Romania’s Nature Conservation Reform: A Surprising Convergence with European Law in Response to Societal Concerns

Abstract

To grant more plausibility to the theoretical argument, Martin-Russu includes a second case study in her empirical analysis: an inquiry into Romania’s nature conservation reform and the framework regulating the protection of environmentally significant habitats and species. The evaluation of the legislative performance of the Romanian political elite in the field of nature conservation shows a questionable use of procedures, but this time coupled with a far higher level of responsibility and responsivity to societal concerns.

The chapter reveals a reality at odds with the expectation that limited capacities lead to non-compliance; it shows how the lack of institutional capacities led, through the involvement of civil society actors, to a gradual improvement of EU-driven reforms. Martin-Russu provides a detailed account of how the expansion of protected areas in preparation for EU membership generated an increased need for their effective management, which translated into a legislative solution that allowed civil society organizations and the scientific community to assume responsibility for the administration of protected areas on an equal footing with the government. This, Martin-Russu argues, allowed citizens to pursue their interests through the actions and reactions of civil society, promoting the latter’s growth and gradually strengthening its voice.

Nature insists on whatever benefits the whole (Marcus Aurelius)

In order to grant more plausibility to the theoretical argument, a second case study supplements the empirical analysis: an inquiry into Romania’s nature conservation reform, specifically into the legislative framework regulating the protection of environmentally significant habitats and species. This legislation, which stems from two EU directives, the 1992 Habitats Directive (92/43/EEC) and the 1979 Birds Directive (79/409/EEC, later repealed by 2009/147/EC), aims at preventing further loss of biodiversity in Romania.

The two European Nature Directives focus on rare and endangered species and on typical and valuable habitats across the EU, introducing measures to maintain or restore them to a favourable conservation status. To this end, they seek to establish a coherent European ecological network of special areas of conservation (Natura 2000).¹ In a similar manner in which the Mechanism of Cooperation and Verification for Romania sets the basis for good democratic governance, these directives establish basic principles for the good governance of protected areas. Both directives require member states to designate Special Protection Areas (as provided by the Birds Directive) or Special Areas of Conservation (as provided by the Habitats Directive) in accordance with specific criteria and detailed scientific information. They set out the procedures for designating these areas, as well as the management and controls that need to be set up; they demarcate responsibilities and ensure adequate reporting and answerability. They provide for all activities that might significantly affect protected habitats or species to be carefully assessed, and interventions to be allowed only when no alternative solutions are available and when there are imperative reasons of overriding public interest.² Under a general conservation obligation, Romania (like all the other member states) is required to implement laws, regulations or administrative provisions, not only to avoid the deterioration or disturbance of habitats and species, but also to take the necessary measures to ensure their health. To this end, it is required to establish management plans, as well as statutory, administrative or contractual agreements that allow for the adequate administration of protected areas.³

Expected to harmonize its legislation with the nature conservation acquis before joining the EU in January 2007, Romania made the increase in the number and size of protected natural areas a priority. This, however, posed particular challenges due to the weak administrative capacity of the state’s environmental agencies and their lack of focus on habitats and species conservation,⁴ and required the efforts towards conserving biodiversity to be significantly intensified in the short-term. The surface of protected areas increased rapidly from 7% on the eve of EU accession to 17% of the national territory in 2014.⁵ To date, the country’s Natura 2000 network includes no less than 606 sites, covering 22.7% of the state’s area, with 54,214 square km of land area and 6362 square km of marine area covered by Natura 2000 protected sites.⁶ Romania is also the country with the largest area of surviving primaeval and quasi-primaeval forests in the EU, with a total of 61,655 hectares as recorded to date in the state’s national inventory.⁷

The swift post-accession expansion of protected areas, which generated an increased need for an effective management of these areas, translated into a novel legislative solution: the Romanian civil society organizations and the scientific community were allowed to assume responsibility for the implementation of the relevant legislation, thereby assisting the state in ensuring compliance with European law. The legislative framework for nature conservation offered civil society the opportunity to closely interact with the government and contribute to law enforcement.⁸ As the following pages will show, this manner of transposing European directives—allowing for the shared governance of protected areas and increased societal participation—proves once again that the success of Europeanizing reforms depends on the one hand on the commitment of the political elite towards those reforms, and on the other hand on the strength of civil society to re-establish balance when this commitment fades. As long as they are not influenced by selfish considerations of personal gain and as long as they are held accountable by strong specialist and civil society groups, Romanian representatives play an important role in the process of developing good governance, or, at the very least, good environmental governance.

The present chapter follows the same structure as the previous one: it explores, in sequence, the post-accession development of the country’s Nature Conservation Legislation (in both procedural and substantive terms), the impact of this development upon the achieved level of Europeanization, the extent to which elites acted on the basis of their own personal interests or in the interest of society at large, and finally, the strength of the sectoral civil society in improving accountability and the quality of implementation. This second case study shows how determined the domestic political elite can be to overcome institutional or structural barriers in order to realize European goals, when there is little scope for narrow personal interests to be pursued; it also shows how powerful and persuasive civil society can be, when it establishes itself as an actor to be reckoned with in policy-making. By complementing the analysis with such an example, the present study also accounts for the asymmetric impact of Europe: the differences in the degree and direction of change across policy fields are explained as a result of the pursuit of various interests by the domestic political elite and, more importantly, as a result of the unequal impact of civil society organizations across different policy areas.

5.1 The Development of Nature Conservation Laws and the Corresponding Level of Europeanization

As noted above, Romania was required to comply fully with the nature conservation acquis at the time of accession; the state’s Accession Treaty did not contain derogations or transition periods in this field. To a significant degree, the provisions of the two directives (Birds Directive and Habitats Directive) were part of the national legislation, beginning from the year 2000, when the government adopted the Emergency Ordinance 236/2000,⁹ which was later enacted into Law 462/2001 and Law 345/2006. However, given the incorrect and incomplete transposition of the two directives, immediate and concrete steps were required after January 2007 to ensure that the state would act in full compliance with its obligations. This led to the adoption of the Government Emergency Ordinance OUG 57/2007¹⁰ on 20 June 2007.

OUG 57/2007 repealed the previous nature conservation acts; it produced immediate effects once it came into force, but pursuant to Art. 115 of the Romanian Constitution it had to be approved through a bill adopted by the Parliament. A legislative proposal for adopting OUG 57/2007 was introduced in the Senate of Romania no later than 26 June 2007 and adopted with minor changes and little plenary debates on 22 October 2007, when it was forwarded to the lower chamber (see Fig. 5.1¹¹). The Chamber of Deputies was hesitant to adopt the law as proposed by the Senate: the draft was adopted only in April 2011, after pending in the lower chamber for more than three years. The very long delay in adopting this draft law can hardly be justified by the need to improve its provisions; in the almost four years in Parliament, its 56 articles indeed received numerous amendments, but were subject to surprisingly little criticism. All amendments were given only cursory examination, being adopted as proposed, with no debate or justification.

Fig. 5.1

The development of nature conservation laws—technical procedural aspects

In the time between the introduction of the draft in the Chamber of Deputies and its promulgation as law, the European Commission initiated (on 23 October 2007) an infringement procedure against Romania, which had yet to fulfil its obligations under Art. 4 (1) and (2) of the Birds Directive.¹² In response to the infringement procedure, the Romanian Government adopted a new Emergency Ordinance in November 2008,¹³ which refined the previously adopted OUG 57/2007. This later Emergency Ordinance (OUG 154/2008)—adopted promptly to remedy the compliance problems identified by the Commission—was subsequently integrated into the draft law, which at the time was still pending in the lower parliamentary chamber, and it became Law 49/2011 on 13 April 2011.

Regardless of the fact that the provisions of the 2008 Emergency Ordinance (OUG 154/2008)—which itself amended the 2007 Emergency Ordinance (OUG 57/2007)—were to be contained in Law 49/2011, a new draft law to adopt the latest governmental decree was submitted to Parliament on November 2008. If adopted, this draft would have merely been a restatement of the very same measures already included in another act, which would have created an undesirable legislative parallelism. On these grounds, the proposal was eventually rejected by Parliament, yet only after being adopted by the Senate in March 2009 and after pending in the Chamber of Deputies for seven years; in March 2016 Law 34/2016 finally rejected Ordinance 154/2008, which contained provisions already included in the Nature Conservation Law 49/2011.

