Regulatory Case Law, January 2016: EU Habitats Directive impact on projects planning

Latest EU regulatory case law1

The EU Habitats Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) is meant to protect natural habitats. The ECJ clarified what this might mean in Member States planning practice.

According to its Article 6(2), EU Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

Based on a request for a preliminary ruling by the German Federal Administrative Court, the Court of Justice of the EU ruled on the scope of the application of the above Habitats Directive provision on plans and projects.

According to the Court, the Habitats Directive must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site, and authorised, following a study that did not adequately assess impact on the habitat, before the site in question was included in the list of Sites of Community Importance (SCIs) due to certain species, must be the subject of a subsequent review, by the competent authorities, of its implications for that site, provided that review constitutes the only appropriate step for avoiding adverse impact on the habitat.

Moreover, where such a new assessment of the implications for a site carried out in order to rectify errors identified in relation to the prior assessment conducted before the inclusion of that site in the list of SCIs or in relation to the subsequent review under Article 6(2) of the Habitats Directive, even though the plan or project has already been implemented, the requirements of a check made in the context of such a review may not be amended on account of the fact that the planning decision approving that plan or project was immediately enforceable, that an application for interim measures had been dismissed and that that dismissal decision was no longer open to appeal.

The decision can be seen as requiring Member States to put the Habitats Directive at the centre of their planning procedures.

Bostjan Makarovic

Bostjan Makarovic

Bostjan Makarovic is Aphaia's Founder. In addition to 14 years of industry experience, he holds Queen Mary, University of London PhD in legal regulation of NGN, London School of Economics and Political Science MSc in Environmental Policy and Regulation, and is IAPP-certified international privacy professional (CIPP/E).
Bostjan Makarovic

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