Strasbourg, 14 March 2017                                                                         T-PVS/Notes (2017) 2




Standing Committee

37th meeting

Strasbourg, 5-8 December 2017



‑ Summary of case files and complaints ‑

March 2017

Secretariat memorandum

prepared by

the Directorate of Democratic Governance

Implementation of the Convention: Files

1.1   Specific sites - Files open

Ø   2013/1: Hydro power development within the territory of the Mavrovo National Park (“The former Yugoslav Republic of Macedonia”)

Background of the case

       The complaint was submitted in March 2013 by the NGO “Eco-svest - Center for environmental research and information” to denounce a possible breach of the Convention by “The former Yugoslav Republic of Macedonia” with regards to the development of hydro-power projects within the territory of the Mavrovo National Park, an Emerald candidate site since 2011.

       According to the complainant, the construction of several hydro-power plants and supporting infrastructures (roads, bridges and transmission lines) will result in the direct destruction of forests, severe disturbance of water sources and fragmentation of wildlife habitats – the home of numerous strictly protected species of plants, mammals, birds, amphibians and reptiles listed in Appendices I and II of the Bern Convention. The complainant emphasised that some of these species, namely the Lynx lynx balcanicus, might be critically endangered if the projects are implemented.

       The Secretariat addressed a reporting request to the government, stressing that according to Recommendation No. 162 (2012) of the Standing Committee, on the conservation of large carnivore populations in Europe requesting special conservation action, “The former Yugoslav Republic of Macedonia” should assess the environmental impact on the lynx population of dams in the Mavrovo National Park ‑ a site identified as a candidate for the Emerald Network ‑ and consider abandoning the project if the dam poses a risk of endangering the lynx population. The Secretariat also reminded that, according to Recommendation No. 157 (2011) of the Standing Committee, on the status of candidate Emerald sites and guidelines on the criteria for their nomination, national authorities should “take the necessary protection and conservation measures in order to maintain the ecological characteristics of the candidate Emerald sites”, until their full inclusion in the Emerald Network.

       The Government report, received in September 2013, informed that an Environmental Impact Assessment Study for the hydropower plant project Boshkov Most was prepared by GEING Skopje, “The former Yugoslav Republic of Macedonia” based engineering company operating in the Balkan area. Additionally, a 4-seasons biodiversity monitoring had been carried out by a team of experts on invertebrate and vertebrate species. The report said that according to EIAS and monitoring study, the hydropower plant project Boshkov Most satisfied entirely the requirements of the national legislation and that a decision authorising the development of Boshkov Most’s project had been already issued. The report did not provide conclusions from the EIAS or monitoring study allowing to judge about possible impacts of the project on the species and their habitat, referred to by the complainant. The report further informed that the Ministry of Environment and Physical Planning (MEPP) instructed the ELEM to implement an Environmental Impact Assessment Study for the hydropower plant project Lukovo. An international tender was published and the company BRL from France was selected to develop the EIA Study by engaging international and national experts. When accomplished, the ELEM would send the Study to the independent expert committee established by MEPP, for review.

       At its meeting in September 2013, the Bureau decided to keep the complaint on stand-by pending the authorities’ reply and asked the Secretariat to contact them with a request to provide more detailed information about the possible impacts of the hydropower project implementation in Mavrovo National Park on species and habitats.

       In a report submitted in January 2014 the complainant informed that a lawsuit was pending before the Administrative court against the decision of the Ministry of environment to approve an incomplete EIA study for the hydropower plant project Boshkov Most. The complainant underlined that the irregularities on the EIA study were confirmed by a EBRD compliance review report (January 2014) which concluded that the EIA was “not sufficiently comprehensive and conclusive”.

       In a short report submitted in March 2014, the national authorities informed that the EIA for the Hydropower plant Boshkov Most was concluded, and that the results of the biodiversity monitoring implemented were taken into account in the final EIA report. The EIA for the Hydropower Plant Lukovo Pole was under preparation. No mention was made by the authorities of the pending lawsuits against the EIA results and procedures, reported on by the complainant.

       At its meeting in April 2014, the Bureau regretted the lack of informative reports on behalf of the national authorities. The Bureau instructed the Secretariat to contact again the authorities of “The former Yugoslav Republic of Macedonia” for more detailed and comprehensive information on what was added to the EIAs study further to the biodiversity monitoring, what was already implemented on the site and under which conditions, as well as on the pending lawsuit.

       The national authorities did not submit a report for the September 2014 meeting of the Bureau, but informed via e-mail that the EIA report for HPP Lukovo Pole was expected for the end of December 2014. The authorities claimed that they didn’t receive the reporting request sent by the Secretariat. The complainant, who was copied in the letters addressed by the Secretariat to the authorities, had ‑ on the contrary ‑ submitted detailed information regarding both hydropower plants’ projects. Regarding the Boshkov Most HPP project, the complainant informed on two pending lawsuits, (1) one claiming that the Ministry approved the EIA report based on insufficient data (supported by a compliance report of an independent experts charged by EBRD) and (2) a second one on denied access to the expert’s reports on Mavrovo HPP projects. In addition, the complainant claimed that the civil society organisations were supposed to participate to the bio-monitoring mentioned by the national authorities, but their comments and proposals were not included in the final EIA report. Comments on the insufficient data used for the bio-monitoring report were also made by the Vice-Chair of the IUCN World Commission on Protected Areas and other IUCN committees, as well as by Birdlife and national/international experts.

       At its meeting in September 2014, the Bureau regretted the lack of information from the authorities of “The former Yugoslav Republic of Macedonia” and decided to forward the complaint as a possible file to the Standing Committee, inviting the national authorities to attend and to report in detail on the state of implementation of the projects, as well as on the pending lawsuits.

       In December 2014, the Standing Committee took note of the latest updates presented by the delegate of “The former Yugoslav Republic of Macedonia” and the detailed presentation of the complainant. The Committee noted the importance of the area as key biodiversity hotspot, its status of National Park, and the concerns expressed by a number of international organisations and delegates over the negative impact of hydropower developments on the biodiversity of the area. The Committee further noted the pending adoption of a Management Plan for the Park, the pending lawsuit on the Environmental Impact Assessment for one of the hydro power plant's projects as well as the expected finalisation of the assessment for the second one.

       The Committee decided to open a case file and instructed the Secretariat to seek the agreement of the Party for the organisation of an on-the-spot appraisal to the area in 2015, with the objective of collecting more information and data for the preparation of a draft recommendation to be submitted to the next Standing Committee meeting.

       On 4th March 2015, the Minister of Environment and Physical Planning sent an official letter to the Secretariat confirming his agreement on the organisation of the on-the-spot appraisal. The European Union, the IUCN and WCPA requested to participate in the appraisal as Observers. The European Bank for Reconstruction and Development (EBRD), financing the project, has also been invited to join.

The visit took place on 24-25 June 2015. Mr Pierre Galland from Switzerland accepted to be the independent expert in charge of the mission.

The Council of Europe’s delegation had meetings with the Minister of the Environment and Physical Planning, Mr Nurhan Izairy, as well as with the representatives of the company ELEM which is the project developer, the Director of the Mavrovo National Park managing authority, representatives of civil society organisations, including the complainant, representatives of the European Bank for Reconstruction and Development and various local stakeholders.

The delegation managed to visit the main localities of the two big hydro power projects, as well as an additional small HPP plant already implemented.

The Bureau noted that the development of the energy project might raise problems of compliance with the Convention and a possible incompatibility with the status of the area, which is an important protected wilderness area that must be preserved for future generations. It therefore instructed the Secretariat to forward the report of the independent expert also to the investors and financing bodies, with a request to take it into consideration for a more holistic approach to the matter, in view of finding a balance between energy developments needs and nature protection.

