The Impact of EU Environmental Law on Waterways and Ports

Transcription

1 The Impact of EU Environmental Law on Waterways and Ports including a proposal for the creation of Portus 2010, a Coherent EU Network of Strategic Port Development Areas A study carried out in the framework of the Maritime Transport Coordination Platform of the European Commission (Directorate General Energy and Transport) Eric Van Hooydonk Professor of Law, University of Antwerp Advocate Maklu Antwerp / Apeldoorn

2 Table of contents Executive summary BACKGROUND AND APPROACH OF THE STUDY Background The Maritime Transport Coordination Platform (MTCP) Definition of the problem: the difficult implementation of EU environmental legislation in and around waterways and ports Objectives Structure Methodology List of abbreviations OVERVIEW OF RELEVANT LEGAL INSTRUMENTS Introduction The legal framework for the protection of natural habitats and water bodies EU law The EC Treaty The Birds Directive The Habitats Directive The Water Framework Directive Selected other instruments The EIA Directive The SEA Directive The Environmental Information Directive The Environmental Participation Directive International law The CBD The Bern Convention The Ramsar Convention The Transboundary Watercourses Convention The Marine Dumping Conventions The AFS Convention The BWM Convention The Espoo Convention The Aarhus Convention 57

3 2.3. The legal framework for the use, maintenance and improvement of waterways and ports EU law The EC Treaty Liberalisation instruments The TEN-T Guidelines Modal shift instruments State aid policy International law The regime of inland waterways and ports The regime of the territorial sea The regime of the EEZ The regime of the high seas The interrelation and integration of EU laws and policies on environmental protection, waterways and ports Importance of the issue The integration principle of the EC Treaty The integration principle in secondary EU law on waterways and ports Integration of EU transport policy objectives into EU environmental policy The interrelation between conflicting provisions of EU law The interrelation between EU law and international law The interrelation between conflicting international conventions Interim conclusions SELECTED CASES ON THE BIRDS AND HABITATS DIRECTIVES Introduction Leybucht (Port of Greetsiel) Background Environmental issues Court judgment Consequences Lappel Bank (Port of Sheerness) Background Environmental issues Court judgment Consequences 123

4 3.4. Seine Estuary (Ports of Le Havre and Rouen) Background Environmental issues Court judgment Consequences Severn Estuary (Port of Bristol) Background Environmental issues Court judgment Consequences Second Deepening of the River Scheldt Background Environmental issues Intervention of the European Commission Consequences Deurganck Dock (Port of Antwerp) Background Environmental issues Intervention of the European Commission Court judgments Consequences Dibden Bay (Port of Southampton) Background Environmental issues Decision of the UK government Consequences Western Scheldt Container Terminal (Port of Flushing) Background Environmental issues Court judgment Consequences Cockle Fisheries (Waddenzee) Background Environmental issues Court judgment Consequences Second Maasvlakte (Port of Rotterdam) Background Environmental issues Opinion of the European Commission Court judgment Consequences 158

5 3.12. Other cases Port of Zeebrugge Background Environmental issues Verrebroek Dock (Port of Antwerp) Background Environmental issues Intervention of the European Commission Haringvliet Yachting Harbours Background Environmental issues Court judgment Consequences Port of Vuosaari Background Environmental issues Court judgments Interventions of the European Commission and the European Parliament Consequences Ports of Felixstowe, Harwich, Hull, Immingham and London Background Decisions of the UK government Port of Monfakone Background Environmental issues Court judgment Consequences Seed Mussels (Eastern Scheldt) Background Environmental issues Court judgment Consequences Vilshofen - Straubing stretch of the River Danube Background Environmental issues Interim conclusions POLICY INTEGRATION INITIATIVES Introduction Consultations under the relevant directives 182

6 4.3. Commission initiatives Cooperation between Directorates General Specific guidance documents and integration activities Integrated Coastal Zone Management Forthcoming EU Maritime Policy Selected private initiatives supported by the Commission and/or the industries Ecoports ESPO's Environmental Codes of Practice Paralia Nature NEW! Delta SedNet National and local initiatives Conferences, seminars, etc Critical assessment and interim conclusions UNRESOLVED PROBLEMS Introduction Implementation of the Birds and Habitats Directives A battle for scarce areas The economic need for additional capacity on waterways and in ports The scarcity of both nature conservation areas and waterway and port development areas Problems relating to the designation of nature conservation areas Fundamental legal uncertainty A growing malaise Lack of clarity on obligation to assess maintenance dredging Insufficient guidance on the alternative solutions test Insufficient guidance on the overriding public interest test Causes and effects of legal uncertainty Implementation of the Water Framework Directive Involvement of shipping and port stakeholders at EU level Acknowledgement of the need for policy integration and further guidance Forthcoming guidance on technical and policy-related issues The need for more legal guidance and integration The CIS not a guarantee against legal disputes Designation of heavily modified water bodies 239

7 New modifications Issues related to dredging Other ambiguities Interim conclusions PRINCIPAL CONCLUSIONS AND RECOMMENDATIONS Principal conclusions Conclusions on the existing legal framework Conclusions on past implementation of the Birds and Habitats Directives Conclusions on policy integration initiatives relating to the Birds, Habitats and Water Framework Directives Conclusions on unresolved problems relating to the Birds, Habitats and Water Framework Directives Recommendations Recommendations for a clearer definition of policy objectives Increase awareness of integration problems Define two-way integration as a key objective of waterway and port policies Address specific environmental issues in future waterway and port policies Recommendations for a better implementation of the existing legal framework Exchange knowledge and build legal capacity Recommend consultation at the designation stages under the Birds and Habitats Directives Provide additional general guidance on the Birds, Habitats and Water Framework Directives Provide waterway and port-specific guidance on the Birds, Habitats and Water Framework Directives Link TEN-T and other statuses of waterway and port plans and projects to environmental assessments Recommendations for a reinforcement of the legal status of waterway and port development Attach a legal status to the forthcoming EU Network of Inland Waterways Create Portus 2010, a Coherent EU Network of Strategic Port Development Areas Conflicting views on the need for national port planning in Member States

8 The happy medium: reserving port expansion areas for unhindered future development while respecting environmental requirements Portus a mirror image of the Natura 2000 Network Portus a tool for a proper economic assessment and risk management of port plans and projects Portus an instrument for a better integration of policies Portus 2010-a strong legal status for port expansion areas Portus a guarantee for commercial adaptability and managerial flexibility Portus a basis for just compensation of port authorities Portus a strategy for the management of non-socioeconomic values of waterways and ports Summary of recommendation Link TEN-T and other statuses of waterway and port plans and projects to environmental assessments Consider amendments to the proposed Marine Strategy Directive Take opportunities to clarify the Birds, Habitats and Water Framework Directives Insert a provision on waterways and ports in the EC Treaty and introduce an Infrastructure Impact Assessment Report Timetable 298 ANNEX - SELECTED SOURCES Legislation International conventions Community instruments Secondary legislation Preparatory documents Case law European Court of Justice judgments European Commission decisions Belgian court judgments Dutch court judgments Legal doctrine

9 4. Various sources European Community ESPO Other documents Other internet sources Correspondents and interviewees