Two additional governmental decrees further amended the existing legislation in 2014: Emergency Ordinance OUG 31/2014 and Government Ordinance OG 20/2014. Their retrospective approval in Parliament was very swift, as the Parliament introduced few amendments and came to a decision after minimal plenary debates. It was in 2015 that changes to the Nature Conservation legislation were first adopted, not by governmental decree, but following the regular legislative procedure: in June 2015, a draft was introduced in the higher parliamentary chamber that proposed the establishment of a National Agency for Natural Protected Areas (ANANP). The draft was debated upon and adopted by the Parliament on 11 May 2016, when it became Law 95/2016. Two years later, in March 2018—again by means of an Emergency Ordinance (OUG 13/2018)—the structure of the newly established ANANP was modified with a view to strengthening the agency’s administrative capacity; this governmental decree approved the creation within the ANANP of regional structures responsible for the management of protected areas. The provisions of OUG 13/2018 were soon thereafter adopted in Parliament (in less than four months), becoming Law 162/2018 in July 2018. In the same year, two further laws were adopted which amended the nature conservation legislation: Law 148/2018, which introduced annual deadlines for granting derogations from the species protection obligations laid down by OUG 57/2007; and Law 158/2018, which introduced new trade-offs between nature conservation and Romania’s extractive industry. Both laws were adopted relatively quickly, and without extensive debate; the former passed through Parliament in 9 months, while the latter entered into force in 15 months, after being subject to a constitutionality check.

Also in 2018, a controversial amendment of the nature conservation legislation came into effect even more quickly, transferring the responsibility for managing protected natural areas from the non-profit organizations that were currently holding custody of the protected sites to the ANANP. A Governmental Emergency Ordinance (OUG 75/2018)¹⁴, adopted in July 2018, enacted this significant and abrupt change in the administration of numerous protected natural areas, without any consultation with the civil society and without any transitory provisions that would allow for the bringing of ongoing custody contracts to term. The Emergency Ordinance was submitted to Parliament for approval in the same month and was adopted by both Chambers no later than February 2019. A decision of the Romanian Constitutional Court (DCC 214/2019) eventually led to its repeal, but not until June 2021. Following the decision of the Constitutional Court published in April 2019 the draft was reintroduced in Parliament for re-examination, it passed through the Senate in one month, but was pending in the Chamber of Deputies for 20 months before being rejected by Law 151/2021. In the meantime, while the law rejecting the OUG 75/2018 was still in the Higher Chamber for review, another law was passed for the same purpose, to put the legislative framework in accordance with the decision of the Constitutional Court DCC 214/2019 and reinstate the right of non-profit organizations to act as administrators of (or partners in the administration of) protected areas. A first draft of this law was presented before the Senate in June 2019, it was adopted in 15 days, it passed through the Lower Chamber in three days, and became Law 220/2019 already in November 2019.

More recently, the legislative framework for nature conservation was amended again when Law 90/2021 modified the sanctioning regime adopted through Law 49/2011. Triggered by the European Commission’s pre-infringement procedures, an initial draft of this law was submitted to the Higher Chamber in October 2015. It was adopted and transferred to the Lower Chamber in November 2015, where it was pending without much debate for more than five years, until April 2021.

If interpreted in strictly procedural terms, nature conservation legislation is no different from the ANI Law analysed above; it provides comparable evidence of a needlessly complicated legislative process. Similarly to the practices described in the previous case study, the emergency procedures and the use of governmental decrees inhibited the consolidation of straightforward legislation by acts of Parliament. The extensive use of emergency procedures was motivated by an urgent need to comply with European requirements and to promptly transpose the Nature Directives. Without questioning here the urgency of the measures proposed, it may be concluded, however, that the overuse of Government Emergency Ordinances (OUG) only resulted in a procedurally patchy reform. Also, the government’s tendency to use emergency procedures in order to promptly transpose the European Nature Directives was not always mirrored in the pace with which the Parliament adopted the acts. Some draft laws had been pending for years in Parliament before they were finally promulgated.

The sloppy procedures used by the Romanian legislature proved to be time-consuming: the Chamber of Deputies needed more than three years to adopt the law approving OUG 57/2007.¹⁵ Besides, the slow legislative process was in this case no guarantee of quality: on 4 December 2007, the plenum of the lower chamber voted against the draft proposed by the Senate without any debate or arguments brought forward against the proposed provisions,¹⁶ and this after the Senate itself had invested very little effort in amending the Government Emergency Ordinance while approving it. This unjustified rejection of the draft resulted in the law’s pending in the lower chamber for months, time during which its provisions were amended by another Emergency Ordinance (OUG 154/2008), which further prolonged and upset the entire legislative process. Arguably, this manifest lack of systematic thinking and planning, the lack of clarity and precision in drafting laws and the seemingly arbitrary and unpredictable style of decision-making resulted in faulty legislation, which subsequently required additional decree-laws to correct the mistakes. In fact, later in 2014, the law was again revised by two further governmental decrees (Government Emergency Ordinance OUG 31/2014 and Government Ordinance OG 20/2014).

In 2018, following the adoption of the controversial Government Emergency Ordinance OUG 75/2018 and its approval in Parliament, the Constitutional Court, in its Decision 214 of 2019, declared unjustified the Government’s resort to emergency powers to clarify the management regime of protected areas. As the Constitutional Court held, the emergency governmental decree was not supported by convincing proof of an unanticipated exceptional situation, nor by the existence of a public interest which unmistakably required immediate action. On these grounds, the said act was repealed as unconstitutional and returned to Parliament for re-examination. It took another two years for the Parliament to formally reject the OUG 75/2018.¹⁷ This long delay may have also resulted from the fact that the decision of the Constitutional Court was already part of Law 220/2019 presented in parliament and adopted shortly after the publication of the Court ruling. The Parliament had this law passed, without a parliamentary fast-track procedure, but in an incredibly speedy manner and with incredibly little debate. In an attempt to comply as soon as possible with the decision of the Constitutional Court, Law 220/2019 made its way through both parliamentary chambers in less than two months and was adopted—following another constitutional review—within five months of when it was initially proposed before Parliament. Its adoption brought the legislative framework to the status quo of 2018. Again, passing legislation by decree (through OUG 75/2018) was de facto a refusal on the side of the government to engage in dialogue, a practice which was also upheld in Parliament, where amendments were adopted without careful consideration of the matters at stake, without much debate and without any coherent strategy and proper consultation of the stakeholders or the general public. Consequently, it is hardly surprising that the large body of rapidly changing legal norms in the field of nature conservation proved at times to be difficult to comprehend and consistently apply.

What is surprising, however, is that despite the abovementioned procedural errors and questionable legislative performance, in substantive terms, the numerous additions and refinements to nature conservation legislation included changes which in practice allowed the reform to maintain a mostly positive trend towards Europeanization. A notable exception to this Europeanizing trend is the above-mentioned adoption of OUG 75/2018, with strong reform-reversal effects caused by the exclusion of non-governmental organizations from the management of protected areas. This reversal was however only temporary, for the decision of the Constitutional Court (DCC 214 of 2019) followed by the adoption of Law 220/2019 reinstated the former right of civil society to take an active part in the administration of protected areas.

At the core of Romania’s nature protection legislation stands the principle that nature conservation interests take priority over any other interests, exceptions only being allowed in rare cases: to ensure national security, public health and public safety, or to prevent natural disasters. This principle, laid down explicitly in Article 6 of the initial Government Emergency Ordinance 57 of 2007 (OUG 57/2007), remained unchanged throughout the numerous refinements to the law, and remained in force and in full accordance with the spirit of the European Nature Directives.

