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This arcle is published in a peer-reviewed secon of the Utrecht Law Review
Non-Regression Clauses in Times of
Ecological Restoraon Law:
Arcle 6(2) of the EU Habitats Direcve as
an unusual ally to restore Natura 2000?
Hendrik Schoukens∗
1. Introducon
In the European Union, as in other parts of the world,1 biodiversity is suering a major decline, both
as to quality and as to numbers. The 2015 State of Nature in the EU report, which represents the most
comprehensive European overview of the conservaon status and trends of the habitats and species
covered by the European Union’s Habitats2 and Birds Direcves3 (EU Nature Direcves), revealed that nearly
77% of the protected habitats and 60% of protected species are currently in an unfavourable conservaon
status.4 Even though it has been generally accepted that preservaon of the remaining biodiversity is key
to halt further biodiversity loss,5 the concept of ecological restoraon has recently risen to the fore in
internaonal and regional biodiversity policies as a newly coined tool aimed at intenonally recovering
degraded ecosystems.6 The term was dened by the Society for Ecological Restoraon in its 2004 Primer as
the pracce of ‘assisng the recovery of an ecosystem that has been degraded, damaged or restored’.7 In
spite of the lack of a xed and well-established denion in the exisng regulatory framework,8 it is generally
accepted that ecological restoraon entails both passive measures, such as restricons aimed at removing
current disturbances or capping exisng human pressures (e.g. banning grazing in certain areas in order
to allow grassland to recover, or eradicang invasive species) and acve measures, aimed at deliberately
* Hendrik Schoukens (email: hendrik.schoukens@ugent.be), PhD Candidate, Department of Public Internaonal Law, Ghent University
(Belgium).
1 A 2016 analysis of change in the global terrestrial human footprint between 1993 and 2009 indicated that 75% of the planet’s surface is
suering from measurable human pressure. See: O. Venter et al., ‘Sixteen years of change in the global terrestrial human footprint and
implicaons for biodiversity conservaon’, (2016) Nature Communicaons, hp://doi.org/10.1038/ncomms12558.
2 Council Direcve 92/43/EEC on the conservaon of natural habitats and of wild fauna and ora, OJ L 206, 22.7.1992, p. 7 (further referred
to as ‘Habitats Direcve’).
3 Council Direcve 79/409/EEC on the conservaon of wild birds, OJ L 103, 25.04.1979, p. 1 (further referred to as ‘Birds Direcve’).
The inial Birds Direcve was codied in European Parliament and Council Direcve 2009/147/EC on the conservaon of wild birds,
OJ L 20, 26.1.2010, p. 7.
4 European Environment Agency, State of nature in the EU. Results from reporng under the nature direcves 2007–2012, EEA Technical
Report, No. 2/2015.
5 See for instance: C.L. Gray et al., ‘Local biodiversity is higher inside than outside terrestrial protected areas worldwide’, (2016) Nature
Communicaons, hp://doi.org/10.1038/ncomms12306.
6 R.J. Hobbs & J.A. Harris, ‘Restoraon ecology: repairing the Earth’s ecosystem in the new millennium’, (2001) 9 Restoraon Ecology, no. 2,
pp. 239-246.
7 Society for Ecological Restoraon Internaonal Science & Policy Working Group, The SER Internaonal Primer on Ecological Restoraon
(<hp://www.ser.org> & Tucson, Society for Ecological Restoraon Internaonal 2004).
8 D. Jørgensen, ‘Ecological restoraon in the Convenon on Biological Diversity targets’, (2013) Biodiversity and Conservaon, pp. 2977-2982;
J.S. Koaho et al., Framework for assessing and reversing ecosystem degradaon. Report of the Finnish restoraon priorizaon working
group on the opons and costs of meeng the Aichi biodiversity target of restoring at least 15 per cent of degraded ecosystems in Finland
(2016), pp. 16-18. See also: A. Telesetsky et al., Ecological Restoraon in Internaonal Environmental Law (2017), pp. 22-26.
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shiing an impacted ecosystem towards improved health and integrity (e.g. reintroducing large carnivores,
re-establishing natural hydrology, or recreang nave plant communies).9
It is true that stac preservaon eorts have proven eecve to stem biodiversity loss, at least when
strictly enforced in the eld.10 However, instead of exclusively focusing on the maintenance of a rigid status
quo, as is the case with conservaon, ecological restoraon seeks to return a degraded ecosystem to its so-
called historic trajectory.11 It is to be seen as complemenng12 the hands-o approach that oen prevailed in
the context of earlier nature management policies in protected areas and, in situaons of severe impairments
or where unaltered habitats are lacking, did not suce to reverse the trend of ongoing biodiversity loss.13
The unparalleled rates of species exncon have led to a trend to include explicit restoraon targets in global
and regional biodiversity targets.14 In the framework of the 1992 Convenon on Biological Diversity (CBD),15
the 2010 Aichi Targets set the goal of restoring at least 15% of degraded ecosystems by 2020.16 Also, the
European Commission has embraced ecological restoraon in the explicit policy targets that are included in
its Biodiversity Strategy to 2020.17 In line with the EU’s internaonal obligaons, the European Commission
adopted an overarching 15% restoraon target, along with its commitment to halt the deterioraon in
the status of all species and habitats covered by EU nature legislaon and to achieve a signicant and
measurable improvement in their conservaon status by 2020.18
In the available literature it is commonly understood that legal instruments play an important role in
inducing ecological restoraon in the eld.19 Even so, research has shown that many nature conservaon laws
and regulaons were wrien mainly from a perspecve of and implemented with a focus on conservaon
rather than restoraon and adaptaon.20 They oen lack explicit standards to be applied in the context
of ecological restoraon acons and leave too lile room for a more intervenonist approach to nature
management. In light of the degraded status of many habitats and species in the world, however, many
of these so-called ‘old school’ nature conservaon laws are increasingly being re-interpreted as catalysts
for ambious restoraon and/or recovery programmes. The EU Nature Direcves arguably provide one
of the most striking examples of this recent shi towards restoraon-based policy. Even though they are
somemes framed as legal instruments that are predominantly preoccupied with burdensome restricons
on economic development and ‘deathbed conservaon’,21 a closer analysis of the wording of both direcves
reveals that the conservaon eorts of Member States should, especially in situaons where protected
patches of habitat are currently in a severely degraded status, establish robust restoraon programmes
9 See for instance: K.A. Keenleyside et al., Ecological Restoraon for Protected Areas, Principles, Guidelines and Best Pracces (2012),
pp. 9-13.
10 See on the eecveness of the EU Nature Direcves: G. Chapron et al., ‘Recovery of Large Carnivores in Europe’s Modern Human-Dominated
Landscapes’, (2014) 346 Science, hp://doi.org/10.1126/science.1257553, pp. 1517-1519.
11 Oen a disncon is made between ‘restoraon’, which aims at the recovery of an ecosystem to its original natural state, on the one
hand, and ‘rehabilitaon’, which refers to acvies that may fall short of returning the ecosystem to its pre-degradaon state. See more
extensively: S.K. Allisson, ‘What do we mean when we talk about ecological restoraon? An inquiry into values’, (2004) 22 Ecological
Restoraon, no. 4, pp. 281-286.
12 H. Schoukens, ‘Ecological restoraon as the 21st century environmental paradigm: Is EU law capable of saving our declining nature?’,
in J. De Bruyne et al. (eds.), Policy within and through Law (2015), p. 66.
13 Jordan III and Lubick acvely describe how the Naonal Park Service in the United States was not concerned about ecocentric restoraon,
or even ecologically based management, unl well into the 1970s. See: W.R. Jordan III & G.M. Lubick, Making Nature Whole. A History of
Ecological Restoraon (2011), pp. 97-101.
14 A. Cliquet et al., ‘Restoring nature in the EU: The only way is up?’, in C.H. Born et al. (eds.), The Habitats Direcve in its EU Environmental
Law Context: European Nature’s Best Hope? (2015), pp. 265-284; Jørgensen, supra note 8.
15 Convenon on Biological Diversity (CBD), Rio de Janeiro, 5 June 1992.
16 CBD, 2010, COP 10 Decision X/2, Strategic Plan for Biodiversity 2011-2020.
17 European Commission, Communicaon from the Commission to the European Parliament, the Council, the Economic and Social Commiee
and the Commiee of the Regions, Our life insurance, our natural capital: an EU biodiversity strategy to 2020, COM(2011) 244 nal; the
Biodiversity Strategy was endorsed by the Council of the European Union in its Decision of 21 June 2011 (EU Biodiversity Strategy to 2020
– Council conclusions, 11978/11).
18 See more extensively: Cliquet et al., supra note 14, pp. 268-271.
19 See amongst others: J. Aronson et al., ‘What Role Should Government Regulaon Play in Ecological Restoraon? Ongoing Debate in
São Paulo, Brazil’, (2011) 19 Restoraon Ecology, pp. 690-695.
20 A. Cliquet et al., ‘Adaptaon to Climate Change. Legal Challenges for Protected Areas’, (2009) 5 Utrecht Law Review, no. 1, hp://doi.
org/10.18352/ulr.100, pp. 158-175.
21 See for instance: F. Kistenkas, ‘Rethinking European Nature Conservaon Legislaon: Towards Sustainable Development’, (2013) 10
Journal for European and Environmental Planning Law, no. 1, p. 83.
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Hendrik Schoukens
Utrecht Law Review | Volume 13 | Issue 1, 2017
126
aimed at the recovery of the naonal habitats and the populaons of species of wild fauna and ora to a
favourable conservaon status.22
The EU Nature Direcves are renowned for having set up an ecological network of protected areas,
dubbed ‘Natura 2000’, aimed at the sustainable conservaon of the EU’s most endangered habitats
and species. Yet, while the EU protecon rules linked to Natura 2000 are notorious for the restricons
laid down for unsustainable new developments likely to damage the protected sites, they also provide
strong incenves for ecological restoraon. For instance, Arcle 6(1) of the Habitats Direcve compels the
EU Member States to implement a certain number of restoraon acons for Natura 2000 sites with a view to
achieving the favourable conservaon status for the habitats and species concerned,23 whereas Arcle 6(4)
of the Habitats Direcve urges project developers to oset impairments to Natura 2000 sites in the context
of economic development.24 Most interesngly, though, Arcle 6(2) of the Habitats Direcve, which lays
down a general obligaon to take appropriate protecve steps to avoid the deterioraon of natural habitats
and the disturbance of species within those protected sites, has recently come to the fore as a crucial tool
to achieve the EU restoraon and conservaon targets.25
The posion of Arcle 6(2) of the Habitats Direcve as a non-regression or standsll clause in the shi
towards a more recovery-based approach to nature conservaon is not much discussed. On the surface,
combining non-deterioraon and restoraon seems to create an oxymoron. Sll, in spite of its explicit
focus on maintaining the status quo, the latest case law developments before the Court of Jusce of the
EU (CJEU) eecvely underline that the protecon duty enshrined in Arcle 6(2) of the Habitats Direcve
is an indispensable tool for achieving the EU’s ambious restoraon goals in the years to come, especially
given the many implementaon decits that have occurred in the past decades. As is demonstrated below,
the focus of the said provision is not only on freezing in perpetuity a parcular protected site but also on
improving the health and integrity of ecosystems in the Natura 2000 Network. Aer having outlined the
relevant policy context regarding ecological restoraon within the EU and the specic role Arcle 6(2) of
the Habitats Direcve plays in the overarching protecon regime that is applicable to Natura 2000 sites, this
arcle addresses the following research quesons:
1. What is the material scope of Arcle 6(2) of the Habitats Direcve and to what extent does it allow
competent authories to oversee and tackle ongoing degradaon caused by autonomous and ongoing
acvies (e.g. agriculture, sheries, …) and already permied plans and/or projects in the context of
Natura 2000?
