Abstract
This article investigates the question of how the significance of potential adverse effects on Natura 2000 sites – comprising sites of Community importance (SCI) and special protection areas (SPA) – can be determined legally and methodologically within the scope of appropriate assessments for projects and plans in accordance with Article 6(3) of the Habitats Directive 92/43/EEC1 (HD) and whether the results can be transferred to the prohibition of disturbance and deterioration stipulated in Article 6(2) HD. The assessment of significance is important as, according to the European Court of Justice (ECJ)2 and the German Federal Administrative Court (BVerwG)3, a project or plan is only permissible if, in the light of the best scientific knowledge in the field and without reasonable scientific doubt, the plan or project will not have lasting significant adverse effects on the integrity of that site. In this process, all aspects of the plan or project have to be identified which may, either independently or in combination with other plans or projects, affect the conservation objectives of the site concerned. This also includes a specialist forecast. Furthermore, closer specification is required of the threshold above which a non-significant adverse effect turns into a significant adverse effect and whether thresholds for bagatelles can be attributed to the proposed development.
Highlights
In Article 6, the Habitats Directive prescribes a protective system for Natura 2000 sites that demands both developmental and management measures of European Union (EU) Member States, as well as measures to guard against deterioration and disturbance
This article investigates the question of how the significance of potential adverse effects on Natura 2000 sites – comprising sites of Community importance (SCI) and special protection areas (SPA) – can be determined legally and methodologically within the scope of appropriate assessments for projects and plans in accordance with Article 6(3) of the Habitats Directive 92/43/EEC1 (HD) and whether the results can be transferred to the prohibition of disturbance and deterioration stipulated in Article 6(2) HD
If these are exceeded by a project or by the numerous adverse effects that are already present within the site and further foreseeable additional natural and anthropogenic impacts, a significant adverse effect is present and the proposed development can only be authorised based on a derogating decision in accordance with Article 6(4) HD
Summary
In Article 6, the Habitats Directive prescribes a protective system for Natura 2000 sites that demands both developmental and management measures (paragraph 1) of EU Member States, as well as measures to guard against deterioration and disturbance (paragraph 2) It requires an appropriate assessment for any project and plan that relates to its implications for a Natura 2000 site, in view of the site’s conservation objectives (paragraph 3).. Pursuant to Article 193 of the Treaty on the Functioning of the European Union (TFEU), they are only permitted to increase the level of protection.8 Both the appropriate assessment and the prohibition of disturbance are dependent on the determination of whether or not an adverse effect or disturbance is significant. 7 cf. the explanations in Möckel Nature Conservation 2017a. 8 ECJ, adjudication of 21.7.2011 – C-2/10, margin number 48–58. 9 cf. Möckel Nature Conservation 2017b; Therivel Environmental Impact Assessment Review 2009, 261 (265) for plans. more detailed in Möckel Nature Conservation 2017b. ECJ, adjudication of 11.4.2013 – C-258/11, margin number 48
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