Annex B
Legal Dispute
Background
In 2007-08 Spain applied for and succeeded
in designating a large area including most of British Gibraltar
Territorial Waters as a marine protected area, recognised by the
European Commission. It calls this the Estrecho Orientalsite.
The UK has repeatedly tried to overturnthe Commission's Decision,
but the UK's case was rejected first by the General Court (May
2011) and then by the ECJ on appeal (Nov 2012).
WHAT IS THE EUROPEAN UNION HABITATS
DIRECTIVE?
The Habitats Directive aims to establish
a pan-European network of Sites of Community Interest (SCIs) in
which natural habitats that satisfy specified criteria are legally
protected. The network of SCIs is called Natura 2000.
HOW ARE SCIS AGREED?
Member States propose sites within their
own territory to the European Commission. The Commission compiles
a list of sites that meet the criteria. The consolidated list
is approved in draft by the Habitats Committee (on which all Member
States are represented) by qualified majority. The Commission
then adopts the list as a Commission Decision.
ON WHAT BASIS HAS THE UK CHALLENGED
THE DESIGNATION?
The UK was not notified by either the
Commission or Spain that the proposed SCI covered British Gibraltar
Territorial Waters. The UK therefore allowed a consolidated list
of SCIs to be agreed in 2008, unaware that one of the proposals
related to one of the UK's own Territories. Mark Simmonds told
the Foreign Affairs Committee that when the UK had previously
proposed the Southern Waters of Gibraltar SCI, the Commission
had notified Spain in advance of tabling their draft decision
and following this notification there had been lengthy discussions
between the UK, Spain and the Commission before the UK listing
was agreed and adopted. This had not happened in the Estrecho
Oriental case.
| Timeline: How the European Commission designated the Estrecho Oriental site:
2006: UK secures an SCI that covers a small part of British Gibraltar Territorial Waters, named Southern Waters of Gibraltar.
23 July 2007: Spain applies to Commission for SCI named Estrecho Oriental site, which overlaps with almost all British Gibraltar Territorial Waters, including the existing Southern Waters of Gibraltar site.
March 2008: The Commission sends each Member State an updated list of its own proposed SCIs. The UK is not notified of the proposed Spanish Estrecho Oriental SCI.
October 2008: Commission sends each Member State a consolidated list of all SCI sites, existing and new. Mark Simmonds said: "The UK had no reason to and did not check the thousand or so existing or proposed Spanish sites."
12 December 2008: Following approval of the consolidated list by the Habitats Committee, the list of SCIs is adopted in a Commission Decision.
16 December 2008: The Commission Decision on consolidated list notified to the UK. The UK did not challenge the Decision.
13 February 2009: The List of SCIs published in the Official Journal of the European Union.
15 October 2009: Now aware of the issue, the UK sought to initiate a reconsideration of the listing at a meeting of the EU Habitats Committee, as the list of SCI sites is adopted on an annual basis. The UK presented its case, and said if the designation was not reconsidered it would vote against approving the revised list, and invited others to do the same. Despite UK efforts, the Habitats Committee approved the revised consolidated list, which included the Estrecho Oriental site, as in 2008.
22 December 2009: The list of SCIs is adopted in a Commission Decision.
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WHY DID IT FAIL?
The case, and appeal, appear to rest
on a technicality: the UK did not appeal the original decision
in time. By the time the UK took action, the time period for challenging
the original 2008 Commission Decision had elapsed. However,the
list of SCI sites is adopted on an annual basis so the UK therefore
challenged the 2009 decision to relist the Estrecho Oriental
site, arguing that the fact that the Estrecho Oriental
siteoverlapped with theSouthern Waters of Gibraltar site
was a "substantial new fact" that came to light only
after the time period for challenging the 2008 decision had elapsed,
so the 2009 re-listing was "a fresh decision capable of being
challenged". The courts disagreed: the General Court decided
in 2009 that there was no new factor so the 2009 decision was
not capable of being challenged. The UK appealed to the European
Court of Justice, arguing that the General Court had made errors
in its appraisal of the facts, specifically in respect of whether
a party could have had prior knowledge of the overlapping territories,
and that the Court committed an error of law by wrongly identifying
the parties whose "constructive" knowledge of the overlapping
sites was legally relevant, arguing that the correct test was
whether the UK could have realistically known. The ECJ ruled the
appeal inadmissible.
WHAT HAPPENS NOW?
Immediately following the ruling, the
Spanish Government made a declaration banning marine activities
including land reclamation, ship-to-ship transfers of combustible
materials and industrial fishing without Government permission.
It was also reported that Spanish environmental research vessels
had begun to enter Gibraltarian waters to undertake survey work.[134]
The Government said it rejected any
suggestion that the loss of the cases was due to incompetence
on the part of the UK Government, and said that the situation
was caused by "deficient listing procedures and a lack of
transparency and effective consultation."
In December 2012, the Minister Mark
Simmonds told the Committee that the Government would not abide
by the court ruling: "Despite the court case, we do not recognise
the Spanish SCI listing. We do not recognise their attempt to
designate SAC either. We have made this position clear to the
Spanish government."[135]
134 "Picardo and Governor to meet Lidington
after Spain purports to pass law controlling British waters",
Gibraltar Chronicle, 1 December 2012 Back
135
Oral evidence taken on 11 December 2012, HC 752-i, Q22 [Mr Simmonds] Back
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