Site Protection Measures under the Article 6 of the Habitats Directive
Article 6 of the Habitats Directive and the assessment procedures under EIA and SEA Directives
The appropriate assessment carried out under Article 6(3) of the Habitats Directive has often been compared, both from procedural and content points of view, with environmental impact assessment and strategic impact assessment under the EIA and SEA Directives. Despite having many similarities, the appropriate assessment is a distinct legal tool. Whilst the assessment under EIA and SEA Directives are often carried out together, as part of an integrated or coordinated procedure, each assessment has a different purpose and assesses impacts on different aspects of the environment. The outcome of each assessment procedure is also different. In case of the EIA and SEA assessments, the authorities have to take the impacts into account. For the appropriate assessment, however, the outcome is legally binding for the competent national authority and conditions its final decision.
In spite of the major legal differences between these two types of assessments, there are a number of common principles, as has been reflected in the Court rulings, which highlight the interfaces among these EU environmental law regulations.
Namely, based on the Directive 85/337/ECC (EIA Directive):
- 1. Integration of the environmental impact assessment into the existing procedures for consent (Case C-50/09, Commission v. Ireland, paragraphs 73-75).
- 2. The obligation to remedy the failure to carry out an EIA (Case C-201/02, Wells, paragraph 70, operative part 3 and Case C-215/06, Commission v. Ireland, paragraphs 59-61).
- 3. Consent procedure comprising several stages and EIA (C-290/03, Barker - Crystal Palace, paragraph 49, operative part 2).
- 4. Splitting of projects – cumulative effects (C-392/96, Commission v. Ireland, paragraphs, 76, 82; C-142/07, Ecologistas en Acción-CODA, paragraph 44; C-205/08, Umweltanwalt von Kärnten, paragraph 53; C-275/09, Brussels Hoofdstedelijk Gewest and Others, paragraph 36).
- 5. Transboundary projects (Case C-205/08, Umweltanwalt von Kärnten, paragraphs 54-56).
- 6. Criterion for the temporal application of the EIA Directive – transitional rules (C-431/92, Commission v. Federal Republic of Germany, 28-33; C-81/96, Gedeputeerde Staten van Noord- Holland, paragraphs 23 to 28; C-301/95, Commission v. Germany,paragraph 29; C-150/97, Commission v. Portuguese Republic, paragraphs 18; C-416/10, Kri˛an, paragraph 99).
- 7. Fresh consent procedure (Case C-81/96, Gedeputeerde Staten van Noord-Holland, paragraphs 25-28).
- 8. Right of environmental protection NGOs (C-115/09, Trianel Kohlekraftwerk Lünen, paragraph 59).
Christoph Sobotta