ANNEX 2 – LEGAL CASES

Ruling of the European Court of Justiceon Nature and Biodiversity Cases

Hereafter are included some excerpts of legal cases of the European Court of Justice that are mentioned in the Guidance document and may be useful to understand the provisions of the Birds and Habitats Directives.

Detailed information on legal cases up to 2006 can also be found in the book “Nature and Biodiversity Cases. Ruling of the European Court of Justice”, published by the European Commission in 2006.

Cases concerning Article 6 (3) and (4)

Case C-6/04:Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. Failure of a MemberState to fulfil obligations –– Directive 92/43/EEC –– Conservation of natural habitats –– Wild fauna and flora.

Summary of theJudgment of the Court (Second Chamber), 20 October 2005 (excerpt in accordance with this document)

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3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation – Obligations of the Member States – Assessment of a project’s implications for a site – Coming into being of the obligation to carry out an assessment (Council Directive 92/43, Art. 6(3))

51 The Commission submits that United Kingdom legislation does not clearly require land use plans to be subject to appropriate assessment of their implications for SACs in accordance with Article 6(3) and (4) of the Habitats Directive.

52According to the Commission, although land use plans do not as such authorise development 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 also be subject to appropriate assessment of their implications for the site concerned.

53The United Kingdom accepts that land use plans can be considered to be ‘plans and projects’ for the purposes of Article 6(3) of the Habitats Directive, but it disputes that they can have a significant effect on sites protected pursuant to the directive. It submits that they do not in themselves authorise a particular programme to be carried out and that, consequently, only a subsequent consent can adversely affect such sites. It is therefore sufficient to make just that consent subject to the procedure governing plans and projects.

54As to those submissions, the Court has already held that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that it will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned (see, to this effect, Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECRI-7405, paragraphs 43 and 44).

55As the Commission has rightly pointed out, section 54A of the Town and Country Planning Act 1990, which requires applications for planning permission to be determined in the light of the relevant land use plans, necessarily means that those plans may have considerable influence on development decisions and, as a result, on the sites concerned.

56It thus follows from the foregoing that, as a result of the failure to make land use plans subject to appropriate assessment of their implications for SACs, Article 6(3) and (4) of the Habitats Directive has not been transposed sufficiently clearly and precisely into United Kingdom law and, therefore, the action brought by the Commission must be held well founded in this regard.

Failure to apply the Habitats Directive beyond the territorial waters of the United Kingdom

115The Commission alleges that the United Kingdom has limited the application of the provisions which transpose the Habitats Directive into national law to just national territory and United Kingdom territorial waters. It contends that within their exclusive economic zones the Member States have an obligation to comply with Community law in the fields where they exercise sovereign powers and that the directive therefore applies beyond territorial waters. In particular, the Commission complains that the United Kingdom has not complied in its exclusive economic zone with its obligation to designate SACs under Article 4 of the directive or the obligation to provide species protection laid down in Article 12 of the directive.

116The United Kingdom, without contesting the validity of this complaint, states, first, that in 2001 it adopted appropriate legislation so far as concerns the petroleum industry, namely the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001, and second, that it has prepared suitable legislation to extend the application of the Habitats Directive’s requirements to the marine area beyond its territorial waters.

117As the Advocate General has rightly observed in points 132 and 133 of her Opinion, it is common ground between the parties that the United Kingdom exercises sovereign rights in its exclusive economic zone and on the continental shelf and that the Habitats Directive is to that extent applicable beyond the Member States’ territorial waters. It follows that the directive must be implemented in that exclusive economic zone.

Full Judgement available at:

Case C-127/02: Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij. Reference for a preliminary ruling from the Raad van State. Directive 92/43/EEC – Conservation of natural habitats and of wild flora and fauna – Concept of ‘plan’ or ‘project’ – Assessment of the implications of certain plans or projects for the protected site.

Summary of the Judgment of the Court (Grand Chamber), 7 September 2004.