At its 35th meeting in December 2015, the Standing Committee adopted Recommendation No. 184 (2015) on the planned hydropower plants on the territory of the Mavrovo National Park, inviting “The former Yugoslav Republic of Macedonia” to suspend the implementation of the hydropower plants foreseen and related infrastructure until a Strategic Environmental Assessment will be completed and to keep the Standing Committee regularly informed about the progress in the implementation of this Recommendation.

A spontaneous report was sent by the complainant in February 2016 for the March meeting of the Bureau. The complainant wished to raise the attention of the Bureau on the fact that the World Bank dropped one of the questioned projects (the Lukovo Pole project). With regard to the other project, Boskov Most HPP, the report informed that the European Bank for Reconstruction and Development pledged to comply with the recommendation and put the project on stay until the Strategic Environmental Assessment is completed. Moreover, the complainant informs the Bureau of the construction of four new small hydropower plants funded privately.

The complainant asked the bodies of the Convention to address with the authorities some specific points, in particular to:

·           ask the government to suspend the construction of the small hydropower plants in the park;

·           postpone the adoption of the Law on re-proclamation of the Mavrovo NP;

·           provide guidelines on the implementation of the recommendation to all stakeholders;

·           ask that the Strategic Environmental Assessment is transparent and involves all stakeholders;

·           remind the stakeholders of the importance to conduct activities setting within the Balkan lynx (Lynx lynx balcanicus) Recovery programme.

On 21st March 2016, the Government informed it was working on the implementation of Recommendation No. 184 (2015), in particular by launching a national programme for monitoring and recovery of the Balkan lynx and promised to keep the Secretariat updated on the progress.

The Bureau took note of this information, stressing that the building of small plants is in line with the recommendation adopted by the Standing Committee and instructed the secretariat to ask by the end of June 2016 for reports to both the authorities and the complainant. The Bureau encouraged the government to fully implement the recommendation of the Standing Committee.

The complainant sent an updated report in May 2016. The report informed that the number of conceded small hydropower projects had increased to 6, and that the construction work was expected to start in the spring. The complainant sent an official letter to the Ministry of Environment requesting the suspension of the concession for the 6 hydropower plants that were in project. The Water Department replied that the small hydropower projects were either conceded to a private investor or to the Municipality of Mavrovo Rostuse with public private partnership, and as such the Recommendation No. 184 (2015) did not apply.

The report further stated that after being finally granted access to the Elaborate for Environmental Protection (EEP) study and permits for the 4 conceded hydropower projects, the complainant identified problems with the quality of the elaborate and the conflict of the projects with the proposed zoning of the park. A complaint has therefore been submitted against the EEP permit to the Ministry of Environment.

The report also stressed that concerning the adoption of the EIA permit for Boskov Most, the Administrative Court ruled in favour of the complainant, considering that there was no proof that the Law on environment had been respected and the EIA study was complete. As a consequence, the Court cancelled the decision of the State Commission which refused the complaint of the NGO against the Ministry of Environment decision granting EIA permit for Boskov Most.

Finally, the report informed that the complainant has not yet been involved in the preparation of the Strategic Environmental Assessment. 

In July 2016, the Secretariat received another report from the complainant. It informs that the number of approval or plans to grant concessions to private investors of small hydro power plants increased to 17. At the date of the report, 2 were already built and 2 were under construction. The report stresses that almost all of the small hydro power plants are in remote, inaccessible areas of high natural value.

Again in July 2016, the national authorities sent their report informing that the implementation of all the foreseen government projects (big and small) in the NP have been suspended until a SEA is completed, as recommended in Recommendation No. 184 (2015). In detail, the authorities stated that the implementation of privately funded small/micro hydro plants in development before December 2015 are not subject to the Recommendation, however, concessioning for the remaining planned small/micro plants within the territory of the NP are suspended.

The authorities expected that the management plan of Mavrovo NP will be completed once the Law for the Re-Proclamation of the NP is adopted in Parliament. The outcomes of the SEA should be reflected in the Management Plan. Regarding the timeframe, the authorities could not provide a firm date, but explained that they are making efforts to complete this before the Standing Committee meeting in November 2016.

In addition, the Government report commented in details and refuted the allegations by the complainant regarding the impacts of the construction of several hydro-power plants and supporting infrastructures.

The report further informed that the Government has initiated the establishment of a national program for the recovery of the Balkan lynx for the implementation of which the Government was looking for financial support. The concept paper of the project was also sent.

The national authorities’ report also provided a conclusions’ section in which they provide their opinion on the process leading to the adoption of the Recommendation and the Recommendation itself, nevertheless stating that they are following the recommendation and looking forward to work with the Convention until the case is closed.

Newest reports and developments

After lengthy debates at its meeting in November 2016, the Standing Committee agreed that the case-file should remain open and that the authorities should speed up the process of development of the SEA. The process of SEA should be realised according to national legislation and international standards/European SEA Directive with which “The former Yugoslav Republic of Macedonia” indicated that its legislation already complies, comprising inclusion of all stakeholders.

In January 2017 the Secretariat addressed a new reporting request to the national authorities, calling for any new information considered useful, in particular on progress in the finalisation of the SEA and the process leading to its development.

The national authorities sent their report before the deadline set for its reception and informed that no progress on the implementation of Recommendation No. 184 (2015) can be reported. The authorities raise additional issues of concern. The full national report can be consulted here.

1.2 Complaints on stand-by

Ø  2012/5: Sport and recreation facilities in Cirali key turtle nesting beach (Turkey)

Background of the case

In May 2012 the Secretariat received a complaint submitted by the Ulupinar - Çirali community, questioning the allocation of a land including 75 % of Çıralı beach to “Orman Spor” – a football society ‑ for the establishment of football grounds and recreation facilities. Çıralı beach is in fact among the 20 key nesting areas in Turkey and has been designated as 1st Degree Natural Site, belonging to the National Park Olimpos-Beydaglari. Furthermore, the area is well known in Turkey as it has been pioneer in establishing eco-agriculture; for instance, the local community set-up a Cooperative which is in charge of managing and conserving the area.

According to the complainants, the land was allocated to the sport society by the Ministry of Forests, while the Ministry of Environment and Development delivered a permit to use the area as “C Class” excursion area”, i.e. allowing for the touristic exploitation of the site. The complainants highlighted that Orman Spor’s sponsor is in fact a tourism promoter. Therefore the complainants expressed strong worries regarding the impact that new infrastructures and an increased human presence would certainly have on the nesting activity of Caretta caretta.

The complainant further informed that some local residents and the Bar Association of Antalya had lodged a complaint against the Ministry of Environment and Development, requesting both the cancellation of the decision converting the area into a “forest recreation area” and the decision to allocate it to “Orman Spor”. The 2nd Administrative Court of Antalya delivered its ruling, quashing the decision consisting in allocating to Orman Spor the land in question, but confirming the decision regarding the land uses and development of the area. Right afterward, the complainants applied to a regional court which, in June 2012, quashed the array of the Antalya 2nd Administrative Court which had then to reconsider its position and emit a new judgment.

The Bureau strongly regretted the absence of an official report from Turkish authorities on such an important issue and decided to forward this complaint to the Standing Committee as a possible file.

At the meeting of the Standing Committee in November 2012, the delegate of Turkey apologised for the lack of reply to the reporting requests, explaining that the authorities preferred to wait for the Court decision before informing the Secretariat. He emphasised that, following the ruling by the 2nd Administrative Court of Antalya, the authorities gave back the protection status to the site while waiting for the decision on the appeal.

The representative of MEDASSET welcomed the information provided by the delegate of Turkey and stated it hoped that the re-designation of the area would mean better protection in Cirali.

