2_NLR_EU: In Situ Protection, Birds- and Habitats Directive

Birdseye view of EU biodiversity policy

European Green Deal:

• Nature protection and restoration for a sustainable future Green oath to do no harm

EU Biodiversity Strategy 2030

• Reach EU’s biodiversity targets under CBD

  • Significant areas of degraded and carbon-rich ecosystems are restored

  • Habitats and species show no deterioration in conservation trends and status

    • Increase protected areas to 30% and strictly protect 10%

Has this EU policy effective in practice?

• Doesn’t interact with other sectoral well e.g. renewable, agriculture

• Stays as an isolated island not interacting with others > lack of integration

New binding EU biodiversity targets?

Some of the limitations that were identified were not attributed to the instrument but to the MS implementation

Nature Directives do not have deadlines to achieve objectives

Not much discussion about ecosystems and interconnectedness, but focusing of protected sites and species

Green Deal > nature restoration regulation > we will see if it fills the gaps or not

The Nature Directives under review?

Assess whether they are still fit for purpose, having different priorities in mind

• Competitiveness of market and EU companies

• Simplifying procedures for permitting different projects

Birds Directive 79/409/EEC – 2009/147/EC

Aim: protect, manage and control all species of naturally occurring birds in the wild state, including eggs, nests, and habitats, and regulate their exploitation

• Common EU heritage, common action

EU Implementation of obligations under Bonn (CMS) Bern and Ramsar Conventions

Scope of protection under the Birds Directive

Site protection

• Migratory species: Important habitats must be protected, especially areas used for breeding, migration and wintering

• Annex I birds: Special Protection Areas (SPAs) must be designated to protect important habitats of these particularly threatened or vulnerable species.

Species protection

• All wild birds: Generally protected against deliberate killing, capture, destruction of nests and eggs, and significant disturbance.

• Exemptions for species on annex II & III: Certain listed species may be hunted (Annex II) or traded (Annex III), subject to specific conditions and restrictions.

Habitats Directive 92/43/EEC

Overall aim (HD): ‘contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora’

2 approaches:

• In situ protection (Natura 2000 Network) – protecting plant and animal species or natural resources directly in their natural habitat or original place

  • Special Protection Areas (SPAs – Birds Directive)

  • Special Areas of Conservation (SACs – Habitats Directive)

• Ex situ protection (strict species protection) – protecting of endangered species outside of their natural habitats

Monitoring and reporting obligations – every 6 years (art 11 and 17)

Overarching objectives of the HD

• Art. 2(2): ‘The measures taken pursuant to this Directive shall be designed to maintain or restore, at a favourable conservation status, natural habitats and species of wild fauna and flora of community interest’ - Restore!!!

• Art. 2(3): ‘Measures taken pursuant to this Directive shall take into account of economic, social and cultural requirements and regional and local characteristics’ (‘united in diversity motto’)

  • United in diversity, triggered MS you have to take economics and culture into account? NO! Court said that these are already reflected in the text, they are not autonomous obligations

Article 3 HD: the establishment of the Natura 2000 Network

Habitats Directive:

• National List of protected sites: Each EU Member State proposes sites that contain important habitats or species. >

• Sites of Community Importance (SCIs) The European Commission approves sites important for conserving habitats and species across the EU. >

• Special Areas of Conservation: (SACs): SCIs that Member States formally designate and protect under the Habitats Directive.

Birds Directive: Special Protection Areas: Areas designated under the Birds Directive to protect important habitats for birds, particularly Annex I and migratory species.

Together, SACs and SPAs form Natura 2000, the EU-wide network of protected natural areas.

Ecological corridors: Help connect protected areas, allowing species to move between habitats and maintain healthy populations. Corridors support ecological connectivity, although they are not automatically designated Natura 2000 sites.

