Following the evaluation of the quality of transposing Council Directive 92/43/EEC of May 21, 1992, on the conservation of natural habitats and of wild fauna and flora ("Habitats Directive"), the European Commission identified several deficiencies in its transposition in Romania. As a result, in 2020, the Commission initiated an infringement procedure against Romania for failing to comply with the obligations set out in this European legal act.
According to information published by the European Commission in early October 2024[1], "Romanian legislation does not explicitly mention that conservation measures included in management plans must take into account the ecological needs of the types of natural habitats and the species present within the respective sites. This directly impacts the quality of the management plans, as they may not contain the necessary measures for protecting those types of habitats and species. Additionally, national legislation limits the scope of the main provisions of the directive to activities carried out within Natura 2000 sites. This excludes all other potential causes of deterioration or disturbance originating outside the sites." Based on Article 258 TFEU, as Romania has breached its obligations under the treaties, the Commission issued a reasoned opinion, based on which it can subsequently refer the case to the Court of Justice of the European Union.
In this context, and after another attempt made in 2023 that was not completed, the Ministry of Environment, Waters and Forests published on November 7, 2024, in the decision-making transparency procedure[2], a draft Government Emergency Ordinance amending and supplementing Government Emergency Ordinance no. 57/2007 on the regime of protected natural areas, conservation of natural habitats, wild flora and fauna ("Draft"), with the aim of adopting new regulations on an urgent basis to address the issues raised by the European Commission in its reasoned opinion.
Given the importance of this regulation for environmental assessment procedures and environmental impact assessment, this analysis aims to highlight the main changes proposed in the Draft (without being exhaustive) and to present certain aspects that could prove problematic if the Draft is adopted without changes as a result of the ongoing legislative procedure.
Restrictions applicable in protected natural areas. Plans and projects that have a significant environmental impact may pose a threat to the integrity of protected natural areas. Therefore, to ensure biological diversity, environmental regulatory authorities subject these plans and projects to analysis according to the criteria set out in Article 28 of G.E.O. no. 57/2007. In the current form of this regulation, as a general rule, activities within the boundaries of protected natural areas of community interest are prohibited if they may generate pollution or damage habitats, as well as disturb species for which the areas were designated, when these activities have a significant effect, considering the objectives of species and habitat protection and conservation. To protect and conserve wild birds, including migratory species, activities outside protected natural areas that would cause pollution or damage to habitats are also prohibited.
Since Articles 6 para. (1) and (2) of the Habitats Directive do not distinguish between activity/plan/project, the Draft introduces under this general prohibition both plans and projects within the boundaries of protected natural areas of community interest, as well as activities/plans/projects outside these areas, to the extent that they may have a significant effect, considering the objectives of protection and conservation of the species and habitats for which the Natura 2000 sites were designated.
Thus, as a general rule, the following will be prohibited: (i) activities/plans/projects within the boundaries of protected natural areas of community interest that may generate pollution or damage habitats, as well as disturb species for which the areas were designated; and (ii) activities/plans/projects outside the boundaries of protected natural areas of community interest that may have a significant effect on those areas. In both cases, the evaluation of the characteristics of activities/plans/projects will be carried out in accordance with the protection and conservation objectives for the species and habitats for which the Natura 2000 sites were designated.
It is also proposed, through the Draft, to add a provision (Article 28 para. (1) ind. 2, which almost fully adopts the provisions of Article 6 para. (2) of the Habitats Directive) that states that, to prevent the deterioration of natural habitats, species habitats, and significant disturbances to species for which the Natura 2000 sites were established, preventive measures must be taken. These preventive measures will consider both human-induced deterioration and disturbance, as well as deterioration and disturbance caused by foreseeable natural events.
These preventive measures must be included both in the management plans (as would result from the interpretation of the new version of Article 21 para. (3) in the Draft, where it is generally discussed about the measures that must be fully included in the management plans), as well as in the plans and projects proposed within or outside the protected natural areas that may have a significant effect on them.
On the other hand, we note that the proposal for the complete repeal of the provisions of Article 28 para. (5) of G.E.O. no. 57/2007 could create certain practical issues. According to this article, "following the appropriate assessment, the competent environmental protection authority issues the Natura 2000 endorsement or the decision to reject the project or plan. In the situations provided for in paragraph (4), the competent environmental protection authority issues the environmental endorsement or the decision to reject the request for an environmental endorsement or, as the case may be, the environmental approval or the decision to reject the request for an environmental approval, and these documents include the conclusions of the appropriate assessment”. While the repeal of the first clause of this article does not raise special issues, the repeal of the second clause does not seem justified, since, according to paragraph (4) of the same article, the principle of integrating the appropriate assessment within the environmental assessments for plans, and within the environmental impact assessments for projects, is stated. Given that environmental regulations incorporate the conclusions of environmental assessments/environmental impact assessments into their content, the solution chosen by the legislator to exclude the potential conclusions of the appropriate assessment studies from the final environmental regulatory acts seems unjustified.
Law no. 292/2018 on the environmental impact assessment of certain public and private projects ("Law no. 292/2018") could partially neutralize the effects of this unfortunate choice, considering that, according to Article 19 para. (3) letter (b) of the same legal act, the environmental approval must obligatorily include the conclusions of the appropriate assessment study. On the other hand, in the case of a decision to reject the request for the issuance of the environmental approval, it appears that there is no obligation to integrate the conclusions of the appropriate assessment study. However, in our opinion, this obligation should still apply in the case of this administrative act in order to meet the minimum standards for the justification of administrative acts.