2. What baseline or reference point should be used in order to establish deterioraon and are so-called
‘interim losses’ taken into consideraon?
3. Can both passive and acve restoraon measures be required in order to comply with Arcle 6(2) of the
Habitats Direcve and halt further decline?
4. Does Arcle 6(2) of the Habitats Direcve contain a ‘best-eorts clause’ or does it include a strict
obligaon of result which can be used to force authories to restore protected sites that have been
subject to insucient protecon during the previous years?
A selecon of relevant rulings of the CJEU (previously the European Court of Jusce (ECJ)), which is principally
tasked with interpreng EU law and ensuring its equal applicaon across all EU Member States, is given a
prominent place in this analysis. The opinions of the Advocate General are authoritave as well and are
therefore also taken into account where relevant.
22 See more extensively: J. Verschuuren, ‘Climate Change: Rethinking Restoraon in the European Union’s Birds and Habitats Direcve’,
(2010) 28 Ecological Restoraon, no. 4, pp. 431-439.
23 See more extensively: European Commission, Establishing conservaon measures for Natura 2000 sites (2014).
24 See more extensively: D. McGillivray, ‘Compensang Biodiversity Loss: The EU Commission’s Approach to Compensaon under Arcle 6
of the Habitats Direcve’, (2012) 24 Journal of Environmental Law, no. 3, pp. 417-450.
25 See for a general analysis: A. Cliquet, ‘About blanket bogs, brown bears and oak forests: case law of the European Court of Jusce on
Arcle 6, §2 of the Habitats Direcve’, in C.H. Born & F. Jongen (eds.), d’Urbanisme et d’Environnement: Liber Amicorum Francis Haumont
(2015), pp. 531-544; H. Schoukens, ‘Ongoing Acvies and Natura 2000: Biodiversity Protecon vs Legimate Expectaons?’, (2014) 11
Journal for European and Environmental & Planning Law, no. 1, pp. 1-30.
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2. The wider policy context: EU restoraon targets – bridging the gap between theory and
reality?
2.1. Dierent targets for ecological restoraon
In line with the Aichi Biodiversity Targets, the European Commission integrated ecological restoraon as
a progressive policy target in the EU Biodiversity Strategy to 2020.26 In general, the strategy is aimed at
halng and reversing biodiversity loss in and outside the EU. As is well known, Target 2 is the most explicit
on restoraon. It spulates that ‘by 2020, ecosystems and their services are maintained and enhanced by
establishing green infrastructure and restoring at least 15% of degraded ecosystems’, thereby incorporang
the target set at the internaonal level, at the Biodiversity Convenon in 2010.27 However, the overarching
restoraon target is inextricably linked with the more specic target aimed at halng and, ulmately,
reversing the further deterioraon of EU protected habitats and species. This goal will prove crucial in light
of the subsequent analysis. More in parcular, Target 1 urges Member States to halt the deterioraon of the
status of all species and habitats covered by EU nature legislaon and to achieve a signicant and measurable
improvement in their status. The two targets are entwined and, to a certain extent, mutually dependent.
Evidently, Target-1 measures will contribute to the achievement of the overarching 15% restoraon target.
Yet the focus on restoraon measures in the wider environment, beyond the EU’s protected areas, will
evidently be important for maintaining or restoring the Natura 2000 Network and connecvity measures.28
2.2. Lack of precise denions and a well-established baseline
Even though the seng of explicit biodiversity targets at EU level is to be applauded in itself, the excessive
focus on the ambious 15% restoraon target has been cricised as impraccal by some in recent literature.29
In addion, the absence of clear-cut denions of key concepts, such as ‘ecological restoraon’ and
‘degradaon’, can further compound the eecve implementaon of the ambious restoraon targets.30
Some authors have argued that there is a clear need for more concrete data on biodiversity, ecosystem
services and restoraon, if restoraon as a tool is to be successful.31
The EU Biodiversity Strategy in itself lacks a well-dened baseline scenario or reference point against
which progress is to be measured. Even so, it is accepted that the progress of the ecological restoraon
acons should be measured against the 2010 EU Biodiversity Baseline report.32 Furthermore, eorts have
been put into mapping the pressure on ecosystems and assessing the current condion of ecosystems,
for instance in the context of the so-called European Environment Agency’s Mapping and Assessment of
Ecosystem and their Services (MAES) iniave.33
In the Report Priories for the Restoraon of Ecosystem and their Services in the EU (hereaer:
2013 Report) which was commissioned by the European Commission to assist Member States in the
development of priorisaon frameworks for restoraon of ecosystems, ecological restoraon is primarily
seen as a process and not necessarily as a nal desnaon. A so-called four-level model for ecosystem
26 European Commission, supra note 17.
27 EU Biodiversity Strategy to 2020 – Council conclusions, 11978/11, 5.
28 Cliquet et al., supra note 14, p. 272
29 J.S. Koaho, ‘Target for ecosystem repair is impraccal’, (2015) 519 Nature, hp://doi.org/10.1038/519033a, p. 33.
30 Jørgensen, supra note 8. See more recently: D. Jørgensen, ‘Ecological restoraon as objecve, target, and tool in internaonal biodiversity
policy’, (2016) 20 Ecology and Society, no. 4, p. 43.
31 B.N. Egoh et al., ‘Exploring restoraon opons for habitats, species and ecosystem services in the European Union’, (2014) 51 Journal of
Applied Ecology, pp. 899-908.
32 See amongst others: Koaho et al., supra note 8, p. 27. Koaho, Ten Brink and Harris rightly cricised the use of arbitrarily chosen
baselines, such as 2010, for not fully reecng the extent of land degradaon or recovery. Instead, they propose to use an ecosystem’s
natural state, which has no human-caused loss of biodiversity or of ecosystem funcons, as a benchmark. This could serve as a more
objecve reference state in order to measure recovery eorts across countries that are in dierent stages of economic development. See:
J.S. Koaho et al., ‘Land use: A global baseline for ecosystem recovery’, (2016) 532 Nature, hp://doi.org/doi:10.1038/532037c, p. 37.
33 This is a collaboraon between the European Commission, the EEA and the Member States, which developed an analycal framework for
assessment based on the DPSIR framework (Drivers, Pressures, State, Impact and Responses). See most recently: European Environment
Agency, EEA Report No 3/2016 Mapping and assessing the condion of Europe’s ecosystems: progress and challenges (2016).
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restoraon is derived from these principles.34 This model describes the connuum of ecosystem condion
from poor (e.g. urban areas) to excellent (e.g. wilderness areas and Natura 2000 sites in a favourable
conservaon status) in four dierent levels. Any signicant improvement that brings an area to a beer
state or condion should be regarded as a contribuon to the 15% restoraon target. This approach, which
allows Member States to gradually proceed towards their restoraon targets, seems to leave more room
for pragmasm. It acknowledges that the acons taken to achieve Target 1 of the strategy concerning the
full implementaon of the Birds and Habitats Direcve can be counted as contribuons to the more generic
15% target. On a more general level, the strategy presented by the 2013 Report enables Member States to
engage in restoraon acvies and count them as part of the 15% without having to aim for full restoraon
within 15 years.35 Interesngly, the 2013 Report assumes the whole EU territory to be included in the scope
of the 15% restoraon target. This is based on the principle that no locaon should be regarded as non-
restorable, except for protected areas which already have a favourable conservaon status.36 Moreover, it
was suggested that the 15% restoraon target should be achieved both in the marine and in the terrestrial
environment. For clarity’s sake, the 2013 Report proposes to apply the 15% target to each Member State
instead of applying it to bio-geographical regions of the ecosystems.37
2.3. Cricism and alternave approaches
In its recent communicaon to the EU Member States the European Commission did not hesitate to
highlight the relevance of the conclusions of the 2013 Report.38 Although describing ecological restoraon
as a process rather than a purpose appears to be sensible in view of the limited success of ecological
restoraon eorts so far,39 the 2013 Report has also sparked some cricism.40 Some authors point out that
the model fails to take into account the degree of ecosystem degradaon or improvement and therefore
does not allow an assessment of the success of achieving 15% net improvement or any other quantave
target.41 In recent years, several alternave priorizaon approaches towards the achievement of the EU’s
15% restoraon target have emerged in the available ecological literature. Egoh et al., among others, have
proposed that when a restoraon target is set at 10% for habitat and species with an inadequate or most
threatened conservaon status and at 2% for all ecosystem services, about 18% of EU ecosystems should
be restored to meet the overarching restoraon targets.42 Such an approach would give the conservaon
and restoraon of the Natura 2000 Network – which is further addressed below – a strong posion on
the agenda of future nature restoraon policies. Yet this analysis has not remained uncontested either.
For instance, Koaho et al. consider the laer approach, which focuses on habitats with an unfavourable
conservaon status, to be awed because, among other things, it fails to acknowledge that environmental
degradaon has two components, i.e. the extent of the area that has become degraded or restored and the
magnitude of the degradaon, or its counterpart improvement at any locaon. It is argued that a strategy
which fails to take into account both qualitave and quantave factors risks focusing restoraon eorts on
areas where the ecological improvement of restoraon is the smallest.43 Accepng that restoraon policies
have only limited nancial resources at their disposal, one should focus restoraon more on environments
where there is a great likelihood for success with low to moderate costs.44 Also, criteria are to be used which
34 J. Lammerant et al., Implementaon of 2020 EU Biodiversity Strategy: Priories for restoraon of ecosystems and their services in the EU.
Report to the European Commission, ARCADIS, in cooperaon with ECNC and Eec (2013), <hp://ec.europa.eu/environment/nature/
biodiversity/comm2006/pdf/2020/RPF.pdf> (accessed 10 February 2017), p. 16.
35 Ibid., p. 18.
36 Ibid., p. 21.
37 Ibid., p. 19.
38 See for instance: European Commission, Note to the Nature Directors, Env B02 PM/oe ARES(2014), 23 April 2014.
39 M. Curran et al., ‘Is There Any Empirical Support for Biodiversity Oset Policy?’, (2014) 24 Ecological Applicaons, pp. 617-632.
40 See extensively: Koaho et al., supra note 8, pp. 22-24. On a more general level, Tiensor et al. have argued that there is a consistent
lack of previous indicators to measure progress towards the 15% target put forward by the CBD. See: D.P. Tiensor, ‘A mid-term analysis
of progress toward internaonal biodiversity targets’, (2014) 346 Science, hp://doi.org//10.1126/science.1257484, pp. 241-244.
41 Ibid.
42 Egoh et al., supra note 31.
43 Ibid.
44 J.S. Koaho & A. Moilanen, Conceptual and operaonal perspecve on ecosystem restoraon opons in the European Union and
elsewhere, (2014) 52 Journal of Applied Ecology, pp. 816-819.
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avoid that restoraon targets are linked to the operaonal reality in the eld.45 Likewise, one needs to take
into account the exact scope of the degradaon in the rst place. This implies that in order to achieve a
global 15% restoraon target, paral restoraon is to be considered at sites covering more than 15% of the
total landscape area and, addionally, potenal further degradaon, which has become apparent in recent
years, needs to be taken into account.46
3. Arcle 6(2) of the Habitats Direcve framed in the wider context of conservaon dues for
Natura 2000 sites: a simple theory?
