Managing Natura 2000 sites

The provisions of Article 6 of the Habitats Directive 92/43/EEC

(2019/C 33/01)

CONTENTS

FOREWORD 4

1. Introduction 5

1.1. Place within the overall scheme of the Habitats Directive and the Birds Directive as well as within a wider context 5

1.2. Relation with Protection of Species Chapter 7

1.3. Putting article 6 into national law: the duty of transposition 7

1.4. Time of application of article 6: From which date do the obligations of article 6 apply? 8

1.4.1. Special Protection Areas under the Birds Directive 8

1.4.2. Sites under the Habitats Directive 9

2. Article 6(1) 10

2.1. Text 10

2.2. Scope 10

2.3. What should be the content of the ‘necessary conservation measures’? 11

2.3.1. Setting site-level conservation objectives 11

2.3.2. Establishing the necessary conservation measures 13

2.3.3. The ecological requirements 14

2.4. What form can the necessary conservation measures take? 15

2.4.1. Management plans 15

2.4.2. Statutory, administrative or contractual measures 16

3. Article 6(2) 17

3.1. Text 17

3.2. Scope 17

3.3. What does ‘take appropriate steps to avoid…’ mean? 19

3.4. Does implementation differ for deterioration and disturbance? 20

3.5. Indicators of deterioration and disturbance 20

3.5.1. Deterioration of habitat types and habitats of species 21

3.5.2. Disturbance of species 22

4. Article 6(3) 22

4.1. Text 22

4.2. Scope 23

4.3. The relationship between Article 6(2) and Article 6(3) 23

4.4. What is meant by ‘plan or project not directly connected with or necessary to the management of the site’? 24

4.4.1. Project 25

4.4.2. Plan 25

4.4.3. Not directly connected with or necessary to the management … 26

4.5. How to determine whether a plan or project is ‘likely to have a significant effect’ on a site, ‘either individually or in combination with other plans or projects’? 27

4.5.1. Likely to have… 27

4.5.2. Significant effect 29

4.5.3. … either individually or in combination with other plans or projects 29

4.6. What is meant by ‘appropriate assessment of its implications for the site in view of the site’s conservation objectives’? 30

4.6.1. What is meant by an ‘appropriate’ assessment? 30

4.6.2. Content of the appropriate assessment 32

4.6.3. … in view of the site’s conservation objectives 33

4.6.4. The concept of the ‘Integrity of the site’ 33

4.6.5. Assessing the implications for the site 34

4.6.6. Considering suitable mitigation measures to avoid or reduce the impacts 35

4.7. Decision making 36

4.7.1. The ‘competent national authorities’ 36

4.7.2. When is it appropriate to obtain the opinion of the general public? 37

4.7.3. Making a decision on the basis of the appropriate assessment 37

5. Article 6(4) 38

5.1. Text 38

5.2. Scope 38

5.3. Initial considerations 39

5.3.1. Examining alternative solutions 39

5.3.2. Examining imperative reasons of overriding public interest 40

5.4. Adopting compensatory measures 42

5.4.1. What is meant by ‘compensatory measures’ and when should they be considered? 42

5.4.2. ‘Overall coherence’ of the Natura 2000 network 43

5.4.3. Objective and general content of compensatory measures 44

5.4.4. Key elements to consider in the compensation measures 46

5.5. Criteria for designing compensatory measures 46

5.5.1. Targeted compensation 46

5.5.2. Effective compensation 47

5.5.3. Technical feasibility 47

5.5.4. Extent of compensation 48

5.5.5. Location of compensatory measures 48

5.5.6. Timing of compensation 49

5.5.7. Long term implementation 49

5.6. Who bears the cost of the compensation measures? 50

5.7. Informing the Commission of the compensatory measures 50

5.8. What happens with sites hosting priority habitats and/or species? 51

5.8.1. The sites concerned 51

5.8.2. The concepts of ‘human health’, ‘public safety’ and ‘primary beneficial consequences for the environment’ 51

5.8.3. The adoption of Commission’s opinion and its consequences 52

Annex I Comparison of procedures under Appropriate Assessment and EIA/SEA 53

Annex II Consideration of plans and projects affecting Natura 2000 sites 56

Annex III Form for submission of information to the European Commission according to Article 6(4) 57

FOREWORD

PURPOSE AND NATURE OF THIS DOCUMENT

Article 6 of the Habitats Directive (92/43/EEC) plays a crucial role in the management of the sites that make up the Natura 2000 network. With the spirit of integration in mind, it indicates the various tasks involved so that the nature conservation interests of the sites can be safeguarded.

This document aims at providing guidelines to the Member States on the interpretation of certain key concepts used in Article 6 of the Habitats Directive.

In the framework of the Action Plan for nature, people and the economy (1), the Commission has committed to ‘update the interpretative guidance document on provisions of Article 6 of the Habitats Directive on the conservation and management of Natura 2000’. This document replaces therefore the original version of this document that was issued in April 2000 (2).

The present update incorporates the large body of rulings that have been issued by the Court of Justice of the EU over the years on Article 6 (3). It also builds on a series of Commission notes addressing Natura 2000 management, as well as other relevant Commission guidance documents on Article 6 that should be read in conjunction with this one (4).

The primary targets of the document are Member State authorities. It is however expected to also facilitate the understanding of the mechanics of the Habitats Directive amongst anyone involved in the management of Natura 2000 sites and in the Article 6 permit procedure.

The document has been drafted following consultations with the nature protection authorities of the Member States and stakeholders. It is intended to assist Member State authorities, as well as anyone involved in the management of Natura 2000 sites and in the Article 6 permit procedure, in the application of the Habitat Directive. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law.

The interpretations provided by the Commission cannot go beyond the Directive. This is particularly true for this directive as it enshrines the subsidiarity principle and as such lets a large margin of manoeuvre to the Member States for the practical implementation of specific measures related to the various sites of the Natura 2000 network. In any case, the Member States are free to choose the appropriate way they wish to implement the practical measures provided the latter achieve the results of the Directive.

However interpretative, this document is not intended to give absolute answers to site specific questions. Such matters should be dealt with on a case-by-case basis, while bearing in mind the orientations provided in this document.

STRUCTURE OF THE DOCUMENT

After an introductory note on the overall content and logic of Article 6, there follows a detailed presentation of each paragraph (6(1), 6(2), 6(3), 6(4)) according to the same general structure. This involves an introduction to the paragraph and its scope, and then discussion of the main concepts and issues raised, on the basis of the Commission’s knowledge, existing jurisprudence of the Court of Justice of the EU, and other EU legislation, where relevant.

To allow for a speedy reading of the relevant conclusions, the key points arising from the Commission’s analyses are summarised (in bold characters) at the end of each section.

1. INTRODUCTION

Article 6 in Context

1.1. PLACE WITHIN THE OVERALL SCHEME OF THE HABITATS DIRECTIVE AND THE BIRDS DIRECTIVE AS WELL AS WITHIN A WIDER CONTEXT

Before addressing Article 6 in detail, it is worth recalling its place within the overall scheme of Directive 92/43/EEC (5) (hereinafter referred to as the Habitats Directive) as well as that of Directive 2009/147/EC (6) (hereinafter referred to as the Birds Directive) and its relationship with a wider legal context.

The first chapter of the Habitats Directive, comprising Articles 1 and 2, is entitled ‘Definitions’. It sets out the aim of the Directive which is to ‘contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies’ (7). It also provides a general orientation for the implementation of the Directive, referring to the need for all measures taken pursuant to it to be designed to maintain or restore certain habitats and species ‘at favourable conservation status’ (8), while, at the same time, referring to the need for measures taken pursuant to the Directive to ‘take account of economic, social and cultural requirements and regional and local characteristics’ (9).

The main specific requirements of the Habitats Directive are grouped under the two subsequent chapters. The first is entitled ‘Conservation of natural habitats and habitats of species’ and comprises Articles 3 to 11. The second is entitled ‘Protection of Species’ and comprises Articles 12 to 16.

The ‘Conservation of natural habitats and habitats of species’ chapter addresses the establishment and conservation of sites designated for habitat types and species of Community interest listed in Annexes I and II to the Directive. These sites, along with sites classified under the Birds Directive, form the Natura 2000 network (Article 3(1)). Within this chapter, Article 6 contains provisions which govern the conservation and management of Natura 2000 sites. Seen in this context, Article 6 is one of the most important of the 24 articles of the Directive, being the one which most determines the relationship between conservation and other socioeconomic activities.

The article has three main sets of provisions. Article 6(1) deals with the establishment of the necessary conservation measures, and focuses on positive and proactive measures to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status. Article 6(2) makes provision for avoidance of habitat deterioration and significant species disturbance. Its emphasis is therefore preventive. Article 6(3) and (4) set out a series of procedural and substantive safeguards governing plans and projects likely to have a significant effect on a Natura 2000 site.

Within this structure, it can be seen that there is a distinction between Article 6(1) and (2) which define a general regime and Article 6(3) and (4) which define a procedure applying to specific circumstances.