By law, any area may be placed under a nature protection regime, regardless of its use or its ownership status. The protection and conservation of natural resources thus goes beyond the borders of private property. In such cases, the law guarantees proper and just compensation for landowners who set aside their land for nature conservation. Article 26 of OUG 57/2007 outlines the compensation rights for landowners who suffer losses due to restrictions on land use imposed under nature conservation legislation.¹⁸ As adopted in its initial form in 2007, this provision established a right to compensation claims, without specifying either the form or the term within which compensations should be awarded. In its amended draft¹⁹ of October 2007, the Senate stated that financial compensations were to be paid to landowners within six months after the institution of the nature protection regime on the site in question. This provision, however, never entered into force, as it was amended once more in the Chamber of Deputies²⁰ in 2011. The final version once more removed the type of compensations awarded and the time frame, but explicitly established the Government as the designated authority responsible for laying down the compensatory amounts and the compensatory mechanisms within 90 days after the entering into force of the law. Even though not completely satisfactory, the article in its current form at least provides clarity regarding who is the responsible authority for compensation payments; it renders the Government accountable for the realization of the right to adequate compensation, thereby helping those who are not justly compensated to seek remedy in court.²¹

As mentioned already at the beginning of this chapter, the protection of habitats and species of European importance is realized through the designation of Special Protection Areas (SPA) or Special Areas of Conservation (SAC),²² i.e. by creating the so-called Natura 2000 network of protected areas. At the domestic level, the Romanian Ministry of Environment acts as the central authority with the task of defining these areas,²³ establishing a system to monitor the conservation level²⁴ and the incidental capture and killing of protected animal species.²⁵ At the same time, it maintains communication with the EU and coordinates and supervises all other environmental authorities, i.e. the National Environmental Protection Agency (ANPM), the National Agency for Natural Protected Areas (ANANP), and the National Environmental Guard (GNM), with their regional and local structures, as well as the Administration of the Danube Delta Biosphere Reservation. In this way, it oversees the enforcement of the nature conservation legislation and helps Romania to fulfil its reporting obligations under the European Nature Directives.²⁶

The network of protected natural areas includes a wide variety of sites, with very different conservation needs and land use patterns. They range from areas of strict conservation under complete freedom from human interference, to national or natural parks available for recreational or educational use, or productive land- and seascapes that are managed to provide other services (such as agriculture, fishery or forestry), but in balance with wildlife. The designation of nature conservation areas under Government Emergency Ordinance 57 of 2007 (OUG 57/2007) fell under the responsibility of the Parliament (for biosphere reserves and for sites listed as natural world heritage sites), of the Government (for geo-parks, national or natural parks, for Special Areas of Conservation (SAC) or Special Protection Areas (SPA) among others), and of the Ministry of Environment (for the designation of Sites of Community Importance (SCIs)).²⁷ An attempt to include the national and natural parks in the network of protected areas designated by Parliament, as proposed by the Senate in its October 2007 draft of Law 49/2011,²⁸ was rejected by the Chamber of Deputies in 2011. In its current form, the law provides that only areas listed as natural world heritage sites (257 sites globally) be designated by law in Parliament. All other protected areas are designated through governmental decisions, a measure which, given the current legislative practice in Romania, renders the entire process more efficient and timely, and allows for a better level of compliance with European standards.

A different procedure is to be followed though for the Sites of Community Importance (SCI), which are to be designated by Order of the Ministry of the Environment following the opinion of the Romanian Academy. It is worth clarifying at this point that the designation of such areas of community importance through the Ministry of the Environment is only an intermediary stage that comes before the acknowledgement of these sites at the European level. Based on the proposals provided by Member States, the European Commission holds scientific seminars on each biogeographical region, evaluating and approving the listed SCIs. Once they are formally adopted by the European Commission pursuant to Art. 4 of the Habitats Directive, these sites must be designated as Special Areas of Conservation (SAC) at the domestic level “as soon as possible or within six years at the most.”²⁹ This change in status of a protected area from an SCI to an SAC triggers the implementation of Art. 6(1), in addition to Art 6(2), 6(3) and 6(4) of the Habitats Directive onto the site, thus offering an enhanced level of protection through positive and proactive interventions to maintain and improve the status of conservation of its habitats and species. Under these requirements, Romania needs to establish—within six years—conservation objectives and measures tailored to the needs of each area approved as an SCI, and proceed to its designation as an SAC through a decision of the Government. This is a legal obligation with which Romania often fails to comply in practice. At the legislative level, the already intricate procedure of designating such conservation areas was initially complicated further by the requirement laid down in OUG 57/2007 that the Ministry of the Environment, while giving a site its initial status as a Site of Community Importance (SCI), takes note not only of the opinion of the Romanian Academy, but also seeks the approval of five other central authorities competent in public administration, agriculture infrastructure or regional development.³⁰ This provision, as adopted in June 2007, significantly impeded and delayed the designation of SCIs, causing Romania to lag behind in the implementation of the Habitats Directive. The situation was remedied in March 2011, when Law 49/2011³¹ established that the Ministry of the Environment only needs to respect the opinion of the Romanian Academy on matters regarding the designation of Sites of Community Importance, allowing for these areas to enter the process of approval at the EU level with more ease.

While it is true that the designation of protected natural areas represents a recognition of the importance of those areas and establishes specific obligatory requirements which must be met in order to reach clearly defined conservation objectives, it is not in itself a guarantee of species and habitats protection. The management of these areas is a much more decisive factor affecting the extent to which the stated conservation objectives are achieved. Currently, almost one-quarter of the national land area of Romania is covered by protected areas (with 1574 designated nature conservation sites),³² the management of which is still a considerable challenge. In this respect, Art. 18 of OUG 57/2007 made an important contribution to the administration of protected natural areas by allowing, from 2007 onwards, the responsibility for their management to be delegated to a variety of public, private or non-governmental actors such as public or private research institutes or educational institutions, museums and public or private forestry administrations.³³ Management responsibilities could be assigned on a contractual basis for a period of 10 years, provided that the organizations entrusted with the management of protected areas had not only the technical expertise, but also the necessary resources to establish and implement the measures required for nature conservation.³⁴ This made it legally possible for the state to delegate its authority and responsibility to other actors (both governmental and non-governmental), who had the obligation to apply for grants, develop management plans, implement and monitor their application, and ensure compliance with the relevant nature conservation legislation. Subsequent amendments to this clause, through Law 49/2011, OUG 31/2014 and Law 95/2016, did not for a long time change the essence of these provisions.

A notable exception was the amendment of Art. 18 through Government Ordinance OG 20 of 2014³⁵, which specifically allowed the management of protected areas to be delegated to the National Forest Administration Romsilva. It is true that regardless of who bears responsibility for managing a protected area, the central environmental authority remains the final decision maker with respect to the management measures to be adopted, approving all management plans and monitoring their implementation. Still, this legislative change raised questions with regard to an increased scope for potential conflict of interest. Romsilva—a profit-oriented state company mainly active in forest administration, whose revenue largely comes from forestry and non-timber forest products—may indeed find itself in a conflict of interests if given the responsibility to manage nature conservation areas and expected to cover its full management costs from self-generated income.³⁶ The specific reference to Romsilva was eventually eliminated from the law through an amendment of Art. 18.³⁷ The National Forest Administration, however, remained legally entitled to manage nature conservation areas, and is currently sub-contracted by the Ministry of Environment as administrator of no less than 22 national and natural parks or Natura 2000 sites.³⁸

A much more consequential change in the provisions of Art. 18 was adopted in 2018, also by means of a governmental decree, when OUG 75/2018 provided for non-profit organizations to no longer be entitled to manage nature-protected areas, having their responsibilities transferred to the ANANP. This abrupt amendment of the legislation was adopted without any consultation with the affected organizations or the general public, without any transitory arrangements, and without making sure that the ANANP had the capacity to streamline the administration of a greater number of protected natural areas and ensure their effective management through its regional structures. The amendment was in effect a minimal change in the wording of the law, as small as the removal of NGOs from the list of legal entities entitled to the administration of protected areas. It implied however a transfer of all responsibilities from non-profit organizations to the ANANP, a hasty termination of all running contracts of those organizations acting as stewards of protected areas, and as such it disrupted management plans and caused uncertainty for no less than 264 nature conservation sites covering approximately 1.6 million hectares.³⁹ This legislative change again raised concerns with regard to a potential conflict of interests, this time generated by an overlap of management, coordination, but also monitoring and control responsibilities all held by the ANANP. Assessed against the objective to ensure adequate administration of protected areas as a basic requirement to fulfil the goals set out in the Nature Directives, this amendment shows a clear case of de-Europeanization.

