Promoters and operators of UK offshore developments will be interested in the recent news that the European Commission is taking the UK Government to the European Court of Justice (ECJ) for its failure to propose sites for the protection of the harbour porpoise.

Harbour porpoises are the most common cetacean species found in UK waters. Although they are still relatively abundant, their numbers are thought to be falling under pressure from human activities such as injuries from boats, fisheries bycatch, starvation and underwater noise.

Under Annex II of Council Directive 92/43/EEC (the Habitats Directive), the harbour porpoise are listed as animal species of community interest whose conservation requires the designation of Special Areas of Conservation (SACs). The UK is a stronghold for the harbour porpoise within the EU. This confers on the UK particular responsibility for implementing the provisions of the Habitats Directive. But robust action has not materialised.

It is considered by a number of organisations such as ClientEarth and the Whale and Dolphin Conservation that the Habitats Directive has not been appropriately implemented by the UK and the UK approach does not comply with EU law. The argument is that the UK Government has applied an overly restrictive interpretation of the Habitats Directive on SAC selection for mobile marine species and that it has not applied the correct legal tests in determining harbour porpoise SAC selection.

Infringement procedure

If the European Commission detects a failure to comply with Community law, it can take the case to the ECJ under Article 258 of the Treaty on the Functioning of the European Union. The ECJ's judgment is binding.

The Commission initiates infringement proceedings by sending a letter of formal notice addressed to the Member State and inviting it to submit its observations within two months. The UK Government was sent a letter in 2013 regarding protection of harbour porpoise. This set out the Commission's concern about a lack of SACs for harbour porpoise in the UK under the Habitats Directive.

If the Commission is not persuaded by the Member State's observations, or where the Member State fails to respond to the request, the Commission may issue a reasoned opinion, allowing the Member State an additional two-month period within which to comply. The UK Government received such a reasoned opinion in 2014.

In that opinion, the Commission warned the UK that the one site in Northern Ireland designated as a SAC was not enough to protect the species. The Commission threatened infringement proceedings against the UK if new UK SACs were not designated.

The prospect of being taken to the ECJ provided the necessary impetus for the UK to take further action. Five possible Special Areas of Conservation (pSACs) in the UK for harbour porpoise were consulted upon between 19 January 2016 and 21 April 2016. The consultations were led by JNCC and Natural Resources Wales. For further details on this consultation please see our previous note.

Following the consultation the UK has formally proposed just one SPA off the coast of Scotland, in September 2016.

The Commission has since taken the decision to proceed to enforce the conservation rules set out in the Habitats Directive. Its press release states that:

While the UK has recently conducted a public consultation on a number of potential sites in English and Welsh waters and this month formally proposed one site in Scottish waters, more needs to be done. The continued failure to propose and designate sufficient sites leaves the areas where the species occurs in greatest densities without the protection required. (29 September 2016)

The press release confirms that action is now being brought in the ECJ, which will lead to the ECJ issuing a judgment on the matter in due course

If the UK fails to comply with the ECJ's judgment when this is issued, the Commission may, after sending a further letter of formal notice and reasoned opinion, bring the matter before the ECJ a second time, seeking the imposition of a financial penalty, which could be fixed or periodic.

The UK will remain bound by EU law until any Brexit withdrawal agreement comes into force; at least two years from when the period for negotiating the agreement is triggered. In the short term therefore it is possible that the infringement proceedings may drive the Government to include further new SACs for harbour porpoise. As EU proceedings move relatively slowly, the UK Government may have done enough by the time a judgement is made.

The impact of the infringement proceedings on proposed marine projects within the current proposed boundaries of the pSAC areas is for now minimal. Government policy is to treat a pSAC as though it was a designated SAC. Therefore since the consultation on pSACs was issued back in January 2016, promoters of marine projects should already be considering if their project requires a Habitats Regulation Assessment (HRA), and reviewing mitigation measures accordingly.

With regard to existing consents, the requirement under the Habitats Regulations to review consents where a European site is designated will not kick in until pSACs become Sites of Community Importance (SCIs). SCIs are sites that have been submitted by the UK government to the EC and adopted by the EC, but have not yet formally designated by the UK Government. Therefore operators in pSACs have some time before their consent could be reviewed.

However, careful thought needs to be given now to any variations to consents that may arise as a result, and how the developer can be prepared for this. Examples may include noise reduction measures during construction as well as timing of construction relative to construction of other projects within the pSAC boundaries.