COMPLAINT TO THE COMMISSION OF THE EUROPEAN COMMUNITIES CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW07.07.2007
TO THE COMMISSION OF THE EUROPEAN COMMUNITIES
CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW
1. Surname and forename of complainant:
Simeon Marin, Green Balkans
Andrey Kovachev, BALKANI Wildlife Society
Vesselina Kavrakova, WWF Danube – Carpathian Programme Bulgaria
Milena Dimitrova, Centre for Environmental Information and Education
Veska Rusakova, Bulgarian Society on Phytosociology
Daniela Pancheva , Haberlea Environmental Society - Asenovgrad
Borislav Sandov, Environmental Club of University of Sofia
2. Where appropriate, represented by: Katerina Rakovska
3. Nationality: Bulgarian
4. Address or Registered Office : WWF Danube – Carpathian Programme Bulgaria, 67 Tcanko Tcerkovski Str., Entr. A, App. 3, 1421 Sofia, Bulgaria
5. Telephone/fax/e-mail address: tel/fax: + 359 2 964 05 45, firstname.lastname@example.org
6. Field and place(s) of activity: nature conservation in Bulgaria
7. Member State or public body alleged by the complainant not to have complied with Community law: The Council of Ministers of the Republic of Bulgaria and the Bulgarian Ministry of the Environment and Water
8. Fullest possible account of facts giving rise to complaint:
The current complaint is for failure of the Bulgarian government to implement Directive 92/43/EEC in terms of submission of drastically incomplete list of proposed sites of Community Importance.
According to the Treaty of Accession of Bulgaria to the EU, Bulgaria is obliged to comply with EU legislation and the requirements of Directive 92/43/EEC. The Treaty of Accession does not contain postponement clauses regarding the obligations of Bulgaria for the implementation of Directive 92/43/EEC.
According to Art. 4 (1) of Directive 92/43/ЕEС the country is obliged to submit to the EC a full list of potential Sites of Community Importance (protected sites for natural habitat types) which are assessed according to the procedures described in Art. 7 of the Bulgarian Biodiversity Act and Art. 4 (2) of the Directive.
This list must be full and comprehensive, which means that Bulgaria was obliged to submit enough sites which would:
• Provide sufficient coverage and representation of all natural habitat types found in the country and listed in Appendix 1 of the Biodiversity Act (Annex 1 of the Directive, respectively), as well as the species listed in Appendix 2 of the Biodiversity Act (and Annex 2 of the Directive).
• Provide an evenly distributed geographical coverage of the habitats and species, representative for each of them for the whole territory of the country.
• Guarantee the connectivity of the proposed network for each habitat type and each species.
• Provide representativity also of the various ecological habitat subtypes and genetic variation of the species.
These criteria are described in detail in the following document adopted by the Habitats Committee: Hab. 97/2 rev. 4 18/11/97 (CRITERIA FOR ASSESSING NATIONAL LISTS OF pSCI AT BIOGEOGRAPHICAL LEVEL) http://biodiversity.eionet.europa.eu/activities/Natura_2000/crit
In this sense the geographical, ecological and territorial coverage of the proposed list is to be entirely based on the respective coverage of representation for each natural habitat type listed in Appendix 1 of the Biodiversity Act (Annex 1 of the Directive, respectively) and each species listed in Appendix 2 of the Biodiversity Act (and Annex 2 of the Directive).
On submitting the list each site must be described with a map, boundaries, situation, area size and ecological information (according to art. 8 (1) of the Biodiversity Act and Annex 3 of the Directive) which are to guarantee the achievement of the above purposes. The identification of all of these attributes of the list of potential Sites of Community Importance is conducted entirely and only on the basis of the best available scientific data, and economical, social and other grounds cannot be a reason for noncompliance or exception from some of the above requirements (art.10 (5) of the Biodiversity Act and Art. 4 (1) of the Directive). This interpretation of Art. 4 (1) of Directive 92/43/EEC is supported by series of judgments of the Court of Justice of the European Communities:
C-371/98, United Kingdom – “First Corporate Shipping”;
C-67/99, Commission v. Ireland;
C-71/99, Commission v. Germany;
C-220/99, Commission v. France;
With regard to the Treaty of Accession the deadline for fulfillment of the obligation of Bulgaria to submit its proposal under Art. 4.1. (after fully completed preparatory research as per above) is the accession date of the country to the EU – 01 January 2007.
