Letter of complaint to the European Ombudsman and the Commission – Concerning the slow progress of a series of petitions in behalf of NATURA 2000

European Ombudsman
European Commission

Reference: Complaint against the bad administration by the EC of the complaints of the Bulgarian non-governmental organisations concerning the lack of protection of the NATURA 2000 sites in Bulgaria

From: The political party THE GREENS

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Dear Sirs and Madams,

We hereby request a complete investigation of the way that the EN.A.2 Infringement Department of the General-Directorate Environment of the European Commission processes and assesses complaints submitted by Bulgarian non-governmental organisations concerning the breach of Community laws about NATURA 2000 by the Bulgarian government.

Through joining the European union, Bulgarian society hoped that the well-developed European legislation and democratic institutions would improve the delivery of justice in our State. We all hoped that the bad and undemocratic practices so common to the Bulgarian State and Municipal Administration, which lead to constant disrespect of the public opinion and the legislation in favor of private interests, will decrease. Instead of that, we are witnessing a subversive and reproachable process of “Balkanisation” of the procedures at the European Commission that we know very well from the Bulgarian reality.

We are infuriated by how the European Commission allows the Bulgarian government to breach the Environmental Directives and to irreversibly destroy our common European natural heritage. This destruction also involves international capital – other European banks and offshore companies registered around the world.

We insist on detailed investigation of the Department on the following complaints:

1) Complaint against the lack of protection of the overlapping Site of Community Importance “Emine – Irakli” BG0001004 and Special Protected Area “Emine” BG0002043, submitted by Jordanka Dineva in March 2008, representing Save Bulgarian Nature Coalition and added to open procedure 2008/2046 (further referred as Irakli beach case). The case refers to 2 projects – construction of dike on River Vaya and of a hotel nearby, initiated after accession and applied without any EIA. Direct destruction of significant part of the area protected habitats and species populations has taken place and has happened after 1 May 2007.

2) Complaint against the lack of protection of the overlapping Site of Community Importance “Komplex Kaliakra” BG0000573 and Special Protected Area “Kaliakra” BG0002051 submitted by Bulgarian Society for the Protection of Birds/Birdlife International in February 2008 and supported by 12 other Bulgarian nature conservation organisations (further referred as Kaliakra cape case). The case refers to 2 projects – a wind turbines park and a golf course complex permitted after EIA and prior to accession, with statement in the EIA permits that they will not affect NATURA sites, which however in fact have directly destroyed significant part of priority steppe habitats and almost all tortoise population in the site after 1 May 2007. Further more the wind turbines park is threatening numerous birds species migrating along Via Pontica Route. In addition hundreds of smaller projects were permitted prior and after accession – without full EIA or some after EIA, but all with statement that they do not affect nature. However placed on the map they show coming total devastation of the NATURA 2000 sites.

3) Complaint against the lack of protection of the overlapping Site of Community Importance “Kamchia” BG0000116 and Special Protected Area “Komplex Kamchia” BG0002045 submitted by Bulgarian Society for the Protection of Birds in December 2008 (further referred as Kamchian sands case). The case refers to a project for construction of a big tourist complex on the place of former Protected area Kamchian Sands. The project will occupy 6 km long wild beach, protecting priority dune habitats and rare population of tortoises. It was initiated after accession and was permitted in 2008 after decision to not carry out EIA/SEA on the ground that negative impacts are not expected. In fact project will lead to total devastation of all coastal habitats protected in the site. Project is near final authorisation and site is in immediate threat. The authorities do not provide public access to their decision.

4) Complaint against the lack of protection of the Site of Community Importance “Strandzha” BG0001007 and Special Protected Area BG 0002040 submitted by Katerina Rakovska, representative of the Bulgarian office of WFF-DCP, in January 2009 (further referred as Strandzha case). The case refers to Master Plan of the Tzarevo Municipality adopted after biased and not complete (lacking any assessment on many species protected in the site) SEA. The Master Plan was finally adopted by preventing court cases against obligatory SEA permission, by hiding this permission from public (become known after adoption the plan itself). The plan will have detrimental effect on the coastal habitat and allow severe over construction of the coastal line. The plan allow Municipalities to adopt detailed spatial plans and to issue building permits – all of them without possibility to be appealed in the court.