Considered globally, the provisions of Article 6 reflect the general approach set out in Article 2 and the recitals of the Directive. This involves the need to promote biodiversity by maintaining or restoring certain habitats and species at ‘favourable conservation status’ across their natural range within the EU, while taking into account economic, social, cultural and regional requirements, as a means of achieving sustainable development.

Apart from the place of Article 6 within the overall scheme of the Habitats Directive, it is also relevant to mention its relationship with the scheme of the Birds Directive:

— Firstly, the scheme of the Birds Directive is broadly comparable with that of the Habitats Directive. In particular, the ‘Conservation of natural habitats and habitats of species’ chapter of the Habitats Directive is analogous to Articles 3 and 4 of the Birds Directive.

— Secondly, there has been an important degree of merger or fusion between the schemes of both Directives. First, Special Protection Areas (SPAs) classified under the Birds Directive are now an integral part of the Natura 2000 network (10). Second, the provisions of Article 6(2), (3) and (4) of the Habitats Directive have been made applicable to SPAs (11).

Article 6 is also to be considered within the broader framework of the EU Biodiversity policy (12) and is crucial for the achievements of its targets. The implementation of Article 6 can also benefit from other actions undertaken in that context. In particular, work undertaken to measure ecosystem condition under the Mapping and Assessment of Ecosystems and their Services (MAES) (13) provides useful and relevant guidance, including sector-specific, on addressing issues such as measuring and assessing the condition of ecosystem types corresponding to the broad habitat types under the Habitats Directive; measuring pressures on ecosystems; quantifying ecological requirements as well as deterioration and ecological integrity of sites.

Seen in a wider context — that of the Treaty on European Union — Article 6 can be regarded as a key framework to give effect to the principle of integration since it encourages Member States to manage the Natura 2000 sites in a sustainable way and it sets the limits of activities which can impact negatively on protected areas while allowing some derogations in specific circumstances. Measures under Article 6 may also benefit from synergies with other relevant EU environmental policies such as on water, marine or fisheries.

Measures under Article 6 of the Habitats Directive may require the adoption of measures falling under the Common Fisheries Policy (Regulation (EU) No 1380/2013. In particular, the provisions under article 11 of the CFP on the conservation measures necessary for compliance with obligations under Union environmental legislation could apply; these provisions are clarified in the Commission Staff Working Document ‘on the establishment of conservation measures under the Common Fisheries Policy for Natura 2000 sites and for the Marine Strategy Framework Directive purposes’ (SWD(2018) 288 final). The Commission has already adopted several delegated acts pursuant to Article 11 of the CFP (available at https://ec.europa.eu/fisheries/cfp/fishing_rules_en).

Seen in an international context, Article 6 helps achieve the aims of relevant international nature conservation conventions such as the Bern Convention (14) and the Convention on Biological Diversity (15), while at the same time creating a more detailed framework for site conservation and protection than these conventions themselves do.

Article 6 is a key part of the chapter of the Habitats Directive entitled ‘Conservation of natural habitats and habitats of species’. It provides the framework for site conservation and protection, and includes proactive, preventive and procedural requirements. It concerns Special Protection Areas classified under the Birds Directive as well as sites designated under the Habitats Directive. The framework is a key means of supporting the overall objectives of the two directives and achieving the objectives of the EU biodiversity policy and the principle of environmental integration into other EU policies and ultimately sustainable development.

1.2. RELATION WITH PROTECTION OF SPECIES CHAPTER

As mentioned above, the chapter of the Habitats Directive entitled ‘Protection of Species’ covers Articles 12 to 16 and deals with strictly protected animal and plant species listed in Annex IV of the Directive (16), as well those in need of special management measures, as listed in Annex V.

Articles 12, 13 and 14 cover certain plant and animal species which may also feature in Annex II of the Directive, and which therefore also benefit from the provisions of Article 6 within the Natura 2000 sites hosting them (17). As a result, an activity may at the same time fall within the scope of both chapters.

For example, the destruction of a resting place of the brown bear, Ursus arctos, may contravene the prohibition in Article 12(1)(d), while also running counter to Article 6 if the resting place is within a Natura 2000 site designated for the species.

While this may appear to result in duplication, the following points should be noted:

— Firstly, certain species of plants or animals covered by Articles 12, 13 and 14 do not appear in Annex II. Thus, they do not benefit directly from site conservation and protection within Natura 2000.

— Secondly, for vulnerable species, such as large carnivores which benefit from both the chapter on conservation of natural habitats and habitats of species and the chapter on protection of species, the protection afforded to them by Article 6 is limited to sites within the Natura 2000 network, whereas the protection afforded by the chapter on protection of species is not limited to sites. Thus, Article 6 is concerned with the conservation and protection of sites designated for the species within the Natura 2000 network, whereas the chapter on protection of species targets the species throughout their natural range within the EU (including specific areas outside Natura 2000 where the species occur, in particular breeding sites and resting places for these animals).

While certain plant and animal species benefit from both the chapter on conservation of natural habitats and habitats of species and the chapter on protection of species, the scope and the nature of the relevant provisions are different.

1.3. PUTTING ARTICLE 6 INTO NATIONAL LAW: THE DUTY OF TRANSPOSITION

It is important to note that the provisions of Article 6 require transposition into national law (i.e. they need to be the subject of provisions of national law giving effect to their requirements). In this respect, they are covered by Article 23 of the Directive which states that ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within two years of its notification’. Depending on the Member State the deadline for transposition was 10 June 1994 or the date of EU accession.

This reflects the type of legal instrument that has been used, namely a directive. A directive is binding as to the result to be achieved, but leaves a Member State the choice as to the form and methods of achieving that result.

Settled case law clarifies that transposition must be clear and precise, faithful and with unquestionable binding force (see Court of Justice of the EU (hereinafter: Court) Cases C-363/85, C-361/88, C-159/99 paragraph 32, C-415/01 paragraph 21, C-58/02, C-6/04 paragraphs 21, 25, 26, C-508/04 paragraph 80) (18).

Depending on the Member State concerned, Article 6 needed to be transposed into national law by 10 June 1994 for the first 12 Member States or the date of EU accession for the others.

1.4. TIME OF APPLICATION OF ARTICLE 6: FROM WHICH DATE DO THE OBLIGATIONS OF ARTICLE 6 APPLY?

In general, a distinction needs to be made between the deadline for transposition of the provisions of Article 6 into national law and the date from which these provisions apply to individual sites.

As regards individual sites, a distinction needs to be drawn between Special Protection Areas classified under Birds Directive and other sites — Sites of Community Importance (SCIs) and Special Areas of Conservation (SACs) — under the Habitats Directive.

1.4.1. Special Protection Areas under the Birds Directive

The protection requirements regarding Special Protection Areas (SPAs) are given in Article 4(4), first sentence of the Birds Directive which provides that, for those areas,‘… 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…’

After the entry into force of the Habitats Directive the above obligations are replaced pursuant to Article 7 of that Directive which provides as follows:

‘Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of Directive 79/409/EEC in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC, where the latter date is later.’

Thus, the provisions of Article 6(1) do not apply to Special Protection Areas (SPAs). However, analogous provisions apply to SPAs by virtue of Article 3 and 4(1) and (2) of the Birds Directive. The date from which these similar provisions should in principle apply to SPAs is the date from which the Birds Directive became applicable in the Member States (cases C-355/90 Commission v Spain ‘Santoña Marshes’, C-166/97 Commission v France ‘Seine Estuary’).

As regards the provisions of Article 6(2), (3) and (4), it is clear from the terms of Article 7 that these apply to SPAs already classified at the time of entry into force of the Habitats Directive. However, given the wording of Article 7, a question arises as to whether the provisions of Article 4(4), first sentence of the Birds Directive remain applicable after the ‘date of implementation of this Directive’ (10 June 1994 for the then Member States and the date of accession for later Member States) for sites that should have been classified as SPAs but have not been so classified.

In the Santoña Marshes case (C-355/90 paragraph 22) the Court established that Article 4(4) first sentence of the Birds Directive was applicable to an unclassified site which should have been classified as an SPA from the date of implementation of the Birds Directive (i.e. 7 April 1981 for the then Member States and the date of accession for later Member States).

According to the Basses Corbières case (C-374/98 paragraphs 43 — 57; see also C-141/14), areas which have not been classified as SPAs but should have been so classified continue to fall under the regime governed by the first sentence of Article 4(4) of the Birds Directive, which is stricter than that of Article 6(2) to (4) of the Habitats Directive because it does not provide for derogation. The duality of the regimes gives Member States an incentive to carry out classifications, in so far as this enables them to use a procedure which allows them, for imperative reasons of overriding public interest, including those of a social or economic nature, and subject to certain conditions, to adopt plans or projects adversely affecting an SPA.

Article 6(1) of the Habitats Directive does not apply to SPAs. However, there are analogous provisions in Articles 3, 4(1) and 4(2) of the Birds Directive and these apply from the date of implementation of that Directive. As regards the date of application of Article 6(2), (3) and (4) of the Habitats Directive to SPAs, these apply to all sites classified as SPAs following Article 4(1) and 4(2) of the Birds Directive from the date of implementation of the Habitats Directive. Sites that have not been classified as SPAs but should have been so classified continue to fall under the protection regime of the first sentence of Article 4(4) of the Birds Directive which is stricter than the provisions of Article 6(2) to (4) of the Habitats Directive.

