Compensatory Measures in European Nature Conservation Law

Abstract

The Birds and Habitats Directives are the cornerstones of EU nature conservation law, aiming at the conservation of the Natura 2000 network, a network of protected sites under these directives, and the protection of species. The protection regime for these sites and species is not absolute: Member States may, under certain conditions, allow plans or projects that can have an adverse impact on nature. In this case compensatory measures can play an important role in safeguarding the Natura 2000 network and ensuring the survival of the protected species.This contribution analyses whether taking compensatory measures is always obligatory, and discusses the aim and the characteristics of compensatory measures, in relation to other kinds of measures such as mitigation measures, usual nature conservation measures, and former nature development measures, and to the assessment of the adverse impact caused by the plan or project and of the alternative solutions. The questions will be discussed in light of the contents of the legislation, the guidance and practice by the European Commission, (legal) doctrine and case law, mainly of the Court of Justice of the European Union.

Full text

This arcle is published in a peer-reviewed secon of the Utrecht Law Review
161


Geert Van Hoorick*
Compensatory Measures in European Nature Conservation Law
1. Introduction
In this contribution
1
we will discuss the obligations of the Member States under the Birds and Habitats
Directives
2
to compensate for biodiversity loss. In particular we will discuss the compensation obligations
within the framework of Articles 6(4) and 16(1) of the Habitats Directive. e rst provision requires the
Member States to take compensatory measures to ensure the coherence of Natura 2000 in cases where
plans or projects causing negative impacts have been allowed because of overriding public interests,
the latter provision requiring them to take measures to maintain a favourable conservation status for
protected species in cases where derogations from the species protection measures of the Habitats
Directive have been granted. We will focus on the relationship between compensation, mitigation, nature
development measures, and the assessment of alternative solutions. We will discuss the questions in
light of the contents of the legislation, the guidance provided by the European Commission services, the
practice of the issued opinions of the Commission, (legal) doctrine and case law, mainly of the Court of
Justice of the European Union.
2. Text of Article 6(4) of the Habitats Directive
e obligation relating to compensatory measures in Article 6(4) of the Habitats Directive
3
is formulated
as follows:
‘If, in spite of a negative assessment of the implications for the site and in the absence of
alternative solutions, a plan or project must nevertheless be carried out for imperative reasons
of overriding public interest, including those of a social or economic nature, the Member State
shall take all compensatory measures necessary to ensure that the overall coherence of Natura
2000 is protected. It shall inform the Commission of the compensatory measures adopted.
* Department for Public Law, Centre for Environmental and Energy Law, Law Faculty, Ghent University, Ghent (Belgium), e-mail:
geert.vanhoorick@ugent.be.
1 Contribuonto‘WaterandOcean Law in TimesofClimateChange’,InternaonalConference,UtrechtCentreforWater,Oceansand
SustainabilityLaw,UtrechtUniversity,Utrecht(theNetherlands),31Octoberand1November2013.
2 Direcve2009/147/ECof30November2009ontheconservaonofwildbirds,OJL20,26.1.2010,p.7;CouncilDirecve92/43/EEC
of21may1992ontheconservaonofnaturalhabitatsandofwildfaunaandora,OJL59,8.3.1996,p.63;seeM.Blin,‘Lesdirecves
oiseauxethabitats’,2009,no.extra1,pp.115-119;N.DeSadeleer,‘HabitatsConservaoninECLaw
–FromNatureSanctuariestoEcologicalNetworks’,20055,pp.215-252.
3 SeeJ.Bonichot,‘L’arcle6deladirecvehabitatsetlaCJCE’,2009,no.extra1,pp.127-129.