The fulfillment of the obligation of submitting a full list of sites on 01 January 2007 is directly connected to the complete fulfillment of Bulgaria’s obligation to implement the conservation measures regulated in Art. 6 (2), (3) and (4) of Directive 92/43/ЕЕС on the conservation of natural habitats and of wild fauna and flora on accession day for all sites included in the national lists (INTERGOVERNMENTAL CONFERENCE ON BULGARIA’S EU ACCESSION, Addition to Additional Information CONF-BG-2/03 on Chapter 22 “Environment”).
Bulgaria has completely ignored the above listed obligations to complete the preparatory research in sufficient time before the accession date in order to be able to submit its proposal within the required time and to make this proposal guided only by scientific methods. The country continues to be in blatant violation of those by deliberate delay of its proposal with regard to 45 sites and by alleged reconsideration of those sites, (currently going on), systematically does not fulfill them.
• Bulgaria submitted an official list of pSCIs to the European Commission in March 2007, with a two-month delay, which is a violation of the obligation to submit the list on the date of accession. In addition, the country did not fulfill its obligation to provide the Art. 6.2 - 6.4 protection for the pSCIs after this date pursuant to Art. 4.5 of the Directive, as interpreted by ECJ ruling on Case C-244/05.
• The Council of Ministers of the Republic of Bulgaria in Decision No. 122 of 02.03.2007 approved a list of pSCIs to submit to the EC and decided to “postpone” the approval of a large part of the scientific proposal. The submitted official list is incomplete, as it omits more than half of the coverage (in terms of area) of the pSCIs included in the scientific proposal. The scientific proposal, made in compliance with the criteria set out in the Biodiversity Act and the Directive and funded partly by the MOEW was filed in the Ministry of Environment and Water in November 2006. A position paper of NGOs describing the process and the list of 225 pSCIs was registered with Incoming Ref. N 26 00 3673 from 21 November 2006. A copy of this statement is attached in Annex 2, and its electronic appendixes are given in an electronic format in the enclosed CD. These 225 sites cover a total area of 30% (or 28, 6% excluding settlements and industrial areas not necessary for the protection of species from Annex 2) of the terrestrial area of the country, while the final proposal submitted by the Bulgarian government includes only 180 pSCIs covering an area of 13.4%. In this way nearly 70% of all habitats from Appendix 1 and species from Annex 2 of the Biodiversity Act (Annex 1 and Annex 2 of Directive 92/43/EEC which are found in Bulgaria) do not have sufficient coverage. Detailed information about the coverage is given in Annex 1 to this complaint). It should be noted that in Bulgaria by June 2007 there was no functional legal mechanism for protection of pSCIs included in the scientific proposal but not presented in the official list. This was only adopted as an amendment of the Biodiversity Act on 15 June 2007 and comes into effect after the forthcoming publication in the State Gazette, published on 29 June 2007. Therefore the remaining 45 sites, which have been estimated as qualifying for the protection of the Directive, and should have received status of pSCI since their submission to the European Commission, did NOT have any protection until that moment.
• From the 45 qualifying zones not included in the Council of Minister’s Decision 122 of the 02 March 2007, 16 are officially delayed for reevaluation until October 2007. This is in violation of the Directive 92/43/EEC as well as the national law, neither of which provides grounds for delaying part of the designated pSCIs. Art. 4.1. of Directive 92/43/EEC regulating the submission of the governmental proposal does not provide grounds for the additional submission at a later time. The delay of the submission of the list of some of the pSCIs is not only an imaginative solution violating the rule of law, but also disturbes the Community’s procedures under Art. 4.2. Therefore, this constitutes a breach of EC’s legal provisions and national provisions, and possibly puts the Commission in a challenging position, either to wait for the the additional proposal of the government, leaving even the pSCIs already proposed without protection, or restarting the procedure for adoption of the SCIs at the pleasure of the Bulgarian government.