The Committee decided to forward the complaint to the Bureau for its follow-up as a complaint on stand-by. The Secretariat addressed a request of possible update to the Party in May 2013. The Turkish authorities informed that the decision of the Court was still pending, and that the construction works were suspended in the meantime.

At its meeting in September 2013, the Bureau welcomed the suspension of the works pending the court’s decision. No new information was submitted since. For this reason, in January 2014 the Secretariat addressed two separate letters, respectively to the authorities and the complainants, requesting a short report on the situation, including any useful information regarding the complaint pending before the national court. The Secretariat didn’t receive any reply from the complainants. From the authorities’ side, a short note sent in March 2015 confirmed that the decision of the court was still pending and that, in the meantime, the area continued to enjoy the protection granted to the site, with no sport activities implemented.

The same information was reiterated in a short note submitted by the authorities in February this year: the case is now pending before the Supreme Court and there is no decision yet. About the current status of the area, the site is still a protected area under the control of governmental institutions and there are no sports or other facilities on the site. A member of the Secretariat visited the area last summer on a private visit and confirmed that there are no sport facilities on the site. However, the signage and controls could be improved, as they currently relay on the efforts of the NGOs. No news was received by the complainant.

Newest reports and developments

In January 2017 the Secretariat reminded that national authorities that the Bureau is expecting a notification as soon as the court decision is issued. No new information was received by the finalisation of the present summary.

Ø  2014/6: Wind energy: Possible threats to an endangered natural habitat in Izmir (Turkey)

Background of the case

This complaint was submitted in July 2014 by a citizen of Çeşme, İzmir, to denounce the exponentially increasing number of wind energy installations (WEIs) which are rapidly developing into the Çeşme Peninsula. The latter is presented as an endangered natural habitat, nurturing a biota of expansive biodiversity. The complainant stressed that the Turkish Energy market is the fastest growing in the world, with important economic benefits. However, a non-sustainable use of renewable energy sources could make these environmentally, socially and economically unviable. The complainant denounced the negative impact of uncontrolled wind-energy developments on a number of protected habitats and species, in violation of Articles 4 and 6 of the Bern Convention.

Following a request for more specific information the complainant addressed some of the questions raised by the Secretariat.

Regarding the windfarm project in Izmir, counting with already 385 wind turbines, the complainant highlighted that the latter had not been subject to an EIA, which is compulsory for this kind of projects according to the national legislation. In fact, to avoid the EIA requirements, the project developers limited the scale of the initial project to the recommended capacity, with the intention of increasing it in future. This is demonstrated by the requests, already put forward by some companies, for additional capacity increase. For this reason, other windfarm development projects have already been brought before national Courts and there have been some rulings against these.  For instance, the citizens of Karaburun won a case against the installation of additional 47 turbines in a nature reserve candidate for a biosphere status.

It is however important to note that Turkey is not subject to the obligations of the Aarhus Convention.

Concerning Çeşme town, the matter was still pending before a Court, and concerned the confiscation of private lands; the intermediate rulings requested to suspend the further continuation of constructions but the private company continued implementing the construction project. The complainant informed being in the process of preparing a complaint for cumulative impacts of the windfarm project to be submitted to a National Court.

The Turkish authorities informed the Secretariat that they were collecting the necessary information for submission to the governing institutions of the Convention.

The Bureau noted that this complaint presents two major aspects: one concerns the common controversies surrounding wind-farm siting and the relations with the communities hosting windfarm close to their homes, which are already being dealt by a national Court and on which the Convention has no competence. The second is the potentially uncontrolled wind-energy development, which also poses problems in some other Contracting Parties. In this respect, a precautionary reaction seemed useful to avoid difficult situations in future.

In light of the readiness of the authorities to provide information on this case, the Bureau decided to consider the complaint as a complaint on stand-by at its next meeting. It further instructed the Secretariat to liaise with other MEAs and NGOs with a specific knowledge on wind-energy issues.

The Secretariat contacted BirdLife International and the WWF Turkey for additional information. The WWF Turkey recognised a competence and knowledge on/of wind-energy matters but not of the area subject of the complaint. It therefore provided an informal opinion noting that the complainants have not proved yet a link between the windfarms developments and a specific impact on species and habitats. However, it also noted the need for a Strategic EIA about windfarms, in view of further potential developments. WWF’s position is, in conclusion, that windfarm developments implemented after good quality EIA and social assessments are a good low carbon energy solution.

The Bureau decided to give another chance to the complainant for completing its file and to re-assess the case at its next meeting, in 2016. In case there would be no evidence of a potential impact of these developments on the species and/or habitats protected under the Convention, the Bureau would close the complaint.

The report submitted in March 2016 by the complainant contained a whole inventory of the biological features of the area focussing on its habitats (with a large number of endangered natural habitat types from revised annex to Resolution No. 4 of the Standing Committee), the flora (including some endemic and rare species), and the fauna. On birds, the report says that the peninsula’s terrestrial regions with islands and coastal areas host more than 200 species of birds, among which Phalacrocorax aristotelis and Aquila chrysaetos, amongst the endangered birds of the peninsula. Among the mammals, the complainant informed about the presence of three bat species.

In terms of legal protection, the complainant informed that the Çeşme peninsula has been declared as National Heritage Site, predominantly at first and second levels. For this reason, following a complaint submitted by the local city assembly of Karaburun, the Ministry of Environment and Water Works, İzmir Provincial Directorate assessed the situation and produced a report (dated 2013) concluding that the cumulative effects of wind energy developments in the area would present a serious life-threating risk for several species and for bird populations in particular.

Regarding the extent of the wind farm development, the complainant informed that the number of installations is increasing, so as the number of licensed or under evaluation projects. It should be kept in mind that majority of the land occupied by wind turbines are natural heritage sites supposedly put under strict conservation rules.

Newest reports and developments

At its meeting in September 2016, the Bureau thanked the national authorities for their report, but agreed that more solid evidence was needed that all cumulative effects are carefully evaluated for the whole area. The Bureau further invited the authorities to take into account the existing best practice guidance on wind farms and birds adopted by the Convention in 2013.

In March 2017, in their national report the Turkish authorities clarify the EIA procedures applicable to any wind energy installations in Turkey. Two procedures are foreseen, depending on the capacity of the installation:

1.    in the case of installations’ applications with capacity greater than 50 MW, the approval procedure is conducted by the Ministry of Environment which sets up a commission. The company developing the project is charged with the preparation of a report on the effects of the installation on biodiversity. The report is evaluated by the Commission set up under the Ministry and eventual compensatory measures to be put in place by the company are stated in the EIA report prepared by the Commission.

2.    In case of installations applications with capacity below 50 MW, the assessment is done directly through the DG Nature conservation and national Parks in the Ministry of Forestry and Water Affairs. The DG evaluates a report requested to and prepared by the company, makes a decision on the issuing or not of a permission to build and requests mitigation measures if necessary.

The authorities also inform on the existence of a cumulative effects’ report on wind farm developments in the Cesme basin region and its 12 wind energy installations. The cumulative effects’ report is not communicated to the Secretariat. They further argue that the installations in the Cesme region do not concern any major migration route for birds, with detailed maps included.

It is also reported that the monitoring of cumulative effects took place during two years, although it is not clear which years it is referred to. The report gives figures of 56 bird species monitored during the first monitoring year and 44 bird species during the second monitoring year. The conclusions of the monitoring of two out of the 12 wind energy installations in the Cesme peninsula are presented as examples, on the installations being operational, the other presented as under construction.

Ø  2014/1: Presumed risk of national extinction of badgers in Ireland

Background of the case

In January 2014 the Secretariat received two complaints from the Irish Wildlife Trust denouncing a possible breach of the Bern Convention with regards to i) the increased culling of badgers in Ireland, with possible detrimental impact on the population size; ii) the failure of Irish authorities to submit biennial reports due under Article 9 of the Convention in case of exceptions made to the provisions of Articles 4 to 8 of the Convention. The files so submitted were registered as a single complaint.