This arcle now shis its focus from the wider policy context regarding ecological restoraon, which leaves
much room for interpretaon as to the concrete implementaon of the restoraon raonale, to the non-
regression clauses put forward by the Habitats Direcve in the context of area protecon. Arcle 6(2) of the
Habitats Direcve includes the primary obligaon for Member States to ‘take appropriate steps to avoid (…)
the deterioraon of natural habitats and the habitats of species as well as disturbance of the species for
which the sites have been designated’. The provision was described by the CJEU itself as ‘a provision which
makes it possible to sasfy the fundamental objecve of preservaon and protecon of the quality of the
environment, including the conservaon of natural habitats and of wild fauna and ora, and established
a general obligaon of protecon consisng in avoiding deterioraon and disturbance which could have
signicant eects in the light of the direcve’s objecves’.47 This non-regression obligaon is rmly rooted
in the prevenon principle. Since the specic policy context regarding ecological restoraon is disncvely
patchy and inconsistent, it is not surprising that the specic role of Arcle 6(2) of the Habitats Direcve in
the implementaon of this policy shi is oen misunderstood.
In terms of territorial ambit, Arcle 6(2) of the Habitats Direcve is explicitly linked to Natura 2000,
a network of natural or semi-natural sites in the European Union that have signicant value in terms of
heritage, owing to the exceponal ora and fauna that they contain. As is well known, this network of
protected areas was rst created in 1992, as laid down in the Habitats Direcve, and comprises Special
Protecon Areas (SPAs),48 including the most suitable territories for these species under the Birds Direcve,
and Special Areas of Conservaon (SACs), including the core areas of natural habitat types listed in Annex I
and habitats of the species listed in Annex II of the Habitats Direcve. The Natura 2000 Network covers
approximately 18% of the land area and 6% of the sea area of the EU, which indicates that its contribuon
to achieving the above-menoned restoraon objecves may be considerable.
In order to beer grasp the precise scope of the protecon dues enshrined in Arcle 6(2) of the
Habitats Direcve, it is to be understood in the wider context of Arcle 6 of the Habitats Direcve. As is well
known, this provision contains three disnct conservaon dues that are to be considered in the context of
Natura 2000 sites and aim at establishing sustainable management in light of the applicable environmental
requirements and recovery potenal.49
Arcle 6(1) of the Habitats Direcve, which is the counterpart of Arcle 4(1), (2) and (3) of the Birds
Direcve, obliges Member States to take proacve conservaon measures for SACs, which can take at least
the form of ‘appropriate statutory, administrave or contractual measures’ and, ‘if need be’, the form of
‘appropriate management plans’.50 The other three paragraphs of Arcle 6 of the Habitats Direcve serve a
dierent purpose since they are more concerned with establishing a so-called reacve protecon regime.51
45 Ibid.
46 Koaho et al., supra note 8, p. 24.
47 Case C-226/08, Stadt Papenburg v Bundesrepublik Deutschland, [2010] ECR I-131, para. 49.
48 Before the entry into force of the Habitats Direcve, a similar non-deterioraon obligaon applied to SPAs by virtue of the rst sentence
of Art. 4(4) of the Birds Direcve.
49 See Schoukens, supra note 25, pp. 7-8.
50 See more extensively in this respect: A. Garcia Ureta & I. Laznako, ‘Instruments for acve site management under Natura 2000: Balancing
between stakeholders and nature conservaon’, in Born et al. (eds.), supra note 14, pp. 71-92.
51 See R. Frins & H. Schoukens, ‘Balancing Wind Energy and Nature Protecon: From Policy Conicts Towards Genuine Sustainable
Development’, in L. Squitani et al. (eds.), Sustainable Energy United in Diversity – Challenges and Approaches in Energy Transion in the
European Union (2014), pp. 84-115.
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3.1. Arcle 6(2) vs Arcle 6(1): going beyond the status quo versus avoiding ongoing loss?
The European Commission itself has claried the disncon between Arcle 6(1) and 6(2) of the Habitats
Direcve in its Guidance document on Arcle 6. In parcular, the Commission stated that ‘(t)he avoidance
and protecon measures that are to be implemented according to Arcle 6(2) of the Habitats Direcve
go beyond simple management measures necessary to ensure conservaon’.52 It would be wrong to infer
from these guidelines that the implicaons of the non-regression dues enshrined in Arcle 6(2) are by
nature more intrusive than those of the conservaon dues dened in Arcle 6(1). Surely, the disncon
between the two provisions is not always that clear-cut. For instance, implemenng conservaon measures
pursuant to Arcle 6(1) of the Habitats Direcve might in some instances encompass the issuance of outright
protecve measures,53 as is principally required by Arcle 6(2), and vice versa.
However, Arcle 6(1) of the Habitats Direcve equally urges Member States to consider the establishment
of restoraon acons at Natura 2000 sites that currently have an unfavourable conservaon status due to
environmental pressures related to acvies and projects carried out and completed before the site was
designated as a Natura 2000 site. This is where another crucial disncon in terms of restoraon dues
between the two provisions comes to the surface. In contrast to Arcle 6(2), which allegedly exclusively
covers situaons of ongoing degradaon, Arcle 6(1) of the Habitats Direcve also seems to cover
situaons where past degradaon that relates to acvies carried out and completed before a site was
protected connues to compromise the achievement of the site-specic conservaon objecves. It is not
hard to imagine how acvies or projects that were permied and completed a long me before the areas
were included in the Natura 2000 Network, such as unsound forest management, drainage acvies and
fragmentaon that helped to degrade an area throughout the 1970s, can constute an obstacle for the
achievement of the favourable conservaon status.54 Tackling such prevailing cases of past degradaon in
order to foster restoraon may, at least in some instances, require measures that go further than simply
maintaining a status quo, which limits its focus to halng the ongoing degradaon at Natura 2000 sites.
Member States might, for instance, consider the re-creaon of previously lost wetlands, mud ats and dal
marshes in the context of estuarine habitats. This is far-reaching in itself, especially when compared to other
EU environmental direcves, such as the Environmental Liability Direcve (Direcve 2004/35/EC),55 which
explicitly excludes environmental damage that was caused by or linked to emissions, events or incidents
that took place before 30 April 2007 (i.e. the date of its entry into force).56
Admiedly, while in theory the disncon between Arcle 6(1) and (2) is clear, it will somemes be
hard to disnguish situaons of ongoing and of past degradaon, especially since ongoing degradaon may
also have been caused by acvies that were completed prior to the designaon of a Natura 2000 site. For
now, it can be maintained that Arcle 6(2) of the Habitats Direcve is to be used primarily as a tool to solve
the rst category of cases, while Arcle 6(1) of the Habitats Direcve will be the primary path to tackle the
laer scenario. However, it is useful to keep in mind that the focus of Arcle 6(1) appears to be the gradual
realizaon of the conservaon objecves, whereas Arcle 6(2) primarily aims to avoid further degradaon.
In the laer context the conservaon objecves also play a role, but in a dierent manner. Contrary to the
appraisal of the European Commission, it might therefore be submied that Arcle 6(1) may also require
more intrusive protecon or restoraon acons, whereas the standsll premise on which Arcle 6(2) is based
may, at least in some instances, be more easily achieved through the issuance of containment measures.
52 European Commission, Managing Natura 2000 Sites. The provisions of Arcle 6 of the ‘Habitats’ Direcve 92/43/EEC (2000), p. 25
(emphasis added).
53 Such as for instance avoiding disturbance of a species during the breeding season. See for instance: European Commission, Natura 2000
and Forests, Part I-II (2015), p. 48.
54 H. Schoukens, ‘Atmospheric Nitrogen Deposion and the Habitats Direcve: Tinkering with the Law in the Face of the Precauonary
Principle?’, (2015) Nordic Environmental Law Journal, no. 2, pp. 29-31.
55 Direcve 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the
prevenon and remedying of environmental damage, OJ L 143, 30.4.2004, p. 56 (further referred to as ‘Environmental Liability Direcve’).
56 Art. 17, rst indent of the Environmental Liability Direcve.
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3.2. Arcle 6(2) vs Arcle 6(3)-(4): tackling future versus ongoing degradaon?
To a certain extent, the disncon between the overarching protecon duty enshrined in Arcle 6(2) of
the Habitats Direcve and the specic assessment rules laid down by Arcle 6(3) and (4) of the Habitats
Direcve is more straighorward. Arcle 6(2) of the Habitats Direcve includes a general duty to avoid
ongoing degradaon and leaves the Member States with the task to consider which specic regulatory
acons should be taken. Therefore no specic procedural obligaons nor specic restoraon dues may
be derived from it. Conversely, the conservaon and assessment dues under Arcle 6(3) and (4) of the
Habitats Direcve are inextricably linked to perming procedures for new developments likely to jeopardize
the achievement of the conservaon objecves of a specic Natura 2000 site.
This means that also in this context there appears to be a clear dichotomy. The standsll obligaon
enshrined in Arcle 6(2) of the Habitats Direcve principally focuses on ongoing degradaon, while the
procedural dues of Arcle 6(3) and (4) of the Habitats Direcve relate to future degradaon linked to
new development plans. In the context of the laer, the ECJ has held in the Waddenzee case that the
mere likelihood of ‘signicant eects’ is sucient to compel a perming authority to deny a permit for
an intended acvity pursuant to Arcle 6(3).57 By virtue of Arcle 6(4) of the Habitats Direcve, however,
development can sll go ahead in spite of a negave assessment, provided that there is no alternave
soluon, concluding that it is necessary for imperave reasons of overriding public interest and that all
compensatory measures necessary to ensure the overall coherence of the Natura 2000 Network are taken.58
Whenever the derogaon clause is applied, comprehensive restoraon measures can be used in order to
ensure that the overall coherence of the Natura 2000 Network is guaranteed.59
By contrast, Arcle 6(2) of the Habitats Direcve does not lay out specic procedural obligaons to be
applied in the context of decision-making procedure. Likewise, in the context of Arcle 6(2) of the Habitats
Direcve no reference can be found as regards reasons to jusfy further deterioraon of natural habitats
or signicant disturbance of protected species. Nor is there any menon of the necessity to consider acve
restoraon measures.
As indicated by the European Commission in its Guidance document on Arcle 6 of the Habitats Direcve,
the scope of Arcle 6(2) of the Habitats Direcve is larger than that of Arcle 6(3) and (4) of the Habitats
Direcve.60 What disnguishes Arcle 6(3) from Arcle 6(2) is its major focus on concrete cases of future
degradaon or addional net losses for Natura 2000. And yet it would be a mistake to limit the relevance
of Arcle 6(2) to ongoing forms of degradaon and that of Arcle 6(3) and (4) to future or addional losses.
These two provisions are not mutually exclusive and at least partly overlap. The landmark decision of the ECJ
in the Waddenzee case provides a good illustraon in this regard. Aer having ascertained that the ongoing
cockle shing acvies, which were at issue here, fell within the scope of the noon of ‘project’ within the
meaning of Arcle 6(3) of the Habitats Direcve,61 the ECJ upheld that ‘(t)he fact that the acvity has been
carried on periodically for several years on the site concerned and that a licence has to be obtained for it
every year, each new issuance of which requires an assessment both of the possibility of carrying on that
acvity and of the site where it may be carried on, does not in itself constute an obstacle to considering it,
at the me of each applicaon, as a disnct plan or project within the meaning of the Habitats Direcve’.62
This aptly refutes the oen submied asseron that ongoing degradaon cannot be tackled by means of
the specic assessment rules included in Arcle 6(3) of the Habitats Direcve.
