East, Central, and Southern Europe: Greece

(1) Introduction

This report provides a comprehensive exploration of the implementation of environmental law in Greece this year. By delving into the legislative and policy developments, as well as the role of the Greek courts in enforcing compliance with national and European Union (EU) environmental standards over the last year, the aim is to illuminate the challenges, achievements, and opportunities for Greece in preserving biodiversity, combating climate change, and promoting environmental justice.

(2) Climate and Energy

In accordance with EU Regulation 2018/1999 on the Governance of the Energy Union and Climate Action, the twenty-seven member states of the EU had to submit updated National and Energy Climate Plans (NECPs) by 30 June. With a delay of approximately five months, Greece submitted its draft NECP to the European Commission for assessment (<https://commission.europa.eu/document/download/83ffdc95-2d22-4c67-8d4c-a3e59f752921_en?filename=GREECE - DRAFT U>). On the positive elements, the commission highlighted that renewable electricity generation will reach 82 percent in 2030 concerning gross electricity consumption, with solar power expected to become the primary source of renewable electricity in Greece. Notwithstanding this, the draft NECP lacked, according to the commission, identification of specific measures for climate adaptation and did not contain information on how and when fossil fuel subsidies will be phased out. Instead, it provided an open date for the phasing out of coal (‘after 2028’) in alignment with Article 260 of Greek Law 5037/2023 (GG A’ 78/29.03.2023) but in contradiction with Greece’s commitments under the territorial just transition plans (TJTP) (<https://commission.europa.eu/document/download/e7b2a97f-8e7d-43fc-9bf0-3c7c8d9e8406_en?filename=Recommendation_draft_update>). Of note is that Greece was the first of the EU member states to have its TJTP adopted, securing €1.63 billion to alleviate the impact of climate and energy transition, particularly in regions where fossil fuel power stations are currently in operation (<https://ec.europa.eu/commission/presscorner/detail/en/ip_22_3711>). It remains to be seen whether the final version of Greece’s NECP, the submission of which is expected in June 2024, will streamline with the commission’s recommendations.

Greece’s continuing dependence on lignite and fossil fuels has attracted criticism from environmental non-governmental organizations (ENGOs). In December, certain ENGOs filed a complaint to the European Commission for general and persistent breaches of EU law due to the rise of offshore hydrocarbon exploration and exploitation activities in Greece (<https://wwfeu.awsassets.panda.org/downloads/20231214_clientearth_wwfgreece_greenpeacegreece_summary_of_complaint_-to_european_com_1.pdf>). Specifically, the complainants condemned the Greek government for licensing hydrocarbon projects in the Hellenic Trench, which is a crucial marine biological diversity hotspot. Recognized by the International Union for Conservation of Nature as an Important Marine Mammal Area, it is the habitat of many endangered cetacean species as well as species protected under European Economic Community (EEC Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive), such as sea turtles (Caretta caretta and Chelonia mydas), monk seals (Monachus monachus), and bottlenose dolphins (Tursiops truncatus). The decision of whether infringement proceedings will be launched against Greece on these grounds stays with the European Commission.

