Habitats and Species Directive
In pursuing these objectives, the Habitats Directive advances a two-pronged approach to the conservation of European fauna and flora. Firstly, the Directive aims to establish a network of Special Areas of Conservation (SACs), known collectively as “Natura 2000”. The Natura network comprises sites identified by the Member States as hosting particular habitat types (listed in Annex I of the directive), or the habitats of particular species (listed in Annex II). To date, only two species of cetaceans have been listed on Annex II, namely the harbour porpoise and the bottlenose dolphin. Secondly, Member States are required to guarantee the strict protection, within their natural range, of all species listed in Annex IV a) of the Directive. Since all species of cetaceans have been listed in Annex IV(a), the Member States are accordingly required to ensure that the distinct conservation and management requirements established for such species are observed throughout their territory (Article 2(1)). There are 27 species of cetaceans recorded in UK waters (Reid et al. 2003; Evans, 2008).
The designation of cetacean SACs
The designation process for cetacean SACs is no different to that of any other species, which is predicated solely on relevant scientific criteria (Commission v. France, Case C-166/97  ECR I-1719). Member States first propose a list of appropriate native sites, containing the natural habitat types listed in Annex I, as well as those hosting species listed in Annex II (Article 4(1)), for which criteria for the designation of SACs are provided in Annex III of the Directive. In general terms, as far as Annex II species are concerned, Annex III lays down the following considerations as site assessment criteria:
- Size and density of the population of the species present on the site in relation to the populations present within national territory.
- The degree of conservation of the features of the habitat which are important for the species concerned and restoration possibilities.
- The degree of isolation of the population present on the site in relation to the natural range of the species.
- The global assessment of the value of the site for the conservation of the species concerned.
On the basis of this information, the indicative list of such areas produced by the Member State is subsequently transmitted to the Commission, together with relevant evidence and information of qualification (Article 4(2)). Based on this information, the Commission is responsible for producing a draft list of Sites of Community Importance (SCIs) in consultation with the Member State, which will then be formally adopted. The Member State is then required to officially designate any such site within its jurisdiction as a SAC “as soon as possible and within six years at most” (Article 4(4)).
The development of cetacean SACs throughout EU waters has been rather slow. Article 4(1) provides that “[f] or aquatic species which range over wide areas, such sites will be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction”.
Following an experts’ meeting in Brussels on 14 December 2000, DG Environment concluded that it is possible to identify areas representing crucial factors for the life cycle of this species, using the following basis for site selection:
- The continuous or regular presence of the species (although subjected to seasonal variations);
- Good population density (in relation to neighbouring areas); and
- High ratio of young to adults (in relation to neighbouring areas)
In addition, other biological elements can be characteristics of these areas, such as a very developed social and sexual life. This is further discussed below.
DG Environment advocated an approach based on the above-mentioned characteristics and suggested that it be applied with a view to site selection for this species (see Interpretation Note: Hab. 01/05). This has proved to be practically challenging for many Member States (Caddell, 2012). Difficulties in demonstrating unequivocally that areas of high species density are also in fact “essential to life and reproduction”, is cited as a primary reason for truncating the parameters of a key SAC for harbour porpoises within the German EEZ (Pedersen et al. 2009). Similar problems have been experienced in Dutch waters (Dotinga & Trouwborst 2009).
Management of cetacean SACs
The Habitats Directive establishes obligations upon the Member States in relation to SACs, most notably under Article 6, which provides the broad framework of protective measures to be taken and the coexistence of conservation strategies and economic activities within these sites. Under Article 6(1), the national authorities “shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements” of the habitats or species in question.
Particular obligations apply to the habitats of Annex II cetaceans under Article 6(2), which become operational as soon as a site is designated a SCI (Article 4(5)). This provision prescribes a two-pronged approach to habitat protection, with Member States to “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”. The Directive offers no definition of what is meant by a “significant” disturbance. The Guidelines for the designation and management of specially protected marine areas (Commission of the European Community (CEC) 2007, hereinafter referred to as “Marine Guidelines”) have cited oil and gas exploration and ecotourism activities as examples of typical sources of disturbance in the cetacean environment. Accordingly, the development of localised guidelines to address such activities may be considered an increasingly important aspect of SAC management on the part of the Member States. For instance, Irish practice in relation to the establishment of dolphin-watching operations in the Shannon Estuary SAC mandates written government consent, with permission contingent upon adherence to specific Codes of Practice (Hoyt 2005). Under Article 6.2 of the Directive, for SACs, Member States are required to establish the necessary conservation measures, involving appropriate management plans which correspond to the ecological requirements of the habitats and species present on the sites. Member States are also required to take appropriate steps to avoid the deterioration of natural habitats and habitats of species, and the significant disturbance of species for which areas have been designated.
Despite the establishment of SACs for Annex II cetaceans under the Directive, development activities may still occur within these areas. Article 6(3) provides that “[a]ny plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives”. However, the Directive is silent on what constitutes a “plan or project” for the purposes of this provision.