At the same me it would be wrong to assume that Arcle 6(3) of the Habitats Direcve amounts to a
permanent review obligaon for ongoing acvies. In its case law in relaon to the Natura 2000 protecon
57 Case C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee, [2004] ECR I-7405, para. 59.
58 See more extensively: R. Cluen & I. Tafur, ‘Are Imperave Reasons Imperiling the Habitats Direcve? An Assessment of Arcle 6(4) and
the IROPI Excepon’, in G. Jones QC (ed.), The Habitats Direcve – A Developer’s Obstacle Course (2010), p. 167.
59 See also: Case C-521/12, Briels, ECLI:EU:C:2014:330, para. 38. For more guidance, see: European Commission, Guidance on Arcle 6(4)
of the ‘Habitats Direcve’ 92/43/EEC. Claricaon of the Concepts of: Alternave Soluons, Imperave Reasons of Overriding Public
Interest, Compensatory measures, Overall Coherence, Opinion of the Commission (2012).
60 European Commission, supra note 52, p. 25.
61 Waddenzee, supra note 57, para. 23-27.
62 Ibid., para. 28.
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regime, the CJEU has steadfastly reasserted that ongoing projects that had been authorized before the
designaon of a site or before the entry into force of the Habitats Direcve, even when they entail physical
intervenons, fall outside the scope of Arcle 6(3) of the Habitats Direcve.63 In other words, Member
States are not required to migate or restore the signicant damage related to those acvies pursuant to
Arcle 6(3) and (4) of the Habitats Direcve. For instance, in its 2010 ruling in the Stadt Papenburg case, the
CJEU acknowledged that, if it could be established that the alleged dredging merely constuted unchanged
maintenance acvies that had been authorized before the entry into force of the Habitats Direcve,
Arcle 6(3) of the Habitats Direcve would not apply.64 In its subsequent case law, the CJEU steadfastly
conrmed this viewpoint, yet decided to use the date of inclusion of a site on the list of sites of community
interest (SCIs) as the major cut-o point.65 Interesngly, the ECJ held that the authorizaon of a plan or
project in accordance with Arcle 6(3) of the Habitats Direcve necessarily assumes that the substanve
requirements of Arcle 6(2) have also been fullled, entailing that there is no risk of deterioraon or
signicant disturbance.66
4. The unexpected possibilies of Arcle 6(2) of the Habitats Direcve for ecological
restoraon: praccal lessons to be learned from recent case law developments
The literal wording of Arcle 6(2) of the Habitats Direcve does not refer to restoraon acons for degraded
nature in the context of Natura 2000. Nor does it contain any explicit reference to recovery, which allegedly
seems to downplay its relevance in the context of the EU’s restoraon targets, especially when measured
against provisions such as Arcle 6(1) and 6(4) of the Habitats Direcve, which contain more direct links in
this respect. However, in light of the recent case law developments before the CJEU, it has become overly
clear that Arcle 6(2) of the Habitats Direcve has become an indispensable tool for achieving the EU’s
restoraon targets, especially within the specic context of the Natura 2000 Network. Given the ongoing
biodiversity loss caused by previous non-compliance with the conservaon dues during the past decades,
as was also recently highlighted by the outcome of the REFIT Fitness Check of the EU Nature Direcves,67 the
existence of an enforceable non-regression clause is instrumental not only in halng the cycle of ongoing
biodiversity loss but also in accommodang a more progressive recovery raonale towards the EU’s most
valuable and endangered habitats and species.
4.1. The surprisingly wide material scope of Arcle 6(2) of the Habitats Direcve: tackling all sources of
ongoing degradaon?
It is obvious that achieving 15% restoraon across the whole of the territory of the EU will require a robust
and comprehensive regulatory framework able to encompass all potenal degrading acvies.68 Therefore,
situaons of incremental or creeping environmental degradaon, resulng from diuse polluon, also have
to be addressed by nature conservaon laws, especially in the context of vulnerable natural sites, such as
the Natura 2000 Network. Shiing environmental baselines might indirectly lead public authories to jusfy
further biodiversity losses and further compromise future restoraon opons.69 This is where Arcle 6(2) of
the Habitats Direcve steps in. However, in order to fully understand the incenve presented in Arcle 6(2)
of the Habitats Direcve, a thorough understanding of the limits of the material scope of the avoidance
and oseng obligaons under Arcle 6(3) and (4) of the Habitats Direcve, as indicated by the recent
case law of the CJEU, is instrumental. This case law is highly relevant to the concrete implementaon of the
management opons for Natura 2000 sites.
63 Case C-90/10, Commission v Spain, [2011] ECR I-134, para. 124-125.
64 See: Stadt Papenburg, supra note 47, para. 47. See more extensively: Schoukens, supra note 25, pp. 21-26.
65 Case C-404/09, Commission v Spain, [2011] ECR I-11853, para. 124-125.
66 Waddenzee, supra note 57, para. 36.
67 See: European Commission, Commission Sta Working Document – Fitness Check of the EU Nature Legislaon (Birds and Habitats
Direcve), SWD(2016) 4725 nal, available at: <hp://ec.europa.eu/environment/nature/legislaon/tness_check/index_en.htm>
(accessed 10 February 2017).
68 See for instance: Koaho et al., supra note 8, p. 23.
69 See also: Case C- 258/11, Sweetman, ECLI:EU:C:2013:220, Opinion of AG Sharpston, para. 67.
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Pursuant to a line of interpretaon in case law of the ECJ/CJEU, which was iniated in 2009, the mere
renewal of an exisng permit to operate an ongoing installaon cannot, in the absence of any works or
intervenons involving alteraons to the physical aspects of the site, be classied as a ‘project’ that falls
within the scope of the rules on Environmental Impact Assessment (EIA), as laid down in the EIA Direcve
(Direcve 2011/92/EU).70 This equally implies that the renewal of permits for ongoing acvies that do
not require alteraons of the physical aspects of a Natura 2000 site, such as the connued use of exisng
motorways or permits for exisng cale farms, does not depend on the implementaon of migaon
measures pursuant to Arcle 6(3) of the Habitats Direcve.71 Moreover, as can be inferred from other case
law developments, whenever lawful in view of the exisng permits, even ongoing operaons that require
physical intervenons and therefore qualify as ‘projects’, such as dredging, connuing boom trawling or
mining operaons, are exempted from Arcle 6(3) and (4) of the Habitats Direcve.72 And, whereas the
preventave approach set out by Arcle 6(3) of the Habitats Direcve remains applicable to new small-scale
intervenons that sll qualify as projects, other case law before the CJEU has illustrated that many Member
States, including the United Kingdom,73 Germany,74 France75 and Belgium,76 have failed to deliver in this
respect.77 Even though the CJEU in its case law has steadfastly shut the door to such defecve pracces,
many Member States remain reluctant to close all loopholes in their legislaon in this respect.78
The raonale underpinning the above-menoned case law in relaon to Arcle 6(3) of the Habitats
Direcve is closely related to the concept of legal certainty. It avoids the retrospecve applicaon of the
migaon dues put forward by these assessment rules. As referred to above, the Environmental Liability
Direcve, which also covers certain scenarios of damage to Natura 2000 sites,79 also exempts environmental
damage caused by or resulng from emissions, events or incidents that took place before its entry into
force.80 Yet if the laer approach were to consequenally prevail in the context of a more generic instrument
of nature conservaon law, such as the Habitats Direcve, it may prevent competent authories from
pung an end to persisng degradaon in Natura 2000 sites.
4.1.1. Arcle 6(2) and acvies that do not require a prior permit or authorizaon: addressing degraded
baselines?
As is demonstrated below, however, damaging acvies that for the above-presented reasons fall outside the
scope of Arcle 6(3) of the Habitats Direcve, are sll encompassed in the non-regression obligaon contained
in Arcle 6(2) of the Habitats Direcve. Case law developments demonstrate that Arcle 6(2) of the Habitats
Direcve serves as an important fall-back clause for certain categories of damage or degradaon that do not
necessarily qualify as plans and projects under Arcle 6(3) of the Habitats Direcve but sll are prone to lead
to further deterioraon. Evidently, degrading baselines render the achievement of ambious recovery targets,
such as the ones included in the EU Biodiversity Strategy to 2020, even less realisc and praccal.
The 2010 decision of the CJEU in the Commission v France case provides an interesng illustraon of the
great potenal that Arcle 6(2) of the Habitats Direcve possesses in this respect.81 In the context of the
infringement proceedings the CJEU was asked to assess whether France could legally assert in its naonal
70 Direcve 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the eects of certain
public and private projects on the environment, OJ L 26, 28.1.2012, p. 1 (further referred to as ‘EIA Direcve’). See for example:
Case C-275/09, Brussels Hoofdstedelijk Gewest, [2011] ECR I-01753, para. 24. See also more recently: Case C-121/11, Pro-Braine ASBL,
ECLI:EU:C:2012:225.
71 Waddenzee, supra note 57, para. 23-25.
72 Commission v Spain, supra note 65, para. 122-123.
73 Case C-6/04, Commission v UK, [2005] ECR-09017, para. 41-50.
74 Case C-98/03, Commission v Germany, [2006] ECR I-00053, para. 39-45.
75 Case C-241/08, Commission v France, [2010] ECR I-01697, para. 62.
76 Case C-538/09, Commission v Belgium, [2011] ECR I-04687, para. 55-65.
77 See with regard to the EIA Direcve Case C392/96, Commission v Ireland, [1999] ECR I5901, para. 66.
78 See for instance with respect to the screening rules in the context of EIA Direcve: European Commission, Report from the Commission to the
Council, the European Parliament, the European Economic and Social Commiee and the Commiee of the Regions, COM(2009) 378 nal.
79 Art. 2(1) of the Environmental Liability Direcve. See more extensively: V. Fogleman, ‘The threshold for liability for ecological damage in
the EU: Mixing environmental and conservaon law’, in Born et al. (eds.), supra note 14, pp. 181-241.
80 Art. 17, rst indent of the Environmental Liability Direcve.
81 Commission v France, supra note 75, para. 34-39.
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nature protecon legislaon that certain acvies, such as aquaculture, hunng and shing, do not cause
disturbance to Natura 2000 sites and can therefore be exempted from the applicaon of the applicable
conservaon dues. Rather than opng for a moderate approach, the CJEU held that the general assumpon
that such potenally disturbing acvies would not give rise to further degradaon, when not backed up by
sound ecological evidence, is incompable with Arcle 6(2) of the Habitats Direcve. Ulmately, the CJEU
concluded that France could not systemacally guarantee that the hunng and shing acvies at issue
would not cause degradaon, as is meant by Arcle 6(2) of the Habitats Direcve.82
The outcome of these proceedings appears legalisc at rst sight, especially since it may give rise to
the promulgaon of addional regulaons in the context of ongoing measures that are tradionally le
outside the scope of specic perming schemes. Yet at the same me it underscores that Arcle 6(2) of the
Habitats Direcve is to be interpreted as a catch-all clause, also covering situaons of diuse or incremental
degradaon which cannot be tackled through classic assessment rules linked to permit procedures. This
viewpoint had already been implicitly asserted by the ECJ’s 2002 ruling in the Commission v Ireland case,
where the EU judges ruled that the Irish failure to avoid the negave eects linked to overgrazing on heath
and peatland used as habitat by the red grouse and part of a Natura 2000 site amounted to a violaon of
its obligaons under Arcle 6(2) of the Habitats Direcve.83 Along the same lines, the ECJ ruled against
France for having authorized drainage and reclaiming acvies in Marrais Poitevin, a French protected site
that was characterized by the presence of valuable wetlands.84 It is therefore clear that the CJEU has always
been adamant to demonstrate that Arcle 6(2) of the Habitats Direcve also covers forms of deterioraon
and/or disturbance that are caused by so-called autonomous acvies, which are not always made subject
to a prior authorizaon in the applicable naonal or regional law. This indirectly underscores the wide
material scope of the non-regression clause, which, in my view, turns it into an important and, in some
instances, indispensable precursor of more robust recovery-based nature conservaon policies.