1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Concept of ‘plan’ or ‘project’ on the protected site – Mechanical cockle fishing – Included – Conditions. (Council Directive 92/43, Art. 6(3))

An activity such as mechanical cockle fishing which has been carried on for many years 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, falls within the concept of ‘plan’ or ‘project’ within the meaning of Article 6(3) of Council Directive 92/43 on the conservation of natural habitats and of wild fauna and flora. (See para. 29, operative part 1)

2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Provisions laying down the procedure for authorisation of a plan or project on the protected site and a duty of general protection – Concomitant application – Not permissible. (Council Directive 92/43, Art. 6(2) and (3))

Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora establishes, for protected sites, a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the protected site but likely to have a significant effect on it is authorised by the national authorities only to the extent that it will not adversely affect the integrity of that site, while Article 6(2) of that directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the directive’s objectives, and cannot be applicable concomitantly with Article 6(3). (See para. 38, operative part 2)

3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Authorisation of a plan or project on the protected site – Conditions – Appropriate assessment of its implications – Identification of aspects which can affect the site’s conservation objectives. (Council Directive 92/43, Art. 6(3), first sentence)

The first sentence of Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the protected 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 and, in particular, in the light of the characteristics and environmental conditions of that site, that it will have a significant effect on that site, either individually or in combination with other plans or projects. Such an assessment of the implications implies that, prior to the approval of the plan or project, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field.

The competent national authorities, taking account of the appropriate assessment of the implications of the plan or project on the site concerned in the light of the site’s conservation objectives, are to authorise that plan or project only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects. (See paras 45, 49, 61, operative part 3-4)

4. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Failure to transpose – Determination by the national court of the lawfulness of an authorisation for a plan or project on the protected site – Whether permissible. (Council Directive 92/43, Art. 6(3))

Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with, even though it has not been transposed into the legal order of the Member State concerned despite the expiry of the time-limit laid down for that purpose. The effectiveness of Directive 92/43 would be weakened if, in such a case, individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration. (See paras 66, 70, operative part 5)

Full Judgement available at:

Case C-98/03: Commission of the European Communities v Federal Republic of Germany. Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora – Assessment of the implications of certain projects on a protected site – Protection of species.

Summary of the Judgment of the Court (Second Chamber), 10 January 2006 (excerpts in accordance with this document)

2. Environment – Conservation of natural habitats and wild fauna and flora – Directive 92/43 – Special areas of conservation – Obligations of the Member States. (Council Directive 92/43, Art. 6(3))

Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora makes the requirement for an appropriate assessment of the implications of a plan or project not directly connected with or necessary to the management of a site in a special area of conservation conditional on its being likely to have a significant effect on the site. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned.

Therefore, the condition to which the assessment of the implications of a plan or a project on a particular site is subject does not permit that assessment to be avoided in respect of certain categories of projects, on the basis of criteria which do not adequately ensure that those projects will not have a significant effect on the protected sites. (See paras 40-41)

3. Environment – Conservation of natural habitats and wild fauna and flora – Directive 92/43 – Special areas of conservation – Obligations of the Member States. (Council Directive 92/43, Art. 6(3) and (4))

A system established by national legislation, which excludes authorisation for installations which cause emissions only where the latter appear likely particularly to affect a protected site situated in the area of impact of those installations does not appear to be capable of ensuring compliance with Article 6(3) and (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, since that system does not guarantee that projects or plans relating to those installations will not affect protected sites situated outside their area of impact. (See paras 50-51)

Case C-239/04: Commission of the European Communities v PortugueseRepublic. Failure of a MemberState to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 6(4) – Castro Verde special protection area – Lack of alternative solutions.

Summary of the Judgment of the Court (Second Chamber), 26 October 2006.

1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Authorisation for a plan or project on a protected site. (Council Directive 92/43, Art. 6(3))

Article 6(3) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora establishes a procedure intended to ensure, by means of a prior examination, that a plan or project which is not directly connected with or necessary to the management of a site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site. That authorisation can thus be granted only on the condition that the competent national authorities are certain, at the time they authorise the plan or project, that it will not have adverse effects on the integrity of the site concerned. The fact that, after its completion, the project may not have produced such effects is immaterial to that assessment. It is at the time of adoption of the decision authorising implementation of the project that there must be no reasonable scientific doubt remaining as to the absence of adverse effects on the integrity of the site in question. (See paras 19-20, 24)