1.4.2. Sites under the Habitats Directive

Article 6(1) applies to SACs. According to Article 4(4) of the Directive, SACs come into being when Member States designate them as such. This can happen only after a site has been adopted as an SCI in accordance with Article 4(2) of the Directive. An SCI must be designated as an SAC ‘as soon as possible and within six years at the most’.

The designation of an SCI as an SAC effectively triggers the implementation of Article 6(1) since all the other measures under Article 6 — including the duty to prevent further deterioration (Articles 6(2), (3) and (4)) — already apply to SCIs before they are designated as SACs.

Article 4(5) of the Habitats Directive provides as follows:

‘As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article 6(2), (3) and (4).’

Thus, in contrast to the provisions of Article 6(1) which apply only when an SCI has been designated as an SAC, the provisions of Article 6(2), (3) and (4) become applicable as soon as a site becomes an SCI (i.e., before it is designated as an SAC). Article 6(1) also applies to SCIs for which the six-year period has expired and which have not yet been designated as SAC in breach of Article 4(4). In other terms, the obligation to establish the necessary conservation measures applies at the latest by the time the six-year period has expired.

The Commission Decisions that approve the SCIs clearly state that: …it should be stressed that the obligations resulting from Articles 4(4) and 6(1) of Directive 92/43/EEC are applicable as soon as possible and within six years at most from the adoption of the initial or updated lists of sites of Community importance for the biogeographical region, depending on which list a site of Community importance was included as such for the first time.

This means the six-year period starts running from the date on which the site was first included in the Commission Decision. If later on, subsequent decisions adjust some of the details of the site, this should not be used as an excuse to postpone the SAC designation. These new adjustments will however need to be incorporated into the SAC designation process and taken into account when establishing the necessary conservation measures.

In the Draggagi case (C-117/03 paragraph 29) the Court ruled that ‘in the case of sites eligible for identification as sites of Community importance that are mentioned on the national lists transmitted to the Commission and may include in particular sites hosting priority natural habitat types or priority species, the Member States are, by virtue of the Directive, required to take protective measures appropriate for the purpose of safeguarding that ecological interest’.

In the Bund Naturschutz case (C-244/05 paragraph 47) the Court further ruled that ‘the appropriate protection scheme applicable to the sites which appear on a national list transmitted to the Commission under Article 4(1) of the Directive requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites’.

In the light of the foregoing, Member State authorities must ensure that sites on their national list of proposed SCIs are not allowed to deteriorate and are protected for the purpose of safeguarding their ecological interest even before the Union list of SCIs is adopted. Where the national list remains incomplete, Member States are also advised to safeguard the ecological interest of sites that, according to scientific evidence based on the criteria in Annex III to the Habitats Directive, should be on the national list. To that effect one practical suggestion is to use properly the environmental impact assessment (EIA) process under Directive 2011/92/EU (19) for projects with likely significant effects on the environment (in so far as they are covered by that Directive). The Court has already confirmed the importance that should be attached to sensitive natural sites when deciding whether projects should undergo an EIA under that directive (C-392/96 paragraph 66).

The above considerations can be summarised in the following table:

Site status Proposed SCI SCI SAC SPA Sites that should have been classified as SPA Article 6(1) Optional Optional (obligatory if the six-year period has expired) Obligatory Not applicable but analogous provisions in Articles 3, 4(1) and 4(2) of the Birds Directive apply. Not applicable. Article 6(2), (3) and (4) Optional, but Member States must take protective measures that are appropriate for the purpose of safeguarding the ecological interest of the sites (20). Obligatory Obligatory Obligatory Not applicable but these sites continue to fall under the protection regime of the first sentence of Article 4(4) of the Birds Directive.

Articles 6(2), (3) and (4) apply to SCIs and SACs under the Habitats Directive. Article 6(1) applies to SACs under the Habitats Directive. They do not apply to sites which are on a national list transmitted to the Commission under Article 4(1) of the Directive. Member States must nevertheless take protective measures that are appropriate to safeguard the ecological interest of those sites. This includes not authorising interventions which incur the risk of seriously compromising the ecological characteristics of those sites. Where a complete national list has not been submitted, Member States are advised to take a similar approach for sites which, on the basis of the scientific criteria in the Directive, clearly ought to be on the national list.

2. ARTICLE 6(1)

Clarification of the concepts of necessary conservation measures; conservation objectives; ecological requirements; management plans; and statutory, administrative or contractual measures

2.1. TEXT

‘For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.’

2.2. SCOPE

Article 6(1) lays down a general conservation regime which has to be established by the Member States for all Special Areas of Conservation (SAC).

Article 6(1):

— provides for positive conservation measures, involving, if need be, management plans, and statutory, administrative or contractual measures, which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the site. In that regard, Article 6(1) is distinguished from the three other paragraphs of Article 6 which provide for preventive measures to avoid deterioration, disturbance and significant effects in the Natura 2000 sites;

— has a value of reference for the logic and the overall understanding of Article 6 and its three other paragraphs;

— establishes a general conservation regime which applies to all SACs in the Natura 2000 network without exception and to all the natural habitat types in Annex I and the species in Annex II present on the sites, except for those identified as non-significant in the Natura 2000 Standard Data Form (SDF) (21);

— concerns the SACs specifically: Article 6(1) does not apply to the Special Protection Areas (SPAs), unlike Article 6, paragraphs 2, 3 and 4. In this way, the legislator established: — a regime laying down ‘special conservation measures’ for the SPAs classified under the Birds Directive, according to its Articles 3 and 4, paragraphs 1 and 2; — a regime laying down ‘necessary conservation measures’ for the SACs designated under the Habitats Directive, according to its Article 6(1);

— also applies to SCI for which the six years period has expired and which have not yet been designated as SAC in breach of Article 4(4). In other terms, the obligation to establish the necessary conservation measures applies at the latest by the time the six years period has expired;

— relates to Article 1(a), which defines conservation measures as a series of measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status;

— relates to Article 2(2), which establishes that measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest;

— relates to Article 2(3), which specifies that the measures must take account of economic, social and cultural requirements and regional and local characteristics.

For all the SACs, Member States are required to draw up conservation measures and adopt appropriate statutory, administrative or contractual measures. These measures must be established within six years from the adoption of Union lists of Sites of Community Importance (SCIs) at the latest. These measures are positive and site-specific; they apply to all the natural habitat types in Annex I and the species in Annex II present on the sites, except those whose presence is non-significant according to the Natura 2000 Standard Data Form. They aim to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest; and they take into account economic, social and cultural requirements and regional and local characteristics.

2.3. WHAT SHOULD BE THE CONTENT OF THE ‘NECESSARY CONSERVATION MEASURES’?

2.3.1. Setting site-level conservation objectives (22)

There are several references to the term ‘conservation objectives’ in the preamble of the Directive as well as an explicit mention of it in Article 6(3). The need for such a concept is also underlined by Articles 4(4) and 6(1) of the Directive. It is useful therefore to examine what is meant by ‘conservation objectives’ and how it relates to establishing the necessary conservation measures for SACs under Article 6(1).

Article 1 states that for the purpose of the Directive ‘Conservation means a series of measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status…’.

As stated in Article 2 the overall aim of the Habitats Directive is to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora. The measures taken under the Directive seek to are with a view to ensuring that the species and habitat types covered achieve ‘favourable conservation status’, i.e. that their long-term survival is secured across their entire natural range within the EU.

Whereas each site shall contribute to the attainment of favourable conservation status (FCS) this overall objective can only be defined and achieved at the level of the natural range of a species or a habitat type (see Article 1(e) and (i) of the Directive). A broad conservation objective aiming at achieving FCS can therefore only be considered at an appropriate level, such as for example the national, biogeographical or European level.

However, the general objective of achieving FCS for all habitat types and species listed in Annexes I and II to the Habitats Directive needs to be translated into site-level conservation objectives. It is important to distinguish between conservation objectives of individual sites and the overall objective of achieving FCS.

Site-level conservation objectives are a set of specified objectives to be met in a site in order to make sure that the site contributes in the best possible way to achieving FCS at the appropriate level (taking into account the natural range of the respective species or habitat types).

Site-level conservation objectives should be established not only for special areas of conservation (SACs) under the Habitats Directive but also for Special Protection Areas (SPAs) under the Birds Directive with a view to achieving the requirements as set out in Articles 2, 3, 4(1), 4(2) and 4(4) of that Directive.

In principle, site-level conservation objectives should be set for all species and habitat types of Community interest under the Habitats Directive and for bird species in Annex I of the Birds Directive or regularly occurring migratory bird species, which are significantly present on the site. However, it is not necessary to establish specific conservation objectives or conservation measures for species or habitat types whose presence on the site is non-significant according to the Natura 2000 SDF (23).

