NGOs letter to EU commissioner Vella concerning Logging in Bialewieza Forest

Warsaw, Bystra, Tamsweg, Boulder CO on 30 October 2017 Mr Karmenu Vella European Commissioner for Environment, Maritime Affairs and Fisheries European Commission Rue de la Loi / Wetstraat 200 1049 Brussels Belgium cab-karmenu-vella-contact@ec.europa.eu

Dear Commissioner Vella, RE: Complaint regarding EU Funds to Poland’s State Forests Holding – continued infringement of EU environmental law.

By this letter we would like to request that the European Commission urgently take action to suspend EU funds to Poland’s State Forests National Forest Holding (Państwowe Gospodarstwo Leśne Lasy Państwowe, PGL LP) until PGL LP flagrant infringement of EU environmental laws has ended. We also hereby request a meeting with the Commissioner to present the updated evidence we have collected of the State Forests Holding continued disregard and violation of European environmental legislation in the Białowieża Forest and in other forests in Poland.

BACKGROUND This letter of complaint should be treated as supplemental to the complaint No CHAP(2017)00302 and petition No 0805/2017 regarding the 2016 amendment to Poland’s Forests Act, which effectively exempted the State Forests National Forests Holding from certain provisions of the Habitats Directive and the Birds Directive, undermining the protection of habitats and species in Poland’s forested areas. The exemption has already led to massive and well-documented environmental damage in forests all over Poland at the hands of PGL LP. The State Forests Holding is an organizational unit without legal personality. State Forests represents the State Treasury of Poland in managing 7.6 million hectares of forests which constitutes nearly 1/3 of the country’s area. The structure of this organization is set in its statute released by the Minister for the Environment in 1994.

The basic document outlining the framework of PGL LP is the Forests Act of 28th of September 1991.

The State Forests Holding has been a major beneficiary of EU funds. In the current financial perspective, the State Forests has been granted more than EURO 150 million for nation-wide projects, mostly related to climate adaptation (water retention and fire protection), and more than EURO 6 million for various local environmental

projects. These funds are provided through the Infrastructure and Environment Operational Programme financed from the Cohesion Fund.

We would like to point out that since 2016 r. the activities undertaken by PGL LP have been flagrantly violating European law and have resulted in destruction of protected wildlife.

In particular, wish to inform you of the following breaches of EU environmental law: 1. Historic devastation of the Puszcza Białowieska Natura 2000 site and unprecedented disregard for the decision of the Court of Justice of the European Union on 28th July 2017.

The State Forests Holding is directly involved in logging activities in the Białowieża Forest, based on annex to the Forest Management Plan for the Białowieża Forest District, approved on 25 March 2016 by the Minister for the Environment.

Regarding the annex to the FMP for the Białowieża Forest District, which increased threefold the permitted timber harvest, an appropriate assessment of the impact on the protected site has not been carried out. This constitutes a breach of Article 6(3) of the Habitats Directive. Refusal to take the appropriate measures to avoid the deterioration of natural habitats and the habitats of species, and the disturbance of the species for which a site had been designated constitutes a breach of Article 6(2) Habitats Directive.

The approval of the three-fold increase in the level of logging represents a major threat to the integrity of the Białowieża Forest Natura 2000 site, including the conservation status of a number of priority habitats and species. Large-scale logging seriously disturbs natural processes which shape the habitats and can lead to impairment of the conservation status of certain species.

According to expert opinion[1], forest management constitutes one of major factors contributing to deterioration of the status of forest habitats in the Białowieża Forest Natura 2000 site, currently being the major threat to preservation of habitats and species.

A complaint against the logging has been filed with the European Commission and has been referred to the European Court of Justice. On 28 July the Court ordered Poland to suspend any logging not justified by security considerations pending the final verdict. However, in breach of judicial process, we have evidence that logging in Białowieza continues in areas where it is not justified by security considerations and the State Forests shows no intention of stopping it.[2] The scale of logging is enormous – 180 000 m3 of timber have been harvested without proper environmental impact assessment. It also constitutes the first ever act of disregard for the Court of Justice decision in the history of the EU. Its result is not only an infringement of the law, it also leads to further adverse impact of

forest management on habitats and species which are in the interest of the European Community.

2. Incorrect transposition – failure of the Forests Act to comply with the EU requirements.

2.1. Contradiction with the Birds Directive and the Habitats Directive.

Poland has recently amended its Forests Act, effectively exempting forest management from the constraints of EU environmental legislation by offering the State Forests a blanket derogation from the prohibitions laid down in Art. 16 of the Habitats Directive and Art. 9 of the Birds Directive. An implementing regulation which came into force on 28 December 2016 further widened the catalogue of situations in which the safeguards provided for in the two Directives will not apply to Poland’s forests. The enormous risks created by the changed legislation for Poland’s forests are already materialising in the Białowieza Forest and elsewhere, bringing massive damage to invaluable forest ecosystems.