162
Compensatory Measures in European Nature Conservaon Law
Where the site concerned hosts a priority natural habitat type and/or a priority species, the
only considerations which may be raised are those relating to human health or public safety, to
benecial consequences of primary importance for the environment or, further to an opinion
from the Commission, to other imperative reasons of overriding public interest.’
e provision aims at taking compensatory measures in case of damage to Natura 2000 sites when
negative plans or projects have been allowed because of overriding public interests.
For the interpretation of the obligation relating to compensatory measures, there is a Guidance
document of the Commission on Article 6(4)
4
that can be useful. However, it reects the views of the
Commission services only and is not of a binding nature. Nevertheless, it can be very helpful and we
can be certain that the Court of Justice tends to look at such guidance documents.
5
Up until now the
Commission has issued 20 opinions under Article 6(4)(2),
6
and although these opinions are dicult to
evaluate for an outside observer, they at least provide an insight into how the compensation obligation is
dealt with in practice.
7
For a long time European case law regarding the characteristics of compensatory
measures had been non-existent, but in 2012 the Acheloos River case in Greece was brought before the
Court of Justice
8
on a reference for a preliminary ruling. ere also exists some legal doctrine
9
about the
topic, and in some Member States also national case law.
10
3. Compensatory vs. mitigation measures
e term compensatory measures is not dened in the Habitats Directive. In the Guidance document
11
a distinction is made between mitigation measures (those measures which aim to minimize, or even
cancel, the negative impacts on a site that are likely to arise as a result of the implementation of a plan or
project) and compensatory measures (those measures which are independent of the project, including
any associated mitigation measures, and are intended to oset the negative eects of the plan or project
so that the overall ecological coherence of the Natura 2000 Network is maintained). Let us give an
example: if the plan or project is the construction of a motorway, an ecoduct to connect the populations
of the negatively aected species amounts to ‘mitigation’, the creation of a new habitat for the aected
species is ‘compensation’. e meaning of mitigation here is close to the denition used in the doctrine:
12
minimization, such as limiting or reducing the degree, extent, magnitude or duration of adverse impacts,
by scaling down, relocating or redesigning elements of a project. In the Commission’s opinions, for
example, the following measures were regarded as mitigation measures: an extension of a bridge over
a river to reduce the impact on alluvial forests,
13
noise barriers,
14
a 300-meter viaduct,
15
anti-collision
barriers of 4 meters for bats,
16
the removal of temporary construction roads aer completion,
17
collecting
and relocating protected species (e.g. bulbs and reptiles),
18
prohibiting construction activities at night
19
4 EuropeanCommission,,2007,<hp://ec.europa.eu/environment/
nature/natura2000/management/docs/art6/guidance_art6_4_en.pdf> (lastvisited23March2014).
5 E.g.CaseC-182/10,,[2012]ECRI-0000,Para.28.
6 <hp://ec.europa.eu/environment/nature/natura2000/management/opinion_en.htm>(lastvisited23March2014).
7 SeeL.Krämer,‘TheEuropeanCommission’sOpinionsunder arcle6(4)ofthe habitatsdirecve’,2009 21,no1, pp.59-85;
D.McGillivray,‘Biodiversityloss:theEUCommission’sapproachtocompensaonunderarcle6oftheHabitatsDirecve’,2012
24,pp.417-450.
8 CaseC-43/10,[2012]ECRI-0000.
9 E.g.F.Haumont,‘L’applicaondesmesurescompensatoiresprévuesparNatura2000’,200910,pp.611-624;D.McGillivray,
‘Biodiversityloss:theEUCommission’sapproachtocompensaonunderarcle6oftheHabitatsDirecve’,201224,pp.417-450.
10 Seee.g.H.Schoukens&A.Cliquet,‘MigaonandCompensaonunderEUNatureConservaonLawintheFlemishRegion:Beyondthe
DeadlockforDevelopmentProjects?’,201410,no.2,pp.194-215.
11 Guidancedocument,supranote4,p.10.
12 K.Rundcrantz&E.Skärbäck,‘Environmentalcompensaoninplanning:areviewofvedierentcountrieswithmajoremphasisonthe
Germansystem’,200313,no.4,p.206.
13 Opinionin.
14 Opinionin.
15 Opinionin.
16 Opinionin.
17 Opinionin.
18 Opinionin.
19 Opinionin.

163
Geert Van Hoorick
or dredging activities during spawning times,
20
postponing the time frame for felling trees during the
breeding season,
21
and speed limits for ships to reduce the intensity of their waves.
22
e measures which
the Commission regarded as compensatory were in all cases the creation or restoration of the aected
habitat types or species’ habitats.
is clear distinction, which distinguishes mitigation from compensatory measures, is necessary so
as not to jeopardize a sound assessment of the adverse eects of the plan or project and of the alternative
solutions. Otherwise, combining a worse plan or project with strong compensatory measures could
supersede a better alternative plan or project combined with weak compensatory measures. is cannot
be the purpose of the Habitats Directive, because, as stated in the Guidance document,
23
it is widely
acknowledged that it is highly unlikely that by taking compensatory measures the conservation status
of the related habitats and species can be reinstated to the level they had before the damage by a plan
or project. Mitigation measures, however, are an integral part of the specications of a plan or project.
24
us, compensatory measures should be considered only aer having ascertained a negative impact
on the integrity of a Natura 2000 site.
25
Specically, the logic and rationale of the assessment process
require that if a negative impact is foreseen then an evaluation of alternatives should be carried out
as well as an appreciation of the interest of the plan or project in relation to the natural value of the
site. Once it is decided that the plan or project should proceed, then it is appropriate to move on to a
consideration of compensatory measures.
26
In the near future we will know whether the Court of Justice
supports this vision as a case is currently pending on a request for a preliminary ruling from the Raad
van State (Council of State) of the Netherlands.
27
e Raad van State wants to know if the phrase ‘not
adversely aect the integrity of the site’ in Article 6(3) has to be interpreted as follows: when the project
adversely aects the area of a protected natural habitat type within the site, the integrity of the site is not
adversely aected if in the framework of the project an area of that natural habitat type of equal or similar
size is created within that site.
4. Compensatory measures vs. usual nature conservation measures
It is obvious, as is stated in the Guidance document,
28
that compensatory measures should go beyond
the normal or standard measures required for the protection and management of Natura 2000 sites.
But because space is limited and ‘naturalizing’ agricultural or other intensively used land oen meets
strong opposition from farmers or other people, governments sometimes prefer to take qualitative
compensation measures in existing Natura 2000 sites, thus enhancing their ecological value.
It is not always easy to determine in a real case what the normal or standard measures required for
the protection and management of Natura 2000 sites are. A clear criterion could be the conservation
status of the related habitats and species in the Natura 2000 site where the compensatory measures are
taken: in principle, as long as the conservation status of the related habitats and species in this site is
not favourable, ‘compensatory measures’ in this site cannot be regarded as going beyond the normal
20 Opinionin.
21 Opinionin.
22 Opinionin.
23 Guidancedocument,supranote4,p.17.
24 Guidancedocument,supranote4,p.10.
25 CaseC-182/10,,[2012]ECRI-0000,Paras.73and74;CaseC-258/11,[2013]ECRI-0000,Para.35.
26 Guidancedocument,supranote4,p.11;OpiniongivenbytheAdvocateGeneralinCaseC-239/04,,
Para. 35; In conformity therewith in Belgium the    (Council of State, the highest administrave court in Belgium)
(RvS29November2011,no.216.548,;RvS29March2013,no.223.083,
 <www.raadvst-consetat.be>) ruled that nature development measures (the creaon of habitats by the expropriaon of
agriculturalland)accompanyingamotorwayprojectcouldnotbeseenasmigaonmeasurestotakeawaythenegaveeectsofthe
planorproject,andthereforecouldnotbetakenintoaccountintheappropriateassessment.Thesemeasureswereclearlycompensatory
measures.
27 Case C-521/12,          , [2012] (not yet published); ABRvS 7 November 2012,
201110075/1/R4 and 20120185/1/R4. See J. Zijlmans & H. Woldendorp, ‘Compensaon and Migaon: Tinkering with Natura2000
ProteconLaw’,201410,no.2,pp.172-193.
28 Guidancedocument,supranote4,p.10.