5) Complaint against the lack of protection of the Site of Community Importance and Special Protected Area “Pirin” BG0000209 submitted by Toma Belev, representative of the Bulgarian Save Bulgarian Nature Coalition, in March 2008 (further referred as Pirin case). The case refers to the adoption of the Master Plan of the Kulinoto ski and golf resort without applied SEA and the construction of various ski facilities in Bansko ski center before completing the EIA/SEA procedures. The referred projects and plans has or would lead to the destruction of vaste areas of the alpine natural habitats and the habitats of various animal and bird species protected in the Pirin National park also an UNESCO WHS.

6) Complaint against the lack of protection of the Site of Community Importance and Special Protected Area “Rila” BG0000495 submitted by Toma Belev, representative of the Bulgarian Save Bulgarian Nature Coalition, in May 2008 (further referred as Rila case). The case refers to the authorisation and construction of various projects for ski facilities in Rila Mountain without applying the legally required EIA/SEA and appropriate assessment procedures after 1.1.2007. The illegally started construction processes lead to the rejection by the Bulgarian government of the officially submitted in the MoEW sites “Rila Buffer” pSCI and “Rila” SPA (the area outside the Rila National park). The ongoint construction activities are still leading to steady increase of the destructed natural habitats in the rejected sites.

7) Complaint against the lack of protection of the overlapping Site of Community Importance “Rodopi – Zapadni” BG0001030 and Special Protected Area “Trigrad – Mursalitza” BG0002113 submitted by Tzveta Hristova, representative of the Bulgarian Save Bulgarian Nature Coalition, in June 2008 (further referred as Perelik – Rodopi case). The case refers to the adoption of the amendment of the Master Spatial plan of the Perelik ski and tourist center without any SEA procedures. The plan designates for urbanisation an area of more than 10 000 ha, which means the total destruction and fragmentation of tens of natural habitats and the habitats of several priority species.

We will furthermore point out major and systematic omissions in actions undertaken on behalf of the Commission by department ENV.A.2:

1. Systematic protraction of the processing of complaints.

The Treaty of European Union clearly states that prevention is the main aim of the Community Policy in the field of Environment. The systematic protraction of the complaints, far more than it is necessary to ensure the implementation of proper procedures, directly endangers NATURA 2000 sites under immediate threat – Kamchian sands, Kaliakra, Irakli beach. In many other cases, it has stimulated further illegal developments such as the following: the finalization of projects without EIA/SEA (finalization without EIA the Panichishte cabin car in Rila case), the belated start of environmental assessment procedures aiming at the post factum legalization of already started constructions (the hotel complex in Irakli beach), the actions only masking the fact that there is lack of protection (Banning order for new constructions in Kaliakra cape, however not affecting all already permitted projects devastating the site). And very strangely, the Commission – particularly its unit ENV.A.2 – did not indicate anything wrong in these criminal practices. Moreover, the delays are accompanied by many simultaneous omissions. Below we give the facts about delays in various actions by the Commission.

Ski resorts in Pirin Mountain – up to date 14 months delay:

  • the complaint is submitted in DG Environment on 28 March 2008
  • further information is provided to DG Environment upon two requests on 7 June and 25 July 2008
  • up to date no final response is received
  • growing problems due to delay – in addition to already constructed without EIA ski slopes and lifts, number of planned big ski resorts inside the NATURA 2000 site are passing currently EIA/SEA procedures with zero transparency.

Ski resorts in Rila Mountain – up to date 12 months delay:

  • the complaint is submitted in DG Environment on 21 May 2008
  • further information on new violations submitted on 25 December 2008
  • up to date no response received except a confirmation letter about the complaint on 28 May 2008 being received!
  • growing problems due to delay – the Panichishte two-seats lift and the Kartala cabin car, which constructions have started without EIA and was initiated after accession were finalized and are already operating. A big ski resort is practically planned in the area of Govedartzi village, by land swaps of future ski slopes and facilities and thus privatizing state forests, without any preliminary EIA/SEA procedures.