A preliminary ruling by the ECJ has clarified this issue somewhat, suggesting that “the terms ‘plan’ or ‘project’ should be interpreted broadly, not restrictively”. More recently a UK High Court 13 decision reinforced this interpretation and that any action that could potentially have an impact should be considered a plan or project and an Appropriate Assessment triggered. Likewise, the concept of a “significant” effect is undefined. A substantial negative impact of such activities could be potentially experienced within a SAC, without necessarily triggering a significant impact for the purposes of the conservation status of the animals concerned.
More significantly, Article 6(4) provides that “[i]f, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected”. The notion of “imperative reasons of overriding public interest” is vague and largely undefined. There is also little precise indication of the “compensatory measures” required of the national authorities.
Where a Member State invokes this exemption to pursue a particular project in an area for which Annex II species are present, it may only cite three broad grounds for proceeding on this basis, namely considerations of human health or public safety, beneficial consequences of primary importance for the environment or “further to an opinion from the Commission, to other reasons of overriding public interest”.
Given the highly limited practice to date, the grounds upon which development activities may be permitted in cetacean SACs remain uncertain. Nevertheless, certain key industrial activities have been identified within the Marine Guidelines for which supervision will be required when carried out in proximity to or within SACs. In addition to ecotourism activities, particular concern has been reserved for oil and gas exploitation, active sonar use, vessel-based noise and acoustic by-catch mitigation devices, all of which “need to be regulated in accordance with the provisions of article 6(3) and (4) of the Habitats Directive if they are likely to have a significant effects [sic] on protected features at a Natura 2000 site” (Marine Guidelines). Likewise, fisheries activities may also require management measures within these areas.
‘Strict protection’ measures under Article 12
The Habitats Directive requires that Member States “shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range” (Article 12(1)). All species of cetaceans are listed. There is little judicial authority in relation to these requirements specifically addressing the “strict protection” of cetaceans, with only one case seemingly brought to date.
In Commission v. Ireland (Case C-183/05), infringement proceedings were brought for a series of alleged breaches of the Habitats Directive concerning an eclectic group of species, including cetaceans. In this respect two central complaints pertaining to cetaceans were raised by the Commission. Firstly, it was alleged that the Irish authorities had failed to establish a system of strict protection due to an absence of a national action plan for cetaceans and a failure to fulfil surveillance and monitoring obligations. Secondly, concerns were raised that a project to lay a gas pipeline in Broadhaven Bay involved the use of explosives, which, despite acknowledging that the sound created would have an adverse impact on cetaceans, was nonetheless authorised by the government without entering a derogation under Article 16. The Irish authorities responded that a species action plan was “underway” and that monitoring projects were being conducted by conservation volunteers alongside more in-depth government studies in certain areas. Moreover, a national records database had since been established together with full adherence to the by-catch monitoring obligations prescribed under relevant fisheries legislation, while permission for seismic blasting had been granted in accordance with national rules.
The European Court of Justice (ECJ) found Ireland to be in breach of its commitments in relation to Annex IV(a) cetaceans on both counts. The failure to establish species action plans, considered “an effective means of meeting the strict protection requirement under Article 12(1)”, was deemed to be a breach of the Directive. Particular criticism was also reserved for surveillance activities, considered while resources for marine conservation were “especially meagre” and wildlife rangers “focussed on terrestrial duties and do not have any meaningful seagoing capacity”. Accordingly, the Court ruled that a system of strict protection had not been demonstrated. Furthermore, it was held that the national authorisation process for seismic surveying was too permissive, rendering breeding and resting sites for cetaceans “subject to disturbances and threats which the Irish rules do not make it possible to prevent”.
The UK government has been considering plans for seismic exploration and oil and gas development adjacent to and inside the SAC in the Moray Firth in NE Scotland which has bottlenose dolphins as one of its features. This is considered further below in case study 5.
Scallop dredging in the bottlenose dolphin SAC in Cardigan Bay, West Wales is the subject of a complaint to Europe by a number of non-governmental bodies, including WDC.
Fisheries issues and the implementation of the Habitats Directive
As noted above, the protection of cetaceans under EU law has been primarily guided by obligations established under the Habitats Directive. The implementation of the Natura 2000 network and securing the strict protection of cetaceans in EC waters have been clearly identified as ongoing priorities for the Member States in addressing the conservation needs of marine biodiversity. Such endeavours will therefore form the primary focus of initiatives to protect cetaceans in the mid- and long-term future. However, despite this stated focus, an unintentional impediment to the EU framework has arisen due to the division of competences between the EU institutions and the Member States in the field of fisheries. This has been especially pronounced in the context of marine biodiversity, as opposed to terrestrial species, due to the need to address fisheries interactions. Bycatches are considered to pose a serious conservation threat to cetaceans, with the risks posed by European fisheries deemed especially acute. There is accordingly an urgent need to address this issue as part of a wider policy to ensure the strict protection of cetaceans by the Member States and to ensure the ecological integrity of SACs.