• It should be further noted, that in its Decision from 02 March 2007 the Bulgarian government opened the way for indeterminate reductions in future of the borders even of the pSCIs it did submit to the EC, as well as of the remaining pSCIs (if they are ever submitted) at the time of their designation as SAC. The said Decision states that all territories of the pSCIs submitted, which have approved to that date master and detailed spatial development plans (i.e. areas designated for construction), as well as territories approved for extraction of ores and minerals, will be excluded when the borders of the SAC are finally determined. In this sense the Bulgarian government completely ignores the requirement that economic criteria should not guide the designation process. This is a violation of Art. 10 (5) of the Biodiversity Act (and Art. 4 (1) of Directive 92/43/EEC) when preparing the list of pSCIs and the borders of these pSCIs. The obligation that such plans and projects are approved only if they do not damage pSCI/SCI is ironically reversed: the sites will become pSCI/SCI only if they do not endanger or disturb the construction plans. In addition, completely ignored are the procedures and the obligations arising from them according to Art.4 (2) of Directive 92/43/EEC, which explicitly state that the SCIs approved according to these procedures can in no way be reduced on their SACs designation. This is not only gross violation of the text and of the purpose of the Directive, but in conjunction with the illegal delay described in the preceding paragraph, opens the way and even invites the investors and the competent local authorities to use the period of the postponement which is illegal, to do whatever possible (actual construction or adoption of spatial development plans) to preclude or minimize the effect of the Natura 2000 protection.
9. As far as possible, specify the provisions of Community law (treaties, regulations, directives, decisions, etc.) which the complainant considers to have been infringed by the Member State concerned:
COUNCIL DIRECTIVE 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora – Art.3 (1) and (2), Art.4 (1).
Treaty of Accession of Bulgaria to the EU
Positions of the Republic of Bulgaria on the INTERGOVERNMENTAL CONFERENCE ON BULGARIA’S EU ACCESSION, Addition to Additional Information CONF-BG-2/03 on Chapter 22 “Environment”, Position on the implementation of Art. 6 (2), (3) and (4) of Directive 92/43/ЕЕС on the conservation of natural habitats and of wild fauna and flora.
10. Where appropriate, mention the involvement of a Community funding scheme (with references if possible) from which the Member State concerned benefits or stands to benefit, in relation to the facts giving rise to the complaint:
The Natura 2000 compensation measure is included in the National Plan for Rural Development, funded by the European Agricultural Fund for Rural Development.
The funds needed for co-funding the Natura 2000 expenses which will be included in the National Plan, were calculated on the basis of the scientific proposal for the Natura 2000 network in Bulgaria. The official list currently proposed to the Commission makes it impossible to use these funds for the difference between the total area of the sites in the scientific proposal and their area in the officially approved list. The overall coverage of the network of protected sites for the birds and habitats according to the scientific proposal is 33, 4%, whereas the network (of both lists) approved by the government covers only 19%.
11. Details of any approaches already made to the Commission's services (if possible, attach copies of correspondence):
In a letter from 18 January 2007, 30 NGOs informed representatives of the EC of the technical readiness of the country to submit the full list of pSCIs on 1 January 2007. Attached to the letter was a full set of data in an electronic format about the scientific proposal which was approved by the National Biodiversity Council of the Minister of Environment and Water on 21 November 2007 and was supported by all of the representatives of scientific institutions who were present. The other important topic in the letter was the lack of preventive protection for the proposed sites. A copy of the letter (without the electronic set of data), as well as the answer by the Commission are attached to the current form. The answer is from Commissioner Stavros Dimas, reference number is 00237 from 13.03.2007, a copy is also attached.
There are a number of specific examples of communications to the Commission about violations in proposed Natura 2000 sites. Each of them has its own file of correspondence with the Commission. They do not concern the question of the completeness of the network, but the issue of preventive protection before the preparation of the Bulgarian draft list of Natura 2000 sites. Some specific cases are:
• Construction of small HPSs on rivers and in riverine habitats
• Construction of tourist facilities in habitats and species habitats on the Black Sea coast and in the high mountains
• Violations arising from the construction of Bansko ski zone in Pirin National Park, Pirin Protected Area
• Violation of environmental impact assessment procedures in connection with the planned motorway through the Gorge of Kresna, part of Transport corridor number 4, Kresna Protected Area
• Illegal quarry in the area of Nikopol Plateau, Protected Area Nikopol Plateau
• Destruction of the endemic and extremely rare in Bulgaria ecological subtype of priority habitat 62C0 Ponto-sarmatic steppes in the area of the villages Topola and Bozhurets.
As they are not directly related to the completeness of the network, which is the subject of the present complaint, the respective files are not attached, but can be provided upon request.