164
Compensatory Measures in European Nature Conservaon Law
or standard measures for the protection and management of Natura 2000 sites, and the Member State
should have the burden of proving the opposite.
29
5. Aim of compensatory measures; in-kind compensation
According to Article 6(4) of the Habitats Directive the compensatory measures have to ensure that the
overall coherence of Natura 2000 is protected. is provision is linked with Article 3(1), requiring the
Natura 2000 network states in question to maintain the concerned habitats and species or to restore them
at a favourable conservation status in their natural range. Hence, according to the Guidance document,
30
two dierent criteria are considered, on the one hand the targeted species and habitats in terms of
quantity and quality, and on the other hand the role of the site in ensuring an adequate geographical
distribution in relation to the range. Compensation should refer to the site’s conservation objectives,
a notion mentioned in Article 6(3), and to the habitats and species negatively aected in comparable
proportions in terms of their numbers and status. At the same time the role played by the site concerned
in relation to biogeographical distribution has to be adequately replaced. According to the Guidance
document,
31
this is by analogy similar to the specially protected areas under the Birds Directive. In all the
Commission’s opinions it stresses that the compensatory measures have to ensure the overall coherence
of Natura 2000, and except for the very rst opinions the Commission does check this. In one case the
Commission considered itself unable to fully assess whether the compensatory measures and their timing
would ensure overall coherence with Natura 2000.
32
e term compensation is here used in the sense of what in the doctrine
33
is called ‘restoration
compensation’: environmental compensation for lost environmental values in the right functional
context (on-site, in-kind compensation), with the nuance that on-site has to be understood somewhat
broadly in the sense of ‘within the biogeographical region’ and not necessarily on the same Natura 2000
site. Certainly the compensation has to be in-kind (e.g. dry heathland by dry heathland) and within the
functional context of the coherence of the Natura 2000 network. In all of the Commission’s opinions it
checks the link with the global coherence of Natura 2000 and the correspondence between the aected
habitat and the created or restored compensatory habitat.
6. Simultaneousness and feasibility of compensatory measures
e Guidance document derives some characteristics from the aim of compensatory measures. Basically
the result of implementing compensation should be operational once the damage is eective at the site
concerned, but it is acknowledged that there can be certain circumstances where this cannot be completely
fullled (the Guidance document gives as an example a forest habitat:
34
the trees need decades to grow
before restoring the functionality of the forest habitat). However, compensatory measures require that a
sound legal and nancial basis for long-term implementation and for their protection, monitoring and
maintenance be secured in advance before the impacts upon habitats or species occur.
35
Compensatory
29 InBelgiumtherewasacasebeforethe(RvS30July2002,no.109.563,,www.raadvst-consetat.be>) in
whichitwasdeterminedthatnaturedevelopmentmeasuresataproposedsiteofCommunityinterestundertheHabitatsDirecvecould
notbeseenascompensatorymeasuresinthesenseofArcle6(4)oftheHabitatsDirecveforthedestruconofaspecialprotecon
areaundertheBirdsDirecvebecauseofoverridingpublicinterests,giventhattheHabitatsDirecveitselfobligestheMemberStates
toensureasoundmanagementofthesesites.Thisjudgmentgaverisetosomecricalremarksinlegaldoctrine(H.Schoukensetal.,
,2011,p.226)because,asmenoned,theHabitatsDirecveandtheGuidancedocumentdonotexclude
suchcompensatorymeasuresassuch.Assuming thatit wasnotevidentthatintheBelgian casethe compensatorymeasuresdidgo
beyondthenormalorstandardmeasuresrequiredfortheproteconandmanagementofNatura2000sites,thejudgementofthe
 can be seen as being correct.
30 Guidancedocument,supranote4,p.11.
31 SeeGuidancedocument,supranote4,p.12.
32 BecauseGermanyatthatmehadnotyetproposedasucientnumberofsitesaccordingtoArcle4oftheHabitatsDirecve(opinion
in ).
33 K.Rundcrantz&E.Skärbäck,‘Environmentalcompensaoninplanning:areviewofvedierentcountrieswithmajoremphasisonthe
Germansystem’,200313,no.4,p.206.
34 Guidancedocument,supranote4,p.14.
35 Guidancedocument,supranote4,p.19.