Site-level conservation objectives should be based on the ecological requirements of these natural habitat types and species present on the site (see below at section 2.3.3) and should define their desired conservation condition on the site. They should reflect the importance of the site for the maintenance or restoration of the habitat types and species present on the site and for the coherence of Natura 2000. Moreover, they should reflect the threats of degradation or destruction to which the habitats and species on the site are exposed, including those brought about by climate change.

Site-level conservation objectives should define the desired conservation condition of the species and habitat types on the site for maximising its contribution to achieving FCS at the appropriate level. They are sometimes defined as a set of targets to be achieved over a certain period of time. These targets should be established in function of the conservation assessment of each species and habitat type on the site as recorded in the SDF.

Conservation objectives may reflect priorities within a site. In case C-241/08, the Court concluded that ‘…determining the conservation and restoration objectives in the context of Natura 2000 may require, as the Advocate General pointed out in point 71 of her Opinion, the reconciliation of various conflicting objectives.’

It is important to distinguish clearly between objectives and measures. For example, conservation objectives can be expected to be reasonably stable over time — indeed, in most cases they need to be long-term aims. Meanwhile, the conservation measures required to achieve those objectives are likely to change, including in response to changing patterns of threats to sites and, of course, the hopefully positive effects of conservation measures already taken.

Once the conservation objectives have been defined for a Natura 2000 site, there is some flexibility in defining and establishing the conservation measures. Several options can be considered, (using a choice of administrative, contractual or statutory measures), which take into account other socioeconomic activities in the sites.

Examples of site-level conservation objectives 1. Site x has been designated in view of its importance for the habitat type: semi-natural grasslands (6210). According to the SDF, the habitat type has a poor conservation condition (marked as class C in the SDF). The conservation objective for this site may therefore have been set to improve the conservation of the habitat type to class A — excellent — within 10 years, considering that the habitat type has a very unfavourable conservation status within the region. The necessary conservation measures established under Article 6(1) have been designed to achieve that objective. 2. Site y has been designated because it harbours a large area of active raised bog (7110). According to the SDF, the habitat type is in excellent condition (marked as class A in the SDF). The conservation objective for that site has therefore been set simply to maintain this condition, even though the habitat types has an unfavourable conservation status within the region. No conservation measures have been established under Article 6(1) since the site does not require any active management measures to maintain this condition. In principle conservation objectives should be set for each site and for all species and habitat types significantly present on each site. They should be based on the ecological requirements of the species and habitats present and should define the desired conservation condition of these species and habitat types on the site. They should be established in function of the conservation assessment of each species and habitat type as recorded in the Standard Data Form. The conservation objectives should also reflect the importance of the site for the coherence of Natura 2000 so that each site contributes in the best possible way to achieving FCS at the appropriate geographical level within the natural range of the respective species or habitat types.

2.3.2. Establishing the necessary conservation measures (24)

Conservation measures are the actual mechanisms and actions to be put in place for a Natura 2000 site with the aim of achieving the site’s conservation objectives and addressing the pressures and threats that the species and habitats within the site face.

According to Article 6(1) ‘Member States shall establish the necessary conservation measures’ which correspond to the ecological requirements of the habitats and species of Community interest present. This should be understood as meaning that all necessary conservation measures must be taken .

This is confirmed by the Court which has ruled that ‘the Directive requires the adoption of necessary conservation measures, a fact which excludes any discretion in this regard on the part of the Member States and restricts any latitude of the national authorities when laying down the rules or taking decisions to the means to be applied and the technical choices to be made in connection with those measures. By means of the words used in Article 6(1) of the Directive, the Community legislature sought to impose on the Member States the obligation to take the necessary conservation measures that correspond to the ecological requirements of the natural habitat types and species covered by Annex I and Annex II to the Directive respectively’ (case C-508/04 paragraphs 76, 87).

Furthermore the Court has ruled that ‘Article 6(1) of the Habitats Directive and Article 4(1) and (2) of the Birds Directive require, if those provisions are not to be rendered redundant, that the conservation measures necessary for maintaining a favourable conservation status of the protected habitats and species within the site concerned not only be adopted, but also, and above all, be actually implemented ’ (case C-441/17 paragraph 213).

The obligation is to establish the necessary conservation measures, irrespective of whether those measures are applied within individual sites, or even in some cases outside the boundaries of sites or across multiple sites. In some cases it may be that a significant component of a Member State’s compliance with Article 6(1) is through measures of a broader scope which nevertheless contribute to site-specific conservation objectives and are adapted to the ecological requirements of protected habitats and species in the SAC. This may be particularly relevant to marine sites where, for example, wider regulation of fisheries activities (25) may be a significant element of Article 6(1) compliance.

Key elements to consider in establishing the necessary conservation measures (26) Sound knowledge base on the existing conditions in the site, on the species and habitats status and the main pressures and threats that can affect them, the existing land uses and stakeholders interests, etc. This information should include the precise location of key natural features (habitat types and species); the main land uses and activities that can influence the conservation status of relevant habitats and species; the identification of all relevant stakeholders that need to be involved or consulted in the management planning process; potential conflicts and possible ways and means to solve them. Participation, consultation and communication in planning and preparing the conservation management of a Natura 2000 site allows to take into account the views of the people that live and work or use the site and to ensure engagement of the different stakeholders in the management of the site, so that the likelihood of success is enhanced. Participation can be carried out throughout the process of management planning, starting with early consultation and involvement of stakeholders to inform about the conservation objectives of the site and its importance and to clarify the steps for proper management. This can be done for example through steering groups or committees involving local authorities and representatives of land owners, users and main operators in the Natura 2000 site. It requires efficient organization of the process, collaboration of different policy levels, sufficient staff and budget and effective communication tools; targeted training and effective conflict resolution methods, as well as facilitation of the whole process by a specifically appointed ‘site champion’, can also be of great added value. Defining the necessary conservation measures with sufficient level of detail (who does what, when and how) facilitates their implementation and can prevent possible conflicts. The measures must be realistic, quantified, manageable and clearly formulated, drawing on an appropriate level of technical expertise which identifies essential measures and those for which there are various alternative options for implementation, adapted to local interests. The precise location and a description of the means and tools required for their implementation should be provided, e.g. through a work plan flexible enough to allow its review and adaptation as required. It is important also to set a timeline to review the implementation of conservation measures taken, their suitability and the progress towards achieving conservation objectives. The necessary resources for implementation of the conservation measures need to be considered in any management instrument for Natura 2000 sites, including information about estimated costs for implementation and monitoring, administration, compensation payments, etc., as well as about required human resources and skills, and possible financial instruments. Accordingly, full regard is needed to the multiple benefits that flow from investing in Natura 2000 through their ecosystem services. The various socioeconomic activities and their interactions with the natural environment should also be analysed to determine possible costs and benefits arising out of the site management and the actual need for financial support. Effective implementation and communication needs to be ensured through a mechanism demonstrating that the necessary measures are not just established but also actually implemented, and by making them publicly available (e.g. on websites or official registers) as a source of information for all those concerned.

Article 6(1) of the Habitats Directive imposes an obligation to establish and implement the necessary conservation measures that correspond to the ecological requirements of the natural habitat types and species covered by Annex I and Annex II, a fact that excludes any discretion in this regard on the part of the Member States.

2.3.3. The ecological requirements

Article 6(1) specifies that the necessary conservation measures have to correspond ‘to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites’. It is therefore in relation to the ecological requirements of the natural habitat types and the species that Member States have to determine the conservation measures.

Although the Directive does not contain any definition of the ‘ecological requirements’, the purpose and context of Article 6(1) indicate that these involve all the ecological needs, including both abiotic and biotic factors, which are deemed necessary to ensure the conservation of the habitat types and species, including their relations with the physical environment (air, water, soil, vegetation, etc.) (27).

These requirements are based on scientific knowledge and can only be defined on a case-by-case basis, according to the natural habitat types in Annex I, the species in Annex II, and the sites which host them. Such knowledge is essential to make it possible to draw up the conservation measures, on a case-by-case basis.

The ecological requirements may vary from one species to another but also, for the same species, from one site to another. Thus, for the bats included in Annex II to the Directive, the ecological requirements differ between the period of hibernation (when they rest in underground environments, in hollow shafts or in dwellings) and the active period, from spring onwards (during which they leave their winter quarters and resume their activities of insect hunting). For the Annex II amphibian Triturus cristatus, the ecological requirements vary during its life cycle. The species hibernates in the ground (cavities, fissures), then lays its eggs in spring and at the beginning of the summer in ponds. It then leaves the aquatic environment and lives on land during the summer and autumn. For the same species, the ecological requirements may therefore vary according to the sites concerned (aquatic or land). This species also inhabits an extensive range throughout Europe, which means that its ecological requirements may differ from one part of its range to another as well.

The identification of the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites is the responsibility of the Member States. The latter may wish to exchange their knowledge in this field, with the support of the European Commission and the European Environment Agency — European Topic Centre on Biological Diversity.

The conservation measures have to correspond to the ecological requirements of the natural habitat types in Annex I and of the species in Annex II present on the site. The ecological requirements of those natural habitat types and species involve all the ecological needs which are deemed necessary to ensure the conservation of the habitat types and species. They can only be defined on a case-by-case basis and using scientific knowledge.

