Environmental assessment under the Habitats Directive: something other than a procedure?

• Author: Agustin Garcia-Ureta
• Position: Department of Administrative Law, Universidad del Pais Vasco, Bilbao, Spain and Faculty of Law, University of the Basque Country, Bilbao, Spain
• Pages: 113-125

Environmental assessment under

the Habitats Directive: something

other than a procedure?

Agustin Garcia-Ureta

Department of Administrative Law, Universidad del Pais Vasco, Bilbao, Spain

and Faculty of Law, University of the Basque Country, Bilbao, Spain

Abstract

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

1. Introduction

The Habitats Directive is now 26 years old[1]. 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”[2]. 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[3]. The drafters

of the Directive followed a similar path to that adopted under the Wild Birds Directive[4].

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

Lazkano Brot

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

previous draft.

Environmental

assessment

113

Received19 February 2018

Revised23 April 2018

Accepted9 May 2018

Journalof Property, Planning and

EnvironmentalLaw

Vol.10 No. 2, 2018

pp. 113-125

© Emerald Publishing Limited

2514-9407

DOI 10.1108/JPPEL-02-2018-0009

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