165
Geert Van Hoorick
measures must be feasible and operational in reinstating the ecological conditions needed to ensure
the overall coherence of the Natura 2000 network (i.e. the ecological structure and functions impaired
and the habitats and species involved). e estimated timescale and any maintenance action required to
enhance performance should be known and foreseen right from the start in view of the implementation
of the measures. is must be based on the best scientic knowledge available, complemented with
specic investigations for the precise location where the compensatory measures will be implemented.
36
From its rst opinion
37
onwards the Commission has stressed that the compensatory measures have to
be taken simultaneously with the damaging activities, and in several opinions the Commission accepts
the compensatory measures subject to the condition that they are executed in a timely manner.
38
In
more recent opinions the Commission even considers it necessary that the compensatory measures are
completed before the damaging activities commence.
39
In one case
40
two existing Natura 2000 sites will
be linked by means of compensatory measures.
Measures without a reasonable guarantee of success should not be considered. e most eective
option, allowing for the greatest chances of success, must be chosen when it comes to deciding between
dierent possibilities of compensation. e programme of compensatory measures needs to include
detailed monitoring during implementation to ensure eectiveness in the long term.
41
Except for a few
early opinions, the Commission always requires that a monitoring system must be put in place,
42
and
that the results of the monitoring must be taken into account and may lead to additional compensatory
measures.
43
In some opinions the Commission accepts compensatory measures only subject to the
condition of providing maintenance measures for the compensatory habitats
44
or their long-term
eectiveness.
45
at the Commission does not exclude a priori management contracts with farmers for
the conservation of compensatory habitats
46
does not aect the requirement for monitoring and achieving
long-term conservation; it is up to the national governments to change to compulsory instruments if
necessary.
e costs of compensatory measures should not be taken into account while evaluating this
eectiveness: they must be seen as part of the total costs of the plan or project. If the costs are considered
to be too high, it should preclude the promoter from initiating the plan or project and stimulate him to
search for alternative plans or projects that are less harmful for Natura 2000. e costs of compensatory
measures for plans or projects with a large impact can be huge, e.g. in the case of the La Breña water
reservoir in Spain
47
the main compensatory measure was to expropriate 15 estates with a total area of
more than 2,100 ha to create habitat and food for the Iberian lynx.
7. Qualitative and quantitative measures; compensation ratios
It seems that there are two kinds of compensation measures related to Natura 2000 sites: qualitative
measures enhancing the ecological quality of an existing site, and quantitative measures protecting a
non-designated site by designating it as part of the Natura 2000 network (of course mostly combined
with qualitative measures at that site, because only that legal status will not be sucient to ensure the
coherence of the Natura 2000 network). One of the principles in European policy is ‘no net loss’ of
biodiversity.
48
is can only be achieved by an obligation to take quantitative compensatory measures in
36 Guidancedocument,supranote4,p.16.
37 Opinionin.
38 E.g. opinion in .
39 E.g. opinions in  and .
40 Opinionin.
41 Guidancedocument,supranote4,p.17.
42 E.g. opinions in ,  and .
43 Thesameappliestomigaonmeasures;E.g.opinionin.
44 E.g. opinion in .
45 Opinionin.
46 Opinionin.
47 Opinionin.InthiscasetheSpanishGovernmentproposedcompensatorymeasuresofmorethan€28million.
48 European Commission,            , COM(2011) 244 nal, p. 12;
D.McGillivray,‘Compensangbiodiversityloss:TheEUCommission’sapproachtocompensaonunderarcle6oftheHabitatsDirecve’,
201224,no.3,p.421.