This legislative setback was subsequently counteracted by a ruling of the Constitutional Court that required a return to the status quo which was enacted through Law 220/2019, followed by a formal rejection in Parliament of the OUG 75/2018 in 2021. At present the legislation, by virtue of the said Art. 18, as well as Art. 16 (3¹), again allows non-governmental organizations (along with various other types of scientific and non-scientific organizations) to act as administrators of nature conservation areas, which marks an important step back from centralized decision-making towards joint management or even private stewardship of protected sites. Terminologically, the legislation currently in force no longer refers to custody and custodians of protected areas, but instead to administration and administrators, without clearly differentiating between these concepts. It does however make clear that non-governmental organizations and associations enjoy the right to act as administrators of protected areas.

A return to the status quo that preceded the adoption of OUG 75/2018 was only reasonable, given the fact that the administration of protected natural areas delegated to non-profit organizations was functioning with comparative success before July 2018. The ANANP itself evaluated the performance of 166 such custodians to be in 93% of cases very good or good.⁴⁰ At the same time this approach of the collaborative administration of protected areas is perfectly in line with Art. 6 of the Habitats Directive: it serves not only the purpose of sharing the burden of management, but also provides opportunities for the pro-active participation of right-holders and stakeholders in the development of nature conservation strategies.⁴¹ What is more, by virtue of Art. 19 of OUG 57/2007, the administrators of nature conservation areas are required to establish advisory councils that meet on a regular basis and have a consulting role in decision-making. By law, advisory councils are multi-stakeholder bodies which include representatives of the local or regional administration, representatives of institutions responsible for the management of natural resources at a central or regional level, and representatives of civil society or other stakeholders. This provision and the obligation to establish such advisory councils not only opens up a source for expertise, but also creates an indispensable platform for debate, deliberation and the dissemination of information among stakeholders at different levels in order to promote the different interests involved.

Financial support for the management of nature conservation areas is provided by the central environmental authority. Under Art. 30 of OUG 57/2007, the various organizations responsible for the management of nature conservation areas are required to estimate the costs of management and communicate them to the central authority, which is in charge of awarding grants from the state budget. Furthermore, the same article authorizes the administrators of protected natural areas to determine fees for nature conservation services, allowing them to complement the resources needed for an adequate management of protected sites.

Of particular importance for the protection of biodiversity and species is the legally enacted obligation to assess the environmental impact of all projects likely to have a significant negative influence on the conservation of a site, due to their nature, location or size. Article 28 of OUG 57/2007 prohibits the deterioration of habitats and the disturbance of species; under this provision, any private or public project must be subject to an appropriate assessment and shall be authorized by competent environmental authorities with the approval of the ANANP or the administrator of the protected natural area. The latter determine if projects with negative implications for nature conservation are justified by an overriding public interest.⁴² This requirement of the prior consent of the administrator functions as a filter screening all potential projects in a protected area to distinguish between environmentally friendly and environmentally destructive plans or projects. Several amendments were made to this provision to better comply with Art. 6 of the Habitats Directive and Art. 4 of the Birds Directive. Among the most important changes is the one adopted in 2008,⁴³ which more clearly defined the obligation to issue environmental approval, and additionally included the obligation to consult the public before issuing such approvals. In this manner, the law stimulates public participation, giving individuals the opportunity to engage in consultations, debates and hearings on environmental issues.

The articles of law described above indicate that Romania’s approach to nature conservation and protected-areas-governance, as reflected in its legislation, has been (excepting the period between July 2018 and November 2019) one rather oriented towards a multi-stakeholder inclusive environmental governance. The manner in which the state decentralized responsibility empowered a wide variety of actors to get involved in the management of protected areas, and brought nature conservation closer to the broad public. The various governmental and non-governmental organizations acting as custodians of protected sites not only brought local expertise and a better awareness of the particularities of the area, but also better possibilities to mobilize and engage local communities.⁴⁴

However, the advantages offered by the decentralized management of protected areas came at the expense of a lack of coherence and coordination across the different organizations responsible for planning and implementation. Article 17 of OUG 57/2007 addressed this challenge by establishing the National Agency of Natural Protected Areas (ANANP), a body specialized in the field of nature conservation and in charge of coordinating all managers of protected areas and ensuring a consistent and uniform approach to conserving biodiversity and species.⁴⁵ Disregarding the need for coordination among the various entities responsible for the management of protected areas, this provision (enacted in 2007 by OUG 57/2007) was removed from the final version of the law adopted in 2011,⁴⁶ with all responsibilities of the ANANP being transferred back to the Ministry of the Environment. In 2016, however, under Law 95/2016,⁴⁷ the ANANP was re-established, and started to play an important role in monitoring the management of protected areas, evaluating the requests for custody, endorsing regulations, conservation measures and management plans, and carrying out the administration of protected areas that are not managed by other organizations.⁴⁸

Allowing for a more coherent administration of protected areas was one of the arguments advanced by the government in support of adopting the controversial OUG 75/2018 that transferred the management responsibility from all non-governmental organizations to the ANANP. However, this shift towards a centralized management proved ineffective. For the ANANP it was already a challenge to ensure the administration of those areas that lacked stewardship, which made it practically impossible for it to handle the management of an even greater number of sites. In effect, under these circumstances, the much pursued coherent management of protected areas was no longer attainable. Therefore, the annulment of this legislative change first through the decision of the Constitutional Court in 2019 and then in Parliament later in the same year was a welcome restoration of the right of non-governmental organizations to act as administrators of protected areas. Following the adoption of Law 220/2019, the ANANP resumed—in theory, but not yet in practice—a mainly coordinating role: to partner with governmental or non-governmental organizations, to ensure a uniform approach to site administration, to help the administrators to share experiences, and to provide expertise and facilitate dialogue.⁴⁹ On these grounds, the re-establishment of the ANANP through Law 95/2016, but also the restored rights of non-profit organizations to act as administrators of protected areas through Law 220/2019, are here regarded as shifts back towards Europeanization, steps towards achieving a more coherent but also a more efficient implementation of nature conservation law.

Lastly, an equally important provision for nature conservation that contributes to the protection and restoration of key habitats and species is the imposition of sanctions for the failure to comply with the laws and protected area regulations. In this respect, Art. 52 and Art. 53 of OUG 57/2007 provide for a set of sanctions designed to compensate for damages and losses and to reduce the risks of such occurrences. These sanctions include imprisonment or significant fines (of up to 13,000 Euro) for acting without the administrator’s approval, for the hunting of strictly protected species, for damages caused on site, and even for the protection of species and habitats unauthorised by the Ministry of Environment. In 2011, with the adoption of Law 49/2011,⁵⁰ the scope of sanctions was significantly broadened to include restrictions on camping outside already established campsites, driving vehicles off designated routes, inadequate waste disposal and further activities that can be harmful to protected habitats or species. These newly imposed fines help build a greater sense of responsibility and a deeper respect for nature among visitors to protected areas. Moreover, following a pre-infringement procedure launched by the European Commission against Romania, a tougher sanctioning regime was adopted for legal persons or entities found guilty of crimes under the nature conservation legislation. Law 90/2021 amended Art 52 of OUG 57/2007 providing for fines between 500 and 25,000 Lei (approx. 100 and 5000 Euro) daily, a shift from a one-time fine between 30,000 and 60,000 Lei (approx. 6000 and 12,000 Euro) applicable to natural and legal persons alike. While it is true that the minimum sanctions were lowered (from approx. 6000 Euro to only 100 Euro per day), making criminally liable legal persons subject to sanctions on a daily basis does have a higher potential to compel compliance over time.

Overall, unlike in the case of Romania’s integrity legislation, which went through a clear process of de-Europeanization after the state joined the EU, nature conservation legislation evolved more often than not towards a refinement of existing provisions in order to ensure a more effective implementation and consistency with the requirements of the two European Nature Directives. Although Romania’s path towards Europeanization as regards nature conservation legislation has by no means been a linear one, its reform oscillates between progress and reversal. And yet, in the field of nature conservation as opposed to the field of public integrity, the legislation in its current form—still far from ideal—is better suited than it was in 2007 to meet the European standards for nature conservation. If assessed against the measures in the Birds and Habitats Directives, this case displays a generally satisfying legislative performance, despite its rather cumbersome procedural path and its temporary reversals of the status quo (see Fig. 5.2⁵¹).

