Top EU court finds Berlin failed to protect nature

More than a decade after EU-wide nature reserves were created to protect the continent’s most vulnerable species, the European Court of Justice (ECJ) found on Thursday (21 September) that Germany failed to adequately protect them.

Natura 2000 is a network of conservation areas which aims to preserve key ecosystems for protected species across EU territory. In Germany, some 4,600 areas were identified, yet the country and its states failed to adequately declare them as protected areas.

“Germany is failing in its obligation to prevent the deterioration of … low hay meadows and mountain hay meadows. Largely due to unsustainable agricultural practices, these habitat types have significantly diminished in size or disappeared completely,” the European Commission found in 2019.

On Thursday, the EU’s top judges confirmed that Germany had failed to meet its obligations.

By not designating 88 areas as “special areas of conversation”, Berlin violated the EU’s 1992 Habitats Directive, one of the cornerstones of the bloc’s biodiversity policy. Additionally, some 700 areas were not subject to specific enough criteria, the ECJ judgement said.

In particular, the court found that for the elusive Hemlock Water Fennel, a plant species primarily found along the banks of the river Elbe, legal protection was not sufficient – environmental impact assessments failed to list the species at all.

Additionally, Germany failed to sufficiently distinguish between nature “protection” and “restoration”. This failed to account for a previous court ruling, which found that the two must be accounted for separately and with different sets of measures.

“Only 25% of species and 30% of habitat types are currently in a favourable conservation status,” noted Jörg-Andreas Krüger, president of BirdLife Europe (NABU).

Berlin will have to bear the costs of the trial. Contacted by Euractiv, Germany’s Justice Ministry declined to comment while the Environment Ministry could not be reached.

A damning judgement

The judgement is damning for German environmental protection policy, activists said.

“Non-binding, unspecific and insufficient – after Germany has been sloppy in implementing the Habitats Directive in its protected areas over the past decades, today’s ruling confirms what can already be seen in the protected areas themselves,” stressed Krüger.

The judgement from Luxembourg, where the EU’s top court is located, should come as a final warning, Krüger said.

“It is the last reminder to the federal and state governments not only to designate FFH areas [to protect and restore species in line with EU rules] but to protect them in concrete terms – otherwise they face fines,” he added.

While the court supported the Commission’s allegation that a relatively low number of conservation areas weren’t actually being protected, it did not share NABU’s concerns that Germany’s entire approach to nature protection was flawed from the get-go.

The court ruling may also have consequences for the German power sector.

Clashing with nature protection rules has long been a major concern of Germany’s onshore wind power industry, which is already struggling to meet build-out targets.

It remains to be seen if a previous accord between the environment and economy ministry to avoid burdening developers with overly stringent regulation could be called into question by the court judgement.

Germany strikes compromise between wind power expansion and nature protection

The German government has announced a compromise paper which will ensure that the government’s aim of a rapid expansion of onshore wind energy will not be stymied by too stringent environmental protection rules.

[Edited by Nathalie Weatherald]

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