The amended environmental legislation therefore no longer complies with the EU environmental acquis and has been referred to the European Commission and to the Committee on Petitions of the European Parliament It must be stressed that the Director of the State Forests has been fully aware[3] of this infringement as he is familiar with the opinion of the Parliamentary Research Bureau (Biuro Analiz Sejmowych) of 13th December 2016 which expressed doubts concerning compliance of the amendment to the Forests Act with the Community Law.[4] 2.2. Contradiction with the Aarhus Convention The process of approval of Forest Management Plans with regard to the forests owned by State Treasury fails to meet art. 9 (3) of the Aarhus Convention, i.e. there is no judicial procedure to challenge this act.

The Forest Management Plans (Plany Urządzenia Lasu, PUL) are principal documents adopted once in every ten years, which, among other provisions, lay down the volume of timber to be extracted.

According to Poland’s jurisprudence, an act of approval of FMP and consequently, of an annex to FMP, is an act deriving from the concept of superiority and subordination between state authorities and other state organizational units. Therefore, such act is not covered by the jurisdiction of administrative courts. This exclusion from access to justice deprives members of the public of their right to participate in the decision making process concerning activities that have impact on the environment. Members of the public are effectively prevented from access to review procedures. This constitutes violation of implementing measures of art. 9 (3) of the Aarhus Convention.

On 22 September 2016 the Polish Ombudsman lodged a complaint against the decision of the Minister for Environment approving the annex to FMP regarding the Białowieża forest. Also in this case a verdict of the Court stated that Forest Management Plans were not administrative decisions, therefore they remained outside public control.

The State Forests Holding has knowingly taken advantage of those loopholes in public oversight to step up its logging activities in the Białowieża Forest and other forests in Poland, and when a temporary measure requiring a stop to logging in Białowieża was imposed by the Court of Justice, it chose to ignore the Court’s decision.

We therefore call on the Commission to suspend all payments until the flagrant infringement of the law by the State Forests is ended. Further funding of this body, in full knowledge of the scale of violations and their consequences for the natural heritage of the European Community, is unacceptable and would jeopardise public confidence in the European institutions.

We have addressed a similar letter to the Commissioner for Regional Development, Ms Corina Crețu. We hope for an immediate and strong reaction and will appreciate informing us on the steps undertaken in this matter Angelo Caserta, Regional Director of BirdLife Europe and Central Asia Prof. Dr. Pierre Ibisch, Centre for Econics and Sustainable Management at the University of Eberswalde Prof. Dr. Hans Dieter Knapp, European Beech Forest Network and Member of the Executive Board Euronatur Vance Martin, President, Chairman of the WILD Foundation Max A. E. Rossberg, Chairman of the European Wilderness Society Anelia Stefanova, CEE Bankwatch Network Radosław Ślusarczyk, Chairman of the Association Workshop for All Beings [1] Report from the Monitoring of the Forest Habitats Included in Annex I to the Habitat Directive in the Białowieża Forest Natura 2000 site (PLC200004) – Summary [2] ‘Director general of LP […] has stressed that the chief foresters from the Białowieża, Browsk and Hajnówka forest districts comply with the provisions of the decision of the Vice-President of the Court of Justice of the European Union of 27th of July concerning interim measures. […] the activities undertaken by the forest districts of the Białowieża Forest serve only public safety and protection of species and habitats.’ Konferencja Dyrektora Generalnego LP z dnia 20.09.2017 http://www.lasy.gov.pl/pl/informacje/aktualnosci/konferencja-w-sprawie-srodka-tymczasowego

[3] Quote from Kondrad Tomaszewski, the Director of the State Forests: ‘The point is that if we don’t make up our mind and take the risk to make constitutional evaluation or authentic interpretation of certain actions of the European Commission, we will face even greater risk of creating chaos in forest management. In my opinion, in some situations we must take the [first] risk, especially that I hope that if the risk materializes itself […] I deeply believe that here, through certain legal arguments, some evaluation of risks and threats, we will defend it.’ http://orka.sejm.gov.pl/Zapisy8. nsf/wgskrnr/OSZ-51 [4] http://orka.sejm.gov.pl/Druki8ka.nsf/0/2215309D5942DAE1C12580880049280A/%24File/1143.pdf