166
Compensatory Measures in European Nature Conservaon Law
cases where (a part of) a Natura 2000 site is destroyed as a result of allowing development on that land (a
motorway, an extension of a seaport, a housing project, etc.). Otherwise the surface of the Natura 2000
network and therefore the coherence of the Natura 2000 network would shrink.
e Guidance document supports that vision in the passage on compensation ratios. Even if the
Guidance document accepts as compensatory measures not only the recreation of a habitat, or the
proposal of a new site, but also the biological improvement of a substandard habitat within an existing
designated site,
49
it states that the extent required for the compensatory measures to be eective has a
direct relationship to the quantitative and qualitative aspects inherent in the elements of integrity (i.e.,
including structure and functionality and their role in the overall coherence of the Natura 2000 network)
likely to be impaired and in the estimated eectiveness of the measures.
50
e compensation ratios are best
set on a case-by-case basis and must be initially determined in light of the information managed during
the Article 6(3) assessment and ensuring the minimum requirements to meet ecological functionality.
51
Implicitly, the Guidance document stands for quantitative measures in case of a decline in the surface of
a Natura 2000 site. ere is wide acknowledgement that ratios should be generally well above 1:1. us,
compensation ratios of 1:1 or below should only be considered when it is demonstrated that with such
an extent, the measures will be 100% eective in reinstating structure and functionality within a short
period of time (e.g. without compromising the preservation of the habitats or the populations of key
species likely to be aected by the plan or project).
52
If compensation cannot be completely operational at
the time when the damage is eective on the site concerned, overcompensation
53
would be required for
the interim losses.
54
Compensation in a non-designated location is acceptable, but must be accompanied
by a designation as part of the Natura 2000 network,
55
otherwise a long-term coherence of Natura 2000
would not be ensured.
It appears that in many cases submitted for a Commission opinion, Member States apply compensation
ratios of more than 1:1. We can see ratios of 1:2
56
and 1:3,
57
over 1:4 and 1:7
58
up to 1:10
59
and even 1:12.
60
It depends on the recreation time of the habitat types which can extend beyond several decades.
61
In
some cases
62
Member States make a very useful distinction between the compensation of direct habitat
loss (by land occupation) and the compensation of indirect habitat loss (by a gradually negative impact).
It is not always clear from the Commission’s opinions
63
whether the compensatory habitats are in or
outside Natura 2000 and if outside, whether the Commission really requires that they be designated
as part of Natura 2000. In some cases
64
the Member State proposes the creation of a compensatory
habitat notwithstanding the fact that the adversely aected habitats will in time be brought back into the
Natura2000 network.
49 Guidancedocument,supranote4,p.14.
50 Guidancedocument,supranote4,p.17.
51 Guidancedocument,supranote4,p.17.
52 Guidancedocument,supranote4,p.18.
53 Theterm‘overcompensaon’isusedintheGuidancedocument.However,thecorrectnameismayberather‘compensatoryremediaon’
inthesenseofAnnexIIofDirecve2004/35/CEoftheEuropeanParliamentandoftheCouncilof21April2004onenvironmentalliability
withregardtotheprevenonandremedyingofenvironmentaldamage,OJL143,30.04.2004,p.56:‘1.(c)“Compensatory”remediaon
isanyacontakentocompensateforinterimlossesofnaturalresourcesand/orservicesthatoccurfromthedateofdamageoccurring
unlprimaryremediaonhasachievedits fulleect;(d)“interimlosses”meanslosseswhichresultfromthefactthatthedamaged
naturalresourcesand/orservicesarenotabletoperformtheirecologicalfunconsorprovideservicestoothernaturalresourcesorto
thepublicunltheprimaryorcomplementarymeasureshavetakeneect.Itdoesnotconsistofnancialcompensaontomembersof
thepublic.’
54 Guidancedocument,supranote4,p.19.
55 Guidancedocument,supranote4,p.14.
56 Opinionsin and .
57 Opinionsin, , ,  and .
58 Opinionin.
59 Opinionin.
60 Opinionin.
61 Opinionin.
62 Opinionin.
63 E.g. opinions in  and .
64 Opinionin.

167
Geert Van Hoorick
8. Compensation beforehand; compensation vs. nature development measures and habitat
banking
In practice there is a need for a more comprehensive and proactive approach towards compensation, in
which the assessment of several (succeeding or territorially close) negative plans and projects in a certain
region (e.g. a seaport) and also the compensatory measures are bundled and handled early on during the
planning phase. But questions arise as to whether the Birds and Habitats Directives can deal with this
need for exibility and whether this approach could possibly endanger the Natura 2000 network.
In the Guidance document it is mentioned several times
65
that a case-by-case approach is
appropriate, but by using the word plan, Article 6(3) of the Habitats Directive provides some room for a
comprehensive approach: several (succeeding or territorially close) projects can be included in one plan
(e.g. for the development of a seaport). e Guidance document states that best eorts should be made to
assure compensation is in place beforehand
66
(i.e. before the damage to Natura 2000 is caused), thus not
prohibiting a proactive approach, and in recent opinions
67
the Commission has considered it necessary
that the compensatory measures are completed before the beginning of the damaging activities. But
there seem to be limits as to how long beforehand the compensation should be in place. Given the link
with the damage that will be caused and the appropriate assessment, and the strict requirement that
compensation should ensure the coherence of the Natura 2000 network, it seems that there is only little
room for formerly taken nature development measures in the area to be regarded as compensatory
measures under Article 6(4) of the Habitats Directive. e same applies to habitat banking,
68
as the
Guidance document
69
considers it as rarely useful in the framework of compensation. is does not have
to discourage Member States from taking nature development measures or setting up habitat banking for
Natura 2000 sites beforehand, because these measures can enhance the conservation status of the related
habitat and species, and by doing so, making them less vulnerable to damage, i.e. requiring a higher
damage level to qualify the eect of the plan or project as signicant within the meaning of Article6(3)
of the Habitats Directive. In light of the above discussed requirements of compensatory measures, the
nature development measures or the newly developed habitats in the habitat banking system have to be
operational a considerable time before the plan or project aecting Natura 2000 is put in place; only under
these circumstances can the result of these measures legally play a role in the appropriate assessment.
9. Impossible compensation
A problem that the Guidance document
70
only briey addresses is that some habitat types cannot be
compensated because they are rare or need a long period for providing the same ecological functionality
(e.g. raised bogs need more than a thousand years to develop): ‘under these circumstances, the zero
option should be seriously considered’. Also the Guidance document
71
states that the likely success of the
compensation scheme should inuence the nal approval of the plan or project in compliance with the
preventive principle.
One should acknowledge that the zero option should always be seriously considered and that even
in many common cases compensation will not yet be eective at the time of the damage when starting
from zero. So one can derive from Article 6(4) that the Member States have a legal duty to conserve
sucient potential Natura 2000 sites outside the Natura 2000 network, i.e. sucient habitats of bird
65 E.g.Guidancedocument,supranote4,pp.17and19.
66 Guidancedocument,supranote4,p.13.
67 E.g. opinion in  and .
68 G.VanHoorick,‘Innovavelegalinstrumentsforecologicalrestoraon’,inI.Booneetal.(eds.),
,2009,pp.483-488.TwostudiescommissionedbytheCommissionhavebeenmadeonthistopic:REMEDE,
,2008,<hp://www.envliability.eu/docs/D12CaseStudies/D12CaseStudies.html> (last
visited23March2014);EFTEC,IEEPetal.,
 , 2010, <hp://www.ieep.eu/work-areas/biodiversity/2010/02/the-use-of-market-based-instruments-for-biodiversity-
protecon-the-case-of-habitat-banking>(lastvisited23March2014).
69 Guidancedocument,supranote4,p.16.
70 Guidancedocument,supranote4,p.13.
71 Guidancedocument,supranote4,p.16.

