When applying for an EPS licence, there are 3 test that must be fulfilled – with regard to Test 1 the guidance states:
The licence application must relate to one of the purposes referred to in Regulation 44(2)
Only activities carried out for certain ‘purposes’ can be licensed so that regulations 39 (1) and (2) do not apply. These purposes include ’imperative reasons of over-riding public interest including those of a social or economic nature and beneficial consequences for the environment‘ and ’scientific and educational purposes‘. Guidance on what could constitute ‘imperative reasons of over-riding public interest’ can be found at Section 1.3.2 of the Guidance document on Article 6(4) of the ‘Habitats Directive’ 92/43/EEC.
We had a look at the guidance document referred to above, it states
In the absence of alternative solutions – or in the presence of solutions having even more negative environmental effects on the site concerned, with regard to the above-mentioned conservation aims of the Directive – the competent authorities have to examine the existence of imperative reasons of overriding public interest, including those of a social or economic nature, which require the realisation of the plan or project in question.
The concept of “imperative reason of overriding public interest” is not defined in the Directive. However, Article 6 (4) second subparagraph mentions human health, public safety and beneficial consequences of primary importance for the environment as examples of such imperative reasons of overriding public interests. As regards the “other imperative reasons of overriding public interest” of social or economic nature, it is clear from the wording that only public interests, irrespective of whether they are promoted either by public or private bodies, can be balanced against the conservation aims of the Directive. Thus, projects developed by private bodies can only be considered where such public interests are served and demonstrated.
So far the European Court of Justice has not given clear indications for the interpretation of this specific concept. It may therefore be helpful to refer to other fields of Community law, where similar concepts appear.
The “imperative requirement” concept was worked out by the Court of Justice as an exception to the principle of free movement of goods. Among the imperative requirements which can justify national measures restricting freedom of movement, the Court recognised public health and environmental protection, as well as the pursuit of legitimate goals of economic and social policy.
In addition, Community law also recognises the concept of “service of general economic interest”, evoked in Article 86(2) (ex 90(2)) of the Treaty, within the framework of the exception to the rules of competition envisaged for companies responsible for the management of such services. In a communication on services of general interest in Europe7, the Commission, taking account of case law on the matter, gave the following definition of services of general economic interest: “they describe activities of commercial service fulfilling missions of general interest, and subject consequently by the Member States to specific obligations of public service. It is the case in particular of services in transport, energy, communication networks”.
Having regard to the structure of the provision, in the specific cases, the competent national authorities have to make their approval of the plans and projects in question subject to the condition that the balance of interests between the conservation objectives of the site affected by those initiatives and the above-mentioned imperative reasons weighs in favour of the latter. This should be determined according to the following considerations:
- a) the public interest must be overriding: it is therefore clear that not every kind of public interest of a social or economic nature is sufficient, in particular when seen against the particular weight of the interests protected by the Directive (see e.g. its 4th recital stating “Community’s natural heritage”) (see Annex I point 10).
- b) in this context, it seems also reasonable to assume that the public interest can only be overriding if it is a long-term interest; short term economic interests or other interests which would only yield short-term benefits for the society would not appear to be sufficient to outweigh the long-term conservation interests protected by the Directive.
It is reasonable to consider that the “imperative reasons of overriding public interest, including those of social and economic nature” refer to situations where plans or projects envisaged prove to be indispensable:
– within the framework of actions or policies aiming to protect fundamental values for the citizens’ life (health, safety, environment);
– within the framework of fundamental policies for the State and the Society;
– within the framework of carrying out activities of economic or social nature, fulfilling specific obligations of public service.
It is very clear from this that “public interest” must be for the much greater good – it must be overriding. This is further defined as being overriding by its long term interest and not from short-term benefits. It could be argued that STS is essential to raise funds to pay for the long term development of the Port. This argument would not be enough to allow an EPS licence to be legally granted. STS provides short term gain for the port. If they were building a new terminal and needed an EPS licence that would probably meet the requirements of Test 1. But not STS – if the CFPA applied for a licence and it was considered correctly, it is hard to see how it could be legally awarded. The Scottish Government should give this consideration now – if they decide that this is the case, then they can never award an EPS licence and therefore STS cannot take place at its proposed application. This would be an end to these ridiculous plans. The Port would at least have so clarity as to what it can do – when are the Scottish Government going to wake up???