By its 3 April 2014 judgment in a preliminary ruling procedure, the ECJ has held that in certain cases, the Member States are required to propose to the Commission the declassification of a site on the list of SCIs. This is especially true for those cases in which the owner of land forming part of a site on that list makes a request to declassify that site and proves that the relevant site cannot contribute to the achievement of the objectives set forth in the Habitats Directive.
Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("Habitats Directive") provides for setting up a European network of areas of conservation under the title "Natura 2000". Said Directive required the Member States to nominate sites suitable for entry in the Natura 2000 network. Based on such nominations, the Commission selected the sites forming the Natura 2000 network as "sites of Community importance" (SCIs). The Member States were then required to establish adequate national rules to give protection to these SCIs as "special areas of conservation" (SACs).
Resistance against SAC designation
Already in the course of the nomination of areas of conservation by the Member States, land owners offered strong resistance against the inclusion of their lands in the areas of conservation system. They did so for an obvious reason: the inclusion of land in the areas of conservation system results in the applicability of Art 6 of the Habitats Directive. Pursuant to Art 6 (2) of the Habitats Directive, any deterioration of natural habitats and any disturbance of the species for which the areas have been designated shall be avoided on such land. Any form of (significant) disturbance is prohibited. Moreover, any measure connected with such land that is likely to have an effect on the SCI shall be subject to a (costly) assessment of its implications for the site. The assessment addresses the compatibility of the proposed measure with the conservation objectives of the relevant area of conservation. In practice, proposed measures are regularly not approved in the event that they are not compatible with such objectives. In view of these strict rules, the owners of such land were faced with significant usage restrictions and losses in the value of their properties.
Sites may be declassified
In a preliminary ruling procedure, the ECJ had to decide whether the Member States are required to propose the declassification of a site on the list of SCIs if a landowner so requests, referring to the environmental damage of a SCI. The answer given by the ECJ was unusually clear: Yes, the Members States are required (without exception) to arrange for a declassification with the Commission if it is proven that a site is definitively no longer capable of contributing to the conservation of natural habitats and of the wild fauna and flora or the setting up of the Natura 2000 network. In other words: If a site is not eligible for designation as SAC, the respective Member State does not have any room for discretion.
Whether a site can contribute to the objectives of the Habitats Directive must be evaluated on the basis of the criteria for selecting sites set forth in Annex III of the Habitats Directive. If such criteria are not met with respect to an area of conservation, the area of conservation must be removed from the Natura 2000 system.
Consequences of the ECJ judgment
The national proceedings underlying the preliminary ruling procedure dealt with the (infrastructure-related) damaging of an area of conservation that occurred after a site entered the list of SCIs. Since the ECJ judgment generally referred to the satisfaction of the criteria for selecting sites set forth in Annex III of the Habitats Directive, there may be other cases, apart from the damaging of an area of conservation occurred after site designation, in which the Member States are required to arrange for a declassification of a site of conservation. Member States will be required to act also in respect of such areas of conservation that should not have been included in the system of areas of conservation in the first place due to their failure to satisfy the criteria set forth for selecting sites set forth in Annex III of the Habitats Directive upon inclusion in the list of SCIs. In addition, a site will have to be declassified when the conservation objectives identified for such site can verifiably and definitively not be achieved (e.g. extinction of plant types for which the respective site was designated).
It remains to be seen what benefit the ECJ judgment will have for the respective land-owners. The obligation of a Member State, addressed in the judgment, to propose to the Commission an adaptation of the list of SCIs at the (justified) request of a landowner does not, for the time being, affect any areas of conservation wrongfully designated. The rules concerning areas of conservation of Art 6 of the Habitats Directive and the national rules concerning areas of conservation issued on that basis are generally still valid without any change, as long as the relevant site is not removed from the list of SCIs. Nonetheless, the violation of a Member State's obligation to act constitutes an incorrect application of Art 11 of the Habitats Directive and entitles the Commission to initiate infringement proceedings before the ECJ. The initiation of such proceedings by the Commission may be suggested by a landowner and any other parties concerned (such as operators of operational plants in Natura 2000 sites). In addition, the assertion of State liability claims may also be considered. Last but not least: Landowners may bring an action before the European Court of Human Rights since the ECJ explicitly stated in the preliminary ruling procedure that if a site not eligible for designation as area of conservation remains in the Natura 2000 network, this may constitute a violation of the title of the individuals whose properties are situated within such site.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.