Birds Directive: Site Protection - 1

Art. 3: Member States shall take the requisite measures to preserve, maintain or re-establish biotopes and habitats for all naturally occurring wild birds > general overarching obligation

Art. 4: (1) and (2): designation of “the most suitable territories …as SPAs” in order to ensure their survival and reproduction (one stage process) - Birds of Annex I & Migratory Birds

• SPAs to Annex I birds and migratory birds

• Designate ALL sites, and have to nominate them all, without previous intervention of the Commission (1-step designation)

Cannot avoid classification by adopting other special conservation measures (C-3/96, Commission v Netherlands):

• You really have to designate all areas when it comes to Annex I and migratory birds

Margin of discretion? Solely ecological criteria may be taken into account (ornithological criteria) - discretion only in the application of the most appropriate criteria!

• Ecological criteria, no other considerations into account (e.g. economic)

Inventory of Important Bird Areas (IBA) by BirdLife International (helps identify areas): prima facie /rebuttable evidence (C-378/98, Commission v France and C-418/04, Commission v Ireland)

• States argued the list does not include any binding obligations

• Court said that it (the list) might not be legally binding, but it is a scientific presumption, that the sites in the list do meet the characteristics

• Presumption: rebuttal to show other scientific information to show it otherwise

Case law on SPA designation - Birds Directive

A MS cannot take into account the economic considerations mentioned in article 2 when choosing and defining the boundaries of a SPA’ (c-44/95 Lappel Bank)

The designation obligation is ongoing, does not stop at date of transposition (C-209/04, Commission v Austria)

• To monitor all territories of the MS, and in case it is suitable they also have to designate it

‘A MS may not reduce the surface area of an SPA or alter its boundaries unless the areas excluded from the SPA are no longer suitable territories for the conservation of species of wild birds within the meaning of article 4(1) of the Directive’ (C-191/05, Commission v Portugal)

• You cannot declassify; there is no such thing under the Birds Directive

• Strict protection obligation – no economic activities?

• In C-191/05 AG: only if there has been an error / subsequent deterioration owing to objective circumstances that did not depend on it (volcanic eruption)

  • It might be possible to limit the areas or declassify one or some of them

  • When area is no longer suitable for the birds – circumvent the obligation? NO! only when that has happened natural developments > Impossible to contribute to the maintenance for the birds

  • Climate change: unknown, did you potentially try to prevent?

Exceptionally: general interest superior to the general of interests protected under the BD (C-57/89) (coastal protection measures, also positive for the habitat of birds and kept to a minimum)

• Germany: increase protection, coastal protection measures, important for human health but has positive effect for birds

  • Initially some effects, but at the end of the day important consideration

  • General interest, we can accept the declassification or the limitation of the area that was designated

• C-57/89 Leybucht: Although the Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as SPAs pursuant to article 4(1), they do not have the same discretion under article 4(4) in modifying or reducing the extent of the areas, since they have themselves acknowledged in their declarations that those areas contain the most suitable environments for the species listed in Annex I to the Directive’ (para 20)

Several cases brought by the Commission for insufficient classification of SPAs (no deadlines in the Directive) -> speeded up the necessary processes!

Birds Directive: Site Protection - 2

Art. 4 (4) BD: In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.

The obligation to adopt conservation measures does not depend on the classification (C-355/90, Marismas da Santona)

Replaced for areas which have been designated:

• Art. 7 HD.: art. 6 (2,3,4) HD applicable to classified sites,

• if not designated: de facto SPAs protected under art. 4 (4) BD

• Meaning: If an area is formally designated as an SPA, Article 6(2)–(4) of the Habitats Directive replaces Article 4(4) of the Birds Directive as the main protection regime.

In plain terms: once a site is classified as an SPA under the Birds Directive, its protection regime switches over and is governed by the Habitats Directive's Article 6 machinery (appropriate assessment, imperative reasons of overriding public interest, compensatory measures) rather than the Birds Directive's own (thinner) Article 4(4).

Even before they designate, the conservation

• Suitable to protection of wild birds, but not classified, no protection?

