000. The comments from the Member States, which orally were supported by FI, are very similar and fall into the following 4 main categories:
1)Article 2.2 does not include autonomous obligations , but describes the objectives of the directive
2)The structure of the directive, which divides its provisions into two different regimes, the conservation of habitats (Article 6) and the protection of species (Article 12), must be respected.
3)Proactive measures are not included as a part of the “requisite” measures of the strict protection regime of Article 12. Regarding measures under Article 12, the Principle of Proportionality must be taken into account as an important part of the legal framework.
4)Flexibility in the interpretation is wanted, especially regarding Article 16.
SA did not find it appropriate at this meeting to reply explicitly on the comments given but mentioned 4 principles which will be included in the further work of DG-ENV on the legal issues:
-Article 2.2 has the function of a general orientation guide to the overall interpretation of the directive
-Provisions common to both regimes (Article 6 and 12) are present in the Directive (i.e. Article 11)
-The type of “measures” to be taken has to be decided depending on the particular circumstances of each situation and taking account of the specificity of each species. For several Annex IV-species prohibitive measures are not enough to maintain (or restore) a favourable conservation status.
Member States are still bound by the obligations incumbent on them under Article 12 of the Directive, even before a reduction in numbers of the species has been confirmed, or the risk of this protected species disappearing has become a reality.
Principles set out in Art.174 of the EC Treaty (“precautionary principle and on the principles that preventive action should be taken…”) should also be taken into consideration.
-A flexible interpretation can not cancel out the provisions of the Directive and damage its effet utile. A wish for flexibility could call for changes in the Directive. Given the rigid character of Article 16, a question is whether flexibility could be searched under the interpretation of Article 12 without involving the procedure of derogations.
Action: DG-ENV should clarify the legal consequences of the differences in the consolidated linguistic versions of the Directive in relation to the interpretation of Article 12.1.d. It especially concerns the D, DK and NL versions compared to the English and French versions.
The next meeting in the Working Group will be dedicated to a further discussion on the legal issue, based on the written comments from the WG-members and a revised paper from DG-ENV.
4. Some thoughts about the objectives of the Directive.
The fundamental disagreements in the interpretation of the provisions of the Directive between the Member States and DG-ENV illustrated by the comments to the DG-ENV draft paper made Nick Hanley (NH), head of unit, DG-ENV reflect on how to handle the coming process of the WG.
NH indicated at the outset that the objectives of the Directive (Article 2.2) aim at all species of wild fauna and flora of Community interest, as listed in Annexes II, IV and V. Presuming that it must be possible to obtain agreement on this objective he argued for a broader species conservation regime of the Directive as a whole, instead of a more narrow approach article by article.
In order to achieve the overall objective of the Directive for Annex IV-species, he pointed out two possible options:
1)a broad interpretation of the "strict protection regime" of Article 12, covering proactive measures as well for some species when necessary (Commission discussion paper), on which there is a fundamental disagreement.
2)amend the Annexes in order to include species at a unfavourable conservation status in Annex II when prohibitive measures according to Article 12 are not enough.
If the second option is to be realistic in terms of the Directive, monitoring becomes even more crucial in order to assess the conservation status of all species of Community interest, and to determine what threats face these species.
NH commented on the overall MS wish of a flexible interpretation by mentioning that it is not possible to go beyond the basic responsibility which follows the aims and objectives of the directive. However, DG-ENV sees species management plans as a potentially effective tool for a more flexible approach without further description on what this might imply.
NH argued that the choice between these two approaches is of such fundamental character that the question should be brought into the Habitats Committee for discussion and decision.
Action: All members of the Working Group are urged before the 1st September 2003 to give their opinion on the scenarios drawn up by NH, and are welcome to come up with other possible options.
DG-ENV will based on the comments make a paper for the coming Habitats Committee autumn meeting.
5)Expert intervention to illustrate the aspect of breeding sites and resting places: butterfly species on Annex IV.
Chris van Swaay from the Dutch Butterfly Conservation (De Vlinderstichting) made an interesting presentation of a group of species, the butterflies. The presentation illustrated that even within a taxonomically more limited group it is necessary to use with a species by species approach.
6) Species profiles exercise
Ian Hepburn gave a presentation of the status of the species profiles exercise.
Most MS have delivered information about the data on the selected species, and IH suggested that the limitation of the actual natural range from this exercise could be carried out from administrative NUTS-level. This suggestion has been included in the Natural Range paper (see issue no 8), but seems from different reasons not appropriate due to the large variations in the administrative levels from MS to MS.
IH has concluded that no MS so far have developed legal definitions of "breeding sites" and "resting places", which could be used in supporting one of the main objectives of the exercise.
IH outlined a first draft to the definition of breeding sites, which was welcomed as a good starting point for further clarification.
Action: It was agreed to set up a sub-group in order to further work on the definitions of in the first hand "breeding sites". UK volunteered to take the lead of this sub-group, which was joined by FI, B, EHF, FN2000, and DG-ENV.
7) Examples of strict protection systems for specific Annex IV-species
UK, S and DK presented specific examples where populations, breeding sites and resting places of Annex IV-species were potentially affected by development/construction works. The examples contributed to the overall understanding of the problems related to the practical administration of especially Article 12 1 b) and 12 1 d). English Nature has made a guidance document on how to handle conflicts with Triturus cristatus, which after the meeting kindly has been distributed by Tony Gent, EHF.
8) Natural range - rounding of discussion
DG-ENV gave a short presentation of the revised paper. DG-ENV has the opinion that the natural range discussion is relevant not only for the Annex IV-species but for all animal species of Community interest.
The definition of natural range is contributing to the overall understanding of the directive as a framework, and does not impose any separate obligations to the MS.
D questioned if the natural range paper should cover the whole of the directive. Another central question was if natural range covers the whole migration route of a species which can include large areas, which are not used by the species for any other purposes.
The use of the administrative NUTS-level for delimiting the natural range of a species was not found appropriate by several MS (see above under issue no 6).
Chapter 4 and 5 of the paper is maintained in the revised version of the paper, but has not been commented by the WG, as these chapters relates to the discussion of reintroduction (Article 22) respectively general legal issues. The chairman concluded that the paper including chapter 4 and 5 can not be a paper of the WG and urged the DG-ENV to leave out the two chapters.
Action: DG-ENV should reconsider chapter 1-3 in the light of comments referred to above. If the paper is to be accepted as a WG paper, the revision should leave out chapter 4 and 5.
9) LIFE-Nature - examples
Time did not allow this issue to be dealt with. A paper was distributed summarising some of the LIFE-nature projects dealing with Annex IV species.
10) Next steps
Members of the WG send their comments/opinion on Nick Hanleys intervention to DG-ENV before 1st of September 2003. The overall disagreement on the approach to the strict protection system will afterwards be discussed at the Habitats Committee meeting.
Next meeting will be dedicated to the discussion of the legal issues, following up on the earlier discussions and taking into account the Legal Services opinion and the discussions and eventual decisions of the Habitats Committee.
In parallel, the subgroup on the definition of "breeding sites" will continue by the track prepared by Ian Hepburn in order to seek operational definitions. The group will take contact to Angelika Rubin, DG-ENV in order to find practical solutions for sharing views and knowledge on this issue. The subgroup will report back to the WG on the next meeting.
11) Any other business
Ian Hepburn was complimented by his engagement in the work of the WG, and his contribution to the WG was recognised as valuable to the further process.
12) Next meeting
Next meeting is suggested to be held last half of November/first half of December, avoiding overlap with the Berne Convention meeting.