The Secretariat recalls that last year the Bureau of the Standing Committee to the Bern Convention devoted specific attention to the issue of complaints submitted for presumed breaches of the Convention related to species listed in Annex III. In fact, most of these complaints concern the culling of badgers and many are not well-founded on the ground.

At its last meeting the Standing Committee agreed to disseminate a guidance document on the “Admissibility of complaints related to species listed in Appendix III: the Badger as a Model”. The latter has been prepared with the aim of clarifying ‑ without prejudice to the provisions of the Convention ‑ both the degree of protection offered by the Treaty to Appendix III species, and the reporting obligations of Parties according to Article 9.

In the complaints in object the Wildlife Trust denounced on the one hand a risk of local disappearance of the species due to the fact that the ceiling of 30 % cumulative percentage of agricultural land under capture for badgers has been exceeded and that a review of the status of the national badger population is lacking; on the other hand, the complainant considers that Ireland failed to comply with the reporting obligations set under Article 9 of the Convention.

On the latter, the Secretariat recalls that, if the species listed in Appendix III is not threatened in the territory of the Contracting Party, the population is not jeopardized by the exploitation policy, the exploitation is monitored by the concerned authorities and the Party has not made use of one of the prohibited means listed in Appendix IV, the Party can authorise a certain degree of exploitation without being obliged to report to the Standing Committee through the biennial reports.

However, as a follow-up to a previous complaint submitted in 2011 on the same issue, Irish authorities recognised a certain decline of the badger population in Ireland, but informed that the latter was under control and that it would not continue further. They also informed about some research programmes concerning oral and intramuscular vaccination of badgers as tools for potentially avoiding the culls (see document T-PVS/Files (2012) 33).

In the light of the above, and in order to enable the Bureau to take a decision on the follow-up to be given to the complaint, where appropriate, the Secretariat addressed a reporting request to Irish authorities on any relevant change in the population size on the national territory since 2012, as well as on the measures undertaken to monitor it; on the conservation status of the species; and on the results of the research on the vaccination as an alternative to the culls.

Newest reports and developments

Since the end of 2015, following the numerous unanswered reporting requests, the Secretariat got in contact with the Permanent Representation of the country to the Council of Europe seeking their assistance in resolving the lack of cooperation of the authorities.

In the beginning of 2017, the contact with the Department of Arts, Heritage, Regional, Rural & Gaeltacht Affairs in Ireland was restored and a new focal point for Ireland appointed. However, no report from the authorities was received by the deadline set for its reception.

Ø  2014/8: Presumed large-scale exploitation and marketing of protected marine shelled molluscs in Greece

Background of the case

       This complaint denounced the large-scale illegal exploitation and marketing of protected marine shelled molluscs in Greece, including species protected under the Bern Convention, as well as under other regional or international conventions (including EU legislation).

       A survey conducted between June 2009 and June 2011 on 219 seafood restaurants in 92 localities revealed that forty-two percent of the surveyed restaurants were serving at least one of the protected and hence illegally exploited species. Among these, the date mussel Lithophaga lithophaga, the common piddock Pholas dactylus, the giant tun Tonna galea are listed under Appendix II of the Convention.

The complainant observed that, given that these figures were based on the statements of the restaurateurs themselves, they were probably an underestimation of the true scale of the problem.

       He also affirmed that since the publication of the study the situation remained unchanged. The complainant further stressed that the populations of all the Annex II species mentioned in the complaint were declining in the Mediterranean and in particular in Greek coastal areas. Protection through international agreements and European or national legislation was decided on the basis of a need to reduce mortality and to allow these populations to recover. Continuing intense exploitation for illegal trading in seafood restaurants will render the achievement of this goal unfeasible.

       At its first assessment of the complaint the Bureau didn’t receive the views of Greek authorities and decided to re-consider it as a complaint on stand-by at its next meeting, after reiterating its reporting request. Moreover, the Bureau requested the views of the European Commission on the matter.

In the report addressed end of July 2015, the national authorities confirmed that the species subject of the complaint are protected under both national law and the Habitats Directive. In fulfilment of these obligations, the authorities claimed that the relevant controlling authorities have been given the right to impose deterring sanctions in case of infringements. Moreover, the Port Police Αuthorities conduct targeted inspections in localities where the consumption is still considered to be high. Therefore the authorities recognised that illegal consumption exists, but disagreed with the conclusions of the complainant regarding the extent of the problem, which seemed limited to few localities. 

The report further mentioned a Presidential Decree which was adopted in reply to Recommendation No. 85 (2001) of the Standing Committee to prohibit the exploitation of the protected molluscs species and stop the trade in Lithophaga lithophaga.

The authorities concluded by ensuring their commitment to cooperate with all the stakeholders, and take all the necessary measures and actions to stop the illegal exploitation of these species.

       The European Union, on its side, informed that the Commission could raise the matter with Greek authorities but would welcome more updated information on the extent of illegal activities after 2011.

With the above in mind the Bureau thanked Greek authorities for their report and agreed that more updated information from the complainant might help clarifying the issues at stake. It therefore decided to keep the complaint on stand-by, instructing the Secretariat to liaise with the complainant and the European Union well ahead the first Bureau meeting in 2016. The Bureau further asked the Greek authorities to provide the opinion of the CITES management authorities for trade in relation to possible infractions.

In his report from February 2016, the complainant stressed that the core problem is that conservation legislation is not enforced, as without appropriate enforcement measures and the establishment of effective control mechanisms, illegal exploitation and marketing of date mussels will remain. Moreover, the complainant defended the findings of the study on which the complaint is based, stressing that the methodology used for it consisted in selecting a large number of locations (not only black-spots) and vising all seafood restaurants that could be found in each of these locations. 219 interviews were conducted in 92 localities well covering all marine sub-regions of Greece. Hence, the sample is representative of the situation in the entire country, and the finding that 22.8 % of the seafood restaurants serve regularly (11.4 %) or occasionally date mussels is not an overestimate.

The complainant further submitted more updated information, not based on a new survey (such a comprehensive exercise could not be repeated) but based on data gathered through the internet by scrutinising restaurants’ webpages, blogs and food reviews. It appeared that enforcement is so week that the restaurants even publicise their menus based on date mussels and or fan mussel (served at least in three localities). The complainant concluded by acknowledging the recent efforts of the country in terms of institutional strengthening of the regulations, but still points out to enforcement and ineffective surveillance as the matters to be addressed.

In a report from March 2016, the authorities informed that neither import or export permits for specimens of the species have been issued, according to the Greek CITES Management authority, nor have corresponding requests been received.

At its meeting in September 2016, the Bureau requested the Greek authorities to provide a detailed report on any illegal trade of the species they are aware of and measure put in place or planned to enforce the conservation of the species. A decision on whether the case-file should be dealt with as possible file was delayed for March 2017.

Newest reports and developments

In March 2017, the national authorities report on several cases of illegal fishing, transportation and trade of the species, as well as illegal restaurant sales in the period 2014-2016 obtained after consultations with the relevant regional and local authorities. They further inform on the corresponding penalties imposed.

The authorities equally mention an awareness raising activity planned – development of an electronic brochure – and report that the Central Port authority is asked to tighten its controls for the species.

Ø  2014/3: Presumed deliberate killing of birds in Serbia + 2016/3: Alledged deliberate killing of birds of prey

Background of the case 2014/03

This complaint was submitted in April 2014 by the Bird Protection and Study Society of Serbia, to denounce a presumed breach of the Convention by Serbia for failing to take adequate measures against illegal bird poisoning. The latter concerned 122 birds listed in Appendix II of the Convention, including 26 white-tailed eagles, killed over the period 2007-2014 (until March).

