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Originally published in International Fisheries Bulletin, Reporter: January/February 2002 No. 4 Casenote Case C-103/00 European Commission v Greece European Court of Justice In 1998, the European Commission began proceedings against Greece for failing to adequately protect beaches in the island of Zakinthos which are vital breeding sites for the Mediterranean sea turtle. Under EC law, Greece should have established a strict system of protection in 1994. Despite further warnings from the Commission, such a system still had not been established towards the end of 1999 and the Commission therefore brought the matter before the European Court of Justice. This note briefly reviews the background to the Commission action and the decision of the Court, which found in favour of the Commission. Introduction The loggerhead turtle (Caretta caretta) is a highly migratory sea turtle which is distributed in many coastal regions of the world. In the Mediterranean, where it is more usually referred to as the Mediterranean sea turtle, it is the most common turtle, nesting on beaches from Greece and Turkey to Israel, Tunisia and Libya. Loggerheads are particularly vulnerable to accidental capture in fishing nets, but in the Mediterranean an equally serious threat is posed by tourism and development on many of their nesting beaches. Habitat loss or disturbance and pollution are now considered to be the main threats to the turtles in the Mediterranean. The case against Greece concerned the need to protect the sea turtles in the bay of Laganas on the island of Zakinthos. The bay of Laganas contains some of the most important beaches for the Mediterranean sea turtle and is a vital breeding region, perhaps even the most important in the Mediterranean. This is recognized by the Greek authorities, which have proposed that the region be classified as one of the sites of Community importance for the Natura 2000 network. It is therefore crucial that the turtles have undisturbed access to these beaches at certain times of the year (in Greece, the laying season starts at the end of May and finishes at the end of August) so that they can lay their eggs. Unfortunately, the bay of Laganas has suffered, for a number of years, from disturbances caused by tourist-related activities, such as building works and the use of leisure craft and umbrellas. Legal status of the Mediterranean sea turtle The loggerhead turtle is protected in the Mediterranean under a number of international agreements, including:
Within the European Community, the species is protected under the so-called Habitats Directive.[b] To a large extent, this Directive is designed to implement the Community's international commitments outlined above (and, in particular, the Bern Convention), as well as the Community's own conservation objectives. The general stated aim of the Directive is to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. Species are listed in a number of Annexes to the Directive, according to the type of protection they need. Loggerhead turtles are listed in Annex II as a species of Community interest whose conservation requires the designation of special areas of conservation and (of more relevance to the present case) in Annex IV(a) as animal of Community interest in need of special protection. Article 12(1) of the Directive provides that, for species listed in Annex IV(a), Member States are to take the requisite measures to establish a system of strict protection, in particular by (inter alia) prohibiting: all forms of deliberate capture or killing; deliberate disturbance, particularly during the period of breeding, rearing, hibernation and migration; and deterioration or destruction of breeding sites or resting places. Under Article 23(1) of the Directive, Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification. Since notification of the Directive took place in June 1992, the relevant time-limit expired in June 1994. Pre-litigation background Although the time-limit for compliance with the Habitats Directive expired in 1994, it was not until 1998 that the European Commission began to examine the conservation efforts for the turtles in Zakinthos. The reason behind the Commission's interest was growing criticism from a number of non-governmental organizations that the provisions made for the protection of the turtle habitats were inadequate. In response, the Commission requested information in June 1998 from the Greek authorities on measures for the protection of the sea turtle on the island and in July of the same year officials from the Commission went to Zakinthos to verify whether any measures for the protection of the sea turtle had in fact been implemented. In the course of the mission, they visited the a number of beaches in the Bay of Laganas where the turtles lay their eggs (at Laganas, Kalamaki, Sekania, Dafni and Gerakas). For a number of reasons, however, the Commission considered that the protective measures at all of the places visited were inadequate. Specifically, it was found that: there was no supervision and no notices on the beaches; pedalos and boats were being used in the sea area where their use was prohibited; a significant number of beach umbrellas and deck-chairs on various beaches; and there were illegal buildings and recent works on one of the beaches (Dafni). As a result, the Commission notified a Letter of Formal Notice (the first formal stage in the bringing of proceedings against a Member State under Article 226 of the EC Treaty) to Greece in December 1998. In response, the Greek authorities confirmed their intention to create a marine park in Zakinthos and notified the Commission that a draft presidential decree on the creation of the marine park had been submitted to the Greek Council of State for finalization. However, the Greek authorities also indicated that before the Park could be established, several further steps needed to be completed, including the adoption of two further Presidential decrees, one of a general nature containing financial provisions applicable to all the protected natural regions in Greece and the second dealing with compensatory measures for Zakinthos marine park. At the same time, the Greek authorities also announced a series of specific measures such as, in particular, the demolition of all illegal buildings on the beaches, the establishment of a national land register, the prohibition of vehicle access to the beaches, the replacement of certain lighting which disturbed the turtles and the removal of deck-chairs and beach umbrellas. Although it was likely