WRITTEN QUESTION E-0043/07 by Elly de Groen-Kouwenhoven (Verts/ALE) and Hiltrud Breyer (Verts/ALE) to the Commission asked how will the Commission ensure fulfilment of Bulgaria’s obligations in respect to Directive 92/43/EC , and more particularly will the Commission undertake as soon as possible infringement proceedings against Bulgaria. E-0043/07EN Answer given by Mr Dimas on behalf of the Commission (5 March 2007): Should these analyses point out insufficiencies in the network, and if Bulgaria then fails to fill the gaps, the Commission will use its powers given in the Treaty to initiate infringement procedures, as has been done in the previous cases concerning different Member States.
12. Details of any approaches already made to other Community bodies or authorities (e.g. European Parliament Committee on Petitions, European Ombudsman). If possible, give the reference assigned to the complainant's approach by the body concerned:
On 6 January during a working lunch at the European Parliament where the work of WWF Danube-Carpathian Program in Bulgaria and Romania was presented, the EP was presented copies of two lists of signatures collected in support of two nature protection petitions: the one entitled “To Let Nature Remain in Bulgaria” and the other “Save the Bulgarian Black Sea Coast”. The first petition appeals for protecting the future Natura 2000 sites, and the other petition appeals for submitting the full list of Natura 2000 sites situated on the Black Sea Coast. The two petitions were supported by a total of nearly 50 000 people. The petitions were not officially submitted, but they have received an answer by the European Parliament’s Committee on Petitions, attached to this complaint with reference number 30452 from 9 March 2007.
13. Approaches already made to national authorities, whether central, regional or local (if possible, attach copies of correspondence):
13.1 Administrative approaches (e.g. complaint to the relevant national administrative authorities, whether central, regional or local, and/or to a national or regional ombudsman):
1. Statement of the organizations (described under item 8) which have proposed protected areas at the meeting of the National Biodiversity Council on 21 November 2006, where the list of sites for the habitats was considered. Attached to it is the full list of sites and its scientific argumentation, submitted to the Ministry of Environment and Water
2. A dissenting opinion of Boris Barov, NGO representative in the National Biodiversity Council, submitted in the Ministry of Environment and Water about the passed postponement of 29 protected areas. Incoming Ref. N at the Ministry of the Environment: 26-00-3734, 27.11.2006
3. A dissenting opinion of two members of the National Biodiversity Council, representatives of the academic community – Petar Zhelev, Univesrity of Forestry and Yana Gouteva, Institute on Plant and Genetic Resources
4. Statement of the proposing organizations (Green Balkans, BALKANI Wildlife Society, WWF Danube – Carpathian Programme, Centre for Environmental Information and Education from 28 November 2006, submitted to the Minister of the Environment, where they insist that the full list of proposed protected areas is put to discussion in the Council of Ministers
5. Letter from the Faculty Council of the Faculty of Biology at Sofia University to the Ministry of Environment and Water, requesting that the Council of Ministers proposes to the Commission the full list of protected areas
6. Letter from Balkani Wildlife Society, Outgoing Ref. No 0027 – M/20.12.2006
to the national ombudsman, requesting to be included in a working group organized by him. The letter and the request were not answered
7. Declaration from Balkani Wildlife Society, Outgoing Ref. No 0026 – M/09.02.2007 to the national ombudsman
8. Letters from all proposing organizations to all members of the Council of Ministers requesting that the full list is adopted sent on 14 December 2006. As the letter to all ministers have the same text, here enclosed is a copy of the letter to the Minister of Culture, Incoming ref. No: 26-00-629, 15.12.06
9. On 23 January 2007 the two petitions described in item 12 were submitted to the National Assembly, the Council of Ministers, the Prosecutor General, the Supreme Judicial Council, the Ministry of Regional Development and Public Works, the Ministry of Environment and Water and the Ministry of Agriculture and Forestry
10. On 28 February the Academic Council of Sofia University “St. Kliment Ohridsky” adopted a position in support of the full list of the Natura 2000 network sites
A copy of all these documents can be found in Annex II of this paper. They are all in English, except for the letter described in subitem 3.
13.2 Recourse to national courts or other procedures (e.g. arbitration or conciliation). (State whether there has already been a decision or award and attach a copy if appropriate):
1. An appeal with reference number 17.00-7 from 23.03.2007 was submitted to the Supreme Administrative Court through the Council of Ministers of five NGOs against Decision No. 122 of the Council of Ministers from 2 March 2007, case number 3090/2007. So far, there have been 2 hearings of the court, with no date scheduled yet for the next hearing. Time was left for the parties to get acquainted with the evidence. However it became clear during the second hearing that the court will only be dealing with the 16 pSCIs delayed by the Council of Ministers and will not consider the 29 pSCIs delayed at the stage of the national Biodiversity Council.