Obviously, the designaon of a site does not necessarily require the competent authories to bring
to an immediate end all types of ongoing degradaon or damage, nor does it require the seng up of an
all-encompassing permit scheme in this respect. Even so, one might deduce from the latest judicial decisions
that, at a very minimum, the applicable regulaons need to enable competent authories to acvely
intervene and, wherever necessary, implement adaptaons or restricons on public or private acvies
that are needed in order to avoid further deterioraon. To underline the strict provisions of Arcle 6(2) even
further, the ECJ emphasized that merely voluntary measures, such as agri-environmental schemes, do not
suce as protecon measures if not supplemented by more robust and binding conservaon measures.85 If
necessary in order to maintain or restore the conservaon status of the natural habitats and/or species for
which the site was designated, such types of damaging acvies should be banned.86 To use the exact words
of Advocate General Koko in the Spanish brown bear case (Commission v Spain), Arcle 6(2) of the Habitats
Direcve ‘includes the duty to prohibit harmful acts by private individuals or at least to bring such acts to an
end as quickly as possible’.87 As underpinned by the ECJ’s 2007 ruling on the Irish Natura 2000 implemenng
rules, naonal or regional Natura 2000 regulaons necessarily need to allow the competent authories
to prevent, migate and, if necessary, prohibit public and/or private acts that could cause deterioraon
and/or signicant deterioraon within the meaning of Arcle 6(2) of the Habitats Direcve.88 Also, it
must be ensured that the protecon rules are not merely of a reacve nature. Arcle 6(2) of the Habitats
Direcve has an ancipatory nature, which implies that one cannot wait unl deterioraon or disturbance
has materialized before taking measures.89
82 Schoukens, supra note 25, pp. 20-22.
83 Case C-117/00, Commission v Ireland, [2002] ECR I-05335, para. 33.
84 Case C-96/98, Commission v France, [1999] ECR I-8531, para. 29.
85 Ibid., para. 26-27.
86 European Commission, supra note 53, p. 55.
87 Commission v Spain, supra note 65, Opinion of AG Koko, para. 104.
88 Case C-418/04, Commission v Ireland [2007] ECR I-10947, para. 208. See more extensively: Schoukens, supra note 25, pp. 27-28.
89 Ibid., para. 208. See also: European Commission, supra note 52, p. 25.
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Behind all this is the undeniable premise that a substanal part of the current biodiversity loss has
been caused by autonomous developments or cases of diuse degradaon, such as intensied agricultural
acvies, unchecked hunng pracces and unsustainable forestry. Whether such damaging acvies already
existed at the me of the designaon of the Natura 2000 site or only started aer that date is irrelevant for
the purpose of Arcle 6(2) of the Habitats Direcve, since this provision applies permanently to the Natura
2000 sites whenever evidence of ongoing deterioraon is established. The simple fact that the ongoing
degradaon has been caused by an acvity carried out before the designaon of a site or results from an
acvity that was carried out prior to the entry into force of the protecon regime is therefore irrelevant in
this respect. In contrast to, for instance, the Environmental Liability Direcve, which arguably has a more
narrow and specic scope than the EU Nature Direcves because of its focus on certain incidents or events,
Arcle 6(2) of the Habitats Direcve can therefore also have a retrospecve eect. It allows competent
authories to tackle ongoing damage caused by or linked to emissions, intervenons or accidents that
took place before the designaon of a Natura 2000 site. And even though prohibions tackling ongoing
degradaon are in general of a defensive nature, they evidently can also help to restore or improve habitats
to the extent that they allow posive natural developments and natural recovery to take place.90
The lack of binding EU rules as to sustainable forestry pracces91 and the relavely modest steps taken
towards a greener Common Agricultural Policy (CAP) make Arcle 6(2) of the Habitats Direcve for tackling
ongoing degradaon even more important.92 This is a nding which was also highlighted by the recent
outcome of the REFIT Fitness Check of the EU Nature Direcves, which stressed, among other things, that
greater eorts are needed to conserve and enhance biodiversity through the CAP.93 It is undeniable that
Arcle 6(2) requires competent authories to urge farmers and/or foresters to review their land pracces,
especially in cases of ongoing damage and where restoraon targets at site level need to be achieved.
Interesngly, the ECJ has already emphasized in its case law that, even if part of the deterioraon at a Natura
2000 site is related to unsound CAP aid measures focusing on intensive agriculture, this fact alone does not
authorize a Member State to disregard its obligaon to avoid further deterioraon.94
Along the same lines, Arcle 6(2) of the Habitats Direcve might require Member States to review and,
as the case may be, outlaw, destrucve shing acvies within or in the vicinity of marine Natura 2000 sites
that host vulnerable habitats. This specic situaon is giving rise to an increased number of complexies
given the ambivalent relaonship between the Member States’ dues under the EU Nature Direcves
and the exclusive competences of the EU instuons in the eld of the conservaon of marine biological
resources under the Common Fisheries Policy (CFP).95 Interesngly enough, the 2013 Basic Regulaon on
the CFP now explicitly grants Member States the possibility to adopt conservaon measures for the purpose
of complying with their obligaons under Arcle 6 of the Habitats Direcve, including the non-regression
obligaon.96 Admiedly, the new Regulaon does not remedy all reported deciencies and does not explicitly
refer to restoraon targets. Even so, in my view, these ndings yet again highlight the relevance of, amongst
others, Arcle 6(2) of the Habitats Direcve in addressing ongoing losses, arguably an indispensable pre-
condion for achieving restoraon targets in degraded environments.
90 Case C-383/09, Commission v France, [2011] ECR I-4869, Opinion of AG Koko, para. 45.
91 However, the European Commission adopted a new Forestry Strategy in 2014 (COM(2013) 659 nal, 20.9.2013). For more background
informaon, see: <hp://ec.europa.eu/environment/forests/index_en.htm> (accessed 10 February 2017).
92 See more extensively: I. Doussan & H. Schoukens, ‘Biodiversity and agriculture, Greening the CAP beyond the status quo?’, in Born et al.
(eds.), supra note 14, pp. 437-451. Very crical in this respect: A. Mahews, Greening CAP Payments, A Missed Opportunity, Instute and
European Aairs (2013).
93 European Commission, supra note 67, p. 7.
94 Commission v France, supra note 84, para. 40.
95 See more extensively: H. Schoukens & H. Donga, ‘Natura and sheries: A queson of competence or willingness?’, in Born et al. (eds.),
supra note 14, pp. 375-398.
96 See Art. 11(1) of the Council Regulaon (EU) No 1380 of the European Parliament and of the Council of 11 December 2011 on the
Common Fisheries Policy, amending Council Regulaons (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulaons
(EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L 354, 28.12.2013, p. 22.
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4.1.2. Arcle 6(2) of the Habitats Direcve and ongoing projects and acvies: towards strict adapve
management for cases of ongoing and future degradaon?
Now that is has been established that Arcle 6(2) of the Habitats Direcve is of vital importance to control
the adverse eects of autonomous acvies which generally fall outside the scope of the assessment
requirements set out by Arcle 6(3) of the Habitats Direcve or the naonal/regional perming policies,
we shi our focus to ongoing plans and projects that have explicitly been permied or even completed prior
to the designaon of Natura 2000 sites. As hinted at above, these acvies may lead to unacceptable forms
of ongoing degradaon and, if unchecked, exacerbate the degradaon of an already imperilled Natura 2000
site and render total restoraon unfeasible. In many instances, the capping of cumulave environmental
pressures or damage related to permied acvies and projects constutes the rst logical step towards a
more comprehensive recovery strategy for degraded nature. In this context the queson arises whether the
non-regression clause applies to damage that has already been explicitly allowed through the applicaon of
the impact assessment rules, as laid down in Arcles 6(3) and 6(4) of the Habitats Direcve.
The importance of Arcle 6(2) of the Habitats Direcve for overseeing the adverse eects related to ongoing
acvies was eshed out by the ruling of the ECJ in its 2004 ruling in the Waddenzee case. Whereas the ECJ,
as stated above, accepted that the authorisaon of a plan or project granted in accordance with Arcle 6(3)
of the Habitats Direcve necessarily assumes that it is not likely to give rise to deterioraon or signicant
disturbances within the meaning of Arcle 6(2) of the Habitats Direcve, it underscored that Arcle 6(2) of
the Habitats Direcve can require the implementaon of addional measures in some instances.97 The Stadt
Papenburg case in turn provided the CJEU with the opportunity to clarify that, while exisng maintenance
dredging acvies do not necessarily require a prior appropriate assessment in accordance with the second
sentence of Arcle 6(3) of the Habitats Direcve, such ongoing acvies are nonetheless sll covered by
Arcle 6(2) of the Habitats Direcve.98 This means that Arcle 6(2) not only covers ongoing degradaon
but in some ways also situaons that involve addional future losses, especially if such acvies appear to
have been based on awed or incomplete assessments. Among other things, Arcle 6(2) of the Habitats
Direcve forces competent authories to recfy earlier mistakes that have occurred in earlier perming
procedures or, in other instances, to adjust perming condions in view of recently changed environmental
condions.99 Or put dierently, they should refrain from consolidang permied operaons that exacerbate
ongoing degradaon in Natura 200 sites. Yet the relevance of Arcle 6(2) of the Habitats Direcve goes
beyond such non-compliance scenarios and might also be of importance for cases where newly established
restoraon targets for Natura 2000 sites, which put forward a more ambious environmental quality to be
achieved, demand the implementaon of stricter permit policies.
In sharp contrast to, for instance, the Environmental Damage Direcve, which explicitly exempts damage
to protected natural habitats when it concerns previously idened eects resulng from an act explicitly
authorized through the applicaon of Arcle 6(3) and 6(4) of the Habitats Direcve,100 Arcle 6 of the
Habitats Direcve does not contain a provision which lays down a specic hierarchy in this respect. In spite
of the rigorous raonale used by the CJEU in its early case law in the 1990s and 2000s, legal research
has revealed that the applicaon of Arcle 6(2) of the Habitats Direcve at naonal level is to be judged
disparate at best.101 While some naonal courts are eager to strictly apply the non-deterioraon obligaon
vis-à-vis ongoing detrimental acvies, others display signicant reluctance in this respect.102 For instance,
a Belgian appeals court held in 2012 that ongoing motocross races that had been held on a yearly basis for
97 Waddenzee, supra note 57, para. 37-38.
98 Stadt Papenburg, supra note 47, para. 49.
99 See also along the same lines: Case C-304/05, Commission v Italy, [2007] ECR I-7595; Case C-388/05, Commission v Italy, [2007] ECR I-7555.
100 See Art. 2(1), second paragraph of the Environmental Liability Direcve. Yet it remains to be seen whether the laer exempon also
covers situaons in which explicitly authorized acvies may cause unexpected damage to the environment.