168
Compensatory Measures in European Nature Conservaon Law
species of Annex I of the Birds Directive or migratory bird species, and habitats from Annex I of the
Habitats Directive and from species of Annex II of the Habitats Directive. Oen the habitats that have
not met the selection criteria from the Birds and Habitats Directives (usually degraded habitats) can be
upgraded and designated as a Natura 2000 site, and this is in many cases better than a start from zero,
merely beginning with the expropriation of (agricultural) land. Furthermore, by conserving potential
Natura 2000 sites outside the Natura 2000 network one can improve the connectivity of the Natura 2000
network, also in light of adapting Natura 2000 to climate change.
10. Biological integrity vs. man-made nature
e Guidance document stresses the biological integrity of Natura 2000. Compensatory measures under
the Habitats Directive must be established according to reference conditions that are dened aer the
characterisation of the biological integrity of the site likely to be lost or deteriorated, and according
to the likely signicant negative eects that would remain aer mitigation. Biological integrity can be
dened as all those factors that contribute to the maintenance of the ecosystem including structural and
functional assets. In the framework of the Habitats Directive, the biological integrity of a site is linked to
the conservation objectives for which the site was designated as part of the Natura 2000 network.
72
Once
the biological integrity likely to be damaged and the actual extent of the damage have been identied, the
measures in the compensation programme must specically address those eects, so that the elements
of integrity contributing to the overall coherence of the Natura 2000 network are preserved in the
long term.
73
e area selected for compensation must have – or must be able to develop – the specic
features attached to the ecological structure and functions, and required by the habitats and species
populations. is relates to qualitative aspects like the uniqueness of the assets impaired and it requires
that consideration be given to local ecological conditions.
74
In recent cases
75
submitted for a Commission
opinion it seems that Germany has delivered detailed explanations, per habitat type,, also quantitatively,
of the proposed compensatory measures.
For a long time European case law providing more insight into the characteristics of compensatory
measures had been non-existent, but in 2012 the case of the Acheloos River in Greece was brought before
the Court of Justice
76
on a reference for a preliminary ruling (as a result of no less than 14 questions by
the Greek Council of State). e controversial Acheloos diversion scheme is more than 80 years old and
is a huge project, deviating the course of the Acheloos River and making it ow into the Aegean instead
of the Ionian Sea. e river has its source in the Pindus mountains, it ows through Natura 2000 sites
and has a delta with an enormous nature value. Despite actions by environmentalist groups, numerous
judgments annulling Government decisions by the Greek Council of State and even a ban in the 1990s
by the EU Commission, parts of the project, consisting of the construction of hydro-electric dams and
associated reservoirs and tunnels, have already been completed in the last couple of decades, with many
landscape destroying construction works around the river and leading to a dramatic drop in the water
supply by the river in the delta. e river water is being deviated to the essaly plains mainly to irrigate
the maize and cotton elds.
77
e Court of Justice acknowledged that the supply of drinking water, one of the reasons that Greece
relied upon for justifying the project, can be seen as an imperative reason of overriding public interest
relating to human health in the sense of Article 6(4) of the Habitats Directive, and sees irrigation as
an imperative reason of overriding public interest but not relating to human health. e Court even
72 Guidancedocument,supranote4,p.15.
73 Guidancedocument,supranote4,p.16.
74 SeeGuidancedocument,supranote4,p.18.
75 E.g. opinions in , , etc.
76 Case C-43/10,       [2012] ECR I-0000; See P. De Smedt, ‘Heikele
toepassingsvragenbijdeKaderrichtlijnWater,inrelaetotdeHabitatrichtlijn,naaraanleidingvaneenomstredenGriekserivieromleiding’
(annotaon Case C-43/10), 2013    2, pp.153-169; H. Schoukens, ‘Omlegging Griekse rivier: de mythe van
“groene”infrastructuurprojecten’,2013,no.1,pp.67-69.
77<hp://www.balcanicaucaso.org/eng/Regions-and-countries/Greece/Greece-ght-for-the-soul-of-the-Achelous-River-128205> (last visited
23March2014).

