Clifford Chance

Two Luxembourg non-profit organisations 'Natur&Ëmwelt' and 'Mouvement Ecologique' have filed a claim with the European Commission against the Luxembourg government for inaction in the face of local biodiversity loss.

Adding on to our recent census of Luxembourg climate change-related claims and litigation, and with COP15 – the fifteenth meeting of the Conference of the Parties to the Convention on Biological Diversity ('CBD') – to resume this spring (from 25 April to 8 May 2022), Luxembourg, a party to the CBD since 1994, has come under scrutiny for failure to protect its biodiversity.

Filing of a claim with the European Commission

In a press release published on 19 November 2021, i.e. just over a month after the adoption of the Kunming Declaration at the COP15, the two non-profit associations warned of the worrying progress of the loss of habitats and species protected (at European and national level) in Luxembourg. The applicants pointed to the considerable decrease of hay meadows and partridge populations in Luxembourg over the last few decades, despite considerable legal protection. Natur&Ëmwelt and Mouvement Ecologique pointed out that this disappearance would be due to inappropriate agricultural use, coupled with the intensification of agriculture, the disappearance of field woods and wasteland, and/or the high use of pesticides and fertilizers.

The plaintiffs argue that the Luxembourg government's inaction to preserve and promote protected habitats and endangered species, would run counter to European Union ('EU') law, which prohibits any deterioration in the conservation status of protected habitats and species in Europe via Directive 92/43/EEC (the so-called 'Habitats Directive'). This Habitats Directive, together with Directive 79/409/EEC on the conservation of wild birds (the 'Birds Directive'), have been transposed by the Luxembourg law of 19 January 2004 on the protection of nature and natural resources, in order to provide an effective national instrument for sustainable development of the natural environment.

Both non-profit associations also raised concerns regarding the mechanisms of state subsidies, which encourage the intensification of agriculture and the destruction of habitats and protected species.

The applicants requested 'essential' action to be taken, including the establishment of targeted and appropriate subsidies and premiums in the field of biodiversity, agriculture, environment and climate; the recording and penalizing of accidental or intentional destruction of a protected habitat type (as a criminal offence); the establishment of monitoring programs, agri-environmental and climate measures, as well as biodiversity programs for the areas concerned; and the establishment of a specific management plan for Natura2000 sites (i.e. the Community network of nature protection areas created under the Habitats Directive).

Outlook

When a complaint for breach of EU law is filed, the Commission can decide to launch a formal infringement procedure. As a result of this procedure, Luxembourg could be sentenced by the European Court of Justice for failure to comply with EU legislation, and failure to protect habitats and endangered species.

This is indeed not the first time that a claim has been lodged in relation to the non-implementation of the Birds and Habitats Directives. The Commission already took action against 10 Member States in 2002, including Luxembourg, over shortcomings in its network of special protection areas required by the Birds Directive and the inadequacy of its legislation to protect these areas.

Conclusion

Following this claim, Greenpeace Luxembourg, the Mouvement Ecologique and Natur&Ëmwelt also addressed the Ministry of Agriculture in an open letter early December 2021, calling it a 'fictitious' Ministry of Sustainable Agriculture, promising a 'fictitious declaration' regarding future subsidies for the survival of family farms, biodiversity and climate protection.

Their complaint with the Commission may now very well take Luxembourg beyond its self-evaluation of implementation and performance under the CBD. It could further serve as precedent for biodiversity loss liability claims against Luxembourg private defendants.