Species Protection in the European Union : How Strict is Strict?

Abstract

European Union law to protect wild species of plants and animals is generally considered as ‘strict’. Opponents of nature conservation law often pick the species protection components of the EU Bird Directive and Habitat Directive as a prime example of an unnecessary strict regulatory scheme that results in limitations of economic developments. Based on case law of the Court of Justice of the European Union, this paper explores to what extent EU species protection rules are indeed as rigid as its opponents often depict them. The article starts with a presentation of some general considerations regarding the motivations underpinning species protection law (Section II). Based on a brief discussion of the various “human-nature-attitudes” as distinguished in environmental philosophy, the authors show that at the level of international nature conservation law, an interesting shift in human-nature relationships from mastery towards stewardship and even to the ecocentric attitudes can be recognized; however, despite this shift, many of the nature conservation goals have not been met. One of the common weaknesses of many of the international conventions is that the wording of obligations and prohibitions leaves much leeway for balancing interests, prioritizing short term economic benefits and - consequently - for mastery behaviour. This helps to understand that in the EU, with 80% of the important natural values in an unfavourable conservation status, species protection law is meant to be more concrete and strict (Section III). The discussion of the case law of the EU Court of Justice in this article shows that in the last two decades many attempts have been made by Member States to find the weak components of the system in order to find space for prioritizing economic interests; however, the analysis also shows that in all these situations the Court has closed the backdoor for mastery by enforcing the strict character of the regime (Section IV). The article concludes with the observation that this strict character of the system appears to be an important fundament for developing new innovative approaches (Section V): Governments and businesses start to understand that a willingness to take nature conservation law seriously and by conducting active initiatives to restore species in a favourable conservation status, there is less need and space for legal procedures and more space for economic developments.