EU Nature Protection Legislation – Focus on Site Protection

Article 6 (3) is an expression of the precautionary principle. An assessment is necessary where there are doubts as to the existence of significant effects. This could be the case, for example, where plans or projects may not be restrictively defined or where the preliminary consent already requires an assessment, such as land plan use. In particular, having regard to the precautionary principle, where a plan or project not directly connected with or necessary to the management of a site may undermine the site’s conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light, in particular, of the characteristics and specific environmental conditions of the site concerned by such a plan or project. The provisions of Article 6 (3) are not restricted to plans and projects which exclusively occur in or cover a protected site; they also target developments situated outside the site but likely to have a significant effect on it.

The assessment itself is a core mechanism of site protection and therefore the best scientific knowledge in the field must be used. Generally, the assessment must precede the project’s approval and it has to be conform with conservation objectives. Its aim is to provide complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubts as to the work proposed. The may not, therefore, have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned.

The second stage of the assessment, which is envisaged in the second sentence of Article 6(3) and occurs following the aforesaid appropriate assessment, allows such a plan or project to be authorised only if it will not adversely affect the integrity of the site concerned, subject to the provisions of Article 6(4) of that directive. The competent national authorities cannot, therefore, authorise interventions where there is a risk of lasting harm to the ecological characteristics of sites which host natural habitat types of Community interest or priority natural habitat types. That would particularly be so where there is a risk that an intervention will bring about the disappearance or the partial and irreparable destruction of such a natural habitat type present on the site concerned. In accordance with settled case-law, it is at the date of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question. An appropriate assessment of the implications of the plan or project for the site concerned must therefore precede its approval. It cannot be concomitant with or subsequent to the approval.

In Case C-441/17 Commission v Poland (Bialowieza Forest), the CJEU held that by their very nature, the active forest management operations at issue, in that they involve the implementation of measures, such as the removal and felling of trees, in protected habitats within the Puszcza Bialowieska Natura 2000 site, are liable, given also their extent and intensity, to undermine the conservation objectives of that site. It follows that there was a likelihood of the active forest management operations having a significant effect on the integrity of the Natura 2000 site. And as a consequence, it was required to carry out an assessment of the implications of those operations for that site, by virtue of the first sentence of Article 6(3). However, the impact assessment had a number of substantial lacunae and could not sufficiently support the authorisation of the operations.

Article 6 (4) applies in cases of negative assessment, i.e. no consent under Article 6 (3) due to adverse effects or uncertainty. The provisions of Article 6 (4) apply when the results of the preliminary assessment under Article 6 (3) are negative or uncertain. Knowledge of the implications of a plan or project, in the light of the conservation objectives relating to the site in question, is a necessary prerequisite for the application of Article 6(4), since, in the absence thereof, no condition for the application of that derogating provision can be assessed. The assessment of any imperative reasons of overriding public interest and that of the existence of less harmful alternatives require a weighing up against the damage caused to the site by the plan or project under consideration. In addition, in order to determine the nature of any compensatory measures, the damage to the site concerned must be precisely identified.

The sequential order of its steps has to be followed. In exceptional circumstances, a plan or project may still be allowed to go ahead, provided that there are no alternative solutions and that the plan or project is considered to be of overriding public interest, such as health or public safety.

An overriding public interest only exists where it is of such importance that it can be weighed up against the conservation objective. Irrigation and the supply of drinking water can meet this importance; the construction of a management centre, however, does not.

European Commission: it is reasonable to consider that the ‘imperative reasons of overriding public interest, including those of a social and economic nature’ refer to situations where plans or projects envisaged prove to be indispensable:

• within the framework of actions or policies aiming to protect fundamental values for citizens’ lives (health, safety, environment);
• within the framework of fundamental policies for the state and society;
• within the framework of carrying out activities of an economic or social nature, fulfilling specific obligations of public service.