2.4. WHAT FORM CAN THE NECESSARY CONSERVATION MEASURES TAKE?

The conservation measures can take the form of ‘appropriate statutory, administrative or contractual measures…’ and ‘if need be’, the form of ‘appropriate management plans’.

The choice is left to the Member States, in line with the principle of subsidiarity. The Directive sets out the results to be achieved and leaves it up to the Member States to decide how to do so in practice. Often, the different options referred to in Article 6(1) are used in combination for the management of Natura 2000 sites.

In all cases, the responsibilities for implementing conservation measures need to be clearly defined, along with the relevant financial resources.

2.4.1. Management plans

The necessary conservation measures may involve ‘if need be, appropriate management plans specifically designed for the sites or integrated into other development plans’. Such management plans should address all existing activities, including regular ongoing activities such as day-to-day agricultural activities, whereas new plans and projects are dealt with under Article 6(3) and 6(4).

In general, management plans at site level are used to formulate the site’s conservation objectives, on the basis of an analysis of the conservation status of species and habitats on the site and the pressures and threats they face, together with the measures necessary to attain these objectives. Management plans are often used as a tool to guide managers and other interested parties in dealing with the conservation of Natura 2000 sites, and to involve the different socioeconomic stakeholders and authorities, including local communities, landowners, farmers, fishermen and other interest groups, in implementing the necessary conservation measures that have been identified.

Management plans are a useful tool for ensuring that the implementation of Article 6(1) provisions is done in a clear and transparent way, enabling all stakeholders to be informed about what Natura 2000 sets out to achieve and to engage actively in this discussion. Management plans may also help identifying the funding needs for the measures and achieving better integration into other plans.

The words ‘if need be’ indicate that management plans may not always be necessary. If management plans are chosen by a Member State, it will often make sense to establish them before concluding the other measures mentioned in Article 6(1), particularly the contractual measures. Contractual measures will often involve a relationship between the competent authorities and individual landowners and will be limited to individual land-holdings which are normally smaller than the site. In such circumstances, a management plan focused on the site will provide a wider framework, and its contents will provide a useful starting point for the specific details of contractual measures.

The management plans must be ‘appropriate’ and ‘specifically designed for the sites’, i.e. targeted at the sites of the Natura 2000 network. Existing management plans for other protected area categories (e.g. national or natural parks, etc.) are not always sufficient to address the management of Natura 2000 sites and should therefore be adapted or supported by further measures to meet the specific conservation objectives of the species and habitat types of Community interest present on the site. Furthermore, the boundaries of other types of protected areas and those of the Natura 2000 sites may not coincide.

Management plans can be stand-alone documents or can also be ‘integrated into other development plans’, in line with the principle of integration of the environment into other EU policies. In the case of an integrated plan, it is important to ensure that clear conservation objectives and measures are set for the relevant habitats and species present on the site.

Management plans for the Natura 2000 sites are a useful tool for ensuring that the implementation of Article 6(1) provisions is done in a clear and transparent way, and with the involvement of stakeholders. These plans are not always necessary but, if they are used, they should be specifically designed for the sites or incorporated into other development plans when those exist. They should address all known activities, whereas new plans and projects are dealt with under Article 6(3) and 6(4).

2.4.2. Statutory, administrative or contractual measures

The phrase ‘if need be’ refers only to the management plans and not to the statutory, administrative or contractual measures which are needed in all cases (case C-508/04 paragraph 71). Thus, even if a Member State considers a management plan unnecessary, it will still have to take such measures.

The division into these three categories of measures has to be considered in a broad sense. A variety of measures may be considered as appropriate to achieve the conservation objectives established for each site. Often this involves active management but, in some cases, it may also involve more passive preventative measures (e.g. non-intervention management). On the other hand, they may not necessarily be new measures, since existing measures may be considered sufficient if they are appropriate.

— Statutory measures usually follow a pattern laid down in law and can set specific requirements in relation to activities than can be allowed, restricted or forbidden in the site.

— Administrative measures can set relevant provisions in relation to the implementation of conservation measures or the authorisation of other activities in the site.

— Contractual measures involve establishing contracts or agreements usually among managing authorities and land-owners or users on the site.

Agri-environmental or forestry-environmental measures serve as a good example of a contractual measure that takes socioeconomic requirements into account when establishing agreements which benefit Natura 2000 sites. They should be designed in line with the conservation measures established for the site and in view of reaching its conservation objectives. — Agri-environmental agreements with farmers within the Rural Development Programmes can be used as a contractual measure aiming to maintain or improve the conservation condition of certain habitat types (e.g. meadows, pastures) and species across a range of sites. — Forestry-environmental measures can also be used to establish contracts and agreements with forest owners on the management of the forest to favour the conservation of habitats and species.

In this perspective, all suitable EU funds (e.g. rural development and regional funds as well as the LIFE programme (28)) should be considered as a means for implementing these measures (29).

The choice between statutory, administrative or contractual measures is left to the Member States. This is in line with the principle of subsidiarity. However, Member States must choose at least one of the three categories, i.e. statutory, administrative, contractual.

There is no hierarchy between these three categories. Thus Member States have the choice to use, on a Natura 2000 site, just one category of measures (e.g. only contractual measures) or combined measures (e.g. combination of statutory and contractual measures according to the conservation issues of the natural habitat types in Annex I and the species in Annex II present on the site). Moreover, on top of the selected compulsory measures, Member States may establish and implement management plans.

The three categories of measures are qualified as ‘appropriate’. This qualifier is not defined in the Directive. However, in the case of Article 6(1), the statutory, administrative or contractual measures are embraced within the concept of conservation measures. The qualifier ‘appropriate’ has no other objective than to recall that whatever the type of measure chosen by the Member States, there is an obligation to ensure that they correspond to the ecological requirements of the target features of particular Natura 2000 sites and respect the general aim of the Directive defined in Article 2(1) and (2).

For SACs, Member States are required to establish and implement the appropriate statutory, administrative or contractual measures. They must a) correspond to the ecological requirements of habitats in Annex I and species in Annex II present on the sites and b) fulfil the Directive’s overall aim of maintaining or restoring at a favourable conservation status the natural habitats and the species of fauna and flora of Community interest.

3. ARTICLE 6(2)

Clarification of the concepts of taking appropriate avoidance steps; deterioration; and disturbance

3.1. TEXT

‘Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.’

3.2. SCOPE

The article takes as its starting point the prevention principle: ‘Member States shall take appropriate steps to avoid , in the special areas of conservation, the deterioration… as well as disturbances…’.

These measures go beyond the management measures needed for conservation purposes, since these are already covered by Article 6(1). The words ‘avoid’ and ‘could be significant’ stress the anticipatory nature of the measures to be taken. It is not acceptable to wait until deterioration or disturbances occur before taking measures (case C-418/04 — see also under section 4.4.1 the interpretation of ‘likely to’ in Article 6(3)).

This article should be interpreted as requiring Member States to take all the appropriate actions to ensure that no deterioration or significant disturbance occurs. It requires both human-caused and any predictable natural deterioration of natural habitats and the habitats of species to be avoided.

The scope of this article is broader than that of Articles 6(3) and 6(4) which apply only to plans and projects. It also applies to the performance of all ongoing activities, like agriculture, fishing or water management, that may not fall within the scope of Article 6(3) (30), along with plans and projects which have already been authorised in the past and subsequently prove likely to give rise to deterioration or disturbances (31). It can also apply to the implementation of plans or projects which were authorized before Article 6(3) became applicable (C-399/14 para. 33).

Article 6(2):

— Applies permanently in SACs, SCIs and SPAs. It may concern past, present or future activities or events. If an already existing activity in a SAC or SPA is likely to cause deterioration of natural habitats or disturbance of species for which the area has been designated, it must be covered by the appropriate measures foreseen in Article 6(2) of the Habitats Directive or Article 4(4) of the Birds Directive respectively, when applicable. This may require, if appropriate, bringing the negative impact to an end by stopping the activity and/or by taking mitigation or restoration measures. This may be done by means of an ex-post assessment. This is supported by the Owenduff case (C-117/00 paragraphs 28-30) (32) in which the Court ruled that Article 6(2) was infringed because measures had not been adopted to prevent deterioration, in an SPA, of the habitats of the species for which the SPA was designated. The Court has also ruled that, by providing generally that certain activities practised under the conditions and in the areas authorised by the laws and regulations in force do not constitute activities causing disturbance or having such an effect, a Member State fails to fulfil its obligations under Article 6(2) of the Habitats Directive (case C-241/08 paragraph 76).

— Is not limited to intentional acts, but could also cover any chance events that might occur (fire, flood, etc.), as long as they are predictable — for example, if they tend to occur every few years (33). In case of catastrophes this concerns only the obligation to take (relative) precautionary measures to decrease the risk of such catastrophes as long as they could jeopardise the aim of the Directive. — Is not limited to human activities. In the case C-6/04 paragraph 34, the Court considered that ‘in implementing Article 6(2) of the Habitats Directive, it may be necessary to adopt both measures intended to avoid external man-caused impairment and disturbance and measures to prevent natural developments that may cause the conservation status of species and habitats in SACs to deteriorate’. For instance, in the case of natural succession or of climate change effects, measures would need to be taken to halt or counter this process if it is deemed to be negatively impacting on the species and habitat types for which the site has been designated. Accordingly, naturally dynamic situations, as well as modifications linked to climate change (e.g. sea level rise, disappearing or newly arriving species) should be assessed case-by-case (34).