The EU explicitly claimed competence over fisheries in 1992 by virtue of the Treaty on European Union (Article 3). Prior to this, fisheries measures were introduced as part of the Community’s remit to regulate agricultural products, which included aspects of fisheries concerns. In 1981, the ECJ confirmed that the EC exercised exclusive competence over fisheries (Case C-804/79; Commission v. United Kingdom  ECR 1045). Subject to powers delegated to the Member States, the European Council is therefore charged with establishing the conditions regulating fishing activities pursued by Community fleets. This includes the development of technical measures in respect of fishing and the conservation and exploitation of fisheries resources. In the context of the Common Fisheries Policy (CFP), this is addressed by the Council through a “Basic Regulation”, with the current version adopted in 2002 following a rootand-branch reform of community fisheries objectives (Council Regulation EC 2371/2002 of 20 December 2002 on the conservation and sustainable development of fisheries resources under the Common Fisheries Policy). Such powers have spawned a series of protective measures to address the particular problem of cetacean bycatches in community fisheries. However, these arrangements have also created considerable difficulties for Member States to pursue individual policies to address particular concerns over the incidental mortality of cetaceans within their jurisdictional waters.
Chronologically, the first major legislative acknowledgement by the EU of the threat posed to marine wildlife from incidental capture came in 1992 through the Habitats Directive as opposed to specific fisheries legislation. In line with commitments towards individual protected species, incidental catches are addressed under Article 12(4) which establishes an obligation to address, inter alia, by-catches:
“Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in Annex IV(a). In light of the information gathered, Member States shall take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant impact on the species concerned”. This requirement is further bolstered in Article 15 of the Directive, which requires Member States to prohibit “the use of all indiscriminate means capable of causing local disappearance of, or serious disturbance to, populations of such species”. For terrestrial species, there is little obvious impediment to the development of policies by the individual Member States to implement this obligation. However, for marine species, discharging commitments under Article 12(4) will inevitably require the introduction of restrictions on fishing activities. So, while Article 12(4) may technically mandate further by-catch mitigation measures, in practice, Member States are not freely able to swiftly adopt such policies in the manner envisaged by this provision.
Instead, having transferred legislative competence over fisheries to the EC, a Member State wishing to introduce protection measures in the context of bycatches must instead rely on powers delegated by the Council. In this respect, the Basic Regulation prescribes a highly limited scope for the unilateral imposition of emergency environmental measures. Where a particularly pressing situation arises, a Member State must, in the first instance, request that the Commission introduces temporary emergency measures (Article 7). Member States retain a power under Article 8 to introduce measures for a period of up to three months in duration, but the development of mitigation strategies on a more sustained basis remains the responsibility of the EU. This position offers considerably less flexibility to Member States to mitigate individualised bycatch concerns in national waters that may not be replicated on a Community-wide basis and may therefore be less likely to command EU attention. European Council Regulation No 812/2004 of April 2004 lays down measures concerning incidental catches of cetaceans in fisheries and amended Regulation (EC) No 88/98. The Regulation contains two main provisions:
- the use of acoustic deterrent devices (pingers) in gillnet and tangle net fisheries, and
- onboard observer monitoring of bycatch.
The Regulation EC lays down in Articles 2 and 3 that specified bottom-set gillnet and entangling net fisheries are required to use pingers during specified periods or all year in the areas indicated in Annex I. In the North Sea area, these are ICES areas IV (North Sea), III a (Skagerrak), VII e (Western English Channel) and VII d (Eastern English Channel). The starting date of this requirement was June 2005 for areas IV and III a, January 2006 for VII e and is January 2007 for VII d. The Regulation also details the technical specifications of the pingers to be used in its Annex II). Member States may authorise the temporary use of acoustic deterrent devices which do not fulfil the technical specifications or conditions of use defined in annex II of the Regulation, provided that their effect on the reduction or incidental catches of cetaceans has been sufficiently documented. Such authorisations shall not be valid for more than two years.
Articles 4 and 5 require Member States to establish observer schemes to monitor the incidental capture of cetaceans in the fisheries and at levels specified in Annex III. However, the fisheries that are subject to pinger requirements under Articles 2 and 3 (which cover most of the North Sea area) are not included in Annex III, but should be subject to scientific studies or pilot projects to monitor and assess the effects of pinger use over time. Fishing vessels with an overall length of less than 15 m are exempt from the observer requirement, but for the fisheries listed in Annex III, these vessels should be monitored by appropriate scientific studies or pilot projects.
Critically, the regulation includes no requirement to monitor cetacean bycatch by small vessels (<15 m) in the fisheries and areas subject to the pinger requirements (Annex I). This means that many vessels, particularly in inshore fisheries in areas where porpoise bycatch has already been identified as a significant problem are not required to be monitored.
This is an extract from the WDC Report Looking forward to 'strict protection': A critical review of the current legal regime for cetaceans in UK waters (2012) - A WDCS Report