101 A similar conclusion arose in the context of the Fitness Check of the EU Nature Direcves (see note 67, supra). See also: European Court of
Auditors, Special Report: More eorts needed to implement the Natura 2000 Network to its full potenal (2017), <hp://www.eurosai.org/
en/databases/audits/More-eorts-needed-to-implement-the-Natura-2000-network-to-its-full-potenal/> (accessed 10 February 2017).
102 For instance, in the Netherlands, the Dutch Council of State was found ready to check whether ongoing nitrogen deposion would
not put in danger the much-needed recovery of Dutch Natura 2000 sites containing vulnerable natural habitats. See more extensively:
M. Uienbosch, ‘Nederland toch op slot; helaas geen aprilgrap’, (2009) Milieu en Recht, pp. 482-488.
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more than 30 years before the inclusion of a site in the Natura 2000 Network are not likely to jeopardize the
conservaon objecves of a highly degraded site. To use the exact words of the Belgian Court, ‘(i)t is unlikely
that nature can be threatened by the connuaon of an ongoing event that has been organised on this site
for more than 45 years’.103 No further consideraon was given to the restoraon raonale underpinning the
Habitats Direcve, as is evident from Arcle 2(2) of the same Direcve.
However, at EU level a gradual shi towards stronger scruny is to be noted. The 2011 ruling of the CJEU
in the Spanish brown bear case stands out as the most seminal landmark decision in terms of clarifying
the relaonship between nature conservaon interests and legimate interests. In the context of these
proceedings, the European Commission asserted that several exisng open-cast mining operaons caused
barriers for the migraon of the capercaillie and the brown bear, for which the Natura 2000 sites in queson
had been designated. While the CJEU concluded that the ongoing mining operaons were exempted from
Arcle 6(3) of the Habitats Direcve,104 it sll proceeded to scrunize the measures taken by the Spanish
Government in view of its obligaons under Arcle 6(2) of the Habitats Direcve. In parcular, the CJEU
held that a violaon of Arcle 6(2) of the Habitats Direcve was apparent since it had been established
that the operaons of several – mostly authorized – open-cast mines caused noise and vibraons which, in
turn, were seen as capable of aecng the threatened and isolated populaons of the capercaillie105 and
the brown bear106 in the Spanish Natura 2000 sites. This clearly underlined the duty of naonal authories
to reconsider or at least update the permit condions for exisng acvies in light of ongoing degradaon.
Following this ruling, however, new legal quesons popped up as to the concrete applicaon of
Arcle 6(2) of the Habitats Direcve with regard to already completed projects. In its latest ruling in the
Waldschlösschen Bridge case (Grüne Liga Sachsen), which revolved around the compability of an already
completed bridge over the Elbe Valley, the CJEU added another important layer to the Member States’
permanent review dues under Arcle 6(2) of the Habitats Direcve in the context of already constructed
projects. The EU judges concluded that, whereas Arcle 6(2) of the Habitats Direcve leaves a certain
discreon to the Member States as to the implementaon of further ‘appropriate steps’, a subsequent
review of the ongoing eect of completed projects is sll required whenever there is a likelihood that the
acvity could nevertheless cause signicant disturbance of a protected species or deterioraon of a natural
habitat.107
Several important lessons can be learnt from these recent rulings. First, the examined case law
developments showcase the major role of Arcle 6(2) of the Habitats Direcve as regards all ongoing
degradaon likely to further undermine the environmental quality of a Natura 2000 site. Second, the case
law cannot be construed as establishing an absolute obligaon to review ongoing acvies and projects
in Arcle 6(2) of the Habitats Direcve in view of future recovery opons. It therefore leaves a certain
discreon to the Member States and allows them to consider the collecve interests that are at stake.
However, interesngly, the CJEU consistently challenges the preconceived idea that nothing is to be done
about ongoing forms of environmental pressure in the context of degraded Natura 2000 sites.108 Third, it has
also become clear that the CJEU’s raonale forces competent authories to queson so-called fait accompli
scenarios, according to which exisng situaons that threaten the recovery of degraded Natura 2000 sites
cannot be challenged. This might be troublesome from a recovery perspecve. For instance, the increased
deposion of nitrogen related to exisng dairy operaons may constute an important impediment for the
recovery of nitrogen-sensive Natura 2000 sites and should therefore be reconsidered in light of the dues
incumbent on Member States pursuant to Arcle 6(2) of the Habitats Direcve.109
103 Translated from Dutch. See Decision of the Brussels Court of Appeal, 14 February 2012. See: Schoukens, supra note 25, pp. 14-19; Cliquet,
supra note 25, pp. 534-535.
104 Commission v Spain, supra note 65, para. 155.
105 Ibid., para. 144-160.
106 Ibid., para. 163-171 and 185-191.
107 Case C-399/14, Grüne Liga Sachsen eV, ECLI:EU:C:2016:10, para. 44. On the same date, the CJEU also issued a second decision in which
a similar raonale was used. See: Case C-141/14, Commission v Bulgaria, ECLI:EU:C:2016:8.
108 See also: European Commission, supra note 52, p. 25.
109 See more extensively: Schoukens, supra note 54, pp. 30-32.
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As a tentave conclusion, one can therefore submit that Arcle 6(2) of the Habitats Direcve obliges the
Member States to come up with an adapve management approach towards ongoing acvies in light of
future recovery opons. This entails a structured, iterave process of robust decision-making in the face of
uncertainty, with an aim to reduce uncertainty over me via system monitoring.110 It is a raonale that is also
reected in the newly amended EIA Direcve, which explicitly states that developers will have the obligaon
to take the necessary steps to avoid, prevent or reduce possible signicant eects to the environment caused
by their projects.111 According to Arcle 8a(4) of the amended EIA Direcve, projects will now need to be
monitored using procedures that are determined by the Member States. In spite of the CJEU’s recent crical
take on adapve management approaches in the specic context of Arcle 6(3) of the Habitats Direcve,
especially when they are used to ancipate the future benecial eects of habitat restoraon measures,112
it is trite to say that adapve management is mandatory for acvies likely to further deteriorate Natura
2000 sites according to Arcle 6(2) of the Habitats Direcve. The Dutch Programmac Approach to Nitrogen
(PAN), which aims to reconcile economic operaons with more ambious recovery opons for degraded
Natura 2000 sites and which entered into force in 2015, can be seen as a recent implementaon of this
newly emerged raonale.113 And while it remains quesonable whether this Dutch approach, which relies
heavily on future restoraon acons in nitrogen-aected Natura 2000 sites, is fully in line with Arcle 6(3)
of the Habitats Direcve,114 the robust monitoring and review opons aached to it can be seen as a good
illustraon of how Arcle 6(2) of the Habitats Direcve could be used in order to force competent authories
to implement passive restoraon acons at site level.
4.1.3. Balancing conicng interests: recovery of ongoing degradaon versus economic interests?
Evidently, a rigid applicaon of Arcle 6(2) of the Habitats Direcve in a recovery context will spark great
controversy amongst stakeholders and business people. If the standsll imperave underpinning Arcle 6(2)
is applied stringently, this provision will eventually force competent authories to revoke or at least modify
permits for acvies that have been permied for many decades because of recently adopted or reversed
recovery policy choices. This fact alone is likely to create important backlash for nature conservaonists,
which might be accused of overly rigid environmentalism. At the heart of many of the discussions that have
arisen in this respect is the delicate balance between property law, vested rights and legimate expectaons
on the one hand, and the environmental interests linked to increased scruny as to ongoing damaging
acvies on the other hand. It is clear that revoking, repealing or modifying permits could impinge upon the
property rights of the operators and thus give rise to increased opposion.115
Recent case law developments have highlighted that, in contrast to the raonale underpinning other,
arguably more tailored tools such as the Environmental Damage Direcve, so-called legimate interests and
legal certainty cannot bar the applicaon of Arcle 6(3) of the Habitats Direcve to exisng or established
situaons.116 And while the CJEU has never explicitly taken a similar stance in the context of Arcle 6(2) of
the Habitats Direcve, it remains very likely that a similar raonale applies in the context of this provision.117
This means that there is no such thing as an ‘eternal right to degrade nature’, even when such rights can
be entrenched in exisng and legal environmental permits. Or, formulated posively, it should remain
possible to review exisng rights in order to foster the imperave recovery of Natura 2000 sites. Rather
than exempng ongoing acvies from the applicaon of Arcle 6(2) of the Habitats Direcve, which could
further compromise the aainment of the EU’s biodiversity targets, Member States are therefore implicitly
110 C.S. Holling, Adapve Environmental Assessment and Management (1978).
111 Direcve 2011/92/EU was amended by Direcve 2014/52/EU. See: Direcve 2014/52/EU of the European Parliament and of the
Council of 16 April 2014 amending Direcve 2011/92/EU on the assessment of the eects of certain public and private projects on the
environment, OJ L 124, 25.4.2014, p. 1.
112 Joined cases nos. C-387/15 and C-388/15, Orleans, ECLI:EU:C:2016:583, para. 48-59.
113 See for more informaon on the Dutch Programmac Approach to Nitrogen (in Dutch): <hp://pas.natura2000.nl/> (accessed 10 February
2017).
114 Schoukens, supra note 54, pp. 50-54.
115 Schoukens, supra note 25, pp. 9-15.
116 Stadt Papenburg, supra note 47, para. 44-46.
117 Commission v Spain, supra note 65, Opinion of AG Koko, para. 71-72.
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encouraged to propose nancial compensaon schemes to lessen the severe economic impact to which the
applicaon of Arcle 6(2) of the Habitats Direcve might give rise in some instances.
It is hard not to overstate the importance of this progressive line of interpretaon in light of the
current underperformance in terms of conservaon management at many Natura 2000 sites across
the EU. Accordingly, Arcle 6(2) of the Habitats Direcve may take away important obstacles to future
recovery. This is not to say that there are no circumstances under which Member States could sll jusfy
the connuaon of ongoing operaons in the context of Natura 2000 sites. For instance, in its 2011 decision
in the Spanish brown bear case, the CJEU conceded that, whereas Arcle 6(2) does not provide a ground to
jusfy degradaon, Member States could rely on reasons of overriding public interest in order to jusfy the
connuaon of exisng, even damaging acvies at a Natura 2000 site.118 In the Waldschlösschen Bridge
case, however, the CJEU further claried that the review of alternaves in the context of Arcle 6(4) in a case
of ongoing deterioraon ‘requires weighing the environmental consequences of maintaining or restricng
the use of the works at issue, including closure or even demolion, on the one hand, against the public
interest that led to their construcon, on the other hand.’119 By stang that the economic costs resulng
from potenal alternaves are ‘not of equal importance to the objecves of conserving natural habitats
and wild fauna and ora pursued by the Habitats Direcve’,120 the CJEU clearly set a high standard for the
applicaon of this derogaon clause. Other case law has also made it abundantly clear that the imperave
reasons of overriding public interest test (IROPI test) embedded in Arcle 6(4) cannot be accepted merely
because there is some prospect that a development will create private economic benets.121 This balancing
test therefore needs to be carried out within a strict environmental framework, equally taking into account
future recovery opons.122
From the 2016 ruling in the Waldschlösschen Bridge case one may infer that the EU judges contemplated
the removal or even destrucon of exisng infrastructures, if necessary, to avoid further degradaon and
allow the aainment of the applicable recovery goals. As admied by Advocate General Sharpston, weighing
the various interests and priories could sll lead to the conclusion that an exisng infrastructure (here the
bridge over the river Elbe) should be le in place.123 Yet such consideraons are to be contextualized within
a strict environmental framework, which eventually places restoraon opons on an equal foong with the
economic interests related to the connuaon of economic operaons. This means that the outcome of
such decision-making procedures may not consistently be to the detriment of protected nature and, most
importantly, future restoraon opons.
