Abstract
Natura 2000 network covers over 18 percent of the land area in the European Union. All proposals for development affecting these sites must be previously assessed for their implications for the site’s conservation objectives. In cases where it cannot be ascertained that there is no adverse effect on the integrity of a Natura 2000 site, the proposal for development can now only be approved within the scope of a derogation assessment pursuant to Article 6(4) of the Habitats Directive 92/43/EEC1 (HD). This article explores the requirements for an approval for derogation. In addition to the decisions of the European Court of Justice (ECJ)2 and the European Commission guidelines on this issue, this article focuses, in particular, on the comprehensive German Federal Administrative Court (BVerwG)3 decisions on this matter, which has had to assess a substantially greater number of cases to date, and provides a critical discussion on this in relation to the conservation aims of the Habitats Directive.
Highlights
The ecological network “Natura 2000” constitutes the common European heritage and, in 2017, covers over 27,500 sites that protect more than 789,000 km2 of the terrestrial area in the European Union (EU) and around 395,000 km2 of European marine territory
In cases where it cannot be ascertained that there is no adverse effect on the integrity of a Natura 2000 site, the proposal for development can only be approved within the scope of a derogation assessment pursuant to Article 6(4) of the Habitats Directive 92/43/EEC1 (HD)
Decisions of the BVerwG are largely responsible for this, as the court interprets the requirements for a derogating authorisation such that projects that are in the public interest are regularly permitted, if necessary after a second attempt, with improved justification and compensatory measures to ensure the overall coherence of Natura 2000
Summary
The ecological network “Natura 2000” constitutes the common European heritage and, in 2017, covers over 27,500 sites that protect more than 789,000 km of the terrestrial area in the EU (approx. 18.15%) and around 395,000 km of European marine territory. Decisions of the BVerwG are largely responsible for this, as the court interprets the requirements for a derogating authorisation such that projects that are in the public interest are regularly permitted, if necessary after a second attempt, with improved justification and compensatory measures to ensure the overall coherence of Natura 2000 This case law is highly advantageous to planning certainty and realisation of proposals for development, especially for large infrastructure projects like motorways, railway lines and airports, but associated with not insubstantial disadvantages for the Natura 2000 site in question, the entire network and the aims of the Habitats Directive and Birds Directive, in spite of the measures to ensure coherence. The potential damage to the site must be precisely identified, because the weighing up against the imperative reasons of overriding public interest, the search for less harmful alternatives and the determination of the compensatory measures require the qualitative and quantitative extent of the affects to be ascertained exactly.30 In cases where these conditions are fulfilled, the decision on the derogation can be taken at the discretion of the responsible authority.. Due to Article 6(4) HD it must be differentiated hereafter between sites with and without priority habitat types and species
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