Litigating for the Environment - EU Law, National Courts and Socio-Legal Reality

Preface

Contents

List of Tables

List of Figures

Abbreviations

1 Introduction

2 The Interest in the Judicial Enforcement of EU Law

2.1 Public Interest Group Litigation as a Decentralised System of European Law Enforcement

2.2 The European Court System, European Integration and Democratic Governance

2.3 Empirical Puzzle

2.4 Research Question(s)

3 Theoretical Approach

3.1 Definitional Issues

3.2 Existing Explanations for the Differing Effects of Public Interest Group Litigation

3.3 The Stage Model

3.3.1 Legal Preconditions for Public Interest Group Litigation

3.3.2 Stage 1: Litigation by Public Interest Groups

3.3.3 Stage 2: Interpretation by the National Courts

3.3.4 Stage 3: Reaction of the Competent Authorities

3.4 Other Possible Explanatory Factors

4 Methodological Approach

4.1 Research Design

4.2 Tools of Inquiry, Data Collection and Data Analysis

4.3 The Policy Area: European Nature Conservation Policy and the Natura 2000 Directives

5 The Natura 2000 Directives

5.1 The Birds Directive and Hunting Dates

5.2 The Site Protection Regime of the Birds Directive

5.2.1 The ECJ’s Case Law on the Birds Directive

5.2.2 The Protection Regime of the Habitats Directive

5.2.2.1 The ECJ’s Case Law on the Habitats Directive

6 France

6.1 The Setting of Hunting Dates

6.1.1 Preliminary Remarks: Scientific Evidence and Hunting Dates

6.1.2 The Context for the Implementation of the Birds Directive

6.1.3 The Initial Transposition

6.1.4 French Environmental Organisations and Litigation

6.1.5 The Interpretation of the Birds Directive by French Courts

6.1.5.1 The Conseil d’État and the Supremacy of European Law

6.1.5.2 French Courts and the Setting of Hunting Dates

6.1.6 Reaction of the Competent Authorities

6.1.7 The Late Role of the European Commission

6.1.8 Ultimately Achieving Compliance

6.1.9 Conclusion

6.2 The Implementation of the Natura 2000 Network

6.2.1 The Protracted Process of Designating Natura 2000 Sites

6.2.2 The Initial Transposition of the Directives’ Site Protection Regime

6.2.3 Reaction of French Environmental Organisations

6.2.4 The French Courts and the Natura 2000 Directives

6.2.4.1 Direct Reference to the Directives’ Site Protection Regime

6.2.4.2 Indirect Reference to the Directives’ Site Protection Regime

6.2.4.3 Forcing the Designation of Specific Sites

6.2.4.4 Effects of the Courts’ Restrictive Interpretation

6.2.5 Effects of Litigation

6.2.6 The Role of the European Commission for Achieving Compliance

6.2.7 Remaining Implementation Problems

6.3 Linking the Empirical Results to the Stage Model

7 Germany

7.1 The Implementation of the Natura 2000 Directives

7.1.1 Designation of Sites

7.1.2 Site Protection Measures

7.1.2.1 Transposition

7.1.2.2 Application

7.2 Reasons for the Implementation Problems

7.3 The Activities of German Environmental Organisations to Achieve Compliance

7.3.1 Environmental Organisations and Their Access to Courts

7.4 The Role of the European Commission

7.5 Interpretation by German Courts

7.5.1 Initial Rulings on the Directives’ Site Protection Regime

7.5.2 Giving Direct Effect to Article 6

7.5.3 Clarifying the Status of Potential Natura 2000 Sites

7.5.4 Applying the Site Protection Regime: Significant Negative Effects, Alternatives, and Overriding Reasons of Public Interest

7.5.5 Holding the Directives back through Courts

7.5.6 Assessing the Court’s Rulings

7.6 Reaction of Environmental Organisations: Restricted Litigation

7.7 Effects of Litigation

7.8 Linking the Empirical Results to the Stage Model

8 The Netherlands

8.1 The Implementation of the Natura 2000 Directives

8.1.1 The Site Protection Regime

8.1.2 The Designation of Sites

8.1.3 The Species Protection Regime

8.2 Reasons for the Implementation Problems

8.3 The Role of the European Commission for the Implementation

8.4 Initial Actions Taken by Dutch Environmental Organisations: Blocked Access

8.5 The Courts’ Interpretation of the Natura 2000 Directives

8.5.1 The Site Protection Regime

8.5.1.1 The First Phase: Complete Neglect

8.5.1.2 The Second Phase: Approaching the Directives Ambiguously

8.5.1.3 The Third Phase: Gradually Giving Direct Effect to Article 6

8.5.2 The Issue of Site Designation

8.5.3 The Issue of Species Protection

8.5.4 The Reasoning of the Raad van State – The Way the Court Tests

8.6 Public Interest Group Litigation to Enforce the Directives

8.6.1 The Opportunities to Use Litigation

8.6.2 The Reaction of Environmental Organisations to the Created Opportunities

8.7 Effects of Litigation

8.8 Linking the Empirical Results to the Stage Model

9 Conclusion

9.1 Evaluating the Stage Model on the Basis of the Empirical Results

9.1.1 The Explanatory Power of the Stage Model

9.1.2 The Explanatory Power of Alternative Explanations

9.1.3 Forgotten Explanatory Factors of the Stage Model?

9.2 Litigation as a Decentralised Instrument of European Law Enforcement

9.3 European Integration, Democratic Governance and Litigation

References