The consequence of poisoning is, in the complainant’s views, an impact on the breeding populations. The origin of the poisoning is direct/indirect, mainly through carbofuran and feeding with poisoned seeds and carcasses. Almost all dead individuals of white-tailed eagle were found on intensively managed agricultural land. The complainant considers that the authorities are failing to adopt and enforce sufficiently strict administrative and legal measures to discourage poisoning of wild birds.

The Secretariat stressed that the complaint had been notified to the authorities already in 2014, but they requested a delay in order to identify the national Special Focal Point for illegal killing of birds.

The national report addressed in March 2015 confirmed the information sent by the complainant, including the type and nature of poisoning. It further informed about a dedicated meeting of all relevant authorities (in February 2015) to devise a set of immediate actions which had however not been undertaken yet. There were also some inspections, and the referral to a person to the Office of the Public Prosecutor (scheduled for 17 April 2015), although most of the offenders remained non-identified.

The legal regime for dealing with wildlife crimes in Serbia is criminal law, but the report provided little information on enforcement and prosecution. However, the authorities ensured of their commitment to put in place proactive prevention measures through awareness on the prohibition of use and trade of carbofuran, as well as to ensure that the residual stocks of carbofuran from individual users are destroyed.

The Bureau welcomed the efforts of Serbia for addressing the matters of the complaint, and praised the nomination by the country of a Special Focal Point for illegal killing of birds as a first step towards the full implementation of the Tunis Action Plan. However, it also noted that the response to such a serious threat had been guided by the urgency of the situation, lacking a more structured approach. With this in mind, the Bureau decided to re-consider this complaint as a complaint on stand-by at its first meeting in 2016, and invited Serbia to attend the meeting of the Group of Experts on the conservation of birds under the Bern Convention (October 2015), and to report to the Group on the activities and actions planned as a follow-up to this complaint.

The authorities reported to the Group of Experts on the conservation of birds informing about the results of the toxicological analysis carried out on the birds found dead in 2014, confirming that the deaths were caused by carbofuran. The presumed offenders, where finally identified and referred to the Public Prosecutor’s Office. Still, there were some challenges that the authorities had to face for the full implementation of a comprehensive strategy against illegal killing of birds. These are the lack of specifically trained human resources (at all levels of the enforcement chain), the lack of financial resources, the need to improve communication and co-operation between all competent bodies and stakeholders, and a long judicial iter which makes the issuing of decisions very slow. The delegate explained how these challenges are starting to be addressed, and presented some of the cases which were being judged before national courts. He further noted the support of NGOs initiatives in this field. Namely he informed about a campaign to be launched by WWF Serbia for the responsible use of pesticides, which follows the legal provisions aimed at prohibiting the use of carbofuran. Another good initiative which received support from the authorities was a campaign for the conservation of turtle doves.

In the absence of the complainant, and noting the lack of an updated report, the discussion was short, with some Parties suggesting that Serbia looks at experiences of other countries having already worked on a long-term approach to illegal killing of birds. Moreover, the delegate of Hungary informed that a new LIFE + project (a follow-up to the present Helicon LIFE+ project) – if approved for funding by the EU, should also be implemented in North Serbia. The Group referred the case to the Bureau.

In June 20016, the Secretariat addressed reporting requests to both the authorities and the NGO. Only the authorities replied, with an updated report informing that some legal provisions were amended/adopted in order to meet the requirements of the Bern Convention and the Tunis AP. A meeting with relevant stakeholders (including CITES Unit and Inspection, the public prosecution office and the NGOs) took place in February this year to assess the situation and prepare the report for the Bureau.

Moreover, a draft Protocol was prepared for possible adoption by the Government of the Republic of Serbia. The Protocol identifies illegal killing of birds as a major threat to birds and their habitats. It aimed at implementing joint actions and promoting cooperation between authorities and organisations involved in the fight against illegal killing of birds. The Protocol pursues fours objectives:

Ø  Guiding common action, promoting good practices and cooperation;

Ø  Enhance wild bird protection and reduce the rates of undetected cases;

Ø  Develop a common understanding on bird conservation vs illegal killing of birds

Ø  Improve the effectiveness of investigation and prosecution phases.

Moreover, the report informed that, since 2014, Serbia is conducting a project which aims at the preparation of a National Action Plan on the sustainable use of plant protection products, establishing systems for regular technical inspection of pesticide application equipment.

Furthermore, the report gave some insights of campaigns and other awareness raising activities organised by the NGOs with the support of the authorities, on public debates organised to reach local public, and on some activities targeting schools.

Finally, the report informed that two draft laws on accession and ratification of the AEWA and EUROBATS Agreements were adopted by the Government of the Republic of Serbia and sent for further procedure in Parliament.

Background of the case 2016/3

The complaint concerns the presumed illegal killing of bird species listed in Appendix II of the Convention in Serbia, in the period 2014-2016 ‑ white-tailed eagle (Haliaeetus albicilla), common buzzard (Buteo buteo), crane (Grus grus) and griffon vulture (Gyps fulvus).

The complainant denounced a breach of the Bern Convention by Serbia for failing to take adequate measures against illegal bird poisoning. It further listed the reported cases of birds poisoning and informed of the death of one griffon vulture, killed with a hunting rifle on 20th January 2016 in the Special Nature Reserve “Uvac”.

In an updated report submitted spontaneously on 6th July 2016, the complainant informed on additional cases of bird poisoning during the period March-April 2016 and warned that the national authorities haven’t taken any measures to process the cases according to national and international legislation. The complainant regretted that the cases of strictly protected bird deaths, also reported since 2014 in the complaint on stand-by 2014/03, remain open and no sentencing is issued so far for the criminal acts.

According to the complainant, the deaths of 8 individuals of white-tailed eagles in a very short period of time and the absence of punishment send a very negative signal and shows that the Government is not capable or do not wish to solve the problem.

Newest reports and developments

At its meeting in September 2016, the Bureau agreed that the two complaints should be dealt with together as case-files on stand-by, for the sake of coherence and for saving time and resources. It welcomed the measures taken by the national authorities of Serbia on the cases of illegal killing of birds and in particular the initiatives initiated to improve inter-institutional cooperation. The Bureau stressed however that this co-operation has to be followed up until it gives tangible results.

In their updated national report submitted in March 2017, the authorities inform on continuous collaboration between national and regional inspectorates in cases of bird poisoning and report in detail about the cases and respective action undertaken by the relevant authorities in Annex 1 to their report. This Annex 1 includes most of the newest cases reported by the complainant organisations in their report, in particular specimens of common buzzard, on which toxicological analyses are currently undergone and criminal charges against unknown perpetrators are filed to the competent prosecutor’s office.

They further inform on cooperation with the provincial Environmental Protection Inspectorate of the autonomous province of Vojvodina, including meetings where citizen associations were invited. A campaign for prevention of poisoning of strictly protected species is mentioned. It is unclear whether this campaign was implemented already, is undergoing or planned.

Authorities further report that the Protocol for the implementation of the Tunis Action Plan is still being reviewed. In the meantime, the authorities seem to continue to organise meetings with relevant competent actors, such as border Police Directorates and Interpol and special police Unit for high technology crime. They are planning training courses for police representatives on how to efficiently prevent and sanction such illegal wildlife killing practices.

A revision of the Law on Plant protection Products, as previously reported, is undergoing.

Eventually, the national authorities inform that they have addressed the financial difficulties met during the second semester of 2016 when financial provisions for toxicological diagnosis to determine the cause of death of wildlife specimens were insufficient in the Ministry’s budget. This was mainly due to the increased amount of reported killed strictly protected animal species.

The Ministry decided that in 2017 all future sample and analysis should be done directly in the nearest veterinary organisation although it is unclear whether the payment for these analyses should still be done by the Ministry or by the budgets of the local veterinary organisations.

