Prohibiting Drivers of Biodiversity Loss

On 14 November 2024, the Court of Justice of the European Union (CJEU) found Germany in breach of the Habitats Directive (HD) due to a failure to prohibit agricultural activities that drove biodiversity loss in protected (Natura 2000) sites.

The ruling in C-47/23 appears significant due to its focus on the drivers of deterioration and the need to take legally binding measures against those drivers. In light of the poor state of nature across the EU and the ongoing failure to adequately address the drivers of biodiversity loss, this ruling provides an important clarification on the HD’s non-deterioration obligation.

This contribution sets out the background of the case, provides an overview of the judgment and argues that it appears to provide strong arguments and opportunities for national challenges against inadequate non-deterioration measures which could in turn help to address the underlying drivers of biodiversity loss more broadly.

Background to the case

Art. 17 Treaty of the European Union states that the Commission ‘shall ensure the application of the Treaties’ and ‘shall oversee the application of Union law under the control of the Court of Justice of the European Union’. However, in practice, the Commission often falls short of its role as the ‘Guardian of the Treaties’. The infringement process continues to be politicised, the lack of adequate staff capacity results in long delays and the process is very opaque.

As this case originally started with a complaint brought by the NGO NABU in 2014, it highlights  those structural shortcomings while also demonstrating the importance and value of complaints from civil society in bringing systemic failures to comply with EU environmental law to the attention of the Commission.

After the launch of the complaint in April 2014, five years passed until the infringement process was started in July 2019 with a letter of formal notice. A reasoned opinion followed in October 2020, and ultimately, the referral to the CJEU was announced in December 2021. Another year passed until the application was actually submitted to the Court in January 2023.

Overall, almost 10 years passed during which the sites in question most likely continued to deteriorate. This may have also been one reason why the Commission provided additional evidence of 101 deteriorating sites that it had initially not included in its reasoned opinion to demonstrate Germany’s general and structural failure – although this is not expressly stated in the summary of the Commission’s arguments or the Court’s findings on this preliminary point (para 27 – 40).

While ultimately also linked to political priorities and capacity, the need to adduce sufficient evidence to meet the burden of proof for a ‘general and structural failure’ case may also have made the Commission reluctant to take on such cases. As highlighted by Francesco Maletto, this ruling appears to break a trend of the Commission failing to meet this evidential standard and could encourage the Commission to bring more systemic failures of EU environmental law cases to the Court.

Overview of the judgment

The judgment covers two grounds. First, the failure to take appropriate steps to avoid the deterioration of two Natura 2000 habitat types (lowland and mountain hay meadows) under Art. 6(2) of the Habitats Directive. Second, a failure to transmit updated data on the sites that are designated for the protection of these habitat types under Art. 4(1). Only the first ground was successful, with the Court holding that there was no ongoing obligation to regularly transmit information on sites, and this contribution will focus on the Art. 6(2) ground.

Art. 6 HD obliges Member States to take three types of measures in protected areas: conservation, prevention and compensation measures (cf. para 84). Art. 6(2) covers prevention measures, setting out an obligation for Member States to take appropriate steps to avoid the deterioration of protected habitats.

In holding that Germany had breached its non-deterioration obligations under Art. 6(2) HD in a general and structural way, the Court considered three aspects: the loss of areas, the lack of site-specific surveillance and the lack of legally binding measures.

First, on the area loss, the Court reiterated that Art. 6(2) HD may require measures to avoid ‘external man-caused impairment and disturbance’ (para 95). Hence, in the words of AG Emiliou, Art. 6(2) entails both a negative obligation to refrain from harmful actions and a positive obligation to prevent natural or human-made harm (para 28 AG Op). The Court further stressed that Art. 6(2) applies at site-level and allows for no ‘off-setting’ between sites (para 96), meaning that an improving trend in the conservation status of one protected site cannot compensate for the deterioration of another site. This is a reminder that biodiversity protection, at least under the Habitats Directive, is location-specific, thus making it more difficult to extrapolate a headline indicator of biodiversity loss, comparable to greenhouse gas emissions or global temperature increase.

Given that there were at least around 10,000 ha of ‘unexplained losses’ of habitat area (para 102), the Court found that the Commission had proved significant losses of the two habitat types. To meet the evidential burden for a ‘general and structural failure’ to comply, the Commission further had to establish that the specified losses were illustrative (representative) of a general and persistent practice in breach of the HD (para 48 AG Op). The Court was satisfied that this was the case given that the 10,000 ha ‘unexplained losses’ were located in at least 10 different Länder (para 104), thus representing a general and widespread, rather than isolated, failure to prevent deterioration.