4.2. Tackling degradaon through Arcle 6(2) of the Habitats Direcve: going below the de minimis
threshold and beyond the boundaries of Natura 2000?
A logical next step when reviewing the suitability of current nature conservaon laws for achieving the
EU’s restoraon targets and avoiding a degrading baseline due to further degradaon, is to examine
the degradaon threshold that applies in the context of these protecon rules. While a relavely high
signicance threshold is deemed reasonable in order to avoid an unnecessary administrave burden, it also
entails the risk that numerous environmental pressures, which impede the achievement of the recovery
goals, fall outside the scope of a Member State’s regulaon. Likewise, the queson as to whether the
current environmental quality at site level, which might be poor due to bad management, should be used
as a reference criterion to assess the acceptability of ongoing degradaon or, alternavely, the conservaon
goal at naonal or regional level, is highly relevant to the margin of appreciaon le for the Member States
in this respect.
118 Commission v Spain, supra note 65, para. 156.
119 Grüne Liga Sachsen eV, supra note 107, para. 74.
120 Ibid., para. 77.
121 Case C-182/10, Solvay, ECLI:EU:C:2012:82, para. 75-76.
122 Commission v Spain, supra note 65, para. 192-194.
123 Grüne Liga Sachsen eV, supra note 107, Opinion of AG Sharpston, para. 69-71.
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4.2.1. Merely signicant eects or strictly maintaining the status quo?
A textual analysis of Arcle 6(2) of the Habitats Direcve reveals a certain dichotomy as to whether a
certain threshold applies when triggering the applicaon of the protecon duty in the context of either
deterioraon of natural habitats or disturbance of species. As to this scenario, Arcle 6(2) of the Habitats
Direcve explicitly species that appropriate steps have to be taken to avoid it ‘in so far such disturbance
could be signicant in relaon to the objecve of this direcve’. Remarkably so, the Habitats Direcve does
not explicitly link the concept of ‘deterioraon of natural habitats’ to the objecves of the Habitats Direcve.
This could lead us to believe that Arcle 6(2) of the Habitats Direcve bans all forms of deterioraon, even
those that do not usually produce a signicant eect on a Natura 2000 site.124 In the Commission v France
case, Advocate General Koko held that naonal legislaon which spulates that human acvies can only
be restricted if they have signicant eects runs counter to the literal wording of Arcle 6(2) of the Habitats
Direcve.125 In her conclusions, however, she stated that the deterioraon of habitats within the meaning
of Arcle 6(2) of the Habitats Direcve must also be assumed to exist if the conservaon objecves of the
Natura 2000 site are aected.126 Regreably, in its nal ruling, the CJEU declined to express its opinion on
the maer, thereby leaving the issue essenally moot.127
Be this as it may, the European Commission indicated in its Guidance document on Arcle 6 of the
Habitats Direcve that a restricve interpretaon, under which every single deterioraon needs to be
avoided, would run counter to the proporonality principle, which equally applies in the context of the EU
Nature Direcves. It may lead to an unnecessary administrave burden and place environmental regulaon
in a bad light. In the Commission’s view, ‘(t)he deterioraon of habitats is (…) also to be assessed against
the objecves of the direcve. Indeed it seems dicult to assess deterioraon in absolute terms without
reference to measurable limits. (…) connecng deterioraon to the objecves of the direcve makes it
possible to use Arcle 1 of the direcve to interpret the limits of what one can regard as deterioraon’.128
This view was implicitly endorsed by the CJEU’s case law, which underscores that Arcles 6(2) and 6(3) of
the Habitats Direcve are designed to ensure the same level of protecon of habitats.129 And since the CJEU
made it clear that, in order to establish whether a proposed plan or project might signicantly aect the
integrity of a site, the site’s conservaon objecves serve as the most important legal touchstone,130 one
can easily submit that a similar, more reasonable approach is to prevail in the context of Arcle 6(2) of the
Habitats Direcve.131 In her Opinion in the Sweetman case, Advocate General Sharpston conrmed this
raonale by explicitly holding that Arcle 6(2) of the Habitats Direcve does not impose a duty to ensure
that no alteraons of any kind are made, at any me, to the site in queson.132
To further illustrate this more pragmac approach, reference can again be made to the Environmental
Liability Direcve, whose Annex I provides further criteria for the assessment of the signicance of any
damage that has adverse eects on reaching or maintaining the favourable conservaon status. This Annex
also explicitly uses a de minimis approach by excluding certain scenarios from the noon of environmental
damage, such as negave variaons that are smaller than natural uctuaons regarded as normal for the
species or habitat in queson, negave variaons due to natural causes or resulng from intervenons relang
to the normal management of sites and damage to species or habitats for which it has been established that
they will recover to the baseline condion within a short me and without human intervenon.133
124 See also Schoukens, supra note 54, p. 31.
125 Commission v France, supra note 75, Opinion of AG Koko, para. 20.
126 Ibid., para. 28.
127 Commission v France, supra note 75, para. 18-24.
128 European Commission, supra note 52, p. 26.
129 See for instance: Waddenzee, supra note 57, para. 36; Grüne Liga Sachsen, supra note 107, para. 52.
130 See for instance: Waddenzee, supra note 57, para. 59; Sweetman, supra note 69, para. 40.
131 For example, in a 2010 ruling, the CJEU held that Italian legislaon which explicitly prohibits the construcon of new wind turbines not
intended for selfconsumpon at Natura 2000 sites is more stringent than the protecon rules established by the Birds and Habitats
Direcves. See: Case C-2/10, Azienda Agro-Zootecnica Franchini Sarl, [2011] ECR I-06561, para. 46.
132 Sweetman, supra note 69, Opinion AG Sharpston, para. 44.
133 See also more extensively: Fogleman, supra note 79, pp. 207-209.
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Evidently, from a pragmac point of view, this approach is to be qualied as the more workable and
sensible opon. Applying a de minimis threshold allows the competent authories to perform a balancing
exercise when overseeing ongoing degradaon. It gives Member States more freedom, allowing them to
come up with more comprehensive soluons to obstacles to the recovery of degraded Natura 2000 sites
instead of focusing on specic acvies and proposing ad-hoc soluons.134 In her noteworthy Opinion in the
Sweetman case, Advocate General Sharpston referred to a situaon in which plans or projects may involve
some, strictly temporary, loss of amenity which is capable of being fully undone within a short period of
me, as an apt example where one would not need to conclude that there is an adverse eect on the
integrity of the site, as meant by Arcle 6(3) of the Habitats Direcve.135
Even so, the mere fact that deterioraon and disturbance are to be weighed against the Direcve’s
objecves does not necessarily grant more leeway to all Member States, especially those in which the
majority of the natural habitats and species already have an unfavourable conservaon status. This is
because this threshold is not merely linked to simply maintaining the favourable conservaon status, but
also needs to review whether the signicant adverse eects might hinder the achievement of the favourable
conservaon status.136 Most notably, in the above-menoned Sweetman case this led the CJEU to rule that
the mere loss of 0.5% of the total amount of limestone at an Irish Natura 2000 site should be interpreted
as constung an adverse eect on the integrity of the site.137 In this case, Advocate General Sharpston
explicitly referred to the death by a thousand cuts phenomenon, which may lead to the gradual degradaon
of nature as a result of numerous small-scale projects being allowed on the same site. The cumulave
eects of such intervenons could eventually compromise the achievement of the conservaon objecves,
especially when they interfere with the natural habitats and species which originally led to the designaon
of the site and therefore need to be addressed through Arcle 6(2) and 6(3) of the Habitats Direcve.138
Against the backdrop of an unfavourable conservaon status, such incremental biodiversity loss may urge
the competent authories to also scrunize small-scale acvies that may, if cumulavely assessed, render
the long-term aainment of the conservaon objecves impossible.
This view is further reinforced by the European Commission in its Guidance document on Arcle 6 of the
Habitats Direcve. Given the fact that the purpose of the Natura 2000 Network includes restoring species
and habitats that currently have an unfavourable conservaon status, the Commission explicitly indicates
that more ambious restoraon objecves are to be used as a reference standard here.139 In addion,
taking into account the denion of the concept of ‘favourable conservaon status’ of natural habitats
in Arcle 1(e) of the Habitats Direcve – which stresses the natural range of natural habitats, its specic
structure and funcons necessary for its long-term maintenance as well as the conservaon status of its
specic species – even a small-scale reducon of natural habitat within a degraded Natura 2000 site must be
deemed signicant if the conservaon status of the natural habitats is currently unfavourable.140 The same
goes for impairments which adversely aect the factors for long-term maintenance or recovery of vulnerable
habitats. In other words, when measured against a degrading baseline, supposedly minor impacts, which
normally would be le unaddressed in cases of resilient nature, might also be deemed unacceptable in view
of Arcle 6(2) of the Habitats Direcve.141
To some extent, this more rigid understanding was reiterated in the CJEU’s 2015 ruling on the meaning
that is to be given to the concept of ‘deterioraon of the status’142 of a body of surface water in the context
134 See also along these lines: C. Backes et al, Skstofdeposie en Natura 2000. Een rechtsvergelijkend onderzoek (2011), <hp://www.
rijksoverheid.nl/documenten-en-publicaes/rapporten/2011/09/13/skstofdeposie-en-natura-2000.html> (accessed 10 February 2017),
pp. 29-31.
135 Sweetman, supra note 69, Opinion AG Sharpston, para. 59.
136 See along similar lines: Fogleman, supra note 79, p. 205.
137 Sweetman, supra note 69, para. 46-57.
138 Sweetman, supra note 69, Opinion AG Sharpston, para. 67.
139 European Commission, supra note 52, p. 27.
140 Ibid., pp. 27-28.
141 Ibid., pp. 33-35.
142 In parcular, Art. 4(1)(a)(i) of the Water Framework Direcve provides that ‘In making operaonal the programmes of measures specied
in the river basin management plans for surface waters, Member States shall implement the necessary measures to prevent deterioraon
of the status of all bodies of surface water (…)’.
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of Arcle 4(1)(a)(i) of the Water Framework Direcve. In this specic context, the CJEU upheld a rather
restricve line of interpretaon, which entailed that this concept must be construed in such a manner that
there is a deterioraon as soon as the status of at least one of the quality elements, within the meaning of
Annex V of the 2000 Water Framework Direcve, falls by one class, even if this does not result in a fall in
the overall declassicaon of the body of surface water.143 Interesngly enough, the CJEU added that, if the
quality element is already in the lowest class, ‘any deterioraon of that element constutes a “deterioraon
of the status” of a body of surface water, within the meaning of Arcle 4(1)(a)(i)’.144 And while, admiedly,
the wording of Arcle 4(1) of the Water Framework Direcve, which denes the environmental objecves
to be achieved for the waterbodies present in the EU, is disnguishable from that of Arcle 6 of the Habitats
Direcve,145 the inextricable logic on which the ruling is based appears to be similar to what the European
Commission states in its Guidance document on Arcle 6 of the Habitats Direcve as to Arcle 6(2). Given
the fact that the Habitats Direcve also includes an imperave to improve degraded environments, the
threshold beyond which a breach of the obligaon to prevent deterioraon of Natura 2000 is established
must be low. Applying the same raonale of the CJEU to the specic context of Natura 2000, one could
therefore argue that as soon as a damaging acvity aects one of the three specic criteria menoned in
the denion of favourable conservaon status in Arcle 1(e) of the Habitats Direcve, it would have to be
prohibited according to Arcle 6(2) of the Habitats Direcve. For instance, even if an acvity merely aects
the structure and funcon of a protected habitat and does not lead to a reducon of its range, it could sll
be construed as an unlawful deterioraon in light of Arcle 6(2) of the Habitats Direcve. As a result, one
may conclude that Arcle 6(2) of the Habitats Direcve does not necessarily force Member States to prohibit
any situaon of further degradaon, especially not when it is of a temporary nature. Even so, heightened
stringency needs to be applied in cases of ongoing degradaon, especially if the mere connuaon of
acvies might jeopardize the achievement of the recovery targets both at site and at naonal level.