• NO! Even if you have not classified them, even then you have to protect

• Amendment: article 6(2,3,4) if we apply very strictly, then no economic activity can happen in these sites

• The moment it is designated, first sentence can be disregarded and can be focused on article 6(2,3,4)

  • Court: you want the more lenient framework, you have to designate it

  • If you have not, you still fall under ‘no economic activities’

  • better to designate because of the more lenient provisions

Additional comments by the professor: A MS cannot derive an advantage from its failure to comply with community obligations! (C-374/98)

Habitat Directive: designation of SACs

Special Areas of Conservation

• Annex I habitats

• Annex II species (identifying also priority habitats and species)

Three (or four)-stage process:

• 4(1): MS submit list of habitats

  • Look at the whole territory

  • Solely on ecological criteria, have to submit a list to the EU Commission

  • Within 3 years (didn’t happen in time)

• 4(2): Commission and MS draft list of areas to be designed (agreement)

• Publication of the SCI

• 4(4): MS “shall designate” sites & establish priorities / conservation objectives (within 6 years after the adoption of the list) C-444/21

  • Designation by MS – adopt by law or administrative act, but has to be legally binding

  • Adopt clear and precise objectives, if you haven’t done then you violate art. 4(4)

Solely based on ecological criteria of Annex III (no economic/social)

As soon as on Community List, site is subject to art 6(2) – (4)

Additional comments by the professor: A Member State cannot refuse to agree to the inclusion of a site in the draft list of SCIs drawn up by the Commission, on grounds other than environmental protection (eg no economic reasons linked to dredging and accessibility in view of port areas) • Case Stadt Papenburg (C-226/08)

Proposed SCI – especially hosting priority types of species, MS required to take protective measures that are appropriate from the point of view of the conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at the national level (C-117/03 Dragaggi), avoid interventions seriously compromising the characteristics of the sites which appear on the national list C-244/05

• A proposed SCI is not yet formally approved by the EU, but it cannot be left unprotected in the meantime.

Possible judicial protection against act of designation?

Is the right of property of landowners violated when they are designated as Natura 2000 sites?

Can you bring a claim against acts of designation and if so, which one?

• Difficult to challenge the publication due to the annulment procedure

• 4(4) preliminary references to the Court of Justice

  • On the validity!!

Declassification of SACs

Article 9: only ‘where this is warranted by natural developments noted as a result of the surveillance provided for in article 11’

• When by natural development, this site is irreversibly (!!) not able to contribute even with the best restoration measures

‘A proposal by a Member State to reduce the size of a site on that list requires proof that the areas in question do not have a substantial interest in achieving that objective at national level’ (C-281/16, Hoekschewaards Landschap / Leenheerenpolder)

Also, in case of environmental degradation of the site, when the State has duly complied with the provisions of article 6 and the site can definitely no longer contribute to the conservation goals. (C-301/12, Cascina Tre Pini)

If we have environmental degradation, only possible to declassify, if the state obliged duly

• not allowed states to deteriorate

Conservation measures – art. 6(1) HD

Art 6(1): measures corresponding to the ecological requirements of the habitats and species present in these sites (only applies to SACs – similar to art 4 BD) to achieve favourable conservation status

Must be based on conservation objectives (C-444/21), specific and precise (C-27/25 and 356/25)

• Correspond to the ecological condition to achieve the favourable status

• What is the target to be reached in light of the specificities?

• Measures concretise: protective and restoration measures to achieve these objectives

> have to be very specific and precise, otherwise it cannot be done duly by MS

Whenever a SAC is in an unfavourable conservation status, MS are expected to implement restoration measures to enable recovery (C-281/16 Hoekschewaards Landschap)

Issue: no deadline

• Might be changed soon

Measures that aim to compensate for damage to designated sights by a proposed project are not eligible as conservation measures (C-387/15 Orleans)

• Case: Expansion works, detrimental effect, but we will adopt measures that will allow for a bigger and better project

• Not a conservation measure, this is compensation measure

Preventative measures/ non (significant) deterioration – art. 6(2) HD

It covers both man-caused impairment and disturbance and measures to prevent natural developments that may cause the deterioration of the conservation status of species and habitats. (C-6/04 Commission v UK)

• Both because you both authorise activities or due to natural developments (e.g. climate change)

  • Even if natural cause you still have to prevent deterioration

  • This is based on result  if you don’t achieve it you don’t fulfil your obligation, violate it