It is not the first time that ENGOs have attacked the Greek government for the negative impacts of hydrocarbon seismic surveys on the marine environment. The Greek Council of State (Simvoulio tis Epikratias) has not (for now, at least) considered them to contradict national or EU/international legislation. Notably, in its judgment 2462/2022 concerning a petition for annulment (aitisi akyroseos) of the ministerial decision granting an environmental license to the offshore hydrocarbon exploration and exploitation program southwest and west of Crete following a Strategic Environmental Impact Assessment (SEIA), the Council of State concluded that prior approval of the SEIA was not necessary. On the contrary, it held that the environmental terms of the hydrocarbon exploration and exploitation program and its SEIA could be simultaneously approved by the minister. It also refused to accept that a maritime spatial plan for the area should have been drawn up before the adoption of the ministerial decision. In its reasoning, the nature of the activity seems to have played a role: unlike seismic surveys, the exploration or exploitation of hydrocarbons would require prior spatial planning for the Court. Striking in this case is how the Council of State balanced the constitutional protection of the environment (Article 24, Greek Constitution) and the right of the state to exploit the ‘national wealth’ of the country to achieve its economic development (Article 106(1), Greek Constitution) in favour of the latter. In response to the claimant’s argument that the SEIA did not substantiate sufficiently why the ‘no-go alternative’ was not adopted, the Court focused on the explanatory report accompanying Law 4001/2011 (GG Α’ 179/22.8.2011)—said law introduced the regulatory framework for the survey, exploration, and transfer of hydrocarbons—emphasizing the country’s fossil fuel potential to cover its energy supply and security needs. Without considering whether hydrocarbon projects undermine Greece’s climate commitments under the Paris Agreement and its obligations flowing from EU law to reach climate neutrality by 2050, the Greek judges concluded that the government, not the courts, determine the energy mix of Greece; the decision to develop hydrocarbon projects is not part of the environmental licensing of such projects and, in any event, it is not judicially reviewable.

Significant legal and policy developments in the field of mining were also reported during the period of reference. At the Union level, the proposed European Critical Raw Materials Act (ECRMA) will provide an EU-wide framework for the development of mining projects within the EU (COM(2023) 160). According to the draft NECP, more than fifteen raw materials falling under the scope of the ECRMA have already been identified in Greek territory. Given the environmental consequences of mining, the potential for future litigation is high. Evidence of this is found in the recent administrative petition filed by World Wildlife Fund Greece against a ministerial decision approving the environmental terms for the operation of the Kassandra gold mine in Chalikidiki (<https://www.wwf.gr/?11011441/--------->). Among others, the ENGO claims procedural irregularities of the decision-making process: notably the fact that compliance with the terms of the environmental license will be monitored by licensed natural or legal persons—the ‘Independent Environmental Inspectors’—and not by public authorities that are generally tasked with the implementation and enforcement of environmental legislation.

Notwithstanding Greece’s efforts to further diversify its energy mix and to move away from fossil fuels, the operation of lignite power plants—four units are currently under licensing, whereas two will soon become operational—casts doubts about the country’s compliance with its international and EU climate commitments. Under the 2023 Energy Policy Review conducted by the International Energy Agency for Greece, the government must ‘reassess the need for investments in fossil fuel infrastructure, taking into account the risk of stranded assets’ (<https://iea.blob.core.windows.net/assets/5dc74a29-c4cb-4cde-97e0-9e218c58c6fd/Greece2023.pdf>). It is positive, however, that it plans to invest in renewable hydrogen. By Law 5037/2023, a definition of green hydrogen was included in national law in accordance with delegated acts adopted in 2023 under the Renewable Energy Directive, classifying it as a renewable energy source (<https://energy.ec.europa.eu/news/renewable-hydrogen-production-new-rules-formally-adopted-2023-06-20_en>). With the same law, Greece modified existing legislation to conform to the requirements of EU Directives 2018/2001 on the Promotion of the Use of Energy from Renewable Resources (Renewable Energy Directive) and 2019/944 on Common Rules for the Internal Market for Electricity.

(3) Environmental Licensing

Several cases that reached the Greek Council of State this year deal with issues relating to renewable energy projects. For another year, the environmental licensing of wind farms within Natura 2000 sites has been at the forefront. In Judgment no. 2366/2022, the Council of State upheld the refusal of the Ministry of Environment to approve the environmental terms of a wind farm in Evoia. In previous decisions for annulment regarding the same project, the Court has upheld the decision to refuse the granting of an environmental permit because the special ecological assessment of the impacts of wind turbines on bird species was never submitted by the operator despite being a precondition for the permit’s issuance. What makes the present decision stand out is the reasoning of the Council of State. Relying on the environmental principles of prevention and precaution, it held that although the operator has drawn up an environmental impact assessment together with a special ecological assessment, Article 6(3) of the Habitats Directive requires that the impacts of the activity on a special area of conservation are appropriately assessed to consider the conservation objectives are weighed in light of the best available scientific knowledge. For the Council of State, regardless of the general benefits of renewable energy production for Greece’s transition to net zero—recognized as a ‘superior general interest’—the lack of scientific uncertainty regarding the adverse effects of the wind park on bird species does not prevent the public authorities from turning down environmental licensing requests. It, therefore, held that the ministry’s refusal to issue an environmental permit was lawful.