The legislator envisaged certain limits to the responsibility of the Member States:

— Spatial limit — the measures target only species and habitats located ‘in the SACs’. On the other hand, measures may need to be implemented outside the SAC if external events may have an impact on the species and the habitats inside the SAC. For instance, in the case of a toxic spill affecting a wetland, the application of Article 6(2) would require that all preventive measures should have been taken to avoid the spillage, even if its location is distant from the wetland. Indeed, the article does not specify that measures have to be taken in the SAC but that they should avoid deterioration in the SAC. The same logic applies to SPAs.

— Limit of habitats and species concerned — the appropriate measures concern only habitats and species ‘for which the areas have been designated’. In particular, the habitats and species concerned by the measures to be taken are those identified in the Natura 2000 Standard Data Forms (see sections 2.2 and 4.6.3). The aim is not therefore to take general protection measures, but rather to take measures focused on the species and habitats which justified the selection of the site (i.e. those recorded as significantly present in the SDF and identified in the designation act). The disturbances and/or deterioration will thus be determined with reference to the information communicated by the Member States and used to ensure the coherence of the Natura 2000 network for the species and habitats concerned.

Member States are required to take preventive measures to avoid deterioration and disturbances connected with a predictable event, activity or process. These measures apply to all species and habitats for which the sites have been designated, and should also be implemented, if necessary, outside the sites.

3.3. WHAT DOES ‘TAKE APPROPRIATE STEPS TO AVOID…’ MEAN?

Article 6(2) requires Member States to ‘take appropriate steps to avoid…’. Several Court cases have clarified the type of legal protection regime that needs to be put in place for the purposes of Article 6(2) of the Habitats Directive. They stress in particular the need for the legal regime to be specific, coherent and complete, capable of ensuring the sustainable management and the effective protection of the sites concerned (C-293/07 paragraphs 26 — 29) (35).

The Court has also identified infringements in cases where the regime in place was ‘too general and did not concern specifically the SPA or the species that live in it’ (C-166/04 paragraph 15), where provisions can come into play ‘only after the activities in question have already commenced and thus only after any deterioration has already occurred’ (C-418/04 paragraph 208), or where SPAs were submitted to ‘heterogeneous legal regimes which did not confer on the SPAs a sufficient protection’ (C-293/07 paragraph 26).

In certain cases, merely bringing criminal proceedings against or imposing fines on the party responsible for deterioration/disturbance might not be enough for a Member State to ensure compliance with Article 6(2) (C-504/14, paragraphs 55 and 56).

According to the Court, ‘the term “appropriate steps” contained in Article 6(2) of the Habitats Directive implies that Member States enjoy discretion when applying that provision. It should nevertheless be recalled that an activity complies with Article 6(2) of the Habitats Directive only if it is guaranteed that it will not cause any disturbance likely significantly to affect the objectives of that directive, particularly its conservation objectives’ (judgment in Commission v Spain, C-404/09 paragraph 126 and the case-law cited in it). The Court further states that ‘should a subsequent review, on the basis of Article 6(2) of the Habitats Directive, prove to be an “appropriate step” within the meaning of that provision, that review must define what risks of deterioration or disturbance likely to be significant within the meaning of that provision are entailed by the implementation of the plan or project, and that review must be carried out in accordance with the requirements of Article 6(3) of that directive’ (C-399/14, paragraphs 40, 41, 54).

The legal regime under Article 6(2) has to be specific, coherent and complete, capable of ensuring the effective protection of the sites concerned. Member States enjoy discretion when taking appropriate steps to implement Article 6(2), provided it is guaranteed that no deterioration and disturbance will occur. If a review of a plan or project is necessary to comply with the provisions of Article 6(2), it must be carried out in accordance with the requirements of Article 6(3).

3.4. DOES IMPLEMENTATION DIFFER FOR DETERIORATION AND DISTURBANCE?

In terms of disturbance of species, Article 6(2) specifies that appropriate steps have to be taken to avoid it ‘in so far as such disturbance could be significant in relation to the objectives of this Directive’.

The disturbance in question has to be relevant to (have an impact on) the conservation status of the species in relation to the objectives of the Directive. It is therefore in relation to these objectives that the Member State has to determine whether or not disturbance is significant.

In terms of deterioration of habitats (which relates both to natural habitats and habitats of species) however, the effect in relation to the objectives of the Directive is not explicitly mentioned in the text of Article 6(2). It is simply stated that the deterioration of habitats must be avoided.

It may seem difficult to assess deterioration in absolute terms without reference to measurable limits. However, connecting deterioration to the site-level conservation objectives, which contribute to achieving the Directive’s objectives, may make it possible to interpret the limits of what constitutes deterioration (see section 3.5.1).

Article 6(2) and (3) of the Habitats Directive must be construed as a coherent whole and are designed to ensure the same level of protection of habitat types and habitats of species (C-258/11, paragraph 32; C-521/12, paragraph 19; C-387&388). Therefore, the assessment of the deterioration, if necessary, should follow similar criteria and methods as those used in applying Article 6(3) (see also C-399/14 paragraph 54).

The conservation condition of a habitat type or habitat of a species present in a site may be assessed against its conservation condition as provided in the Natura 2000 Standard Data Form, subject to this being up to date.

On a particular site the conservation condition should reflect the dynamic nature of the habitats and species concerned.

Disturbance of a species must be avoided in so far as it could be significant in relation to the Directive’s objectives. On the other hand, deterioration of a natural habitat or a habitat of a species is not qualified by the need to be significant in relation to the Directive’s objectives, it must simply be avoided altogether. Deterioration and disturbance should be assessed against the conservation objectives of the site and the conservation condition of the species and habitat types present in the site using the same criteria as for the Article 6(3) procedure. This notion should be interpreted in a dynamic way, according to the evolution of the conservation condition of the habitat or of the species in that site.

3.5. INDICATORS OF DETERIORATION AND DISTURBANCE

Member States must take appropriate protective measures in order to maintain the ecological characteristics of Natura 2000 sites from the time they are proposed as sites of Community interest.

The Court has confirmed this in the Bund case (C-244/05 paragraph 45): ‘…it must be remembered that, in accordance with the first part of Annex III to the Directive, the ecological characteristics of a site identified by the competent national authorities must reflect the assessment criteria which are listed there, namely, the degree of representativity of the habitat type, its area, structure and functions, the size and density of the population of the species present on the site, the features of the habitat which are important for the species concerned, the degree of isolation of the population present on the site and the value of the site for the conservation of the habitat type and species concerned’.

It follows that the ecological characteristics of the site must not be allowed to deteriorate below their level at the time of designation. In case a better condition has been achieved, this improved condition should be the reference. As a general rule, on a particular site, disturbance or deterioration is assessed on a case-by-case basis, using indicators (see below) with respect to the significance of their change in value (36).

3.5.1. Deterioration of habitat types and habitats of species

Deterioration is any form of degradation affecting a habitat. The Member State has to take into consideration all the influences on the environment hosting the habitats (space, water, air, soils). If these influences result in making the conservation parameters for the habitat worse than they were before, the deterioration can be considered to have occurred.

It is important to recall that the requirement to avoid deterioration applies not just to the habitat types listed in Annex I to the Habitats Directive for which the site has been designated, but also to the habitats of the species listed in Annex II to the Habitats Directive and Annex I to the Birds Directive, and of the migratory species covered by Article 4(2) of the Birds Directive, for which the site has been designated.

To assess this deterioration, one can refer to the conservation objectives of the site and the ecological characteristics of the site that lead to it being selected as an SCI (in accordance with the selection criteria in Annex III to the Directive) or as an SPA.

These ecological characteristics for habitat types are recorded in the SDF using the following parameters (37):

— The degree of representativity of the habitat type — this gives a measure of ‘how typical’ a habitat type is. This should be linked to the interpretation manual of Annex I habitat types (38) since this manual provides a definition of each habitat type, together with an indication of characteristic species and other relevant elements. Any event, activity or process that causes the habitat type to lose its representativity should be assessed as deterioration.

— The surface of the habitat in the site and its relative surface as compared to the total area covered by the habitat type within the national territory. Any event, activity or process which contributes to the reduction in the size, within the site, of the habitat type or the habitat of the species for which this site has been designated, should be regarded as deterioration.

— The degree of conservation of the structure and functions of the natural habitat type concerned and its restoration possibilities.

Similar considerations may apply in the case of habitats of species, e.g. wetlands for birds. Any impairment of any of these factors which are necessary for the long-term maintenance of the habitats and habitats of species may be regarded as deterioration, e.g. deterioration may be caused not just by the habitat’s physical reduction in size but also by the loss of quality as a breeding, feeding, resting or staging site for the species.