  • Don’t even have to prove causal link and deterioration, if there is a possibility, then you are violating it

  • Preventative principle applies a very strict reading

Overgrazing by sheep (C-117/00 Commission v Ireland)

The probability / risk of significant disturbances is enough to constitute an infringement of article 6(2) (precautionary principle)

Ongoing activities (authorized prior to the designation of a SAC / or lack of AA), need to be assessed again for compliance with art 6(2) of the directive. (C-404/09 Alto Sil )

• Even revision of existing permit (Case Grune Liga Saschen C-399/14)

• Bridge case: you have to examine if you have to revoke the authorisation even tho it started being built

  • Its not relevant that you have to demolish the bridge > goes quite far

Some discretion is enjoyed in taking all appropriate steps (C-399/14)

‘The Court has previously held that national legislation including procedures for intervention by the competent authorities that were merely reactive and not also preventive disregarded the scope of the obligations stemming from Article 6(2) of the Habitats Directive. In the present case, the legislation at issue in the main proceedings allows the authorities, having regard to conservation objectives, first, to impose measures both preventive and corrective. Secondly, that legislation also includes a power of coercion, also including the possibility of adopting urgent measures’ (C-293/17 Case Cooperatie Mobilisation)

Not only measures to avoid external anthropogenic impairment and disturbance, can require positive measures to preserve and improve the state of the site (C-404/09 Commission v Spain)

Very exceptional situation: authorisation, house, becomes a protected area > not demolish the house

• In these cases there is levy, but these exceptions have to be read strictly

> Member States have flexibility in how they protect sites, but not in whether they must protect them

Appropriate Assessment – art. 6(3) HD

Plans / projects with likely significant effect to a protected site: subject to appropriate assessment in view of its conservation objectives

• Applies to all plans/ projects that may affect a protected site: both inside and outside that site!

Plans include sectoral programmatic plans (see Dutch Programmatic Plan for Nitrogen) – not policy declarations (Commission)

Can cover activities that may be licensed every year

If you are a state to authorise a project that might have significant effect at the site, you have to carry out a proper assessment

• Anyone who has an effect, even when not even close

• Case: 600km away, could likely affect the conservation objectives  assessment have to be carried out

Project? EU law concept

Definition of project under EIA directive should be taken into account (Wadden Zee)

• Project is defined by reference to the likely effects criterion!

The activity concerned is likely to have a significant effect on a protected site. This cannot be ruled out in the case of fertilising or grazing, as the resulting nitrogen deposition can adversely affect many protected habitat types. (C-293/17 Cooperatie Mobilisation for the Environment)

• no physical intervention is necessary!

Functional possibility to affect the conservation, it is a project > functional approach to what is a project

• Any kind of human activity that could likely affect the conservation acts

Additional comments by the professor: Article 1(2) of the EIA Directive: the execution of construction works or of other installations or schemes; other interventions in the natural surroundings and landscape including those involving the extraction of minerals

A renewal of a permit without any new physical intervention – not a project according to the EIA directive!

Key issues – art. 6 (3) Habitats Directive

All aspects of the project in combination with other plans and programmes (death by a thousand cuts) – which ones?

1st step: Screening

• If it cannot be excluded, on the basis of objective scientific information that the plan or project will have a significant effect on the site

  • All scientific doubt have to be excluded

  • The threshold is very high

  • Cannot suggest mitigation just because you say there will be some conservation steps

• MS cannot take into account mitigation measures at the stage of screening to avoid conducting an assessment! (C-323/17 People Over Wind)

> Only future hypothetical projects are not considered, even projects predating the site protection and the entry into force of the HD are taken into account

2nd step: there is a probability, Appropriate Assessment

• Assessment based on ‘best scientific knowledge’, up to date (C-43/10)

• No lacunae, complete, precise and definite findings (C-27/25)

• focus on the characteristics and specific enviornmental conditions of the site (C-293/17)

  • Here: integrity of the site – constitutive characteristics of the site that have to be taken into account

• ‘no reasonable scientific doubt’ may remain of the absence of significant effects on the site’s integrity (C-127/02 Wadden Zee)

MS cannot exclude categories of projects from the AA, unless they will undoubtedly not damage the site’s integrity

No quantitative thresholds (eg. threshold for critical loads) unless sound scientific evidence (C-293/17)

Cannot carry out appropriate assessment without previously having established clear and precise conservation objectives (C-27/25, see also C-441/17)

• Assess in connection to the conservation objectives, you look at the impact on the conservation objectives

  • If you haven’t established, you cannot do an appropriate assessment

  • You cannot authorise the project!