In their updated report submitted in March 2017, the complainants inform on new illegal bird killings which took place in the period November 2016-February 2017 (white-tailed eagles and buzzards). They further complain about the lack of sufficient resources for the timely toxicological analysis on many illegally killed specimens in 2016 and report that the internet sale of Carbodan 35ST continues without any problems over internet, by the same person, besides the criminal complaint filed against him.

Last but not least they mention a programme for large public on illegal bird poisoning that was broadcasted on Serbian national T. They regretted the fact that the Ministry officials did not comment the TV documentary, missing an opportunity to show authority’s serious handling of the cases.

1.4   Other complaints

Ø  2015/2: Possible impact of wind-farm developments on bats (“The former Yugoslav Republic of Macedonia”)

Background of the case

In February 2015 the Secretariat of the Bern Convention received a complaint submitted by the NGO Bat Study Group/Bird Protection, alleging a presumed breach by “The former Yugoslav Republic of Macedonia” of the Convention. According to the complaint the breach would result from a recent wind-farm development near the village of Bodganci, located in the very close vicinity of Dojran lake, an important candidate Emerald site and an Important Bird Area.

The complainant considers that the Bogdanci wind farm development represents a threat for not less than 15 bat species occupying the area where the farm was built listed in Appendix II of the Bern Convention. Some of these bat species are also listed in IUCN’s Red List. Moreover, a considerable number of migratory birds of prey present in the area are also listed in the Bern Convention Appendices and are equally threatened as the wind farm is situated only several kilometers from the main migratory pathway Morava-Vardar.

The complainant further explains that the ESIA prepared ahead of the wind-farm development does not mention bat species at all and that a number of protected bird species have not been relevantly studied. As a result, the operational monitoring of the impact of the wind farm on the fauna does not concern the bat species in particular, as they are not mentioned in the ESIA study.

Due to the workload of the authorities for the organisation of the Mavrovo on-the-spot appraisal last year, it was agreed to consider this complaint at the first Bureau meeting in 2016. In the meantime, the Secretariat recorded EUROBATS interest in providing an opinion on the file.

In response to the specific reporting request sent by the Secretariat on the instruction of the Bureau, the national authorities submitted a report in February 2016.

The report describes the Bogdanci Wind Farm (an ELEM’s project) which underwent a thorough environmental and social impact assessment (ESIA) in accordance with both the national law and the donors’ requirements (EU CARDS project).

According to the authorities, the ESIA took both avian fauna and bats into account and included field survey and extensive research on scientific literature. In that context, detailed and structured environmental management and monitoring plan were developed and adopted by ELEM as part of project development documents.

A pre-survey assessment was also conducted to identify the species as well as the landscape features used by bats that were potentially at risk, and field surveys took place in spring and autumn seasons in 2009. The ecological assessment identified a comprehensive list of bats species that could be subject to disturbance and displacement during construction, but this impact was considered to be a short term disruption with no significant impact.

Moreover, a project’s Environmental Management and Monitoring Plan (EMMP) to eliminate adverse environmental and social impacts, offset them, or reduce them to acceptable levels has been developed as part of the ESIA process. The whole ESIA package was publically disclosed in 2010 and a public hearing was organised and held in Bogdanci municipality as part of the consultation process. The decision for approval was issued after all the necessary steps had been completed.

The EMERALD site Dojran Lake, also designated as Important Bird Area (IBA) and Ramsar Site, was also taken into consideration during environmental appraisal of the wind farm Bogdanci, but in fact the agricultural areas, including the Project’s site, are considered as not relevant for migratory species. In line with the above, the impact in relation to breeding bird species is predicted as unlikely to be significant both in terms of disturbance during construction and operation. As for the collision risks, an assessment of the potential for collision with the wind turbines predicts that the key bird groups recorded during the surveys were reported as flying mostly above 150 meters (the maximum rotor height), and thus exhibiting avoidance behavior. The assessment of the project was also undertaken in accordance with EU Guidance on the Assessment of plans and projects significantly affecting Natura 2000 sites.

Regarding post-construction monitoring, ELEM has initiated the procedure for the nomination of a qualified consultant to perform the requested three-year post-construction / operational monitoring that was expected to start in spring 2016.

The authorities concluded by stressing that the complainant didn’t complaint during the ESIA phase, and co-signed the national reports submitted to EUROBATS.

In March 2016, the Bureau decided to consider this complaint on stand-by at its next meeting and instructed the Secretariat to address a reporting request to the national authorities, asking more specifically 1) the English version of the ESIA prepared ahead of the wind-farm development, 2) the baseline bird/bat surveys that were undertaken for the purposes of the ESIA, 3) specific clarification if bats were surveyed throughout their whole activity period, summer (reproduction) included and 4) updated information on the post-construction monitoring activity which was expected to start in spring 2016.

In their report submitted for the September meeting of the Bureau in 2016, the national authorities replied to the request of the Bureau and communicated the ESIA document in English, including the baseline bat/birds surveys, as well as the Terms of reference for the post construction monitoring (not to be disclosed via the webpage of the Bureau meeting, at the request of the authorities).

The ESIA (page 76 and Annex II of the study on Field records and observations) concluded that it is unlikely that the area supports a large resident population of bats. The study exposed that there are no maintained records of bad distribution in the Bogdanci area and that the field surveys during the day and evening hours did not record any bat sightings either. The study further concluded that the proposed location for the turbines is not in proximity to any significant stand of trees that would provide roosting area nor to areas for bat hibernacula.

The national authorities therefore concluded that the ESIA clearly showed that bird and bat fauna aspects do not present an obstacle for the project development. Since the commissioning of the wind park no incidents regarding bats have been reported which sustains the conclusion that the park does not possess significant potential for adverse impacts to the fauna of birds and bats. The ESIA report and associated mitigation strategy are approved by the competent authorities at national level, without a requirement for additional biodiversity surveys during the further project development and construction. The permission to proceed with the project implementation was granted to ELEM Company.

The authorities explained that the proposed three-year operational monitoring of the park will provide a comprehensive and detailed evidence of actual effects of the project to bird and bat fauna with an ultimate goal to address any potential effects with corrective mitigation measures.

The complainant, in its report, stated that there are documented and published (in 2014) recordings of at least 15 bat species in the area.

Newest reports and developments

At its meeting in September 2016, the Bureau thanked the authorities of “the former Yugoslav Republic of Macedonia” for their timely report and noted the conflicting opinions on the recorded presence or not of the bat species at stake in the area concerned.

The Bureau decided to consider this complaint as a complaint on stand-by at its next meeting in March 2017. It further instructed the Secretariat to contact EUROBATS to kindly request their opinion on the ESIA documents provided by the authorities and to request a subsequent reporting to the authorities taking into account the opinion of EUROBATS as well.

As requested, at the beginning of 2017, the Secretariat contacted EUROBATS. They note serious flaws in the EIA document which contains neither data on local bats nor a description of methods used for the survey. The EIA mentions only the absence of bat “sightings” during day and evening hours, which is not an appropriate method.

EUROBATS further informs that their national scientific focal point for the country informed in his latest report that there are at least 15 bat species present around the farm in the summer.

The draft ToRs for the post-construction monitoring are not following the EUROBATS Resolution 7.5 which contains Guidelines for such monitoring, because mortality surveys have been excluded. Such surveys are strongly recommended by the Guidelines. According to EUROBATS, acoustic monitoring alone cannot provide any tangible estimates of mortality and, consequently, would be senseless. EUROBATS further conclude that the monitoring aims are not established, ergo what the authorities are planning to do with the results, in particular if significant activity/mortality of bats would be found.