The functions necessary for the long-term maintenance depend of course on the habitat concerned. Member States must know these requirements (by means of studies, data collection, etc.) since Article 6(1) provides that they have to take measures ‘which correspond to the ecological requirements of the habitats in Annex I and species in Annex II’.

Habitat deterioration occurs on a site when the area covered by the habitat type or habitat of the species in this site is reduced, or the specific structure and functions necessary for the long-term maintenance of that habitat or the status of the species which are associated with this habitat are reduced in comparison to their initial or restored condition. This assessment is done according to the site’s conservation objectives and its contribution to the coherence of the network.

3.5.2. Disturbance of species

Contrary to deterioration, disturbance does not directly affect the physical conditions of a site; it concerns the species and it may be limited in time (noise, source of light etc.). The intensity, duration and frequency of repetition of disturbance are therefore important parameters.

To assess whether a disturbance is significant in relation to the objectives of the Directive, reference can be made to the definition of the favourable conservation status of a species given in Article 1(i), on the basis of the following factors:

— ‘ Population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable element of its natural habitats’. Any event, activity or process contributing to the long-term decline of the population of the species on the site can be regarded as a significant disturbance.

— ‘The natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future’ Any event, activity or process contributing to the reduction or to the risk of reduction of the range of the species within the site can be regarded as a significant disturbance.

— ‘There is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis’. Any event, activity or process contributing to the reduction of the size of the available habitat of the species can be regarded as a significant disturbance.

In that regard effects such as noise, vibrations and isolation of sub-populations of a species are capable of causing significant disturbances for that species. Therefore, failure by a Member State to take appropriate measures to prevent them constitutes a failure to fulfil obligations under Article 6(2) of the Habitats Directive (case C-404/09).

Factors such as intensity, frequency and duration of the disturbance may be taken into account to determine its significance, which may vary from one species to another and according to different times and different conditions (e.g. food resources, or through the presence of sufficient undisturbed areas nearby).

Disturbance of a species occurs on a site from events, activities or processes contributing, within the site, to a long-term decline in the population of the species, to a reduction or risk of reduction in its range, and to a reduction in its available habitat. This assessment is done according to the site’s conservation objectives and its contribution to the coherence of the network.

4. ARTICLE 6(3)

Clarification of the concepts of plan or project, likelihood of significant effects, appropriate assessment, site’s conservation objectives; cumulative effects, competent authorities, opinion of the public, integrity of the site

4.1. TEXT

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

4.2. SCOPE

As regards purpose and context, the role of the third and fourth paragraphs of Article 6 needs to be considered in relation to that of the first (or, in the case of SPAs, with that of the first and second paragraphs of Articles 3 and 4 of the Birds Directive) and second paragraphs of Article 6. In particular, it is important to remember that, even if it is determined that an initiative or activity does not fall within the scope of Article 6(3), it will still be necessary to make it compatible with the other aforementioned provisions.

It may be noted that activities which contribute to or are compatible with the site conservation objectives may already be accommodated within Article 6(1) and (2) — for example, traditional farming practices which sustain particular habitat types and species. The provisions of Article 6(3) and (4) constitute a form of permitting regime, setting out the circumstances within which plans and projects with likely significant negative effects on Natura 2000 sites may or may not be allowed. They thus ensure that economic and other non-ecological requirements can be fully considered in light of the site’s conservation objectives.

Article 6(3) defines a step-wise procedure for considering plans and projects (39).

a) The first part of this procedure consists of a pre-assessment stage (‘screening’) to determine whether, firstly, the plan or project is directly connected with or necessary to the management of the site, and secondly, whether it is likely to have a significant effect on the site; it is governed by Article 6(3), first sentence.

b) The second part of the procedure, governed by Article 6(3), second sentence, relates to the appropriate assessment and the decision of the competent national authorities.

A third part of the procedure (governed by Article 6(4)) comes into play if, despite a negative assessment, it is proposed not to reject a plan or project but to give it further consideration. In this case Article 6(4) allows for derogations from Article 6(3) under certain conditions.

The applicability of the procedure, and the extent to which it applies, depend on several factors, and in the sequence of steps, each step is influenced by the previous step. The order in which the steps are followed is therefore essential for the correct application of Article 6(3).

As regards geographical scope, the provisions of Article 6(3) are not restricted to plans and projects that exclusively occur in or cover a protected site; they also target plans and projects situated outside the site but likely to have a significant effect on it regardless of their distance from the site in question (cases C-98/03 paragraph 51 and C-418/04 paragraphs 232, 233).

Furthermore, the Court has stated that Article 6(3) of the Habitats Directive does not preclude a more stringent national protective measure which might for instance impose an absolute prohibition of a certain type of activity, without any requirement for an assessment of the environmental impact of the individual project or plan on the Natura 2000 site concerned (C-2/10 paragraphs 39-75).

Article 6(3) defines a step-wise procedure for considering plans and projects that may have a significant effect on a Natura 2000 site. Activities not falling within the scope of Article 6(3) will still have to be compatible with the provisions of Article 6(1) — or, in the case of SPAs, Articles 3, 4(1) and (2) of the Birds Directive — and 6(2) of the Habitats Directive.

4.3. THE RELATIONSHIP BETWEEN ARTICLE 6(2) AND ARTICLE 6(3)

Articles 6(2) and 6(3) are both intended to prevent any negative effects on a site. In the case of Article 6(2) the intention is to avoid ‘deterioration …or significant disturbance’. In the case of Article 6(3) the aim is to avoid the authorisation of any plans or projects that could ‘adversely affect the integrity of the site’. The objectives are therefore broadly similar. However, it should be recalled that the provisions of Article 6(2) apply to the site at all times whereas those under Article 6(3) only come into play if a plan or project is being proposed that may have significant effects on the site. Because both paragraphs serve the same overall objective, it is logical to conclude that any plan or project approved in compliance with Article 6(3) will also be in conformity with the provisions of Article 6(2), unless it subsequently proves likely to deteriorate the habitat and/or disturb the species for which the site has been designated.

This was confirmed by the Court (case C-127/02 paragraphs 35-37): ‘the fact that a plan or project has been authorised according to the procedure laid down in Article 6(3) renders superfluous, as regards the action to be taken on the protected site under the plan or project, a concomitant application of the rule of general protection laid down in Article 6(2). Authorisation of a plan or project granted in accordance with Article 6(3) necessarily assumes that it is considered not likely adversely to affect the integrity of the site concerned and, consequently, not likely to give rise to deterioration or significant disturbances within the meaning of Article 6(2).

Nevertheless, it cannot be precluded that such a plan or project subsequently proves likely to give rise to such deterioration or disturbance, even where the competent authorities cannot be held responsible for any error. Under those conditions, application of Article 6(2) of the Habitats Directive makes it possible to satisfy the essential objective of the preservation and protection of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, as stated in the first recital in the preamble to that directive.’

On the other hand, where authorisation for a plan or project has been granted without complying with Article 6(3), a breach of Article 6(2) may be found where deterioration of a habitat or disturbance of the species for which the area in question was designated has been established (C-304/05, C-388/05, C-404/09, C-141/14).

The same applies to all projects and activities which were authorised prior to the inclusion of sites into the SCI list, or their classification as SPAs, and which do not fall under the obligation of the assessment of their implication for habitat types and species under Article 6(3) but the effects of which might adversely affect the integrity of those sites. Article 6(2) and (3) of the Habitats Directive must be construed as a coherent whole, and are designed to ensure the same level of protection of natural habitats and habitats of species (C-258/11, C-521/12, C-399/14, C-387&388/15).

Therefore, where Article 6(2) leads to an obligation to carry out a subsequent review of the implications for the site concerned of a plan or project, that review must be carried out in accordance with the requirements of Article 6(3) (Case C-399/14, paragraph 54).

Article 6(3) does not apply in respect of any action whose implementation was subject to authorisation but which was carried out without authorisation and thus unlawfully. However, such actions may have consequences breaching Article 6(2), and the Member State is obliged to act in line with the latter provision (case C-504/14).

4.4. WHAT IS MEANT BY ‘PLAN OR PROJECT NOT DIRECTLY CONNECTED WITH OR NECESSARY TO THE MANAGEMENT OF THE SITE’?

In as much as the Habitats Directive does not define ‘plan’ or ‘project’, due consideration must be given to general principles of interpretation, in particular the principle that an individual provision of EU law must be interpreted on the basis of its wording and of its purpose and the context in which it occurs.

There are two arguments for giving a broad interpretation to ‘plan’ or ‘project’:

— Firstly, the Directive does not circumscribe the scope of either ‘plan’ or a ‘project’ by reference to particular categories of either. Instead, the key limiting factor is whether or not they are likely to have a significant effect on a site.

— Secondly, a corollary of the continued applicability of Article 6(2) to activities excluded from the scope of Article 6(3) and (4) is that, the more narrowly ‘plan’ and ‘project’ are defined, the more potentially restricted are the means to consider a conservation interest against a damaging non-conservation interest, and hence to ensure the correct application of Article 6(2), i.e. avoiding deterioration and disturbance.