(4) Biodiversity and Nature Conservation

The summer saw Greece struggling to tame wildfires in Athens, the islands of Corfu and Rhodes, and Evros, in northwestern Greece. According to data published by the European Commission, the wildfire in Evros was the most devastating to have ever occurred in the EU (<https://civil-protection-humanitarian-aid.ec.europa.eu/news-stories/news/wildfires-biggest-resceu-aerial-firefighting-operation-greece-2023-08-29_en>), with more than twenty people killed—mainly irregular migrants hiding in the Dadia forest—and catastrophic consequences for the region’s agricultural production and its ecosystem. Dadia is the habitat of rare migratory birds, such as the Egyptian vulture, beehives, and trees aged 100 years or more. Given the magnitude of the biodiversity loss as a result of the wildfires, ENGOs have called for the adoption of legislative measures to cease economic activities in the area, including renewable energy installations, until a reforestation plan for the approximately 1 million hectares of land burnt, including environmentally protected areas and wildlife sanctuaries, is undertaken (<https://workdrive.zohopublic.eu/external/054f6a61fe112c441474bbc8e585a63464ab079c79b192277da682ce65c83b30>). While the Greek government has announced its intention to prohibit any economic activity, the necessary regulatory action has not been taken.

Reforestation holds a special legal status under Greek law. Pursuant to Article 117(3) of the Greek Constitution, ‘public or private forests or forest expanses which have been destroyed or are being destroyed by fire or have otherwise been deforested or are being deforested, shall not thereby relinquish their previous designation and shall compulsorily be proclaimed reforestable, the possibility of their disposal for other uses being excluded.’ By Judgment no. 1532/2023, a Grand Chamber ruling of the Greek Council of State, it was held that a refugee camp could be established in an area in need of reforestation in line with Greece’s EU and international commitments in the field of migration, its obligation to protect human rights, and the (then) need to restrict the spread of the COVID-19 virus within the EU territory. However, such intervention had to meet the proportionality test—that is, it must be shown that it was absolutely necessary that the refugee camp be constructed in this location and that no other locations were available. In dissent, certain judges held the view that no intervention is possible, while others argued that economic activities in an area under reforestation are only permissible for public defence reasons and, based on the Court’s case law (Judgment no. 2499/2012), for the establishment of renewable energy installations because they contribute to the country’s sustainable development and its efforts to fight climate change.

Article 24 of the Greek constitution mentions forest and forest areas as part of the state’s obligation to protect and preserve the natural environment. In Judgment no. 692/2023, the Council of State engaged in a delicate balancing exercise between protecting the environment and economic development. Dismissing an action to annul the renewal of an environmental permit concerning the mining of bauxite (that is, the principal ore of aluminium) within a designated national park, it held that the constitutional protection of forests and forest areas requires a minimum degree of intervention but does not amount to an absolute prohibition. Based on its syllogism, although national parks are under a special regulatory regime that prohibits the development of economic activities therein, the relevant legislation applied to national parks that were designated at a later date. What was striking in this ruling was that the Council of State was satisfied that the continuation of underground mining activity does not have environmental impacts to the extent that the Environmental Impact Assessment makes no such mention, nor is there any ‘legal or scientific evidence’ to suggest that the extraction and excavation activities at a specific depth would have adverse environmental consequences. In other words, in the Court’s reasoning, the environmental principle of precaution played no role.

