In EU Commission v Ireland, also known as the Measures Case, the Court of Justice of the European Union (CJEU) declared that Ireland failed to fulfil its obligations under Article 4(4) and Article 6(1) of the Habitats Directive. The Directive requires Ireland to identify a network of sites (Natura 2000 sites) where important and endangered are present to a significant degree and establish a protection regime for them.
Under Article 4(4), Ireland should have designated 423 sites of Community importance of the Atlantic biogeographical region located on its territory as special areas of conservation. However, it failed to do so for 217 sites.
Article 6(1) obliges EU Member States to establish conservation measures for natural habitats effectively and by complete, clear and precise measures. The CJEU stated that not designating the 217 sites as special areas of conservation does not relive Ireland of its obligation to establish conservation measures for the same sites. The conservation measures that must be adopted under Article 6 include measures intended to avoid man-caused disturbance, as well as measures to prevent natural developments that can deteriorate habitats, and proactive measures to maintain and restore habitats if necessary. The judgement highlights that implementing regulations limited to requiring consent before carrying on of a potentially damaging activity is not sufficient to satisfy obligations under Article 6(1).
Although Ireland submitted it designed 10 national programmes implementing detailed and comprehensive conservation measures and submitted a list of 79 sites in respect of which it claims it adopted complete conservation measures, this was not sufficient information to rebut the Commission’s argument that there are no conservation measures implemented for 230 sites. The CJEU found that Ireland did not adopt complete conservation measures for 149 of the remaining 193 sites, as a complete measure must be established in the light of the ecological requirements of each species and habitat type present on the sites.
The Commission sought to establish that the complete measures adopted by Ireland for the 44 remaining sites were not based on conservation objectives. The CJEU held that adopting conservation measures before defining conservation objectives is not an infringement of Article 6(1), unless the measures adopted do not meet the conservation objectives. The Court did rule however that Ireland failed to set conservation objectives for 140 out of the 423 sites.
The Commission further argued that Ireland systematically and persistently adopted and applied measures that are not sufficiently precise and that fail to address all significant pressures and threats and sought a declaration in this sense. To illustrate this, the Commission brought three examples relating to coastal lagoons, blanket bogs and to the freshwater pearl mussel. However, the claim was dismissed because the Commission failed to establish though sufficiently precise, clear and detailed arguments and data that the examples submitted were representative for all the sites of Community importance in Ireland.
Minister for Heritage and Electoral Reform, Malcolm Noonan TD said in a press release that he is consulting with the Attorney General about the judgement and pointed out that the CJEU’s findings refer to the position in January 2019. He highlighted the progress made by the Government since then: transforming and renewing the National Parks, and creating a dedicated Directorate to lead the implementation of conservation measures across Ireland’s Natura 2000 sites.
Niall O Donnchu, Director General of the National Parks and Wildlife Service (NPWS) stated that the Service will engage with the EU Commission on a roadmap. He indicated that 95% of Natura 2000 sites are now covered by Statutory Instrument, that there are Site Specific Conservation Objectives for 100% of the sites and that significant progress is being made with regards to conservation measures.
It has been reported however that 40 habitats are yet to be designated as special conservation areas, including the Killarney National Park and parts of the Burren National Park. An analysis of NPWS files showed that just over 240 sites are now designated as special conservation areas, and that the preparation of site-specific conservation objectives took between 15 and 23 years for most areas. The issue of delay is coupled with a lack of management plans to implement conservation objectives, which according to Pádraic Fogarty of the Irish Wildlife Trust, allows the deterioration of the sites to continue.