Ø  2016/4: Development of a commercial project in Skadar Lake National Park and candidate Emerald site (Montenegro)

Background of the case

In June 2016, the Bern Convention Secretariat received a complaint from an informal citizen group from Virpazar (Montenegro), alleging a breach of the Bern Convention by Montenegro, resulting from the development of a commercial project in Skadar Lake National Park (NP) and candidate Emerald site. The complainant considers that by approving the development of Porto Skadar lake project within the Zone III of the Skadar Lake NP, Montenegro authorities violate Articles 4 and 9 of the Bern Convention. The citizen group is composed of civil society representatives, fisherman associations and small business entrepreneurs from the biggest central community in the NP.

The project includes the development of 60 villas, 50 apartments and hotel accommodation for 600 people, as well as swimming pools and a Port for 30 boats. It is foreseen that the road infrastructure is upgraded from local to regional for the purpose of the Port. The complainant considers that all these developments will not only bring direct destruction of the unique habitats ad species preserved through the Park, but will equally bring more illegal activities into the National Park (which are currently not efficiently monitored), mass tourism and pollution, as there is no current plan for the management of water supply and waste water treatment.

The area is a Ramsar site, an IPA/IBA site and a nominated candidate Emerald site (ME 000000C Sasko jezero, Rijeka Bojana, Knete, Ada Bojana).

The complainant points out a conflict of interest as the Porto Skadar lake project is being carried out by CAU (Centre for Architecture an Urban Planning), which is also the company charged with the development of the new Spatial Development Plan for Skadar lake (PPPNSJ). It is also pointed out that the development of the new special plan was not sufficiently and adequately advertised among the directly affected local actors (this was done through on-line survey, while a vast majority of the local inhabitants doesn’t have access to internet).

The complainant further stresses the precarious status and management of the NP, a very low capacity for controlling illegal activities today which are numerous – illegal fishing, illegal exploitation of mineral resources, deforestation, uncontrolled urbanisation, illegal construction, issues of waste management – both solid and wastewater.

According to the complainant the area is largely understudies from a biodiversity perspective but a list of species – all species groups – but also plants and habitats that are concerned, many of which listed in the Bern Convention Appendices.

Newest reports and developments

The national authorities provide their report on the allegations by the complainants in October 2016. They have answered all questions formulated in the reporting request.

It is clarified that the Porto Skadar Lake Project is planned in the area covered by “Mihailovci” State Location Study, developed in the Zone III of the Skadar Lake NP - a buffer zone. They further inform that the development of the State Location Study was done on the basis of the Spatial Plan of the Skadar lake NP 2001-2015. Public consultations on the draft State Location Study and the draft report on its Strategic Environmental Impact Assessment (developed in parallel) were held for two weeks in February 2014. Only a few stakeholders, including the company which holds lots in the Municipality of Mihailovci, have participated in the consultation. In August 2014, the SEIA for the State Location Study received the consent of the Environment Protection Agency. On 23 October 2014 the Government adopted with a decision the creation of the “Mihailovci” State Location Study.

A study on the EIA for the Porto Skadar lake project was submitted to the Environment Protection Agency and public consultations were held on it in November 2014. No interested persons attended the meeting, except for the company developing the project and the regional authorities from Cetinje. The Study on the EIA for the project was adopted in January 2015 by the EPA after the opinion of a multidisciplinary Commission. The authorities also mention names of experts which have reviewed the Study on the project EIA and confirm that they have concluded that the Study takes into account the results of major scientific papers and research project on the natural values of the area.

A building permit was issued by the Ministry of Sustainable Development and Tourism on 6 June 2015.

The authorities further inform that the new Spatial Plan for the NP is currently being drafted and it is in its initial stages of preparations which involve the development of scenarios for the development of the area. A Citizen’ Forum was established and being involved in the development of the Plan. They provide information on the means of consultation on the Plan proposals developed by the Forum. An SEA for the Spatial Plan is also being developed in parallel.

According to the national Law, both the draft Spatial Plan and the SEA for the Plan are going to be submitted for public consultation as soon as they are ready.

The national authorities also inform that the current Management Plan for the Skadar lake NP, which covers the period 2016 – 2020 and on actions undertaken to control the illegal activities in the NP in 2016.

They conclude by presenting the work of a recently established Working team on the Emerald Network in the Ministry of Tourism and Sustainable Development and their plans to review the boundaries and databases of the candidate Emerald sites submitted in 2008, also through the currently implemented IPA project on the Establishment of the Emerald network in Montenegro – initiated in April 2016.

In a spontaneously submitted report in February 2017, the complainants informs that according to them the whole development of the State Location Study “Mihailovci” was developed in order to bypass the Spatial Plan for the Skadar lake NP 2001-2015 which did not foresee any major large-scale tourist development. The Spatial Plan 2001-2015 is still in force as the new one is not adopted.

They further claim that contrary to the statements by the authorities, the SEIA was developed without a detailed biodiversity study and present examples of copy-pastes of the SEIA from the EIA for the Stake Location Study “Mihailovci”. It appears further that the EIA for the project was adopted without the hydrological study being ready; i.e the water supply for the project was not yet clarified.

They further challenge the date of the issuing of the building permits for the project, being 27.03.2015 and not 6.06.2015 as presented by the authorities.

According to the complainant no biologist took part in the development of the Project EIA preparation. The biodiversity data in the EIA is taken from the information available for the whole NP Skadar Lake and not the specific area of the project. The likely presence of the Eurasian Otter for instance was not mentioned at all. The project proposed water treatment is considered unrealistic by the complainant and the experts from Montenegrin University they have contacted.

The complainant further challenges the information provided by the authorities on the current status of preparation of the new Spatial Plan fort eh NP Skadar lake and the seemingly open an transparent procedure of consultation of civil society, which is exclusively going through the Citizens’ Forum mentioned which is not representative, according to them. They provide details about the reasons (unclear questionnaires, short delays for organising public meetings, meeting during working hours, etc.) why many other citizens and NGOs can’t take part in the consultations.

The complainant provides further detailed comments on the illegal activities taking place in the NP currently, on the credibility of the Skadar lake project developer, on the lack of updated biodiversity data and research in the area of the park.

Ø  2016/05: Presumed negative impact of hydro-power plant development on the Vjosa river in Albania

Background of the case

In July 2016, the Secretariat received a complaint by EcoAlbania (Center for protection of Natural Ecosystems in Albania) on a presumed breach of the Bern Convention by Albania (Articles 4 and 6) resulting from massive hydropower developments on the Vjosa river and its tributaries. They inform in particular of the “Poçem” HPP project (a 25 meters high dam) planned on the Vjosa river, the construction of which appears as imminent, and of 28 other hydro power projects currently planned for the Vjosa river and its tributaries. An interactive map presenting all developments can be consulted here.

The complainant states that the competent authorities – National Agency for Environment – issued a building permit without proper EIA for the Poçem project notably.

The transboudary aspect of the ecosystem of the Vjosa/Aoos catchments (Albania/Greece), the unique free-flowing of the whole river, the biodiversity hot-spot it represents and the variety of hydrological –morphological features it holds are stressed. The complainant further states that all HPP on the river are planned without a proper EIA or SEA. It points out the negative impact the Poçem HPP project would have and in particular 1) the block the upstream and downstream of fish species, 2) the prevented sediment transport downstream to the Adriatic Sea, 3) the expected decline in ground water and 4) reduced water quality due to the reduction of self-purification rate. The complainant further stresses that hydropeaking, as planned for the HPP functioning, could have disastrous impacts on biodiversity. Last, the complaint mentions the secondary impacts linked to infrastructure development, such as fragmentation of habitats and alluvial systems.

