EUROPEAN PARLIAMT 2009-2014 Committee on Petitions 3.3.2011 NOTICE TO MEMBERS Subject: Petition 1674/2009 by Radosław Ślusarczyk (Polish), on behalf of he environmental association Stowarzyszenie Pracownia na Rzecz Wszystkich Istot, on failure to enforce EU environment legislation in connection with a ski-sports project in Stog Izerski in south-west Poland 1. Summary of petition The petitioner refers to a ski-sports project in Stog Izerski in south-west Poland, which comprises the installation of ski-lifts and ski-runs. The petitioner points out that implementation of the project is contrary to numerous EU legislative acts in the environmental sector, including Council Directive 79/409/EEC on the conservation of wild birds, Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora and Directive 2004/35/EC of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage. As the petitioner's appeals to the responsible national authorities have been unsuccessful, he asks the European Parliament to intervene. 2. Admissibility Declared admissible on 24 February 2010. Information requested from Commission under Rule 202(6). 3. Commission reply, received on 12 July 2010. CM\859612.doc PE445.774v01-00 United in diversity
Habitats Directive 92/43/EEC 1 : The petitioner claims that the project referred to breaches Articles 6(2), 6(3) and 10 of the Habitats Directive. The Commission wishes to observe that the requirements of Article 6(2) of the Habitats Directive are applicable to species for which protected areas were submitted to the Commission to be included on the list of Sites of Community Importance (SCIs), for subsequent adoption, or, in the case of bird species by virtue of Article 7 of the Habitats Directive, for which special protection areas (SPAs) were designated under the Birds Directive. It must be noted that the documents submitted to the Commission indicate the deterioration of the habitat of, and disturbance to, one bird species in particular, e.g. black grouse (Tetrao tetrix). It must be observed, however, that this is not a species to which the requirements of Art. 6(2) of the Habitats Directive are applicable with regard to SCIs or for which the SPA was designated. For this reason, based on the information provided by the petitioner, it is not possible to identify a breach of Art. 6(2) of the Habitats Directive. The petitioner refers also to a possible breach of Art. 6(3) of the Habitats Directive. The petitioner mentions that the project has been authorised without a prior environmental impact assessment. As explained above, article 6(3) of the Habitats Directive provides for a procedure of assessment of projects likely to have significant effect on sites designated under either the Birds or Habitats Directive (so-called Natura 2000 sites). However, according to the ruling of the Court of Justice in case 209/04, the requirements of Article 6(3) of the Habitats Directive apply to Member States only for projects for which applications for development consent were filed after the date when the directive's requirements came into force for the Member State concerned. In the case of Poland, this is from 1 May 2004. From the information provided by the petitioner, it is clear that the investment procedure for the project began earlier, e.g. in 2003. Consequently, the Commission is not in position to establish a breach of Article 6(3) of the Habitats Directive with regard to the project. With regard to the petitioner's allegation regarding infringement of Art. 10 of the Habitats Directive, the documents presented by him do not provide any information supporting the view of a possible breach. Birds Directive 2009/147/EC 2 : According to the petitioner, the site in question, e.g. the SCI "Torfowiska Gór Izerskich" (PLH 020047), fulfils the criteria for a SPA from the ornithological point of view. Consequently, the petitioner claims a breach of Article 4(1) of the Birds Directive. However, the Commission does not have any grounds to identify a breach of this article. Nonetheless, it must be noted, that any deterioration or disturbance of black grouse by the project may result in a potential breach of the last sentence of Art. 4(4) of the Birds Directive. EIA Directive 85/337/EEC as amended by Directives 97/11/EC and 2003/35/EC 3 : 1 OJ L206, 22.7.1992, p. 7 2 OJ L 20, 26.1.2010, p. 7 3 OJ L 175, 5.7.1985, p. 40 PE445.774v01-00 2/5 CM\859612.doc
The petitioner claims that Article 10a of the EIA Directive has been breached. The claim concerns the lack of the right to lodge an appeal against the prosecutor's decision to discontinue the criminal investigation into the occurrence of the environmental damage, started on the basis of the petitioner's notification, since he is not a party to these proceedings under Polish law. The Commission wishes to note that the EIA Directive provides for the assessment of the environmental effects of the public or private projects which are likely to have significant effects on the environment, with Article 10a of the directive establishing the right of access to a review procedure, as quoted above. However, the situation referred to by the petitioner (e.g. the lack of the possibility for a review of the prosecutor's decision) falls outside of the scope of Article 10a of the EIA Directive, which provides for the possibility to review administrative decisions issued for projects likely to have a significant impact on the environment. Environmental Liability Directive 2004/35/CE 1 : The petitioner claims that Article 5(4) of the Environmental Liability Directive has been breached, since, the Polish authorities failed to take the measures in order to prevent the occurrence of environmental damage as required by Article 5(4) of the Environmental Liability Directive. The Commission wishes to observe that according to the information provided, the Polish authorities have fulfilled the obligations of Art. 5(4) of the directive by issuing a decision