2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special protection areas. (Council Directive 92/43, Art. 6(3) and (4))

Article 6(4) of Directive 92/43 on the conservation of natural habitats and of wild faunaand flora, which permits a plan or project which has given rise to a negativeassessment under the first sentence of the same directive to be implemented oncertain conditions, must, as a derogation from the criterion for authorisation laid downin the second sentence of Article 6(3), be interpreted strictly. Thus, the implementationof a plan or project under Article 6(4) of that directive is, inter alia, subject to thecondition that the absence of alternative solutions be demonstrated.It follows that, where a Member State implements a project notwithstanding thenegative environmental impact assessment and without having demonstrated theabsence of alternative solutions, it fails to fulfil its obligations under Article 6(4) ofDirective 92/43.(See paras 35-36, 40)

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28. In particular, it takes the view that those authorities did not take into consideration the alternative routes falling outside the Castro Verde SPA and the residential zone comprising the settlements of Alcarias, Conceição, Aivados and Estação de Ourique.

29. The Commission is of the opinion that such alternative routes should have been examined, in particular those which took the A 2 motorway along a corridor to the west of the Castro Verde SPA, between its boundary and the road IC 1, in an area of plains with a very low demographic density, so that the Portuguese authorities could have chosen, without significant technical difficulties or unreasonable additional financial costs, an alternative route which did not have adverse effects on the SPA and affected neither the abovementioned nor other settlements.

36. Thus, the implementation of a plan or project under Article 6(4) of the Habitats Directive is, inter alia, subject to the condition that the absence of alternative solutions be demonstrated.

38. On the other hand, it is not apparent from the file that those authorities examined solutions falling outside that SPA and to the west of the settlements referred to above, although, on the basis of information supplied by the Commission, it cannot be ruled out immediately that such solutions were capable of amounting to alternative solutions within the meaning of Article 6(4) of the Habitats Directive, even if they were, as asserted by the Portuguese Republic, liable to present certain difficulties.

39. Accordingly, by failing to examine that type of solution, the Portuguese authorities did not demonstrate the absence of alternative solutions within the meaning of that provision.

Full Judgement available at:

Case C-371/98.Judgment of the Court of 7 November 2000. - The Queen v Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd, interveners: World Wide Fund for Nature UK (WWF) and Avon Wildlife Trust. - Reference for a preliminary ruling: High Court of Justice (EnglandWales), Queen's Bench Division (Divisional Court) - United Kingdom. - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Definition of the boundaries of sites eligible for designation as special areas of conservation - Discretion of the Member States - Economic and social considerations - Severn Estuary.

1. On the basis of the criteria set out in Annex III (Stage 1) and relevant scientific information, each MemberState shall propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II that are native to its territory the sites host. For animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction. For aquatic species which range over wide areas, such sites will be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction. Where appropriate, Member States shall propose adaptation of the list in the light of the results of the surveillance referred to in Article 11.

22 To produce a draft list of sites of Community importance, capable of leading to the creation of a coherent European ecological network of SACs, the Commission must have available an exhaustive list of the sites which, at national level, have an ecological interest which is relevant from the point of view of the Habitats Directive's objective of conservation of natural habitats and wild fauna and flora. To that end, that list is drawn up on the basis of the criteria laid down in Annex III (Stage 1) to the directive.

23 Only in that way is it possible to realise the objective, in the first subparagraph of Article 3(1) of the Habitats Directive, of maintaining or restoring the natural habitat types and the species' habitats concerned at a favourable conservation status in their natural range, which may lie across one or more frontiers inside the Community. It follows from Article 1(e) and (i), read in conjunction with Article 2(1), of the directive that the favourable conservation status of a natural habitat or a species must be assessed in relation to the entire European territory of the Member States to which the Treaty applies. Having regard to the fact that, when a Member State draws up the national list of sites, it is not in a position to have precise detailed knowledge of the situation of habitats in the other Member States, it cannot of its own accord, whether because of economic, social or cultural requirements or because of regional or local characteristics, delete sites which at national level have an ecological interest relevant from the point of view of the objective of conservation without jeopardising the realisation of that objective at Community level.