4.4.1. Project

Support for a broad definition of ‘project’ is reinforced, by analogy, if we refer to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (40) — hereinafter referred to as the EIA Directive. That directive operates in a similar context, setting rules for the assessment of projects with likely significant effects on the environment. Article 1(2) of the EIA Directive provides that ‘project’ means:

‘— 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 mineral resources.’

This is a very broad definition (C-72/95 Kraaijeveld paragraphs 30 and 31) which is not limited to physical construction but also covers other interventions in the natural environment including regular activities aimed at utilising natural resources (41). For example, a significant intensification of agriculture which threatens to damage or destroy the semi-natural character of a site may be covered (42).

The Court has issued a number of rulings regarding the type of interventions which require the application of Article 6(3).

The Waddenzee case (C-127/02 paragraphs 25 — 29) clarified that activities which have been carried out periodically for several years on the site concerned but for which a licence is granted annually for a limited period, with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may be carried on, should be considered, at the time of each application, as a distinct plan or project within the meaning of the Habitats Directive.

In the Papenburg case (C-226/08 paragraphs 50 — 51) the Court further ruled that:‘… ongoing maintenance works in respect of the navigable channels of estuaries, which are not connected with or necessary to the management of the site … must, to the extent that they constitute a project and are likely to have a significant effect on the site concerned, undergo an assessment of their implications for that site pursuant to those provisions [Article 6(3)]’.

However, ‘…if, having regard in particular to the regularity or nature of the maintenance works at issue … or the conditions under which they are carried out, they can be regarded as constituting a single operation, in particular where they are designed to maintain the navigable channel at a certain depth by means of regular dredging necessary for that purpose, those maintenance works can be considered to be one and the same project for the purposes of Article 6(3) of the Habitats Directive.’

The Court has also ruled that the option of exempting generally certain activities does not comply with the provisions of Article 6(3) (C-256/98, C-6/04, C-241/08, C-418/04, C-538/09). In addition, the Court ruled that projects may not be excluded from the assessment obligation on account only of the fact that they are not subject to authorisation (C-98/03, paragraphs 43 –52).

The Court has also ruled that the size of the project is not relevant as it does not in itself preclude the possibility that it is likely to have a significant effect on a protected site (Case C-98/03, Case C-418/04 paragraph 244).

4.4.2. Plan

The term ‘plan’ has also, for the purpose of Article 6(3), a potentially very broad meaning. If we refer, by analogy, to the Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (43) (hereinafter referred to as the SEA Directive), Article 2(a) of that Directive defines plans and programmes as:

‘Plans and programmes, including those co-financed by the European Community, as well as any modifications to them:

— which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and

— which are required by legislative, regulatory or administrative provisions;’

In this respect, the Court has ruled that ‘Given the objective of Directive 2001/42/EC, which consists in providing for a high level of protection of the environment, the provisions which delimit the directive’s scope , in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly ’ (C-567/10 paragraphs 24-43).

Of obvious relevance under the Habitats Directive are land-use or spatial plans. Some plans have direct legal effects for the use of land, others only indirect effects. For instance, regional or geographically extensive spatial plans are often not applied directly but form the basis for more detailed plans or serve as a framework for development consents, which then have direct legal effects. Both types of land-use plan should be considered as covered by Article 6(3) to the extent that they are likely to have significant effects on a Natura 2000 site.

The Court upheld this view (C-6/04 paragraph 52) stating that although land-use plans do not always authorise developments and planning permission must be obtained for development projects in the normal manner, they have great influence on development decisions. Therefore land-use plans must be subject to appropriate assessment of their implications for the site concerned (see also C-418/04).

Sectoral plans should also be considered as covered by the scope of Article 6(3), again in so far as they are likely to have a significant effect on a Natura 2000 site. Examples might include transport network plans, energy plans, waste management plans, water management plans or forest management plans (see C-441/17, 122-124).

However, a distinction needs to be made with ‘plans’ which are in the nature of policy statements, i.e. policy documents which show the general political will or intention of a ministry or lower authority. An example might be a general plan for sustainable development across a Member State’s territory or region. It does not seem appropriate to treat these as ‘plans’ for the purpose of Article 6(3), particularly if any initiatives deriving from such policy statements must pass through the intermediary of a land-use or sectoral plan (C 179/06, paragraph 41) (44). However, where the link between the content of such an initiative and likely significant effects on a Natura 2000 site is clear and direct, Article 6(3) should be applied.

Where one or more specific projects are included in a plan in a general way but not in terms of project details, the assessment made at plan level does not exempt the specific projects from the assessment requirements of Article 6(3) at a later stage, when much more details about them are known (45).

4.4.3. Not directly connected with or necessary to the management …

From the context and purpose of Article 6, it is apparent that the term ‘management’ is to be treated as referring to the ‘conservation’ management of a site, i.e. it is to be seen in the sense in which it is used in Article 6(1). Thus, if an activity is directly connected with and necessary for fulfilling the conservation objectives, it is exempted from the requirement for an assessment.

By introducing the possibility of establishing management plans, Article 6(1) envisages flexibility for Member States as regards the form such plans can take. The plans can either be specifically designed for the sites or ‘integrated into other development plans’. Thus it is possible to have a ‘pure’ conservation management plan or a ‘mixed’ plan with conservation as well as other objectives.

The words ‘not directly connected with or necessary to…’ ensure that a non-conservation component of a plan or project which includes conservation management amongst its objectives may still require an appropriate assessment.

For example, commercial timber harvesting may form part of a conservation management plan for a woodland designated as Special Area of Conservation. In as much as the commercial dimension is not necessary to the site’s conservation management, it may need to be considered for an appropriate assessment.

The Court has supported this view (C-241/08 paragraph 55), pointing out that ‘the mere fact that the Natura 2000 contracts comply with the conservation objectives of sites cannot be regarded as sufficient, in the light of Article 6(3) of the Habitats Directive, to allow the works and developments provided for in those contracts to be systematically exempt from the assessment of their implications for the sites.’

There may also be circumstances where a plan or project directly connected with or necessary to the management of one site may affect another site.

For example, in order to improve the flooding regime of one site, it may be proposed to build a barrier in another site, with a possible significant adverse effect on the latter. In such a case, the plan or project should be the subject of an assessment as regards the affected site.

In addition, case C-441/17 (paragraph 123) identifies an example of a plan (concerned solely with increasing the volume of harvestable timber by the carrying out of active forest management operations within a Natura 2000 site) not directly related to conservation as it does not lay down any conservation objectives or measures, and hence would fall for consideration under Article 6(3).

The term ‘project’ should be given a broad interpretation to include both construction works and other interventions in the natural environment. The term ‘plan’ has also a broad meaning, including land-use plans and sectoral plans or programmes. Plans and projects directly related to the conservation management of the site, either individually or as components of other plans and projects, should generally be excluded from the provisions of Article 6(3), but their non-conservation components may still require an assessment.

4.5. HOW TO DETERMINE WHETHER A PLAN OR PROJECT IS ‘LIKELY TO HAVE A SIGNIFICANT EFFECT’ ON A SITE, ‘EITHER INDIVIDUALLY OR IN COMBINATION WITH OTHER PLANS OR PROJECTS’?

This phrase encapsulates both a cause-and-effect relationship and the cumulative aspect. On the one hand, it is necessary to explore what sorts of effects are covered (‘significant effect’), and then to explore what sorts of causes are likely to create such effects (‘likely to have … either individually or in combination’).

Determining whether a plan or project is likely to have a significant effect will have practical and legal consequences. Therefore, when a plan or project is proposed, it is important firstly that this key issue is considered, and secondly that the consideration is capable of standing up to scientific and expert scrutiny.

Plans and projects that are considered as not likely to have significant effects can be processed without reference to the subsequent steps of Article 6(3). However, Member States will need to justify and record the reasons for reaching such a screening conclusion.

4.5.1. Likely to have…

The safeguards set out in Article 6(3) are triggered not by a certainty but by a likelihood of significant effects. Thus, in line with the precautionary principle, it is unacceptable to fail to undertake an assessment on the basis that significant effects are not certain.

This was confirmed by the Court’s Waddenzee ruling (C-127/02 paragraphs 39 — 44): ‘…The environmental protection mechanism provided for in Article 6(3) … does not presume that the plan or project considered definitely has significant effects on the site concerned but follows from the mere probability that such an effect attaches to that plan or project. … In case of doubt as to the absence of significant effects such an assessment must be carried out . … The first sentence of Article 6(3) must therefore be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects’.

It is again useful to refer to the EIA Directive 2011/92/EU as amended, since the formula ‘likely to have a significant effect’ is almost identical to the basic formula used to create the assessment duty of Member States under the EIA Directive (46). The EIA Directive is also of assistance in setting out a range of factors which may contribute to a likelihood of a significant effect (47). Any proposal deemed to require an assessment under the EIA Directive on the grounds, inter alia, that it is likely to significantly affect a Natura 2000 site can be judged to also come under the assessment requirement of Article 6(3) (48).

In determining the likelihood of significant impacts, and hence the need for an appropriate assessment, mitigation measures (i.e. measures to avoid or reduce negative effects) cannot be taken into account. This is confirmed by the Court in its ruling in case C-323/17: ‘Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conserva