Action brought on 20 July 2017 — European Commission v Republic of Poland
(Case C-441/17)
Language of the case: Polish
Parties
Applicant: European Commission (represented by: C. Hermes and K. Herrmann, acting as Agents)
Defendant: Republic of Poland
Form of order sought
The applicant claims that the Court should:
declare that the Republic of Poland has failed to fulfil its obligations under Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (‘the Habitats Directive’) 1 by approving an appendix to a forest management plan for the Białowieża Forest District without satisfying itself that it will not adversely affect the integrity of the Białowieża Forest Site of Community Importance (SCI) and Special Protection Area (SPA) PLC200004;
declare that the Republic of Poland has failed to fulfil its obligations under Article 6(1) of the Habitats Directive and under Article 4(1) and (2) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (‘the Birds Directive’) 2 by not taking the necessary conservation measures corresponding to the ecological requirements of (i) the natural habitat types listed in Annex I and the species listed in Annex II to the Habitats Directive, and (ii) the birds listed in Annex I to the Birds Directive and the regularly occurring migratory species not listed in that annex, for which the Białowieża Forest SCI and SPA PLC200004 were designated;
declare that the Republic of Poland has failed to fulfil its obligations under Article 12(1)(a) and (d) of the Habitats Directive by not guaranteeing the strict protection of the saproxylic beetles (the Flat Bark Beetle (Cucujus cinnaberinus), the Goldstreifiger Beetle (Buprestis splendens), the False Darkling Beetle (Phryganophilus ruficollis) and Pytho kolwensis) listed in Annex IV to the Habitats Directive, that is, by failing to prohibit the deliberate killing or disturbance of those beetles or the deterioration or destruction of their breeding sites in the Białowieża Forest District; and
declare that the Republic of Poland has failed to fulfil its obligations under Article 5(b) and (d) of the Birds Directive by not guaranteeing the protection of the species of birds referred to in Article 1 of the Birds Directive, including, in particular, the White-Backed Woodpecker (Dendrocopos leucotos), the Three-Toed Woodpecker (Picoides tridactylus), the Pygmy Owl (Glaucidium passerinum) and the Boreal Owl (Aegolius funereus), that is, by failing to ensure that they will not be killed or disturbed during their breeding and rearing periods and that their nests or eggs in the Białowieża Forest District will not be deliberately destroyed, damaged or removed;
order the Republic of Poland to pay the costs.
Pleas in law and main arguments
In response to an outbreak of Spruce Bark Beetle (Ips typographus), on 25 March 2016 the Polish Minister for the Environment approved an appendix to the 2012 Forest Management Plan (FMP) permitting a threefold increase in logging in the forests of the Białowieża Forest District, that is, from 63 471 m3 to 188 000 m3, between 2012 and 2021, and, in areas previously outside the scope of such activity, permitting the application of Forest Action Plans consisting in the removal of centuries-old dead and dying trees, including, in particular, spruces affected by the Spruce Bark Beetle — so-called ‘sanitary pruning’, afforestation and restoration. That appendix constitutes a plan within the meaning of Article 6(3) of the Habitats Directive. The integrity of the Białowieża Forest area PLC200004 consists in: the fact of its being natural and untouched by human activity, the high proportion of ancient forest cover, including a large number of centuries-old dead standing and lying trees (deadwood), and the presence of species typical of natural forests (saproxylic beetles, the Three-Toed Woodpecker, the White-Backed Woodpecker, the Pygmy Owl and the Boreal Owl). Therefore the activities taking place in the Białowieża Forest District area are, in the Commission’s view, contrary to Article 6(3) of the Habitats Directive, because the Polish authorities did not ensure, prior to approving the appendix, that its adoption would not adversely affect the integrity of that site.
Following the issuing of Decision No 51 by the Director-General of State Forests on 17 February 2017, work began on the removal of dead trees and trees affected by the Spruce Bark Beetle from all Forest District areas (Białowieża, Browsk, Hajnówka), that is to say, over a total area of approximately 34 000 hectares (the surface area of the Białowieża Forest area PLC200004 is 63 147 hectares).
The Commission takes the view that the Forest Action Plans for the bog and swamp forest habitat 91D0, the willow, poplar, alder and ash riparian forest habitat 91E0, and the centuries-old stands in the subcontinental broadleaved forest habitat 9170 and for the habitats of the White-Backed Woodpecker, the Three-Toed Woodpecker, the Pygmy Owl, the Boreal Owl, the Honey Buzzard, the Red-Breasted Flycatcher, the Collared Flycatcher and the Stock Dove and of the saproxylic beetles Cucujus cinnaberinus, Boros schneideri, Phryganophilus ruficollis, Pytho kolwensis, Rhysodes sulcatus and Buprestis splendens, and the removal of centuries-old dead spruces and sections of trees as part of the increased logging in the Białowieża Forest area PLC200004 resulting from the implementation of the decision of the Polish Minister for the Environment of 25 March 2016 and Decision No 51 of the Director-General of State Forests of 17 February 2017 constitute potential threats to natural habitats and to the habitats of the animals and birds identified in the Site Management Plans for the Białowieża Forest area PLC200004 and prevent the implementation of conservation measures set out in those plans aimed at properly preserving the conservation status of the Białowieża Forest area PLC200004, which constitutes an infringement of Article 6(1) of the Habitats Directive.
The Commission also submits that the Forest Action Plans described above, implemented on the basis of the appendix and destroying the habitat of strictly protected saproxylic beetles, prevent the adoption of practical and specific measures designed to ensure an adequate level of protection for the four species of saproxylic beetle (Cucujus cinnaberinus, Buprestis splendens, Phryganophilus ruficollis and Pytho kolwensis) included in Annex IV(a) to the Habitats Directive.
Lastly, the Commission submits that the Forest Action Plans described above and implemented, on the basis of the appendix, fail, because of the destruction of the habitats of the White-Backed Woodpecker (Dendrocopos leucotos), the Three-Toed Woodpecker (Picoides tridactylus), the Pygmy Owl (Glaucidium passerinum) and the Boreal Owl (Aegolius funereus), to fulfil the obligation to provide effective protection for those species of birds, inasmuch as they prevent neither the destruction of those birds’ nests nor their deliberate disturbance.
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1 OJ 1992 L 206, p. 7.
2 OJ 2010 L 20, p. 7.