Environmental assessment under
the Habitats Directive: something
other than a procedure?
Department of Administrative Law, Universidad del Pais Vasco, Bilbao, Spain
and Faculty of Law, University of the Basque Country, Bilbao, Spain
Purpose –The purpose of this paper is to examine the impact of the assessment procedure under the
European UnionHabitats Directive. The wider scope of this procedure togetherwith the lack of detail as to its
requirements has originated from an important body of case law from the European Court of Justice. The
Court has steadily clariﬁed some of the key matters underlyingthe procedure. Its case law now represents a
signiﬁcantconstraint for development plan and projects affectingNatura 2000 sites.
Design/methodology/approach –The methodology is based on the analysis of the directive’stext
[Article 6(3) and (4)] in the light of the case law. This paper aims to highlight the relevant ﬁndings of the
EuropeanCourt and how they limit the prima facie discretion on the part of the Member States.
Findings –The basic ﬁndings could be summarised as follows: the environmental assessment procedure
under the Habitats Directive represents a strong tool for controlling activities affecting Natura 2000 sites.
Unlike the other environmental assessment directives, a negative conclusion concerning their effects
precludes any execution.Signiﬁcant territorial gaps between plans and projectsand Natura 2000 sites do not
necessarily avoid the carrying out of complete assessments. The conjunction between a general duty to
prevent the deteriorationof sites and environmental assessments requiresthat projects authorised before the
designationof sites may be subject to this procedure.
Originality/value –The originality of this paperis based on a structured presentation of the key matters
surroundingthe assessment procedure in the light of the recent case law.
Keywords Environmental assessment, Compensation measures, Corridors,
Duties of Member States, European Commission supervision, Habitats Directive
Paper type Research paper
The Habitats Directive is now 26 years old. It is indeed one of the cornerstones of
“biodiversity”protection in the European Union (EU) in conjunction with the Wild Birds
Directive, both directives being “coherent with each other”. Unlike the Convention on
Biological Diversity (CBD), the former Directive does not apply to any wild species in the
European territory but only to a relativelyvaried number of priority species. The drafters
of the Directive followed a similar path to that adopted under the Wild Birds Directive.
Nevertheless, they speciﬁed in greater detail the procedure for the classiﬁcation of sites of
Community importance, the stages of which have largely been prolonged in time. Unlike
these matters, both the managementof designated areas and the environmentalassessment
of plans and projects likelyto affect them were drafted in imprecise terms (García-Uretaand
ons, 2015). The territorial effects of the Habitats Directive and the need to
The author would like to thank Alexandra Aragao (Coimbra University) for her comments on a
Received19 February 2018
Revised23 April 2018
Accepted9 May 2018
Journalof Property, Planning and
Vol.10 No. 2, 2018
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