Bialowieza National Park – Photo by Frank Vassen
(LUXEMBOURG) – It is unlawful to increase logging in Poland’s Bialowieza Forest, the Advocate General of the European Court of Justice confirmed in an opinion issued Tuesday. The Court’s final judgement is due in March.
Advocate General Bot’s opinion concerns forestry management decisions taken by Poland over the Natura 2000 Puszcza Bialowieza site, which, he says, are necessarily liable “to result in a deterioration of the breeding sites of the protected species”.
The EU Commission approved in 2007 the designation of the Natura 2000 Puszcza Bialowieska site as a ‘site of Community importance’ on account of the presence of natural habitats and habitats of certain priority species of animals and birds. The site is also designated under the EU’s Birds Directive as a ‘special protection area’ for birds. The Natura 2000 Puszcza Bialowieska site is one of the best preserved natural forests in Europe, characterised by large quantities of ancient trees, some of which are centuries old, and dead wood.
Because of the constant spread of the spruce bark beetle, the Polish Minister for the Environment authorised in 2016 almost a tripling of harvesting of wood in the Bialowieza forest district alone, and the carrying out of active forest management operations such as sanitary pruning, reforestation and restoration, in areas where any intervention was previously excluded. In 2017, the Director General of the Forestry Office then adopted, for the three forest districts of Bialowieza, Browsk and Hajnowka, Decision No 51 ‘concerning the felling of trees colonised by the spruce bark beetle and the harvesting of trees constituting a threat to public safety and posing a fire risk in all age classes of forest stands in the forest districts ’ Work thus began on the removal of dead trees and trees colonised by the spruce bark beetle from those three forest districts in an area of approximately 34 000 hectares, the Natura 2000 Puszcza Bialowieska site extending to 63 147 hectares.
Since it took the view that the Polish authorities had failed to ensure that those forest management measures would not adversely affect the integrity of the Natura 2000 Puszcza Bialowieska site, the Commission brought an action on 20 July 2017, seeking a declaration that Poland had failed to fulfil its obligations under the Habitats and Birds Directives.
In his Opinion, Advocate General Yves Bot proposed that the Court should rule that Poland has failed to fulfil its obligations under those directives.
The aim of the Habitats Directive is that the EU’s Member States should take appropriate protective measures to preserve the ecological characteristics of sites which host natural habitats, said the Advocate General. Thus the necessary conservation measures for special areas of conservation must be established and specific obligations must be complied with where a plan or project not directly connected with or necessary to the management of the site, but likely to have a significant effect on the site, is to be adopted.
The Advocate General considers, in the first place, that Poland has not implemented the necessary measures for the conservation of the Natura 2000 Puszcza Bialowieska site. He observes, first, that that follows from the very nature of the measures taken by the Polish authorities, which led to the loss of part of the forest stands. He states, next, that they cannot be justified by an unprecedented spread of the spruce bark beetle, in view of the divergence of scientific opinion on whether they are appropriate. Finally, he observes that the measures are regarded as potential threats to the conservation of protected habitats and species in a management plan (Plan Zadan Ochronnych, PZO) adopted by the national authorities in 2015.5 In his view, the measures at issue have the potential consequence of depriving the PZO of effectiveness or even of allowing the Polish authorities to disregard its requirements. In those circumstances, the Advocate General proposes that the Court should declare that Poland has failed to fulfil its obligations in this respect, both under the Habitats Directive and under the Birds Directive.
In the second place, after noting that it had also been argued that the measures at issue represented a plan or project not directly connected with or necessary to the management of the Natura 2000 site within the meaning of the Habitats Directive, the Advocate General recalls that if such a plan or project is likely to have a significant effect on the site, it must first be the subject of an appropriate assessment of its implications for the protected site, so that it can then be authorised if it does not adversely affect the integrity of the site. The Advocate General considers that it follows from a simple review of the chronology of the decisions at issue, and the logic of the supporting documents produced, that the assessment required by the Habitats Directive could not have been carried out, which suffices for a finding that Poland has failed to fulfil its obligations under the Habitats Directive in this respect as well.
He notes that various decisions had been taken, shortly before that of 2016, in the 2015 PZO for trees colonised by the spruce bark beetle. He observes that, although a balance needs to be struck between active management measures and passive management measures aimed at combating the spread of that beetle in order to fulfil the conservation objectives referred to in the Habitats and Birds Directives, that balancing exercise cannot be found anywhere in the provisions of Decision No 51 adopted in 2017, in that it allows implementation of forest stand felling and removal measures without restriction. He points out that it remains to be shown that the spread of the spruce bark beetle was encouraged by the volumes of wood harvested from 2012 to 2015, while they remained the same as in previous years in the Bialowieza forest district. He notes that, on the very day of the 2016 decision, a remediation programme was adopted for the purpose of assessing the future effect of the measures taken, that the 2015 assessment produced is not concerned with the impact of the forest management measures on the conservation and integrity of the Natura 2000 Puszcza Bialowieska site as a whole, and that it is based on data from 2012.
The Advocate General further adds that, in any event, the requirements of the Habitats Directive concerning assessment, as interpreted by the Court, have not been satisfied either, since on the date of adoption of the decisions at issue there was continuing scientific controversy as to the appropriate methods for halting the spread of the spruce bark beetle.
He also considers that the precautionary principle integrated in the Habitats Directive has likewise been disregarded, since, at the time when the measures at issue were adopted, the reality and the seriousness of the potential risks of adversely affecting the conservation and integrity of the Natura 2000 Puszcza Bialowieska site had not been fully identified, assessed and, where appropriate, ruled out.
Advocate General’s Opinion in Case C-441/17 Commission v Poland