Fig. 5.2

The Europeanization of nature conservation legislation

As described above, two remarkable legislative setbacks were registered: in 2011, when Art. 17 of OUG 57/2007 was amended, eliminating altogether the National Agency of Natural Protected Areas (ANANP) despite its important role in coordinating local-level environmental bodies; and in 2018, when OUG 75/2018 abruptly and without consultation deprived non-governmental organizations of their right to act as administrators of nature protected areas despite their effective capacity to mobilize and allocate skills and resources for nature conservation. The relevance of the agency was reasserted few years later when the ANANP was re-established through Law 95/2016, which defined in a more clear and elaborate manner its competences and aims. Non-governmental organizations also regained their right to manage protected natural areas, as imposed by Law 220/2019. In all other respects, the subsequent modifications of the legislation—adopted either through governmental decrees or drafts voted upon in Parliament—led to an improved alignment of the legislative framework with European norms and standards.

5.2 The Elite’s Pursuit of Societal Interests

As shown above, Romania responded to the adaptational pressure posed by the EU through its European Nature Directives by adopting measures that to a large extent made its nature protection legislation increasingly compatible with European law. In practice, however, Romania still lags behind in applying and enforcing this legislation. The law, if not implemented in full, correctly or on time, fails to achieve its desired effects in conserving habitats and species and protecting biodiversity. It is important to note though that the difficulties slowing the actual implementation of nature conservation legislation were even greater before Romania’s accession to the EU, when the lack of resources and administrative capabilities was coupled with a lack of experience in Natura 2000 protected area governance.

It was this need for a better and faster implementation of the legislation that called for a diverse and decentralized management system for protected areas in Romania. As mentioned above, decision-making power and responsibility was de jure and de facto devolved from the central to the regional or local levels, from state actors to private or non-governmental organizations, and from one public sector to another (for instance, from the environmental to the forestry sector). In other words, the lack of administrative capacity in environmental governance led to the emergence of co-management and other forms of collaborative administration. This was on the one hand a practical response to the questionable performance achieved under centralized authority before 2007, but also a change of perspective with respect to who should make management decisions in protected areas. A decade later, in 2017, the data published by the Ministry of Environment showed 239 sites out of a total of 531 Natura 2000 areas (55%) under local or regional custody⁵²: 110 administered by non-governmental organizations, 59 managed by state-owned companies, 44 by public authorities, 18 by private companies and 8 by universities and research organizations.⁵³ This more flexible and decentralized form of governance, secured through legislative enactments, contributed in fact to a more effective protection of habitats and species and led to a gradual convergence with European standards. Such an approach to nature conservation—promoting the delegation of responsibility and participatory decision-making processes—was already in itself an indicator of a high degree of commitment on behalf of the elite to move the reform forward and give a voice to those in society who had hitherto had no say or control in shaping the strategy for nature conservation. Sharing power in order to prevent a further loss of biodiversity was a policy choice that showed a domestic political elite willing to act in the common interest and in line with European nature conservation objectives.

The adoption of OUG 75/2018 in 2018 disrupted this balance; it triggered an abrupt movement away from the decentralized decision-making in which the non-governmental sector played an important role in the management of protected natural areas. Following this infamous governmental decree, non-profit organizations no longer had the right to exercise administrative control over protected nature sites, with the entire responsibility placed instead in the hands of the ANANP. One of the reasons invoked by the Government in support of its blanket decision to shift the responsibility to the ANANP was the fact that the existing system of decentralized management created significant problems for the implementation of infrastructure projects that overlapped with protected natural areas. With this approach, the Government suggested there was a direct conflict between public interest in economic and infrastructure development and the interests of environmental non-governmental organizations in nature conservation. The public debate stirred in the aftermath of the adoption of OUG 75/2018 and the continued efforts of the civil society in environmental issues showed however that these different interests could and should be reconciled. Non-governmental organizations often remained in place as de facto (even though no longer de jure) stewards of protected natural areas, further developing management plans and working in collaboration with local or regional authorities and assisting them to find solutions for infrastructure or economic development projects with limited or no environmental impact. In 2019, perhaps not least as a result of this bottom-up pressure to legally acknowledge the role non-governmental organizations continued to play as active partners in the administration of protected areas, the provisions of OUG 75/2018 were repealed in Parliament by Law 220/2019, marking a return to the joint responsibility for nature conservation.

A look back at the hasty manner in which the nature conservation acquis was initially transposed at the domestic level in 2007 (without proper review, though a Government Emergency Ordinance, OUG 57/2007) brings up an important observation: the adopted legislation could not promise a high degree of accuracy and a full convergence with European law. The elite’s hurry to establish a legal framework for protecting habitats and species on the eve of EU accession resulted in faulty legislation that remained in constant need of amendments. The initial legislative response to European requirements failed to adequately implement the Nature Directives; it often included vague, imprecise and incomplete provisions and allowed for legislative parallelisms.⁵⁴ As a consequence, the European Commission opened an infringement procedure against Romania in October 2007 for its failure to adequately transpose the European Birds Directive into national legislation. This triggered a prompt response at the domestic level, and Romania swiftly corrected the legislative errors by adopting another Emergency Ordinance, OUG 154/2008. At least six further infringement procedures were opened against Romania in the following years,⁵⁵ and several other governmental decrees and fast-track laws further refined the legislative framework. The hasty manner in which this legislation was drafted, the sloppy manner in which it was adopted—mainly by governmental ordinances and in the absence of any significant parliamentary debate—and the legislative ambiguity resulting from it, might hint towards a general disinterest and reluctance of the political elite to undertake genuine environmental reform. And yet, the measures adopted and the justifications provided suggest that the political elite tried to accommodate both societal interests and European demands, refraining from the pursuit of personal interests that was evident during the adoption of public integrity and anti-corruption legislation. In this case, legislators did not point to pressure from the EU and the need for legislative change as an excuse to enact additional measures to curb reform and serve personal ends.

Without addressing in detail all the issues raised during the adoption and amendment of the laws under analysis, it is sufficient here to point out again that, being under pressure from the European Commission, Romania gradually improved its nature conservation legislation: it added several new definitions of terms, clarified the mechanism through which protected areas are designated and their management delegated to other institutions, and significantly broadened the scope of sanctions put in place for failures to observe the laws and the rules applicable to protected areas. The substance of the proposed changes and the urgency with which these changes were adopted was motivated by the desire to bring domestic legislation in line with EU requirements as soon as possible.⁵⁶

Indeed, in the explanatory notes accompanying each legislative draft and in the interventions during the debates surrounding their adoption in Parliament, reference was repeatedly made to the imperative to pass remedial measures in order to comply with European requirements.⁵⁷ In this case, however, the measures adopted were not only justified by the need to ensure domestic legislation’s compatibility with European law. Another justification was that the failure to properly designate protected areas and thereby ensure the conservation of habitats and species was considered to produce negative effects at the level of the society; it was believed to affect the quality of life and infringe upon the right of all Romanians to a clean and healthy environment, as guaranteed by the Constitution.⁵⁸ Therefore, prompt action to improve the legislation in this field was considered an essential step in protecting the environment and the public’s right to it.

At the same time, concerns were raised with respect to the impact that environmental reforms might have on local communities. Arguably, the restrictions imposed by nature conservation legislation could significantly affect social and economic development at the local level. Often enough, the measures adopted remained far from the interests and concerns of local communities, with voices in Parliament therefore arguing in favour of consulting all stakeholders and involving local authorities more closely in legislative decision-making.⁵⁹ Compensatory payments were a key issue during these debates.⁶⁰ It was often claimed that the government’s rush to act by decree in order to fulfil its citizens’ right to a healthy environment was not matched by an equal concern for the citizens’ right to private property. Since nature conservation had been given priority over any type of economic interest, landowners had the right to claim compensation for losses caused by the limitations imposed on the use of their land. Without further assistance from the government, this right would continue to exist de jure, but not de facto. The proper functioning of these compensation mechanisms, it was argued, was vital for maintaining both social and environmental well-being; Members of Parliament repeatedly called on the Government to enforce its commitment to awarding compensation grants.