Sport and tourist ski center Perelik (Perelik – Rodopi case) – up to date 11 months delay:

  • the complaint is submitted in DG Environment on 25 June 2008;
  • further information is provided to DG Environment upon request on 12.08.2008.
  • a response to the complaint was received after a strong request by the NGO on 27 January 2009. After an objection by the NGO the first response was corrected and the alleged breach of EU law was stopped.

Irakli beach case – up to date 14 months delay:

  • the complaint is submitted in DG Environment in March 2008;further information is provided to DG Envi upon request.On 11 June the Commission informed the NGOs that it does not see any violations of the Community law and will close the case.
  • On 11 July 2008 objection was sent by NGOs. After the objection answer was received that the case will be not closed and further information will be asked; without any result up to date.

Growing problems due to delay: Bulgarian authorities, reluctant to undertake restoration actions, have started afterwards procedure according Article 6 Dir 92/43 for already half constructed hotel complex. They permitted the project after disregarding all already happened destruction – they totally disregarded basic environmental conditions at 1 May 2007, after which date the first destruction has took place. They also didn’t informed NGOs participating in the procedure with their statements, about the Article 6 permission in order to prevent court appeals. Never mind the permission is now appealed in the court. EIA is not carried at all.

Kamchian sands case – up to date 5 months delay. Case of clear drastic procedural violations and immediate threat of devastating the site.

Strandzha case – up to date 5 months delay. No reaction from the Commission!

From all listed cases only in the Kaliakra case an initial letter of Formal Notice is send on 27 November 2008. Five months later no other actions are undertaken by the Commission. Meanwhile, Bulgarian authorities have imitated effective actions by taking steps towards resolving the problem by banning further permission of building projects but forgetting about already destroyed habitats and populations and about hundreds of other already permitted projects.

2. Ignoring facts and evidences provided by the NGO

The most frustrating omission is ignoring the facts provided by the NGOs.

  • First clear attempt of this type was Irakli beach case, where the Commission wanted to close the case omitting the NGO data and evidences, including clear documents and pictures from the area, that the construction of dike has took place on river Vaya and was initiated and applied after accession without any EIA. The position of the Commission to close the file was totally grounded on the incorrect information provided by the Bulgarian authorities. Later on NGOs provided additional information on the second project – the “River side village” hotel complex, that the project was also initiated after accession, without an EIA, proved by the written answer of the Bulgarian Environment Minister in front of the Bulgarian Parliament. But answer given by the Commission on the case at the meeting of the European Parliament Committee on Petitions held on 30 April 2009 shows that the Commission still refuse to recognize this fact!
  • The complaint about the Perelik ski center was initially closed on 27 January 2009 based on ignorance of the NGO’s evidences for breach of EU laws and incorrect information provided by the Bulgarian Government. After highlighting the main facts in the complaint for the forth consecutive time, the complaint was closed successfully on 20.04.2009 by DG Environment. The DG has finally acknowledged the law violations and forced the Buglarian government to correct the breach of the EU law.

3. Ignoring the modifications of projects and plans after 1 January 2007 and the necessity of new EIA/SEA

  • The project for the construction of the two-seat lift on Panichishte in Rila is started before 2007 but is modified on 9 September 2008 without being subject to new procedures on EIA.
  • The plan of the sports and tourist center Perelik was initially authorized in 2001 after its EIA was adopted, but its modification in 2007 was not subjected to any SEA procedures.
  • The “River side village” hotel complex at Irakli beach is a clear case where initially adopted without EIA project in 2005 was afterwards significantly changed, thus requiring new EIA procedure – a fact revealed by the Bulgarian Environment Minister in front of the Bulgarian Parliament. The amended project is initiated after accession. In fact it has received illegal building permission in 2007, without having an EIA procedure initiated at all. So far EIA is not initiated, however the authorities started afterwards Article 6 assessment finished with a relevant permit, in order legalize the project.
  • The project for new golf course complex “Tracian cliffs” (Kaliakra cape case) – the description of the project in the EIA report was that drainage and removing of soils will happen only in future “greens” and that in the remaining parts of the area no excavation works and destruction of vegetation will take place. Practically at the end of 2006 and in 2007 (after accession) the natural vegetation was removed and soils ploughed/excavated from all open places in the area.