169
Geert Van Hoorick
stated in general that irrigation could be related to benecial consequences of primary importance for
the environment,
78
which can be seriously doubted if it is, as in this case, for the cultivation of maize
and cotton. Particularly interesting for this contribution, however, is what the Court of Justice ruled in
relation to compensatory measures. On the one hand, the Court stated that the extent of the diversion of
water and the scale of the works involved in that diversion are factors that must be taken into account in
order to identify with precision the adverse impact of the project on the site concerned and, therefore, to
determine the nature of the necessary compensatory measures in order to ensure the protection of the
overall coherence of Natura 2000.
79
us it seems that in this case huge compensatory measures have to
be taken. On the other hand, the Court ruled that the compensation obligation laid down in Article6(4),
interpreted in the light of the objective of sustainable development,
80
as enshrined in Article 6 EC,
permits, in relation to sites which are part of the Nature 2000 network, the conversion of a natural uvial
ecosystem into a largely man-made uvial and lacustrine ecosystem provided that the conditions are
met to ensure the protection of the overall coherence of Natura 2000.
81
With this last statement, i.e. that
a natural ecosystem may be compensated by a man-made ecosystem, the Court did not really adhere to
the requirements for biological integrity and ecological functionality in the Guidance document. e
question even arises if it is not a contradictio in terminis that by conversing natural ecosystems in man-
made ecosystems one can ensure a long-term protection of the coherence of Natura 2000, and certainly,
in contrast to the Court’s view, this is not the purpose of sustainable development
82
(perhaps except
for saline deserts when there is no longer a more natural alternative
83
). But avoiding and minimizing
encroachments in natural ecosystems certainly is.
84
11. e costs of the compensatory measures; opinion of the Commission
e Habitats Directive remains silent about the question of who bears the costs of the compensatory
measures, but as the Guidance document
85
puts it, it appears logical that, in line with the ‘polluter
pays’ principle, the promoter of a project bears these costs. A subsidy granted by a public authority for
measures taken in order to compensate for damage to a Natura 2000 site can be considered as state aid
(within the meaning of Article 87 (ex 92) EC), should it be granted to an undertaking established in a
Natura 2000 site, designated before or aer the establishment of the undertaking. However, in the case of
an undertaking acting as a contractor for a public authority to build an infrastructure, the subsidy would
not be considered as state aid as long as it is granted in exchange for works carried out.
e compensatory measures should be submitted to the Commission before they are implemented
and indeed before the realisation of the plan or project concerned, but aer its authorisation. It is
therefore advisable that compensatory measures should be submitted to the Commission as soon as they
have been adopted in the planning process in order to allow the Commission, within its competence as
the guardian of the treaty, to assess whether the provisions of the Habitats Directive are being correctly
applied.
86
But, according to Article 6(4)(2), whenever the plan or project concerns a site hosting priority
habitats or species and is likely to aect these priority habitats or species, the realisation of plans or
projects likely to adversely aect these sites could only be justied if the evoked imperative reasons of
overriding public interest concern human health and public safety or overriding benecial consequences
78 CaseC-43/10,supranote8Para.125.
79 CaseC-43/10,supranote8,Para.132.
80 Sustainabledevelopmentisonlyensuredwhenbothintergeneraonal(environmentalprotecon)andintrageneraonal(faireconomic
andsocialdevelopment)equityisensuredandequallyconsideredthroughthedecision-making(V.Barral,‘Sustainabledevelopmentin
internaonallaw:natureandoperaonofanevoluvelegalnorm’,201223,pp.380-381).
81 CaseC-43/10,supranote8,Para.139.
82 Compensatory habitat creaoncan probably be used in some wetlands and interdal environments, but the prospects for success
inmanyterrestrialsituaonsarefarlesscertain(R.Morrisetal.,‘TheCreaonofCompensatoryHabitat–CanitSecureSustainable
Development?’,200614,p.106).
83 SeeD.A.Jonesetal.,‘SabahAl-AhmadSeaCityKuwait:developmentofasustainableman-madecoastalecosysteminasalinedesert’,
201215,no.1,pp.84-92.
84 SeealsoH.Schoukens,‘OmleggingGriekserivier:demythevan‘groene’infrastructuurprojecten’,2013
,no.1,pp.67-69.
85 Guidancedocument,supranote4,p.20.
86 Guidancedocument,supranote4,p.21.

