Posts Tagged Directive 92/43
Habitat Directive: ECJ rejects ‘mitigation measures’ in Briels and forces infrastructure works into the compensation procedure.
The widening of the A2 motorway towards Eindhoven, impacted on the Natura 2000 site Vlijmens Ven, Moerputten & Bossche Broek (‘the Natura 2000 site’). That site was designated by the Netherlands authorities as an SAC for, in particular, the natural habitat type molinia meadows, which is a non-priority habitat type. The Minister provided for a certain number of measures aimed at lessening the environmental impact of the A2 motorway project.
Assessment concluded that the A2 motorway project would have negative implications for the existing area comprising the habitat type molinia meadows. The assessment also stated that sustainable conservation and development of the molinia meadows be achieved if the hydrological system was completed. In that regard the A2 motorway project provides for improvements to the hydrological situation in Vlijmens Ven, which will allow the molinia meadows to expand on the site. The Minister states that this will allow for the development of a larger area of molinia meadows of higher quality, thereby ensuring that the conservation objectives for this habitat type are maintained through the creation of new molinia meadows.
Briels and Others brought an action against the two ministerial orders before the referring court. They take the view that the Minister could not lawfully adopt the orders for the A2 motorway project, given the negative implications of the widening of the A2 motorway for the Natura 2000 site in question. They argue that the development of new molinia meadows on the site, as provided for by the ministerial orders at issue in the main proceedings, could not be taken into account in the determination of whether the site’s integrity was affected. They submit that such a measure cannot be categorised as a ‘mitigating measure’, a concept which is, moreover, absent from the Habitats Directive.
The Netherlands Raad van State suggested that the criteria for determining whether the integrity of the site concerned is affected are not to be found either in the Habitats Directive or the Court’s case-law, whence the question ‘whether the expression “will not adversely affect the integrity of the site” in Article 6(3) of [the Habitats Directive] to be interpreted in such a way that, where the project affects the area of a protected natural habitat type within [a Natura 2000 site], the integrity of the site is not adversely affected if in the framework of the project an area of that natural habitat type of equal or greater size [to the existing area] is created within that site?’ and ‘[If not], is the creation of a new area of a natural habitat type then to be regarded in that case as a “compensatory measure” within the meaning of Article 6(4) of the [Habitats Directive]?’
The Court held (at 28) that the application of the precautionary principle in the context of the implementation of Article 6(3) of the Habitats Directive requires the competent national authority to assess the implications of the project for the Natura 2000 site concerned in view of the site’s conservation objectives and taking into account the protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects for the site, in order to ensure that it does not adversely affect the integrity of the site.
! However (at 29), protective measures provided for in a project which are aimed at compensating for the negative effects of the project on a Natura 2000 site cannot be taken into account in the assessment of the implications of the project provided for in Article 6(3).
(As a supporting argument (at 32), the Court suggested that as a rule, any positive effects of a future creation of a new habitat which is aimed at compensating for the loss of area and quality of that same habitat type on a protected site, even where the new area will be bigger and of higher quality, are highly difficult to forecast with any degree of certainty and, in any event, will be visible only several years into the future. Consequently, they cannot be taken into account at the procedural stage provided for in Article 6(3) of the Habitats Directive).
Authorisation for the project therefore needs to be given in accordance with the procedure for compensation measures, provided for in Article 6(4). (Which does not make the project impossible. It just makes the outcome less certain and at the least more lengthy).
Many developers (and authorities with them) had hoped that a different answer of the ECJ would have had the potential to reduce the amount of negative appropriate assessments. Quod non.