The legislation under discussion here underwent significant improvements, which were meant not only to address people’s need for a clean environment and the community’s need for sustainable development, but also articulated the need for the administrators of protected areas to work on a clear legal basis. Concerns over the manner in which earlier nature conservation legislation was being interpreted and applied called for further revisions of the law, aimed at clarifying the rights and obligations of managers of protected areas, and at simplifying and unifying implementation mechanisms.⁶¹ Concrete examples of protected areas threatened with destruction were presented in plenum, which served to underline once more the fact that a more effective implementation of the law and an improved legal framework for the administration of such areas was not only desirable, but also necessary in order to ensure that Romania would be able to meet its nature conservation objectives.⁶²

Even the controversial OUG 75/2018 allegedly resulted from a commitment to public rather than personal interests of the political elite. It was claimed in both the act’s explanatory note and during the parliamentary debates that the adoption of the governmental decree was motivated by the need for transport infrastructure in Romania, which had been stalled by the severe environmental constraints imposed by non-governmental organizations.⁶³ While such economic welfare concerns are real, and are often raised in local and regional contexts across Romania, the prioritization of economic growth over environmental protection cannot be a viable solution. After all, not granting authorizations to projects that have a significant negative impact on protected natural areas is not a failure, but on the contrary, a fulfilment of responsibilities in line with the precautionary principle that guides environmental decision-making, and with the EU’s nature conservation acquis. At the same time, as certain of the counterarguments presented during parliamentary debates pointed out, this justification of economic growth falls short of explaining the rationale behind a blanket exclusion of all non-governmental organizations from the administration of protected areas.⁶⁴ The need for strategic transport investments and infrastructure projects that overlap with protected areas could at most be an argument for derogatory measures adopted on the basis of project-specific assessments of the implications for nature conservation as opposed to an overriding public interest. Additionally, any potential delays in the approval or denial of authorizations for infrastructure projects are circumstantial issues to be dealt with through particular measures in line with the custody contracts between the ANANP and the NGOs concerned, leading at most to the withdrawal of those specific custody contracts, but not to the withdrawal of all custody contracts in general.

Arguably, the priority of economic and infrastructure development and the support for banning non-governmental organizations from managing protected areas resulted not so much from a pursuit of personal interests, but rather from a lack of concern among a large part of the elite with ecological issues. The fairly limited parliamentary debates around issues related to nature conservation suggest a rather widespread inattention to environmental protection. This knowledge gap exists not only at the level of political decision-making, but also at the initial stage of design, proposal and assessment of the impact of such projects, with civic planners themselves often lacking the necessary expertise to pay close regard to environmental considerations in their planning documents.⁶⁵ This makes the role played by non-governmental organizations and their expertise even more relevant. Luckily the vocal concerns expressed by civil society about the negative impact of OUG 75/2018 found a positive response in Law 220/2019: an acknowledgement of the fact that non-profit organizations are an important resource for nature conservation. The experience, tools and data acquired through scientific work, field work, and direct involvement with members of local communities cannot easily be replaced by the ANANP or any other central public authority, as was firmly stated during the debates in Parliament.⁶⁶

As this analysis demonstrates, in the field of nature conservation reform the Romanian political elite often allowed social concerns to come to the fore; while shaping the reform, representatives largely favoured the interests of those they represented. Indeed, the measures adopted and the concerns voiced in Parliament (especially with regard to the need for a more effective conservation of natural heritage sites) were in accordance with the goals and expectations of the broader society. Public opinion has shown that Romanians strongly support environmental action: in late 2017, protecting the environment was an important issue for 87% of Romanians,⁶⁷ while 80% believed environmental issues had a direct impact on their daily life and health.⁶⁸ In the following years the attitudes remained constant, with 87% of Romanians in 2019 considering environmental protection to be important or very important.⁶⁹ It is also worth noting the manner in which the political elite promoted the interests of local communities through its initiatives and inclusive approaches, in an attempt to harmonize nature conservation and rural or agricultural development. Their concern for the economic well-being of landowners affected by the establishment of protected areas and their focus on establishing compensation mechanisms is understandable, particularly if one takes into account that at the time of Romania’s accession to the EU, 2.5 million people were employed in agriculture⁷⁰ and were thus more likely to prefer short-term economic development over the long-term efforts to protect biodiversity.

In sum, it could be argued that in the field of nature conservation Romania on the whole maintained a positive trend towards Europeanization throughout the post-accession period, often due to the willingness of the Romanian political elite to push for a swift transposition of EU legislation. It is certainly true that the legislative framework remains far from ideal, while Romania’s enforcement performance is still far from the standards laid down by the European Union. According to a 2017 report on the conservation status of habitats and species in Romania, habitats have achieved the best conservation status in the EU, while the conservation of species is the worst.⁷¹ A 2019 report on Romania⁷² raised concerns regarding extensive illegal logging in the member state, including in Natura 2000 sites; it also noted the failure of the member state to designate SCIs as Special Areas of Conservation (SAC), no SAC being designated within the six year deadline imposed by the Habitats Directive. Thus, unlike in the previous case study, the main obstacle to successful reform here was the inadequate implementation of laws, which remained an issue, and not the self-serving behaviour of the political elite which stopped meaningful reforms from passing into law altogether. In this case, the legislative framework for nature conservation emerged as a response to EU requirements and—as the literature on Europeanization predicted—the infringement concerns voiced by the EU; hence, the EU’s adaptational pressure resulted in gradual refinement of this legal framework. The main challenge of finding appropriate remedies and striking a sustainable balance between nature conservation and socio-economic development remained throughout the post-accession period. Even when economic interests came to the fore, there was no clear sign of opportunistic behaviour surrounding the adoption and refinement of nature-conservation legislation; rather, political discourses and action showed an attempt to pay attention to the sometimes conflicting needs of nature conservation and economic welfare.

5.3 The Strong Impact of Civil Society

The largely Europeanizing trend of nature conservation legislation, and the gradual refinement or re-adjustment of the laws during Romania’s post-accession period, is inextricably linked to the emergence of a strong environmental civil society. The state’s low administrative capacity, which led to the adoption in 2007 of a decentralized management system for protected areas, also led to an empowerment of civil society in the field of environmental protection. The fast expansion of nature conservation areas (both in number and in size) made their management challenging, especially given the state’s insufficient financial and human resources and its lack of experience in managing such areas. As noted above, this resulted in a wide use of delegated management and a transfer of power from the Government to various governmental and non-governmental organizations, at least until 2018 and the adoption of OUG 75/2018. Conserving habitats and species in a system of devolved management provided civil society with the opportunity to contribute directly to protected area governance for many years, which strengthened ties between public authorities and the environmental civil society, and also between the natural environment and the people.

Indeed, the adoption of this system of governance in 2007 translated into increased public participation in environmental protection and environmental decision-making.⁷³ Not only could decisions be made locally, but often they were made by people with local expertise who were fully in touch with the needs of the communities and the challenges faced by nature conservation sites. Moreover, local organizations proved better equipped to engage the broader public,⁷⁴ providing the latter with the chance to voice its concerns, and increasing local awareness and involvement. The multi-stakeholder campaign “Let’s Do It, Romania”⁷⁵—a civil society-led mass movement in which people come together to clean up, in only a day, the entire country—is worth mentioning here, not only for its success in improving waste-management and providing incentives to maintain a clean environment, but more importantly for its success in engaging a large number of participants. Over 200,000 volunteers participated in 2010 in this nation-wide initiative to make public areas litter-free, and by 2011 the figure rose to 300,000 volunteers.⁷⁶ With an average of about 200,000 participants mobilized every year on World Cleanup Day, “Let’s Do It, Romania” is a great example of the emerging commitment to environmental volunteering in Romania. A mobile app launched in 2015 has increased people’s participation even further: currently, thousands of volunteers report illegal waste disposals by marking littered areas on a map; user reports are translated into formal complaints by “Let’s Do It, Romania” team members, which alert authorities and monitor their response.