170
Compensatory Measures in European Nature Conservaon Law
for the environment, or if, before granting approval to the plan or project, the Commission expresses
an opinion on the initiative envisaged. Since the Birds Directive does not rank any species as priority,
compensatory measures aiming to oset the eects on specially protected areas’ bird populations would
never require the Commission’s opinion. e Commission, in delivering its opinion, should check the
balance between the ecological values aected and the invoked imperative reasons, and should evaluate
the compensation measures. e opinion is not binding but in case of non-conformity with Community
law, legal action may be taken.
87
12. Derogations from species protection and compensatory measures
Also within the framework of derogations from the species protection regime of the Habitats Directive,
88
similar questions about compensatory measures as in the framework of Article 6(4) of the Habitats
Directive can arise. Here, too, the European Commission services have provided guidance.
89
According to Article 12(1) Member States ‘shall take the requisite measures to establish a system
of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting (…)
(d) deterioration or destruction of breeding sites or resting places’. According to Article 13(1) Member
States ‘shall take the requisite measures to establish a system of strict protection for the plant species
listed in Annex IV (b), prohibiting (a) the deliberate (…) uprooting or destruction of such plants in their
natural range in the wild (…)’. Article 16(1) gives the Member States the possibility to derogate from the
mentioned provisions for specically mentioned reasons of public or private interest (e.g. for imperative
reasons of public interest, including those of a social or economic nature, or to prevent serious damage
to property), but only subject to the condition ‘that there is no satisfactory alternative and the derogation
is not detrimental to the maintenance of the populations of the species concerned at a favourable
conservation status in their natural range’.
90
Particularly the provision for direct habitat protection under
Article 12(1) can be important for habitat conservation outside Natura 2000. e Court of Justice
91
has
already ruled that Greece had violated this provision by not halting the trac of motorcycles on the
beach damaging the nests of sea turtles. Recently the Court
92
has determined, in the case concerning
the wild hamster in the Alsace region, that France has failed to implement this provision. e hamster
population dropped to 20% of its former numbers in seven years, mainly due to habitat degradation
caused by urbanization and agricultural changes such as maize cultivation instead of certain cereals.
France has to adjust its agricultural and urbanization policies suciently to protect the hamster. It is clear
that this provision is not only of importance to the hamster, but also to many species under Annex IV(a).
Article 16(1) requires the Member States to search for the most satisfactory alternative (in light
of the protected species) and to take measures to maintain a favourable conservation status for the
protected species, while granting a derogation from the protection measures of Articles 12(1) and 13(1).
An appropriate assessment of the impact of a specic derogation will normally have to be at a lower
level than the biogeographical level (e.g. site, population level) in order to be meaningful in the specic
context of the derogation.
93
One way to maintain a favourable conservation status for the protected
species can be to oblige the promoter of the damaging project to take compensatory measures, or as the
Guidance document states in the case of the deterioration or destruction of breeding sites and resting
87 Guidancedocument,supranote4,p.24.
88 G.Nardell,‘A disturbanceinthe law?Implicaonsofrecentcaselawon thespeciesproteconprovisionsofthe HabitatsDirecve’,
2011,no.9,pp.1155-1173;A.Pillai&D.Hepnstall,‘TwentyyearsoftheHabitatsDirecve:acasestudyonspeciesreintroducon,
proteconandmanagement’,201315,no1,pp.27-46.
89 European Commission, 
,2007,<hp://ec.europa.eu/environment/nature/conservaon/species/guidance/pdf/guidance_en.pdf>(lastvisited23March
2014).
90 According to Arcle 16(2) of the Habitats Direcve Member States shall forward to the Commission every two years a report in
accordancewiththeformatestablishedbytheCommieeontheappliedderogaonsandtheCommissionshallgiveitsopiniononthese
derogaons.
91 CaseC-103/00,,[2002]ECRI-01147.
92 CaseC-383/09,,[2011]ECRI-04869.
93 Guidancedocumentspeciesprotecon,supranote89,p.61.

171
Geert Van Hoorick
places ‘derogations can be more easily justied if sucient compensatory measures are taken to oset the
impact at population and biogeographic levels’.
94
All of the characteristics of the compensatory measures under Article 6(4) discussed above (in-kind,
simultaneousness, etc.) are also valid here, and as in the case of Article 6(4), a sound assessment of the
alternatives is only possible including the mitigation measures and independent of the compensatory
measures; all this is stressed in the Guidance document.
95
But it seems that compensatory measures beforehand (e.g. through habitat banking) or former
nature development measures can enhance the conservation status of the concerned species, and by
doing so, making it unnecessary to compensate at a later stage when derogations are granted, and this is
dierent from the situation under Article 6(4), requiring compensatory measures as such. If one reads
the Guidance document
96
on this point, one sees that the Commission services are struggling with this
dierence. ey refuse to call these kinds of measures compensatory measures and come up with the
new term ‘CEF measures’, or in full ‘measures that ensure the continued ecological functionality of a
breeding site/resting place’. According to the Guidance document
97
these new kinds of measures include
mitigation measures and preventive measures such as the improvement of the management of habitats
or even creating new habitats.
13. Conclusions
e obligation to take compensatory measures under Article 6(4) of the Habitats Directive, as interpreted
by the Court of Justice and in the Commission’s guidance and practice and in (legal) doctrine, appears
to be a strong legal duty for the Member States. Compensatory measures dier from mitigation, former
nature development, and usual nature conservation measures. By doing so they have an added ecological
value and they do not jeopardize an appropriate assessment of alternative solutions. Compensation has
to be in-kind, feasible and simultaneous with the damaging activities, in order to ensure the coherence
of the Natura 2000 network, and overcompensation (or compensatory remediation) is the norm while
compensatory habitat needs time to develop in order to reach the same ecological quality as the damaged
habitat. Recent case law of the Court in the Acheloos River case, however, allows too much room for the
creation of man-made ecosystems as compensatory habitats. We hope that the concerned passage in
the judgement is a passing fad and that the Court continues to contribute to a sound interpretation of
European nature conservation legislation in the pending case on a request for a preliminary ruling from
the Raad van State of the Netherlands.
Within the framework of Article 16(1) the Member States only have a legal duty to maintain the
concerned protected species in a favourable conservation status. Compensatory measures are one way
to achieve that status (besides e.g. former nature development measures) and this is dierent from the
situation under Article 6(4), requiring compensatory measures as such. ¶
94 Guidancedocumentspeciesprotecon,supranote89,pp.62-63.
95 Guidancedocumentspeciesprotecon,supranote89,p.63.
96 Guidancedocumentspeciesprotecon,supranote89,p.47.
97 Guidancedocumentspeciesprotecon,supranote89,p.47.