Second, the CJEU held that the surveillance measures by Germany were not sufficiently site-specific, regular and consistent to be appropriate for Art. 6(2) HD (para 110). While these criteria remain vague (likely because Germany had only partially rebutted the allegation), they nonetheless appear to provide further guidance regarding the required measures under Art. 6(2), highlighting also the importance of monitoring as the basis for avoiding deterioration.

Third, on the nature of Art. 6(2) measures, the ECJ first reiterated that the level of protection required for the site must be determined by reference to the conservation objectives (para 113). The actual drivers of the deterioration were not disputed in this case, as it was common ground that over-fertilisation and early mowing drove the grassland deterioration (para 111).

While the Court also reiterated that Art. 6(2) HD leaves discretion to Member States, it is an obligation of result (para 92). The Court therefore held that by failing to adopt legally binding protective measures prohibiting the over-fertilisation and early mowing of the sites in question, Germany breached Art. 6(2) HD (para 114). Germany had not been able to establish that the existing contractual nature protection, recommendations and non-binding management plans had the effect of legally binding prohibitions in preventing the harmful activities (para 115) and was consequently found to have failed to fulfil its Art. 6(2) HD obligations in a general and structural manner.

A significant ruling with replication potential

With 81% of habitats covered by the EU’s Birds and Habitats Directives in either poor or bad conservation status and 35% of all habitats deteriorating, after over 30 years of legal obligations to ensure good conservation status and avoid deterioration, it is clear that the current approach has been insufficient. The failure to systematically address the drivers of biodiversity loss has been a major barrier to halting the downward trend.

This ruling therefore appears to provide promising opportunities to bring national challenges to inadequate non-deterioration measures, seeking orders for national or regional authorities to adopt legally binding measures prohibiting the key deterioration drivers, such as intensive agriculture or forestry. Due to its focus on drivers and legally binding measures, the ruling could help to ensure more effectively managed protected areas and could contribute more generally towards the broader systemic shift needed to address the biodiversity crisis.

In the EEA’s State of Nature report, compiling the 6-yearly reporting of all Member States on the state of protected habitats and species, agriculture is the most frequently reported pressure for habitats and species. More specifically, the EEA report provides that the following activities are the most relevant agricultural pressures: abandonment of grassland management, use of pesticide, intensive grazing or overgrazing by livestock, conversion of agricultural land use (e.g. extensive to intensive agriculture), removal of landscape features, diffuse pollution to surface or groundwater from agricultural activities, conversion into agricultural land.

National litigation relying on C-47/23 to seek legally binding measures prohibiting these activities where they drive deterioration of Natura 2000 habitats, would appear to not only bring significant benefits for the protected habitats but also for human health, climate mitigation and adaptation more broadly.

For instance, a case currently pending in Belgium argues that significantly larger pesticide-free buffer zones around protected areas and areas used by vulnerable groups are required to comply with the Habitats Directive and the Sustainable Use of Pesticides Directive. The C-47/23 ruling may provide further arguments for legally binding measures against pesticide use around protected areas to avoid their deterioration – with positive impacts well beyond the boundaries of the protected site.

Tackling intensive agriculture as the underlying driver of deterioration?

Beyond these specific harmful activities, it will be interesting to see how far-reaching the implications of this case will be more broadly. In the words of AG Emiliou, Germany should now “not only remedy the specific instances relied on by the Commission”, but “identify the source of origin of the ‘systemic and persistent infringement’, with a view to ‘curing’ not only the ‘symptoms’ but also the ‘disease’ itself” (AG Op, para 33). Arguably, the disease itself in this case is a broken intensive agricultural system and excessive livestock numbers, driven by an EU Common Agricultural Policy (CAP) that is out of touch with climate and biodiversity obligations.

The requirement to shift away from contractual nature protection will likely already have direct implications for the German CAP implementation given that Germany currently uses CAP Pillar II budget to fund these contractual measures.

One case alone will not address the ‘diseased’ intensive agricultural system. However, a multitude of national cases, integrating this ruling and tackling the drivers of deterioration at national level, could create a patchwork of obligations to address specific drivers through legally binding prohibitions. Taken together, they may be able to create momentum for the needed broader systemic change in the agricultural sector, as well as in the forestry and fisheries sector, and thereby help address the major drivers of biodiversity loss.

With thanks to Raphael Weyland for feedback on an earlier draft. All mistakes remain those of the author.