The very same system of devolved management of protected areas encouraged a restructuring not only of the relationship between civil society and the general public, but also between the elite and civil society. Contrary to the previous case—in which the relationship between civil society and the political elite steadily deteriorated during Romania’s post-accession period—environmental civil society moved somewhat closer to the political elite as a response to the latter’s openness in allowing non-governmental organizations to play a crucial role in the administration of nature conservation areas. Shortly after Romania’s EU accession, environmental civil society organizations assisted the government in completing the lists of protected natural areas (based on strictly scientific criteria) in an attempt to meet the requirements established for Romania by the European Commission.⁷⁷ This move could be regarded as an important first step towards establishing an effective cooperation with public authorities. Indeed, after January 2007, environmental civil society in Romania gradually diversified its activities: it counterbalanced its watchdog role with its partnership role; it shifted away from protest and towards advocacy (through lobbying and litigating) and most importantly, it shifted towards managing and monitoring nature conservation. International contacts and memberships in transnational networks, such as the World Wide Fund for Nature (WWF), Greenpeace, Friends of the Earth or BirdLife International reinforced this trend.⁷⁸

At least in as far as nature conservation is concerned, and with the notable exception of the period 2018–2019, the political elite seemed inclined to perceive civil society as a source of support and expertise rather than a threat. Proof of this is provided by the numerous contracts for custody awarded to civil society organizations prior to 2018. In 2017, 110 nature conservation sites were handed over to non-governmental organizations,⁷⁹ the number being even higher (166) in 2018 before the adoption of OUG 75/2018.⁸⁰

The Federation Coaliția Natura 2000 alone, which has members including WWF Romania, Romanian Ornithological Society (SOR)/BirdLife Romania, ProPark—Foundation for Protected Areas, Foundation Conservation Carpathia (FCC), and Milvus Group among many others, was awarded custody of 10% of the country’s nature conservation areas. It brought in more than 400 experts⁸¹ from the fields of policy and advocacy, education, research and awareness-raising. The Federation (formally an alliance of 20 non-governmental organizations active in biodiversity conservation with a much broader informal network comprising over 50 organizations) adopted in its work of protecting Romania’s natural heritage a cooperative approach that facilitated dialogue between civil society organizations and the political elite on the one hand, and among the various civil society organizations themselves on the other. It successfully complemented its watchdog activities with direct involvement in identifying and monitoring the status of Natura 2000 sites, offering expertise directly to local or central authorities or other administrators, developing awareness-raising campaigns, and strengthening the capacity of other non-governmental organizations in the field.⁸² In November 2016, the Federation Coaliția Natura 2000, together with the Romanian Ornithological Society, ProPark—Foundation for Protected Areas, and the Academic Society of Romania (SAR), initiated a series of public debates about the legislation and the rules governing nature conservation. Central to these debates was the fact that they brought together an impressive number of administrators of protected areas, representatives of the Ministry of the Environment, members of Parliament and members of the press in a joint attempt to facilitate the political elite’s access to expertise and thereby to improve legislative output. As part of the same project, which was entitled “Let’s make laws for nature together!”, more than 200 draft laws were evaluated and reviewed. For several of them, the project proposed specific amendments, with position papers providing expert guidance.⁸³ More recently, in 2021, a project entitled “Participatory Governance through Civil Society Involvement in Nature Protection in Romania”, developed by Coaliția Natura 2000 in partnership with the Association Pro Democrația Club Brașov, provided environmental non-profit organizations with assistance to overcome the difficult period following the adoption of OUG 75/2018. Even though the OUG was declared unconstitutional in 2019 and its provisions eliminated by Law 220/2019, the damage had already been done: non-governmental organizations had had all their running contracts annulled and had also had difficulties reassuming their responsibilities and regaining their rights as administrators of protected areas. This project was therefore an important step forward in restoring the broken ties between civil society and legislators. As a result, at the initiative of the Federation and the Ministry of Environment, a trans-institutional working group (including political decision-makers as well as civil-society participants) drafted a series of specific proposals for legislative changes aimed at repairing the harmful measures adopted in 2018, and also at improving the financing of nature conservation, upgrading the system for monitoring and evaluating the efficiency and effectiveness of the management of protected areas (with improved zoning based on scientific and practical criteria and consultations with specialists and stakeholders), eliminating over-regulation, increasing Romania’s level of compliance, strengthening the collaboration with stakeholders, imposing tighter deadlines, and de-bureaucratizing.⁸⁴

ProPark—Foundation for Protected Areas itself maintained a fruitful cooperation with the political elite. A relevant example in this respect is its collaboration with the Ministry of the Environment in developing a project titled “Efficient Managers for Efficient Natura 2000 Network!”,⁸⁵ which was aimed at improving Romania’s territorial planning, and rendering the country more sensitive to concerns surrounding biodiversity.⁸⁶

The projects and initiatives of WWF Romania’s department of public policies also played a crucial role in mediating between the interests of citizens or local communities, and the preferences of the political elite that find form in legislation or executive action. A highly effective tool in this respect was the online platform actionez.ro, which offered citizens the chance to directly address public authorities, voice environmental concerns and stop activities with potentially negative impacts on nature.⁸⁷ Other notable successes were the projects developed by WWF Romania aimed at facilitating the coexistence between humans and large carnivores, including improving the monitoring, identification and securing of the network of cross-border ecological corridors for Brown bears, and the development of an adequate emergency response network to protect both animals and humans. This involved maintaining intensive communication with political decision-makers to promote modern species-management concepts and strategies based on data and scientific methods.⁸⁸ In 2021, WWF Romania also offered political decision-makers innovative solutions in response to the infringement procedure launched by the EU against the member state for illegal logging, while at the end of that year it published its recommendations for Romania’s National Recovery and Resilience Plan, adopted as part of the EU’s Recovery and Resilience Facility.⁸⁹

Given the fact that in the field of nature conservation, the EU largely favours joint ventures between state and non-state actors,⁹⁰ non-governmental organizations or coalitions of organizations are perceived by the political elite not only as a source of expertise, but also as a source of funding. In 2018, more than 200 nature-protected areas were given in custody (covering approximately 1.6 million hectares of Romania’s total area), yet without financial support from the central environmental authority, custodians using privately raised funds.⁹¹ In fact, non-profit organizations and universities performed more effectively than public authorities in accessing nature conservation funds,⁹² either from EU programmes or other assistance schemes, which further encouraged the emergence of cooperative relationships between the elite and civil society. In 2013, Romania was among the European states with the lowest environmental protection budgets, with less than 0.5% of its GDP set apart for such activities, while the European average was higher than 0.6% with the best performer, the Netherlands, investing almost 1.5%.⁹³ In 2020, Romania’s expenditure on environmental protection was still around 0.7% of its GDP, ranking lower than the EU average of over 0.8%, and much lower than Belgium, Greece, Malta or the Netherlands who each invested more than 1.4% of their GDP on environmental protection.⁹⁴

Without enumerating further instances documenting the successful involvement of civil society in environmental governance or their success in terms of fundraising, it suffices here to stress once more the fact that when there are no particular personal interests to be pursued, civil society is accepted as an ally of the political elite. This does not mean, however, that environmental civil society has renounced its watchdog activities. In fact, the inconsistent procedures, the faulty legislation and the slow implementation of laws attracted, and continue to attract, the criticism of environmental civil society organizations. Non-profit organizations active in nature conservation are vocal in drawing attention to legislative or administrative shortcomings, alerting the media or informing European bodies about perceived non-compliance. They were also firm in their reaction to OUG 75/2018, publicly condemning the government’s decision, the manner in which it was adopted (without any consultation with the more than 60 non-governmental organizations directly affected by this abrupt shift of responsibilities to the ANANP), and pointing out the incapacity of the agency to streamline the management of such a great number of protected areas. It is not surprising that the governmental decree adopted in 2018 triggered widespread criticism from non-governmental organizations (such as the Federation Coaliția Natura 2000,⁹⁵ ProPark⁹⁶ or WWF Romania⁹⁷), just as it is not surprising that that criticism eventually resulted in the repeal of the controversial act in 2019. A few other examples of the success of civil society in the area of nature conservation legislation and the enforcement thereof merit attention.