(5) Air Quality

As the reader might recall from previous reports, Greece was referred to the Court of Justice of the European Union (CJEU) for failure to adopt air quality plans and for exceeding the limit values laid down in EC Directive 2008/50 on Ambient Air Quality and Cleaner Air for Europe (Air Quality Directive) in Athens and Thessaloniki, the most densely populated cities of the country, with car emissions and house heating being a key source of air pollution. In Case C-633/21 (ECLI:EU: C:2023:112) and Case C-70/21 (ECLI:EU:C:2023:237) delivered this year, the CJEU found that Greece failed to comply with its EU law obligations, accepting all the arguments of the European Commission that had open infringement proceedings against it. Citing earlier case law—namely, Case C-644/18 (ECLI:EU:C:2020:895)—it held that Greece did not adopt, in good time, appropriate measures to ensure that the period of annual exceedance of the limit values for nitrogen dioxide in Athens is kept as short as possible. It did not matter that, at the time that the case was heard, Greece was preparing an air quality plan for the zones and agglomerations concerned. This, according to the CJEU, did not alter the fact that Greece took more than ten years to adopt appropriate measures to ensure compliance with Article 13 and Annex XI of the Air Quality Directive.

(6) Coastal and Water Management

This year, Greece’s non-compliance with EU water management legislation continued. In November, the European Commission decided to refer the country to the CJEU after it failed to explain how it had complied with Articles 14(2) and 15(1) of EC Directive 2007/60 on the Assessment and Management of Flood Risks requiring the review of flood hazard maps and flood risk maps until 22 March 2020. Considering that Greece is the only non-compliant member state and one of the most damaging floods in its history took place last year after a deadly storm hit central Greece (<https://www.euractiv.com/section/-storm/>), the pressing need for immediate regulatory action is irrefutable. It must also be noted that infringement proceedings are also open against Greece for the late adoption of flood risk management plans that shall be drawn up using the maps that Greece has not yet reviewed as a basis (<https://ec.europa.eu/commission/presscorner/detail/en/ip_23_5445>).

Turning to coastal management, the year of reference is marked by a referral of Greece to the CJEU for failing to ensure the correct implementation of EU Directive 2014/89 Establishing a Framework for Maritime Spatial Planning (<https://ec.europa.eu/commission/presscorner/detail/en/IP_23_6345>). As reported last year, all member states had an obligation to plan their maritime areas by drawing up maritime spatial plans until March 2021, which would then be communicated to the commission and other member states concerned. Greece has transposed EU Directive 2014/89 with a two-year delay but is yet to prepare maritime spatial plans. Although one would expect Greece to be the frontrunner when it comes to developing a sustainable blue economy and conserving marine ecosystems and biodiversity, there are loopholes in the protection of its coastline and island ecosystems. This led ENGOs to raise concerns about the negative impacts of human activity in maritime areas of great ecological importance, such as the national marine park of Zakynthos, home to sea turtles (Caretta caretta) and the Cyclades’ blue forest—also known as Posidonia oceanica—that constitutes a pivotal natural carbon sink in the Mediterranean Sea (<https://www.1ocean.org/posidonia/blue-forest>).

(7) Waste Management

Under EU law, member states have an obligation to reduce the environmental impacts of waste in landfills throughout their life cycle and progressively replace the landfilling of waste with recycling and other recovery methods. Last November, the European Commission activated Article 260 of the Treaty on the Functioning of the EU following an CJEU ruling in 2014 (Case C-600/12) regarding the operation of a landfill site on the island of Zakynthos and, in particular, within a Natura 2000 area in breach of EC Directive 99/31 on the Landfill of Waste, EC Directive 2008/98 on Waste, and the Habitats Directive. Although Greece has ceased the disposal of new waste in the Skopos landfill, the site is yet to be rehabilitated, which, for the commission, shows that Greece has not fully implemented the CJEU’s judgment. If the court upholds this argument, it would mark the third occasion where Greece will incur financial penalties for not complying with EU waste management legislation (<https://ec.europa.eu/commission/presscorner/detail/en/ip_23_5444>).