The complainant also clarifies that the candidate Emerald site “Protected landscape of the wetland complex Vjose – Narte (IUCN Cat IV, RAMSAR site and IBA) would be potentially affected by the dam projects. It is underlined that although the project Poçem is not planned on any national protected area, the whole river system qualifies for many international designations and in particular European ones (Emerald and Natura 2000). A first annex to the complaint presents a list of species and habitats in the whole Vjosa valley.

The Secretariat received letters of support to the complaint by a large number of civil society organisations, national and European.

Newest reports and developments

In January 2017, the national authorities provided a national report in response to the complaint. They first clarify that all hydropower developments on the Vjosa River are considered in relation and in accordance with the conclusions of a 140 pages study developed in 2009 by a French company on the possible schemes for the hydro exploitation of the river Vjosa. The study has been financed by the World Bank.

Out of 25 potential HPP concluded by the study, there are 4 large ones, including the Poçem HPP. In 2014, the Albanian Government decided to go with a plan for 8 HPP to be constructed out of the 25.

On 9 May 2016, the Government granted the concession for the construction of the Poçem HPP to a Turkish Joint Venture. The contract itself was signed in November 2016 for a 35 years period. The construction should last 36 months after the acquisition of a construction permit.

The project developer entrusted the development of the obligatory EIA study for the project to GR Albania. This EIA was completed in January 2015 and on 18 February 2015 a public consultation was scheduled at the webpage of the national Environment Agency (NEA). The consultation took place on 8 March 2015 in Fieru district.

The NEA started the analysis of the EIA as required by the law after the consultation. The Forestry Directorate noted that the project does not fall within the territory of any protected area. The NEA EIA Commission, advised the Minister to issue an Environmental Declaration for the HPP Poçem HPP construction, issued on 22/04/2015. This Environmental declaration contains a number of conditions to be respected during the construction phase, including on biodiversity and nature protection. These are detailed in the authorities’ report. A regular reporting to the NEA on the environmental parameters of the construction is attached to the Declaration. The validity of the declaration is 2 years, after which it is not valid anymore.

The authorities further confirm that the EIA includes a biodiversity study, with a total of 5 pages out of 69 pages in total.

They also provide a map of all potential 8 HPP on the Vjosa River, only one of which is constructed so far – Kalivaçi HPP.

The last section of the national authorities report is dedicated to the impact the HPPs planned on the River will have on the candidate Emerald site Protected landscape Vjose – Narte. They state that the nearest planned HPP is situated 10 km away from the site and that the impact will be small and reduced through the implementation of mitigation measures foreseen in the Environment Declaration. In addition, this candidate Site is designated mainly due to its coastal wetland features, important for migratory birds. The management of the candidate site appears to have improved in the past years, thanks to the establishment of a national agency for PAs and a dedicated Regional Agency for PA which manager the site.

They conclude by stating a number of measures implemented in the past few years which are expected to contribute to the conservation at a favourable conservation status of all species ad habitats of European importance found in the Vjosa valley.

In a spontaneous report submitted in February 2017, the complainant NGO EcoAlbania challenges the authorities’ assertion that the Poçem HPP is not located on the Vjosa River main course and presents a map showing that both Poçem and Kalivac are located there. They further state that the Kalivac HPP has never been completed although started in 2002.

The complainant further notes that the authorities wrongly refer to the 140 pages study developed in 2009 as a strategic planning for hydro energy. They argue that this study is not a study on the biological values of the area, but rather on the hydropower potential of the river, therefore this cannot be considered as a strategic policy guiding document.

The complainant further clarifies that the authorities have not shown good will for cooperation with civil society and explain the cases where a lack of transparency was preventing them to play their role as civil society.

On the EIA procedures, the complainant states that the public consultation of the study was not appropriate and explains why. It further clearly informs on the various flaws of the EIA study, in particular the lack of in situ biodiversity study on the area of concern for the HPP and the large number of copy-pasted information from different reports.

Ø  2016/09: Possible threat to Svaneti 1 Candidate Emerald site from Nenskra HPP (Georgia)

Background of the case

In October 2016, the Secretariat received a complaint from the Association Green Alternative (Georgia), alleging a breach of the Bern Convention (Articles 4, 5 and b) by Georgia due to a permission issued for the construction of Nenskra Hydropower Plant (HPP) in the candidate Emerald site GE0000012 Svaneti 1.

The complainant argues that the Georgian authorities have disregarded the procedures on the sufficiency evaluation of proposed Emerald sites (available in document T-PVS/PA(2013)13. In January 2016, the territories concerned by the HPP project were excluded from the current candidate Emerald site Svaneti 1, even though the initial and larger site was already evaluated at a biogeographical Seminar which took place in May 2015 in Tbilisi. It appears that the site was reduced by 5 times its initial size.

The complainant further informs that the biogeographical evaluation conclusions show that the initial site Svaneti 1 was identified for a number of habitats and species listed in the relevant Bern Convention Resolutions No. 4 (1996) and No. 6 (1998). In particular, the initial site Standard Data Form included 3 mammal species (for which the country network in the Alpine biogeographical region was declared as sufficient in May 2015). For 2 out of the 3 habitat types present in the initial Svaneti Emerald site according to it Standard Data Form, the country was considered as insufficient major and minor.

In addition, the complainant informs that the ESIA study for the Nenskra HPP issued by the Ministry of Environment and Natural Resources from the beginning of 2015 was considered not to correspond to the international financial institutions standards. Therefore additional studies were commissioned and were pending by October 2016 when the complaint was filed. According to the complainant, the cumulative impacts of all planned hydro power installation sin the Enguri watershed and upper Svaneti region are not assessed.

Eventually, the complainant informs that the local communities are not informed about the effects of the project and very poor public consultation processes have been put in place.

The complainant provides an annex to its complaint form presenting an analysis of the habitats and species which will be affected by the Nenskra HPP.

Newest reports and developments

In January 2017, the national authorities submitted their comments on the complaint from Association Green Alternative. They first inform that the Project implementation Agreement between the government and JSC “Nenskra Hydropower” were signed in September 2015, the construction permit awarded in October 2015 and initial road upgrading works have taken place between October 2015 and November 2016. The main construction should start in September 2017.

The authorities also inform that the ESIA for the project was prepared in 2011, 2014 and 2015, with additional information added to the ESIA, as requested by the Ministry and stakeholders during the public consultation process. The ESIA included a cumulative impact assessment of the hydropower schemes along the Nenskra-Euguri river system on local, regional and global climate.

As mentioned by the complainant, the Ministry confirms that the international financial institutions requested supplementary studies in particular on the project footprint on the Nenskra and Nakra rivers, including additional Cumulative impact Assessments of all planned HPP projects by the Ministry of Energy. The supplementary studies package should be disclosed in March 2017.

Regarding the decision to exclude a big part of the initial Svaneti 1 proposed Emerald site, the Ministry of Environment informed that during the Biogeographical evaluation Seminar which took place in May 2015 in Tbilisi, they have informed that the boundaries of the Racha and Svaneti sites are not final. In addition, the authorities inform that the initial Svaneti 1 site was delineated mainly on the basis of scientific literature, and after further research it was concluded that it could not meet the Emerald network criteria as such. They stress further that large parts of the initial site were excluded due to a low conservation value – urban areas, farm land, areas subject to deforestation, various infrastructure, etc.

Last but not least, the authorities confirm their commitment to the Bern Convention; inform that they are planning to submit several candidate Emerald sites for official adoption already at the end of this year, and report on several draft laws being currently prepared in order to incorporate efficiently the Emerald network into national legislation.

On 8 March 2017, the Secretariat received information from the EBRD that the additional Lenders’ ESIA package is now disclosed and available on the JSC Nenskra’s website. Volumes 4 and 10, including their Annexes, are pointed out as of particular interest for the Convention, presenting the biodiversity impact assessment and the Nenskra Cumulative Impact Assessment.