Declassification of sites under the Habitats Directive – Kokott AG resorts to Nemo Auditur in Cascina Tre Pini

In Cascina Tre Pini, Case C-301/12, Kokott AG opined on 20 June last. The case concerns the possibility of declassification of a site as a special area of conservation, and the rights of owners of the site concerned in same. Classification as a special area of conservation evidently brings with it a variety of restrictions on the use of the land. Owners’ interest in declassification therefore may understandably be very high.

The fourth sentence of Article 4(1) of the Habitats Directive provides that ‘Where appropriate, Member States shall propose adaptation of the list in the light of the results of the surveillance referred to in Article 11.’ Article 9 of the Habitats Directive refers to the possibility of withdrawing the protected status of certain areas: ‘The Commission, acting in accordance with the procedure laid down in Article 21, shall periodically review the contribution of Natura 2000 towards achievement of the objectives set out in Article 2 and 3. In this context, a special area of conservation may be considered for declassification where this is warranted by natural developments noted as a result of the surveillance provided for in Article 11.’

Although the AG does not use the expression, she effectively resorts to the nemo auditur principle: the Directive does not limit the reasons for declassification to loss of suitability due to to purely natural phenomena. However it would be inappropriate to reward a sloppy Member State, or one which purposely neglects a special area of conservation, with subsequent declassification of the site. Whence the AG suggests to answer one of the core questions of the preliminary review as follows (at 55):

pursuant to the fourth sentence of Article 4(1) of the Habitats Directive, the competent national authorities must consider, on a request from an owner of land which forms part of an SCI, whether it should be proposed to the Commission that that land should be excluded from the SCI, provided that the request is based on substantiated reasoning that, despite compliance with Article 6(2) to (4) of the directive, the land cannot make a contribution to the conservation of natural habitats and wild fauna and flora or to the setting up of the Natura 2000 network. (emphasis added: Article 6(2) to (4) lists the obligations of Member States vis-a-vis the areas).

The AG also suggests, in line with general principles of EU law, that owners of the land concerned must be given an opportunity to submit observations when Member States are considering whether to propose to the Commission that the list of SCIs should be adapted in respect of that land.

Geert.