2. Another complaint was submitted to the Supreme Administrative Court through the Council of Ministers by 24 owners of land included in postponed protected areas, requesting their areas to be included in the network.
14. Specify any documents or evidence which may be submitted in support of the complaint, including the national measures concerned (attach copies):
1. List of draft sites, considered on 21 November 2006 by the National Biodiversity Council
2. Copy of Protocol No 6 of the National Biodiversity Council from 21 November 2006, which evidences Councils acceptance of the list on principle.
3. Decision No 122 from 2 March 2007 of the Council of Ministers of the Republic of Bulgaria, published in the State Gazette No 21 from 9 March 2007, adopting the list of pSCIs and SPAs, and deciding to send just part of the previously accepted list.
15. Confidentiality (tick one box) :
X "I authorise the Commission to disclose my identity in its contacts with the authorities of the Member State against which the complaint is made."
"I request the Commission not to disclose my identity in its contacts with the authorities of the Member State against which the complaint is made."
16. Place, date and signature of complainant/representative:
(Explanatory note to appear on back of complaint form)
Each Member State is responsible for the implementation of Community law (adoption of implementing measures before a specified deadline, conformity and correct application) within its own legal system. Under the Treaties, the Commission of the European Communities is responsible for ensuring that Community law is correctly applied. Consequently, where a Member State fails to comply with Community law, the Commission has powers of its own (action for non-compliance) to try to bring the infringement to an end and, if necessary, may refer the case to the Court of Justice of the European Communities. The Commission takes whatever action it deems appropriate in response to either a complaint or indications of infringements which it detects itself.
Non-compliance means failure by a Member State to fulfil its obligations under Community law, whether by action or by omission. The term State is taken to mean the Member State which infringes Community law, irrespective of the authority - central, regional or local - to which the non-compliance is attributable.
Anyone may lodge a complaint with the Commission against a Member State about any measure (law, regulation or administrative action) or practice which they consider incompatible with a provision or a principle of Community law. Complainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are principally and directly concerned by the infringement complained of. To be admissible, a complaint has to relate to an infringement of Community law by a Member State. It should be borne in mind that the Commission’s services may decide whether or not further action should be taken on a complaint in the light of the rules and priorities laid down by the Commission for opening and pursuing infringement procedures.
Anyone who considers a measure (law, regulation or administrative action) or administrative practice to be incompatible with Community law is invited, before or at the same time as lodging a complaint with the Commission, to seek redress from the national administrative or judicial authorities (including the national or regional ombudsman and/or arbitration and conciliation procedures available). The Commission advises the prior use of such national means of redress, whether administrative, judicial or other, before lodging a complaint with the Commission, because of the advantages they may offer for complainants.
By using the means of redress available at national level, complainants should, as a rule, be able to assert their rights more directly and more personally (e.g. a court order to an administrative body, repeal of a national decision and/or damages) than they would following an infringement procedure successfully brought by the Commission which may take some time. Indeed, before referring a case to the Court of Justice, the Commission is obliged to hold a series of contacts with the Member State concerned to try to terminate the infringement.
Furthermore, any finding of an infringement by the Court of Justice has no impact on the rights of the complainant, since it does not serve to resolve individual cases. It merely obliges the Member State to comply with Community law. More specifically, any individual claims for damages would have to be brought by complainants before the national courts.
The following administrative guarantees exist for the benefit of the complainant:
(a) Once it has been registered with the Commission's Secretariat-General, any complaint found admissible will be assigned an official reference number. An acknowledgment bearing the reference number, which should be quoted in any correspondence, will immediately be sent to the complainant. However, the assignment of an official reference number to a complaint does not necessarily mean that an infringement procedure will be opened against the Member State in question.
(b) Where the Commission's services make representations to the authorities of the Member State against which the complaint has been made, they will abide by the choice made by the complainant in Section 15 of this form.
(c) The Commission will endeavour to take a decision on the substance (either to open infringement proceedings or to close the case) within twelve months of registration of the complaint with its Secretariat-General.
(d) The complainant will be notified in advance by the relevant department if it plans to propose that the Commission close the case. The Commission's services will keep the complainant informed of the course of any infringement procedure.