4. Ignoring cases of significant impact caused after accession by projects initiated or permitted prior to accession.

The main aim of NATURA 2000 and nature Directives is to maintain and where necessary to restore the Favorable Conservation Status of the endangered (listed in Appendix 1 and 2 of both Directives) species and habitats in the NATURA 2000 sites. This general aim is supported by several procedures on adoption the sites and their management, which are described in more details and become obligatory for the member states. These procedures however are supporting the general aim and could be implemented properly only in this direction – to achieve the aims and not the opposite. Moreover, the principle of subsidiarity requires the state should find its own way if necessary to achieve this aim, if the procedures do not provide sufficient instruments for that.

So far, however, the position of the ENV.A.2 Department of DG Environment has been to go straight against the aim of the Directives and to allow even the total destruction of certain habitats, which happened after accession, only based on the fact that EIA/SEA procedures had been initiated prior to accession. This position has been repeated many times in their written answers to our complaints and at formal meetings. In other words, this means that a violation of the Directive’s aims is allowed on the basis of purely procedural arguments.

We do not say that there is a ground here for prosecuting violations of EIA/SEA procedural requirements when such procedures were initiated prior to accession: obviously this not the case,. We insist on the fact that the state was obliged, according to the aim of the Directives and the principle of subsidiarity, to prevent significant deterioration of the conservation status of habitats and species in the field after its accession to the EU.

One of the listed above cases is among the strongest examples of this: Kaliakra Cape case.

Two projects – Wind Turbines Park and a Golf Course – passed EIA before accession and were permitted. The main statement of the permissions and developed EIA reports were that both projects will not have significant impact. Both projects were mainly implemented after accession and even after 1 May 2007. Despite all promises for lack of impact, both projects destroyed in 2007 about 300-400 hectares of the unique priority habitat 62C0 (Western Pontic Steppes) – a habitat having all together about 3000 hectares in the site (the site is assessed as the most important for this habitat in the country and protecting about 50% of its natural coverage). Moreover, the golf course project severely affected the only viable population of the species Testudo graeca in the northern section of the Black Sea Biogeographical Region. In 2007 and 2008, a Bulgarian NGO removed from the site with the permission of the authorities about 200 remaining individuals of this species to other SCI (in the Continental Region) in order to prevent their death.

In conclusion, at the end of 2008, the European Commission adopted this site as SCI, with the scientific information that it protects about 3000 hectares of habitat 62C0 in very good condition, with high representativity and also with a vital important population of the species Testudo graeca. Both circumstances,however, have already turned out not to be true.

Hundreds of other smaller projects, initiated prior to accession, are coming to finalize the existence of the nature in Kaliakra cape.

Nevertheless,even the first letter of Formal Notice sent by the Commission regarding the Kaliakra case ? missed to state clearly the problem and thus preventing its resolving.

5. Ignoring the data submitted by NGOs about the significant environmental impact when assessing the complaints.

The most typical case is the Irakli beach, where together with other information provided by the NGOs, the maps and pictures (satellite and from the ground, prior and after destruction) of destroyed forests of 91F0 type and information on species habitats and populations affected (GIS information and maps) is completely disregarded.

6. Disregarding necessity of restoration

Irakli beach and Kaliakra cape are cases where the commission forgets the obligation to restore the Favorable conservation status, were it was affected negatively. And to provide this restoration at the place, which was disturbed. The ENV.A.2 department of DG Environment forgot that for negative impacts, not in particular authorized in the environmental permit, which happened after 1 May 2007 Liability Directive should be applied as pointed out in the complaint.

As a conclusion we would like to ask again for opening fast procedures by the Commission on sites requiring urgent action.

Date: 08 May 2009


Denitza Petrova
Andrey Kovatchev
Petko Kovatchev