On the other hand, Government Decision no. 1074/2004 on the procedure for conducting environmental assessments for plans and programs does not regulate such a rule for integrating the conclusions of the appropriate assessment into the environmental regulatory act, namely the environmental endorsement or the decision to reject the request for the issuance of the environmental endorsement, as in the case of Law no. 292/2018. Therefore, in a strict interpretation, it could result that such integration is not required for these environmental regulatory acts. However, it would still be rational to include these conclusions in these acts to meet the minimum standards for the justification of the administrative act.
Elimination of references to the Natura 2000 endorsement. Following the adoption of Law no. 292/2018, the definition of the Natura 2000 endorsement was repealed from Government Emergency Ordinance no. 195/2005. Because the appropriate assessment procedure was integrated into the environmental impact assessment procedure with the adoption of Law no. 292/2018, the final regulatory act in this procedure is either the scoping decision or the environmental approval, and the Natura 2000 endorsement is no longer issued. Given that Law no. 292/2018 omitted the removal of any references to the Natura 2000 endorsement from G.E.O. no. 57/2007, the Draft partially remedies this situation[3].
Definition of the concept of "conservation measures." Currently, the concept of "conservation measures" is not explicitly regulated in the national legislation (the concept is also not regulated by the Habitats Directive). These measures were an integral part of the concept of "special conservation area," which, according to Article 4 point 12 of G.E.O. no. 57/2007, means "the site of community importance designated by a statutory, administrative, and/or contractual act in which the necessary conservation measures are applied to maintain or restore the favorable conservation status of natural habitats and/or populations of species of community interest for which the site is designated."
The manner of developing these measures was established in Article 4.1 para. (2) of the Guide for the Preparation of the Management Plan for Protected Natural Areas, approved by Order no. 901/2023, but without taking into account the ecological needs of the natural habitat types and the species present in the respective sites[4].
According to the Draft, "conservation measures" are to be defined as: "effective mechanisms and actions that must be implemented at the level of a protected natural area in order to achieve the specific conservation objectives of the protected natural area. Conservation measures must be realistic, quantifiable, measurable, and time-bound, and must correspond to the ecological needs of the habitat types and species subject to the protection regime and/or other natural heritage assets." Therefore, the management plans for protected natural areas of community interest will need to implement such measures related to a concrete objective and will no longer be able to implement only general measures that do not take into account the characteristics of the natural habitats and protected species for which the sites have been designated.
Establishment of special conservation areas. The Draft transposes Article 4 para. (4) of the Habitats Directive concerning these aspects. Thus, according to Article 8 para. (6) ind. 1 proposed by the Draft, within no more than 6 years from the approval of a site of community importance by the European Commission, it is established as a special conservation area, based on the established conservation measures. Following the approval of a site of community importance by the Commission and its declaration as such through an order of the head of the central public authority for environmental protection, a management plan must be developed for that site in order for it to be declared a special conservation area by a government decision. This should accelerate the process of establishing management plans in such cases, limiting the risks of uncertainty regarding these plans, which could affect the development of plans/projects in such areas. In practice, however, given the absence of sanctions for non-compliance with the deadline, it remains to be seen how this regulation will effectively contribute to the creation of management plans in question.
In conclusion, the Draft addresses the issues raised in the European Commission’s reasoned opinion, with the primary goal of ensuring that environmental regulatory authorities explicitly assess the need for an appropriate assessment for plans/projects located outside protected natural areas of community interest[5]. On the other hand, it is necessary to correct, before the adoption of the Draft, the error introduced by the proposal to completely repeal paragraph 5 of Article 28. In this case, only the first clause of Article 28 para. (5) should be repealed, while the second clause should be maintained, to avoid a divergent approach by the competent authorities and the risk of the impossibility of judicial review regarding aspects related to the appropriate assessment of plans and projects.
[1] https://romania.representation.ec.europa.eu/news/comisia-solicita-romaniei-sa-asigure-protectia-habitatelor-si-speciilor-2024-10-03_ro
[2]https://www.mmediu.ro/articol/ministerul-mediului-apelor-si-padurilor-supune-consultarii-publice-proiectul-de-ordonanta-de-urgenta-a-guvernului-privind-modificarea-si-completarea-ordonantei-de-urgenta-a-guvernului-nr-57-2007-privind-regimul-ariilor-naturale-protejate-conservarea-habitatelor-naturale-a-florei-si-faunei-salbatice/7503
[3] We observe, as an example, that Article 52 para. (6) of G.E.O. no. 195/2005 still mentions that the appropriate assessment procedure is concluded with the issuance of the Natura 2000 endorsement or the decision to reject the project or plan, as the case may be.
[4] As noted by the European Commission in the reasoned opinion, and as was stated on other occasions in official communications at the European level, such as in the Commission Communication 2021/C 437/01.
[5] In practice, there have been numerous cases where appropriate assessments were not conducted because environmental regulatory authorities considered them unnecessary, as the plans/projects were located at a considerable distance from various Natura 2000 protected areas, without considering other criteria such as the effects of these plans/projects on the targeted areas. As a result, the courts have found clear illegalities.