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Article 6 of the Habitats Directive Rulings Of Article 6 of the Habitats Directive Rulings of the European Court of Justice FINAL DRAFT September 2014 This document was researched and prepared by Kerstin Sundseth and Petr Roth, Ecosystems LTD (N2K Group) under contract N° 070307/2012/635359/SER/B3 This document is meant purely as a documentation and informative tool. It is created as a compilation of existing documents and the Commission does not assume any liability for its contents. The presentation of the judgements reproduced in this booklet obviously does not commit the Court. 2 Table of Contents INTRODUCTION .................................................................................... About the Birds and Habitats Directives ....................................................................... Article 6 of the Habitats Directive ................................................................................ About the European Court of Justice............................................................................. About this booklet ........................................................................................................ PART 1 – General Principles .................................................................. Transposition of a Directive .......................................................................................... Affected rights of private landowners and municipalities .............................................. PART II – ECJ Rulings on Article 6 of the Habitats Directive ............. Article 6(1) .................................................................................................................. 1. Necessary conservation measures ...................................................................................... 2. Designation of SCIs as SACs and establishment of conservation measures......................... 3. Delimitation of a site and identification of protected species present .................................. Article 6(2) .................................................................................................................. 1. Ensuring a sufficient protection regime .............................................................................. 2. Protecting sites from passive as well as man-induced deterioration and disturbance............ 3. Ensuring a sufficient protection regime under Article 4(1) & 4(2) of the Birds Directive .... 4. Protection of sites that should have been classified SPAs or pSCIs on national lists............ Article 6(3) .................................................................................................................. 1. Relationship between Article 6(2) and Article 6(3) ............................................................ 2. Which plans or projects are to be assessed under the Habitats Directive ............................. 3. The role of the competent authority ................................................................................... 4. Application of stricter rules than required by the Directives ............................................... 5. Plans or projects not directly connected with the management of a site............................... 6. When is an AA required: plans or projects likely to have a significant effect ...................... 7. When is an assessment appropriate for the purposes of the Habitats Directive .................... 8. Significance of effects in view of the site’s conservation objectives ................................... 9. Adverse effects on the integrity of the site.......................................................................... 10. Assessing cumulative and in combination effects ............................................................... 11. EIA and AA have different legal consequences .................................................................. 12. Application of Article 6 to plans and projects approved prior to EC accession .................... 13. Authorisation of plans or projects affecting pSCIs on the national list ................................ 14. Distinguishing between mitigation and compensation measures ......................................... Article 6(4) .................................................................................................................. 1. Article 6(4) applies after an Appropriate Assessment has be made ..................................... 2. The examination of alternatives is not part of the Appropriate Assessment ......................... 3. The absence of alternatives must be demonstrated.............................................................. 4. Imperative Reasons of Overriding Public Interest (IROPI) ................................................. 5. Compensatory measures .................................................................................................... 3 PART III – Relevant ECJ Rulings on the EIA and SEA Directives ...... The EIA Directive ....................................................................................................... 1. Integration of the EIA into the existing procedures for consent........................................... 2. The obligation to remedy the failure to carry out an EIA .................................................... 3. Consent procedure comprising several stages and EIA ....................................................... 4. Beginning of works and EIA .............................................................................................. 5. Splitting of projects – cumulative effects ........................................................................... 6. Transboundary projects...................................................................................................... 7. Criterion for the temporal application of the EIA Directive – transitional rules ................... 8. Fresh consent procedure .................................................................................................... The SEA Directive ...................................................................................................... 1. Definition of plan or programme ........................................................................................ 2. Annulment of a plan or programme that is in breach of the Directive ................................. 3. Need for an SEA and/or EIA for plans which determine the use of small areas .................. 4. Does the need for an SEA of a plan depend on the preconditions requiring an assessment under the Habitats Directive? ...................................................................... Annex I –ECJ Rulings according to the key provisions of Article 6 .............................. 4 INTRODUCTION About the Birds and Habitats Directives In 2010 the EU Heads of State and Governments set themselves the following target for biodiversity conservation in the EU: "To halt the loss of biodiversity and the degradation of ecosystem services in the EU by 2020, restore them in so far as feasible, while stepping up the EU contribution to averting global biodiversity loss." The Commission’s EU 2020 Biodiversity Strategy1, adopted in May 2011, sets out six main targets to ensure this overall objective is achieved by 2020. One of the targets is to fully implement the Birds and Habitats Directives. The Birds and Habitats Directives, sometimes jointly called “Nature directives”, are the cornerstones of the EU’s biodiversity policy. They enable all 28 EU Member States to work together, within a common legislative framework, to conserve Europe’s most endangered and valuable habitats and species across their entire natural range within the EU, irrespective of political or administrative boundaries. The overall objective of Directive 2009/147/EC 2 - the so-called “Birds Directive” - is to maintain and restore the populations of all naturally occurring wild bird species present in the EU at a level that will ensure their long term survival. Council Directive 92/43/EEC 3 - known as “Habitats Directive” - has similar objectives to the Birds Directive but targets species other than birds as well as certain habitat types in their own right. The two directives do not cover every species of plant and animal in Europe (i.e. not all of the EU’s biodiversity). Instead, they focus on a sub-set of around 2000 animal and plant species (out of the hundreds of thousands present in Europe) - which are in need of protection to either prevent their extinction or enable their long-term survival. Around 230 valuable habitat types are also protected in their own right. The two directives require that Member States do more than simply prevent the further deterioration of these species and habitat types. They must also undertake positive management measures to ensure their populations are maintained at, or restored to, a favourable conservation status throughout their natural range within the EU. Favourable conservation status can be described as a situation where a habitat type or species is prospering (in both quality and extent/population) and has good prospects to do so in future as well. 1 Our life insurance, our natural capital: an EU Biodiversity Strategy to 2020 (COM (2011) 244, 3.5.2011 2 Directive 2009/147/EC2 (the codified version of Directive 79/409/EEC as amended) of 30 November 2009 on the conservation of wild birds (OJ L 20, 26.1.2010, p 7) 3 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (as amended OJ L 43, 1.1.2007, p. 1), 5 To achieve
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