In circumstances where the conservation status of a natural habitat is unfavourable, the possibility of authorising activities which may subsequently affect the ecological situation of the sites concerned seems necessarily limited (C-293/17)

What happens if there is uncertainty about the project?

• Here: CBD doesn’t say anything, the HD says you cannot authorise, unless you use the derogation of art. 6(4)

Additional comments by the professor: Is the damage of small part affecting the integrity? Lasting and irreparable loss of the whole or part of habitat whose conservation was the objective of the designation adversely affects the integrity of the site (C-258/11 Sweetman)

In order for the integrity of the site not to be adversely affected for the purposes of the second sentence of article 6(3) of the HD, the site needs to be 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 a natural habitat type whose preservation was the objective justifying the designation of that site in the list of SCIs

> even damage to a small part of a protected site can violate Article 6(3) of the Habitats Directive if it adversely affects the site's overall integrity. Not a quantiative, but qualitative

Consultation of the public?

‘if appropriate, after having obtained the opinion of the general public’

• discretion?

• necessary when EIA and SEA required!

• CJEU read art 6(3) in conjunction with art 6(1)(b) of the Aarhus Convention – recognized NGOs have a right participate in AAs (C-243/15)

Why is participation at this stage important?

Mitigation vs. Compensation measures

Measures adopted with the purpose of compensating for the negative effects of a project on a site cannot be taken into account for the assessment of its implications under art 6(3)

Mitigation measures need to be directed at avoiding or reducing the significant adverse affects of the project – they must be adopted before the project takes place and there must be absolute certainty about their effectiveness in preventing the adverse effects on the site’s integrity! (C-521/12 Briels C-521/12 & C-387/15 Orleans)

• They need to prevent that the ecological characteristics of a site will be seriously compromised

Can conservation measures (art 6-1) or non-deterioration measures (art 6-2) be considered as mitigation in the context of art 6(3)? (C-293/17)

The IROPI derogation process under art. 6(4) HD

Exception: in spite of a negative assessment, a project/plan is allowed if:

• no alternatives are possible

• imperative reasons of overriding public interest

• For priority habitats or species: only for reasons relating to human health, public safety or the environment or further to an opinion of the Commission for other reason of IROPI

• compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected (not necessarily on the same site!)

Alternatives:

• including zero-option (no project/plan)

• the cost of these alternatives is not a decisive factor (unless disproportionately high

• weigh the advantages / disadvantages in relation to the impact on the site’s integrity: equal assessment for alternatives!

Commentary from the professor: Last resort! – Additional to normal practices of implementation of Directives – Ensure overall coherence of Natura 2000 – Compensation must be operational when damage occurs; or overcompensation for interim losses

Article 6(4) Key issues

Exception must be interpreted strictly (C-239/04 Commission v Portugal)

• burden of proof that requirements are met – MS!

Purely private interests not sufficient (C-182/10 Solvay)

• but can look into the nature, social and economic context (i.e. creation of jobs – private factory)

Weighing between intensity of negative effects and gravity of public interests – long term public interest that overrides the nature conservation objective

The damage needs to be precisely evaluated – requirement of the AA (C-304/05 Commission v Italy)

Protection of coherence =/ replacement of loss

Can only be applied when an AA has been carried out – C-293/17: the assessment of an IROPI and that of the existence of less harmful alternativess 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 must be precisely identified! (p 191)

• You cannot jump to 6(4) unless you carried out duly the assessment

The EU regulation on Nature Restoration – solving the problems?