I reported earlier on Kokott AG’s view in Cascina tre Pini re the declassification of sites under the habitat Directive. The Court agreed, albeit with emphasis on the more than just passing degradation of the site: ‘It must, however, be pointed out that a mere allegation of environmental degradation of an SCI, made by the owner of land included in that site, cannot suffice of itself to bring about such an adaptation of the list of SCIs. It is essential that that degradation should make the site irretrievably unsuitable to ensure the conservation of natural habitats and of the wild fauna and flora or the setting up of the Natura 2000 network, so that that site can definitively no longer contribute to the achievement of the objectives of the directive set out in Articles 2 and 3 thereof.‘ (at 30). ‘Thus, not all degradation of a site on the list of SCIs justifies its declassification.‘ (at 31)
The judgment makes common sense to owners (and in view of the right to property), as it emphasises authorities’ duties under the habitats Directive however it is good to read it in ECJ print.
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.
‘Appropriate assesment’ under the Habitats Directive as applied in Sweetman. Basically, avoid the water going under the (limestone) bridge.
In the event of a site classified under the EU’s Habitat directive, in case screening has revealed the possibility or the risk that a planned project may cause significant effects to the site, an ‘appropriate assessment’ will have to be drawn up. Sweetman is unusual in that, to Sharpston AG’s memory, the Court’s previous case-law concerns situations where there has been no appropriate assessment in terms of that provision and the question is whether such an assessment is necessary. Here, by contrast, an assessment was undertaken and there is no suggestion that it was improperly conducted – indeed, all the indications are that it was done with great care. Rather, the issue concerns the conclusion reached as a result of that assessment, on the basis of which the local authority adopted the decision at issue.
The habitat site concerned hosts a number of priority habitats (see here). If a proposed road development proceeds, 1.47 hectares of limestone pavement will be permanently lost.The discussion centres on the impact of this loss for the integrity and survival of the site.
The appropriate assessment stage corresponds to the second sentence of article 6.3 of the Habitats Directive, i.e.
In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
The aim of the appropriate assessment is to provide an answer to this question, since the protection regime under the Habitats Directive only allows a project to be authorized on condition that it will not adversely affect the integrity of the site concerned, unless the exceptions of article 6.4 are applied.
In Sweetman the Court held that the interpretation of this criterion has to be construed as a coherent whole in the light of the conservation objectives pursued by the Habitats Directive, meaning that the integrity of the site is not adversely affected, in case it is preserved at a favourable conservation status. This entails the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of the natural habitat type or the species whose preservation was the objective justifying the designation of the site in the list of SCI’s.
Based on this reasoning, the Court concluded that competent national authorities cannot authorize interventions in a site protected under the Habitats Directive where there is a risk of lasting harm to the ecological requirements of sites which host priority natural habitat types. According to the Court, that would particularly be so where there is a risk that an intervention of a particular kind will bring about the disappearance or the partial and irreparable destruction of a priority natural habitat type present on the site concerned. This risk needs to be assessed in accordance with the precautionary principle.
Previously, the Court had taken a similar approach with regard to the disappearance of priority species in Commission v Spain.
In the main proceedings, the Lough Corrib SCI was designated as a site hosting a priority habitat type because, in particular, of the presence in that site of limestone pavement, a natural resource which, once destroyed, cannot be replaced. The natural habitat affected by the proposed road scheme is among the priority natural habitat types, which Article 1(d) of the Habitats Directive defines as ‘natural habitat types in danger of disappearance’ for whose conservation the European Union has ‘particular responsibility’.
The conservation objective, the Court noted, thus corresponds to maintenance at a favourable conservation status of that site’s constitutive characteristics, namely the presence of limestone pavement. Consequently, if, after an appropriate assessment of a plan or project’s implications for a site, carried out on the basis of the first sentence of Article 6(3) of the Habitats Directive, the competent national authority concludes that that plan or project will lead to the lasting and irreparable loss of the whole or part of a priority natural habitat type whose conservation was the objective that justified the designation of the site concerned as an SCI, the view should be taken that such a plan or project will adversely affect the integrity of that site.
That does not mean that the planned project cannot go ahead – however the procedure for it to be allowed, becomes ever more stringent.
There’s no use crying over spilled milk. Or lamenting water having already gone under the bridge. However faits accomplis have no place in EU habitat protection , especially for priority sites: for once gone, it’s gone: otherwise it would not even be on the list.