Legal judgements give teeth to EU protection

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The valley, part of which is a natural wetland enjoying the maximum level of protection under the EU’s habitats and birds directives, is under threat from a planned stretch of the Via Baltica trans-European motorway that will eventually run from Warsaw to Helsinki.

Last month, the European Court of Justice (ECJ) ordered the Polish authorities “not to begin, or to suspend, afforestation operations in the Puszcza Augustowska special protection zone”. This relates to a plan by the authorities to reduce the environmental impact of the new road by reforesting a nearby area so that the protected bird species can find new habitats there. But the plan is controversial as the special protection zone is more known for its plants than its birds, and reforesting the new the area would harm other protected species.

The ECJ’s order was confirmed nine days later at the end of a private hearing which the official report from the Europe Information Service (EIS) described as having taken place “in a very tense climate, and in an apparently unusual procedure not particularly to the liking of the judges”. This appears to be diplomatic language to describe the ECJ’s disapproval of a scathing attack on the Commission by Poland’s environment minister Jan Szyszko. Szyszko was still forced to suspend the afforestation operations.

OPINION ANNULLED

A day earlier, the regional administrative court in Warsaw had annulled the official environmental opinion from Szyszko for the construction of the Augustow by-pass. This could be significant, as the opinion is a pre-condition of the consent for building the road. If it has been annulled, the logical assumption is that there is no official consent for the road to be built, but environmental NGOs are still assessing the legal situation, and waiting to see if the Polish highways agency challenges the judgement.

A central part of the judgement was that the administrative court ruled that an apparently similar case (C209/04), in which Austria was allowed to build a road through a protected area as the decision had been taken before the EU legislation came into effect, was not relevant to the Augustow by-pass. The parallels to the Austrian case had been central to the arguments Szyszko presented to the ECJ.

What happens in Rospuda could have far-reaching effects, because the environmental community views it as a test case for the effectiveness of EU environmental protection law. The feeling among NGOs is that if EU environmental law is to mean anything, especially for the 12 newest member states, the Augustow by-pass cannot be allowed to go ahead in its current form.

Magda Stoczkiewicz, policy coordinator at CEE Bankwatch Network, said: “These two judgements are very positive, even if they still leave the overall outcome very uncertain. The political pressure in Poland for this road is so strong that we feared the regional court might not be able to resist it, but it has, at least for now.”

Preliminary work began on the road in late February, prompting the Commission to threaten legal action through the ECJ as it said insufficient attention had been given to alternative routes as required under EU law. Work then stopped on 1 March, as the birds directive prevents all work involving high noise levels taking place during the nesting season (1 March to 31 July).

Stoczkiewicz added: “We want the Commission to ask the ECJ to have interim measures ready by 31 July so the legal process can run its course. It hasn’t yet done this, so we fear that construction work might begin again on 1 August after the nesting season finishes.”

This news story is taken from the May 2007 edition of T&E Bulletin.