Regulation (EU) 2024/1991 has three objectives:

• Long-term, sustained recovery of biodiverse and resilient nature.

• A contribution to EU climate mitigation and adaptation goals.

• Meeting international commitments.

There is an overarching goal of long-term recovery of nature in EU land and sea areas, with binding targets for specific habitats and species.

• The page also lists targets per ecosystem e.g. pollinators, forests, urban ect.

Terrestrial and freshwater targets (Art. 4) - example

Derogations (Art. 4(14)-(15) and Art. 5(11)-(12))

The duties of continuous improvement and non-deterioration can be set aside outside Natura 2000 sites.

• This covers terrestrial, coastal and freshwater ecosystems (Annex I) and marine ecosystems (Annex II), such as seagrass beds, maerl beds, coral and soft sediments down to 1,000 m.

• Two conditions apply:

  • The project is of overriding public interest.

  • There are no less damaging alternatives, assessed case by case

• This mirrors the IROPI logic of Art. 6(4) of the Habitats Directive, but it applies outside Natura 2000.

Renewable energy

• Renewable energy projects are presumed to be of overriding public interest. This covers plants, grid connections and related infrastructure, and energy storage.

• They may also be exempted from proving there is no less damaging alternative, if a Strategic Environmental Assessment (Directive 2001/42/EC) or an Environmental Impact Assessment (Directive 2011/92/EU) has been completed.

• The result is a simplified assessment (recital 38). This is the main tension in the Regulation: it favours renewables, which can conflict with restoration.

Besides Art. 4 (terrestrial and freshwater), each ecosystem has its own article

Procedural counterpart (Art. 14 and 15)

• Art. 14(1): Member States must prepare a National Restoration Plan. They must monitor and research to identify the necessary measures, align with the targets, and base decisions on the latest science.

• They should also consider how renewable energy projects can contribute to restoration. This aims at coherence between the NRL, Directive 2018/2001 (renewables) and Regulation 2018/1999 (energy governance), per recitals 67 and 68.

• Art. 14(9)(a) and (13): When preparing plans, Member States must do three things.

  • Coordinate with the mapping of areas for the 2030 renewable target and with the designation of renewable acceleration areas.

  • Ensure synergies with renewable and energy infrastructure projects.

  • Ensure permit procedures and grid integration projects keep functioning.

Art. 15(3)(t)(iv): Each plan must explain how its measures interact with the country’s national energy and climate plan.

Means and timeline

• Arts. 14 and 15: Member States had to submit national restoration plans, covering the measures in Arts. 4-13, by 1 September 2026. That date has now passed, so check the current status if it matters for your course.

• Art. 17: The Commission, with the European Environment Agency, assesses the plans.

• Art. 19: The Regulation is reviewed in 2032 and 2042.

Fitting the The EU regulation on Nature Restoration

EU’s answer to the weaknesses of the Birds and Habitats Directives

• Binding targets

• An ecosystem-based regime

• Restoration duty into concrete, measurable duties

• National Restoration Plans must be coordinated with renewable energy mapping and with national energy and climate plans

• Plans due 1 September 2026, assessed by the Commission (Art. 17) and reviewed in 2032 and 2042

The NRL echoes the Habitats Directive’s Art. 6 but is weaker in some places

• Non-deterioration: Art. 6(2) HD is a strict duty of result, where even a probability of significant disturbance is an infringement. The NRL’s Art. 4(12) only says Member States “shall endeavour”, which is weaker.

• Derogations: Art. 6(4) HD allows an exception only if there are no alternatives, there are imperative reasons of overriding public interest (IROPI), and compensation is provided. The Court reads this strictly, and the burden of proof is on the Member State. The NRL has a similar exception outside Natura 2000 (overriding public interest and no less damaging alternative). It also presumes renewable energy projects are of overriding public interest, and these can skip the alternatives test if an SEA or EIA has been done.

• Compensation and mitigation: The Habitats Directive case law says compensation cannot be counted as mitigation or as a conservation measure. This is the point behind your note “I’m going to improve something in the future so you can damage something now? No!”