that the creation of the marine park would create adequate conditions for the turtles, the Commission pointed out that such measures should have been in place since 1994 and, since it did not consider the existing measures adequate, decided to continue with proceedings against Greece. It notified a Reasoned Opinion to Greece in June 1999 (the second formal stage under Article 226) asking for compliance no later than August 1999. No adequate response to the Reasoned Opinion was received from Greece and further inspections by Commission officials in August 1999 found that although some progress had been made to enforce the conservation policies, most of the threats identified in the 1998 inspection remained. The Commission therefore decided to press ahead with an application to the Court of Justice. The Court's decision In deciding against Greece, the Court considered both the general legislative provisions adopted by Greece, which culminated in the 1999 Decree, for the protection of the turtles in the Bay of Laganas. Greece pointed to measures it had progressively taken to ensure the protection of turtles on Zakinthos, going back to the 1980s. The major difficulty for Greece, was that the 1999 Decree, on which it based a significant part of its pleadings, was adopted after the expiry of the time-limit laid down in the Reasoned Opinion. In accordance with its previous case-law, the Court was not able, as a matter of procedure, to take account of any changes subsequent to the end of that time-limit. Consequently, the system of protection introduced by the 1999 Decree was disregarded by the Court. Having disregarded that legislation, the Court agreed with the Commission that the legislation existing at the relevant time was not adequate. In addition to the findings of the Commission during its inspections, this was evidenced partly by a 1999 Greek Council of State report annexed to the draft presidential decree which concluded that the provisions in force at that time did not ensure, to the extent necessary, the effective protection of the sea and land areas of the bay of Laganas. As regards the specific measures introduced for the protection of the turtles, following the Commission's complaints the Court again agreed with the Commission that, although some measures had addressed certain threats to the turtles, in fact they had not been sufficient. It was not disputed by Greece that the use of mopeds, the presence of pedalos and small boats and the presence of illegal buildings could result in disturbance during the laying period, the incubation period and the hatching of the eggs, as well as during the baby turtles' migration to the sea or, in the case of the boats, could constitute a source of danger to the life and physical well-being of the turtles. The Court observed that many of the threats identified by the Commission were continuing and that they were not isolated occurrences. Indeed, in the case of the illegal buildings at Dafni, the number of such buildings had in fact increased. It followed, therefore, that these act constituted deliberate disturbance of the species in question during its breeding period for the purposes of Article 12(1)(b) of the Directive and, in the case of the illegal buildings, were liable to lead to the deterioration or destruction of the breeding site within the meaning of Article 12(1)(d) of the Directive. The Court thus concluded that Greece had not taken, within the prescribed time-limit, all the requisite specific measures to prevent the deliberate disturbance of the turtles during their breeding period and the deterioration or destruction of its breeding sites. The decision of the Court of
Justice has been welcomed by environmental groups. It brings Greece to account
for failing to implement the necessary measures to protect the sea turtle
habitats within the time-limit laid down by Community law. It is to be
remembered that although the Greek authorities were in the process of completing
the measures required at the time the Commission brought its action, these
measures were, in any case, several years late as far as Community law was
concerned. The direct impact it will have on the protection of the turtle
habitats in Zakinthos is perhaps limited, however, since it appears that
adequate measures have now been implemented by Greece. These are measures that
would have been implemented in any case, although it is possible that the
proceedings brought by the Commission resulted in more speedy action from the
Greek authorities. The fact that these proceedings were not initiated by the
Commission until four years after the time at which the measures should have
been implemented and the fact that the lack of protection provided for the
turtles was not addressed by the Commission until the issue had been brought to
its attention by non-governmental organizations, highlights a further problem,
however. Namely, the Commission itself has been slow in enforcing Community law.
This is a problem experienced widely in the case of the Habitats Directive,
however, which is a wide-ranging, complex and expansive piece of legislation.
The basic problem is that the European Commission largely lacks the means and
resources to effectively enforce the Habitats Directive and fully protect
species such as the Mediterranean sea turtle. Nevertheless, cases such as Commission
v Greece continue to enforce the message that Member States must
implement their legal obligations in respect of conservation legislation: the
Commission, perhaps with the assistance of NGOs, will catch up with
transgressing States eventually. [a] The 1999 Action Plan for the Conservation of Mediterranean Marine Turtles, which as its title suggests is a non-binding instrument, lists a number of priorities and areas for action for Mediterranean coastal States, including (in an Annex) a number of specific measures for specific coastal States. The need to establish the Zakinthos National Marine Park and further strengthen the appropriate conservation and management of the site and the need to take effective management measures at all "major" nesting areas were among the actions identified for Greece. [RETURN] [b] Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna. As regards international trade, the relevant Community rules are of course provided in the "CITES Regulation": Council Regulation (EC) No. 338/97 on the protection of species of wild fauna and flora by regulating trade therein. [RETURN] The Court's Judgment is reproduced in Current Materials Caretta
caretta in
Zakynthos (Greece) Greece
in Legal Hot Water over Failure to Protect Turtle |