of 3 August 2009 from the Regional Director for Environment Protection (RDOŚ-02-WSI-6614-3/39-16/08/09/ap) on the commencement of the administrative proceedings on the precautionary measures. Consequently, the Commission is not in the position to establish a breach of Article 5(4) of the Environmental Liability Directive. Nonetheless, the Commission wishes to observe that the information provided may indicate a possible breach of Article 13(1) of the Environmental Liability Directive. It must be noted, however, that this article is subject to the conditions and limitation of national provisions that may include certain limitations for the access to review procedures for certain persons, including NGOs. In order to obtain more information on the compliance of the project and the related procedures with the requirements of Article 4(4) of the Birds Directive and Article 13(1) of the Environmental Liability Directive, the Commission will send a letter to the Polish authorities requesting clarifications. 4. Further Commission reply, received on 3 March 2011 (REV) The Commission's comments on the petition 1 OJ L 143, 30.4.2004, p. 56-75 CM\859612.doc 3/5 PE445.774v01-00
As a result of the exchange of correspondence with the Polish authorities, the following has been established. Firstly, the Polish authorities indicated that during the process of SPA designation, new scientific evidence became available with regard to the site in question. Consequently, the site "Góry Izerskie" is now intended to be designated as an SPA. According to the latest information supplied to the Commission by the Polish authorities, the designation process is currently in progress and is in its last phase. Therefore, in the opinion of the Commission, the duties flowing from Article 4(1) of the Birds Directive seem to be being properly applied with regard to the site in question. Taking into consideration the fact that the Polish authorities agreed that, in the light of new scientific evidence, the site should be designated as an SPA, the Commission has also asked the Polish authorities about compliance with Article 4(4) of the Birds Directive, the requirements of which is applicable to sites, which should be designated as SPAs in accordance with the case-law of the Court of Justice (C-374/98 Basses Corbieres). With regard to a possible breach of Article 4(4) of the Birds Directive, which stipulates that "In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article.", the Polish authorities provided the following explanations. The project received final authorisation decisions in 2003, e.g. prior to Poland's accession to the EU. Therefore, Article 4(4) of the directive was not applicable to Poland at that time. Currently, Article 4(4) of the Birds Directive is implemented by the procedure flowing from the Environmental Liability Directive, e.g. by a procedure aimed at establishing whether environmental damage occurred, and if it did, at providing appropriate mitigation measures. The Commission was not fully satisfied with this response taking into consideration the difference in the scope of the application of the Environmental Liability Directive and Article 4(4) of the Birds Directive. Consequently, the issue of compliance with the latter provision was discussed with the Polish authorities during the package meeting of 28 September 2010. The Polish authorities indicated that, in the light of the information available to them, the project does not result in a significant disturbance of the species for which the site is intended to be designated, hence there is no risk of a breach of Article 4(4) of the Birds Directive. In addition, the Polish authorities declared their intention to investigate whether measures other than designation of the site as an SPA are required in order to maintain the black grouse in good conservation status. In view of the above, the Commission is not in a position to establish a breach of Article 4(4) of the Birds Directive. Moreover, the Commission will continue to monitor closely the designation process of the site. With regard to Article 13(1) of the Environmental Liability Directive, the Polish authorities provided details of the transposing provisions under the Polish law (e.g. Article 24 of Law on preventing the environmental damage and its redress). The authorities explained that in line with this provision, NGOs are granted the status of party to administrative proceeding PE445.774v01-00 4/5 CM\859612.doc
concerning inter alia preventive action and, consequently, they can challenge the legality of the decisions taken by the competent authorities or take their failure to act to an administrative court for a review, as required by the directive. From the information supplied, it is clear that the petitioner submitted a claim to the competent authorities indicating that there was an immediate threat of environmental damage. Pursuant to this, the responsible authorities issued a decision on the duty to carry out preventive action (decision of 10 April 2010). However, both the petitioner as well as the investor filed an appeal against this decision. In line with the latest information provided to the Commission by the Polish authorities, no final decision has been made yet on the matter. From the structure of the Polish law it is clear, however, that in the event that the petitioner should not be satisfied with the outcome of the appeal filed before the administrative bodies, an appeal to an administrative court can be filed. Taking into consideration the above, the Commission is not in position to establish a breach of Article 13(1) of the Environmental Liability Directive. Additionally, the Commission is not in possession of any evidence which would allow it to identify a breach of the ELD Directive. Conclusion Currently, the Commission cannot identify a breach of EU environmental law with regard to the procedures followed. CM\859612.doc 5/5 PE445.774v01-00