The Federation Coaliția Natura 2000 filed several complaints to the European Commission, denouncing illegal logging or damaging construction projects that were affecting Natura 2000 sites. It also successfully lobbied for administrative changes: its actions resulted in the adoption of measures increasing the number of administrative staff employed at both the central and regional levels that is responsible for designating and managing protected areas.⁹⁸ In 2015, the Coaliția Natura 2000, together with the Romanian Ornithological Society, successfully opposed legislative changes to the hunting law, amendments which would have endangered the existence of several species.⁹⁹ Furthermore, in 2021 the Federation supported the OTUS Association in securing a positive court judgement in which all hunting was prohibited for migratory birds under the Governmental Order 1460/2021. At the same time it was active in providing the Constitutional Court with thorough assessments of data, scientific evidence and legal arguments in support of its decision regarding Romania’s Hunting Law. It also took a stand, together with WWF Romania, ACDB, Milvus Group and FCC in improving the management of certain species, such as the Brown bear, protected under EU law, and is planning a major advocacy campaign for the amendment of the nature conservation legislation to roll out in 2022.

WWF Romania has also played a strong advocacy role. It was particularly active and vigilant in preventing the construction of micro hydropower plants along small mountain rivers, and eventually eliminated the possibilities for such investments to be financed through Structural Funds in the 2014–2020 programming period.¹⁰⁰ In 2011, WWF Romania led an effective campaign to save Romania’s virgin forests. It launched a petition which was signed by 100,000 supporters, which lead in 2012 to the adoption of a governmental decree which defined virgin forests and established criteria for their identification, as well as strict conservation measures.¹⁰¹ By its side, Greenpeace Romania also pushed for the protection of virgin forests as part of its much wider campaign for the conservation of Romanian forests. Broadly speaking, this vast and effective campaign was aimed, and still aims, at preventing illegal logging, supporting sustainable forest management, restoring and improving woodland biodiversity, and proposing forests for inclusion in the international UNESCO World Heritage List.¹⁰²

A number of effective tools were developed and gradually improved during these campaigns against illegal logging: the Integrated Information System for Wood Tracking (SUMAL) was initiated in 2008, and was later made more efficient through the Wood Tracking System developed in 2014; the online platform inspectorulpadurii.ro (Forest Inspector) was later upgraded through the launch of the mobile app Forest Guardians; and the improved SUMAL 2.0 was launched in 2021. These systems were launched by the Ministry of Environment in response to the initiatives of Greenpeace Romania, WWF Romania and other environmental organizations, and allowed citizens to verify the legal status of any timber transport and directly report any cases of deforestation.¹⁰³ The Ministry often discontinued its support for these instruments and their further development, which forced non-governmental organizations to rely on their own resources and raise funds to support the continuation of the systems that currently enable the public to monitor forests using satellite imagery, to report suspicious logging activities or to verify the legality of timber transports.¹⁰⁴ In 2021 WWF Romania identified a further improvement needed to cover the loopholes in SUMAL. The organization called for the development of SUMAL 3.0 in order to prevent the wood in Romania being sold on the basis of a rough estimation of the volume of the standing trees (with errors that can exceed 20%), and to encourage the verification of all transports that leave the forests, in addition to the already existing obligations that had to be met when the wood is placed on the market.¹⁰⁵ Equally notable is the fact that, in 2016, Greenpeace, together with Bankwatch and 18 landowners, reversed the abusive expropriations in Runcurel Village¹⁰⁶ by suing the government, or the fact that, in 2020, WWF Romania began a 3-year collaboration with prosecutors and investigators in 11 countries to combat illegal activities that violate wildlife laws.¹⁰⁷

Remarkable in this context is not only civil society’s capacity to influence political and legislative outcomes, or to file court cases in environmental matters, but also its power to mobilize the broader public in holding political elites to account. Not only did non-governmental organizations develop online platforms allowing citizens to interact directly with authorities, or offer legal training for citizens interested in defending their right to a clean environment in court,¹⁰⁸ but they also organized demonstrations aimed at denouncing vices of the law, abuses of the political elite or projects deviating from Romania’s nature conservation goals. As early as 2012, environmental civil society launched important and widespread protests aimed at stopping the exploration and exploitation of shale gas in Romania. As a result, the then Prime Minister and the Minister for the Environment decided to extend the moratorium on the exploitation until further research was completed.¹⁰⁹ This movement, however, was only the beginning; more virulent protests were to come, opposing the mining project in Roşia Montană in northern Romania.

The mines in Roşia Montană were to comprise the largest open cast mining site in Europe; approximately 300 tons of gold and 1600 tons of silver were intended to be extracted using cyanide-based technology.¹¹⁰. The opposition to this mining project began as early as 2000 with the establishment of the now well-known Alburnus Maior Association,¹¹¹ which gradually developed into a motor and an icon of the campaign to save Roşia Montană. Over several years, Alburnus Maior led numerous demonstrations and lobbying activities, wrote petitions, initiated actions in court, held seminars informing the local community about alternative economic activities to mining, hosted cultural events, and in this way succeeded in postponing the launch of the mining project.¹¹² In September 2013, however, the Romanian government approved the project, dependent upon a vote in Parliament. This decision provoked the largest environmental protests yet in Romania. Thousands of protesters spoke out to prevent the potential environmental damage the project would cause and the destruction of highly valuable historical sites. They showed an unprecedented solidarity with the people in Roşia Montană, defending not only their right to a clean environment, but also their right to private property, their right to cultural heritage, and also their right to free expression of opinion. These protests were unique in their peaceful character, in the resilience and creativity of the participants, but also in their unexpected success in keeping the mining project on hold. As a matter of fact, later in 2016, after sixteen years of campaigning against this gold mining project,¹¹³ the Romanian Ministry of Culture initiated the process of adding Roşia Montană to the UNESCO World Heritage List. In 2021, UNESCO finally named the ancient Roman gold-mining-area of Roşia Montană a world heritage site, which made the mining project practically impossible to move forward. The relevance of the movement to protect Roşia Montană lay not only in its ability to protect the site and its natural environment, but rather in the major influence it had on the future development of civic engagement. The environmental protests of 2013 triggered a broader public engagement and further actions undertaken by citizens against the abusive behaviour of the political elite in other fields. This trend culminated in the widespread demonstrations of February 2017, which counted over 500,000 protestors urging the government to sustain its commitment to anti-corruption reform.¹¹⁴

This review of Romania’s nature conservation reform, and the role played by the political elite on the one hand and civil society on the other, reveals a largely linear trend of increasing compliance with EU requirements. It demonstrates that EU membership, may—when the political will is aligned—encourage positive legislative changes and a higher stability of reform. It thus provides a valuable example of a policy field in which the political elite was motivated in its action less by self-interest, and more by a need and an interest to co-operate with civil society in developing and implementing legislation. As illustrated above, the rationale for delegating power to civil society organizations was indeed instrumental, and derived not so much from normative or substantive concerns; it was the only way in which Romania’s nature conservation objectives could be achieved and infringement procedures and sanctions be avoided. But this instrumentality notwithstanding, the result was the promotion of delegated responsibility and a decentralized management of nature conservation areas; on the one hand, through an enhanced protection of habitats and species in line with the European Nature Directives, and on the other, through the empowerment and growth of environmental civil society, which itself contributed to an increased level of public engagement in support of environmental causes. After all, a functional partnership and commitment among all stakeholders—including actors at the EU level, national, regional or local authorities, civil society organizations, landowners and local communities—is crucial in achieving the required level of protection for habitats and species and a prerequisite for developing a coherent network of protected areas.¹¹⁵

The evaluation of the legislative performance of the Romanian political elite in the field of nature conservation may have shown a questionable use of legislative procedures similar to that observed in the previous case study of justice and anti-corruption reform, but this time it was coupled with a far higher level of responsibility and responsivity to societal concerns which clearly contrasts with the findings of the previous case. Furthermore, the greater involvement of civil society in the conserving and protecting of Romania’s biodiversity has brought non-governmental organizations a step closer to the public authorities and to each other. The developments in nature conservation legislation thus not only paved the way for a gradual improvement of the legislative framework in that area, but also led to an empowerment of civil society in general, which is now better equipped to re-negotiate and forestall any attempts at de-Europeanization. Romanian citizens, with the support of civil society, grew more aware of their interests and their rights, and proved increasingly ready to hold political decision-making to account and call for good environmental and democratic governance.