4.2.2. Ongoing degradaon: site level or naonal level as a reference scenario?
Arcle 6(2) of the Habitats Direcve does not lay down an explicit territorial reference point against which
the signicance of deterioraon or disturbance needs to be measured, and neither does Arcle 6(1) of the
Habitats Direcve, which, as stated above, more explicitly urges Member States to implement measures in
order to maintain or, as the case may be, restore the conservaon status of natural habitats and species.
Lile explanaon is needed to stress the relevance of the geographical baseline to be used when applying
Arcle 6(2) of the Habitats Direcve. The applicable baseline is decisive for the leverage in terms of ecological
restoraon present in Arcle 6(2) of the Habitats Direcve. The wider the geographical scale at which it
can be assessed, the more leeway competent authories have to priorize restoraon acons. In some
instances, priority seng might be benecial to Natura 2000, especially in a context of limited nancial
means. Yet, in a situaon of budgetary restraint priority seng may be abused as a cover-up to implicitly
give up parts of Natura 2000 sites that hamper the connuaon of important economic acvies, such as
mining operaons or dairy farming, to name but a few examples.
According to some, the favourable conservaon status of natural habitats or species needs to be
established across its natural range and therefore not at individual site level.146 The Dutch Council of State,
for one, has already rearmed that neither the Habitats Direcve, nor the Birds Direcve force the Member
States to achieve a favourable conservaon status at the level of each individual site.147 If this viewpoint is
upheld, more discreon would obviously become available for the competent authories when assessing
the ramicaons of damaging acvies within Natura 2000 sites. However, other authors are of the opinion
that the favourable conservaon status also needs to be achieved at individual site level.148 In its Guidance
143 Case C-461/13, Bund für Umwelt und Naturschutz Deutschland eV, ECLI:EU:C:2015:433, para. 67-68.
144 Ibid., para. 69 (emphasis added).
145 For a crical discussion of the ruling of the CJEU: D. Salm, ‘The Case for Smart Governance in European Water Law’, in B. Vanheusden &
L. Squitani (eds.), EU Environmental and Planning Law Aspects of Large-Scale Project (2015), pp. 215-235.
146 Backes et al., supra note 134, pp. 24-25.
147 See for instance: Dutch Council of State, no. 200902380, 16 March 2011.
148 Cliquet et al., supra note 14, p. 275.
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document on Arcle 6 of the Habitats Direcve, though, the European Commission strengthened the
former view by stang that, in accordance with Arcle 1(e) and 1(i) of the Habitats Direcve, the favourable
conservaon status needs to be measured at biogeographical level.149 Even so, the Commission stressed the
importance of the individual site, since the ecological coherence of the Natura 2000 Network depends on
the contribuon of each individual State. Indeed, taking into account that the conservaon objecves that
are established at naonal or regional level need to be translated into site-specic conservaon objecves,
the above-featured discussion ends up being a semanc one, at least to some extent. The simple fact that
a natural habitat has an unfavourable conservaon status at the naonal level probably implies that it will
be in a degraded status in most of the designated Natura 2000 sites. Yet, in some instances, the status at
site-level might be dierent from the naonal assessment, which can give rise to addional complexies.
Either way, a more recent response to a parliamentary queson by the European Commissioner for the
environment displayed less reluctance when holding that ‘(t)he (EU Nature) Direcves impose obligaons
on the Member States as such, which implies that – inter alia – favourable conservaon status of species
and habitat types of Community interest should be achieved at Member State level. This in turn implies
that, where favourable conservaon status is achieved at the naonal level, the Member State does not
necessarily have to achieve good conservaon status in each individual state’.150 Although these (non-
binding) statements leave a lile room for leverage, especially in a situaon where most of the habitats
and species are already at a favourable conservaon status at the naonal or regional level, it would be
wrong to deduce from this excerpt that no localized test is required in the context of Arcle 6(2) of the
Habitats Direcve. Such a stricter test appears in order at least in situaons where the natural habitats or
species at issue have an unfavourable conservaon status at naonal level. Even more so, the European
Commissioner added in the response referred to above that ‘(…) As a general rule in all Natura 2000 sites,
Member States must avoid the deterioraon of the habitats of Community interest and the habitats of
species of Community interest for which a site was designated’.151
Also the Commission’s Guidance on Arcle 6 of the Habitats Direcve hints at a site-specic assessment
in the context of Arcle 6(2).152 Hence, when applying Arcle 6(2) of the Habitats Direcve, the mere fact that
the habitat aected is thriving at a nearby Natura 2000 site does not constute a sucient argument to allow
the degradaon of the same habitat type at another site or another habitat within the same site. Or, framed
in terms of ecological restoraon, Member States remain under the obligaon to consider the recovery of
parally degraded Natura 2000 sites to avoid further deterioraon, even when at naonal level other sites
may grant more favourable opons for further restoraon. Only if other restoraon acons have proven
eecve and sucient in view of the naonal or regional restoraon goals, is more discreon permissible.
To some extent, this view has been indirectly reasserted by the outcome of the above-menoned ruling of
the CJEU in the Sweetman case, where the CJEU held that a minor but irreparable destrucon of priority
habitats was incompable with Arcle 6(3) of the Habitats Direcve.153 Likewise, in the same ruling the CJEU
emphasized that both Arcle 6(2) and 6(3) of the Habitats Direcve are explicitly designed to ‘maintain, or
as the case may be restore, at a favourable conservaon status natural habitats and, in parcular special
areas of conservaon’.154 Thus, only when the site-specic conservaon objecves have been achieved, are
minor instances of further deterioraon in relaon to protected natural habitats and species compable
with Arcle 6(2) of the Habitats Direcve.
149 European Commission, supra note 52, p. 19.
150 European Commission, Answer given by Mr. Potocnik on behalf of the European Commission to parliamentary queson E-008540/2011,
9 November 2011.
151 Ibid.
152 For instance, when clarifying when measures with regard to disturbance and deterioraon should be taken, the Commission states that
‘(t)he conservaon status of a habitat or species in a site will be assessed according to the contribuon of this site to the ecological
coherence’. See: European Commission, supra note 52, p. 27.
153 Sweetman, supra note 69, para. 32.
154 Ibid., para. 36 (emphasis added).
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4.2.3. Going beyond the boundaries of the Natura 2000 Network: conserving and restoring corridors and
wider populaons?
In terms of substanve implicaons, addional aenon needs to be paid to the territorial scope of
Arcle 6(2) of the Habitats Direcve. As evidenced by the above analysis, this standsll clause is strictly
related to the designated Natura 2000 sites and therefore cannot be used as a tool to halt biodiversity decline
and foster restoraon in the wider landscape, beyond protected sites. One would therefore presume that it
is of limited importance to spur conservaon and recovery outside the context of the Natura 2000 Network.
However, this view should be adjusted in light of the latest jurisprudence and regulatory developments.
For starters, Arcle 6(2) of the Habitats Direcve might prompt the Member States to enact protecon
measures as regards external acvies that are likely to impact the species and habitats of Natura 2000 sites.
In hypotheses of ongoing degradaon, Member States are required to reconsider drainage works carried
out in the past that might lead to the drying out of sensive marshlands that are located inside a Natura
2000 site.155 This is again exemplied by the Dutch Programmac Approach to Nitrogen (PAN), which does
not limit itself to addressing the sources of addional nitrogen deposits that are located inside nitrogen-
sensive Natura 2000 sites, but has a more ambious territorial scope. It also includes generic reducon
measures that apply to external impacts, which further underpins the external eect of Arcle 6(2) of the
Habitats Direcve.156
The factual circumstances underpinning the above-menoned CJEU ruling in the Spanish brown bear case
revealed yet another important factor to be taken into account when applying Arcle 6(2) of the Habitats
Direcve.157 According to an environmental report issued in this case, the bears move 3.5 to 5 kilometres
from the areas of impact of the noise and vibraons caused by the mining operaons. The report found
that the operaons will prevent or severely hinder the brown bear’s access to the corridor, whereas it is
a north-south transit route of crical importance for the western populaon of this species.158 The CJEU
also refers to another study, which stated that the risk of deterioraon and closure of another corridor
constutes one of the main threats for the re-establishment of the Cantabrian brown bear.159 Given the fact
that the said populaon of the brown bear is not limited to the Natura 2000 sites concerned, one might
assume that the brown bear populaons located outside the Natura 2000 site will evidently benet from
the increased scruny as to the adverse eects of several of the open-cast mines. Even more interesng are
the CJEU’s observaons as regards the impact on the capercaillie of the open-cast mines, some of which
were located outside the Natura 2000 sites at issue. In this respect, the CJEU ruled that some of the mining
operaons, including one that was located outside the Natura 2000 site, were also capable of producing a
barrier eect likely to contribute to the fragmentaon of the habitat of the capercaillie and to the isolaon
of certain sub-populaons of that species.160 According to some authors, the CJEU took into account the
populaons located outside the Natura 2000 sites concerned, hinng that this provision also protects the
subpopulaons located outside the site to which the site’s populaons are connected.161
It can therefore be upheld that Arcle 6(2) of the Habitats Direcve is suciently robust to urge Member
States to consider more landscape-wide recovery opons, especially in cases where the already designated
sites are suering from connuous quality loss and habitat fragmentaon. When combined with other,
oen less strictly formulated provisions aimed at the development of ecological corridors across the wider
landscape, such as Arcle 10 of the Habitats Direcve, Arcle 6(2) of the Habitats Direcve may also underpin
such landscape-wide recovery claims that go beyond the strict boundaries of Natura 2000.162 Among other
155 European Commission, supra note 52, p. 25.
156 Schoukens, supra note 54, pp. 30-34.
157 Commission v Spain, supra note 65. See more extensively: J. Verschuuren, ‘Connecvity: is Natura 2000 only an ecological network on
paper?’, in Born et al. (eds.), supra note 14, p. 298.
158 Ibid., para. 188.
159 Ibid., para. 189-190.
160 Ibid., para. 148.
161 Verschuuren, supra note 157.
162 See along similar lines: A. Trouwborst, ‘Internaonal nature conservaon law and the adaptaon of biodiversity to climate change:
A mismatch?’, (2009) Journal of Environmental law, pp. 439-440. See more crical: L. Squitani, ‘ The development of ecological corridors:
Member States’ obligaons under the Habitats and Birds Direcve’, Journal of European Environmental & Planning Law, pp. 195-200.
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things, it should be noted that the second sentence of Arcle 4(4) of the Birds Direcve spulates that
beyond Natura 2000 sites, ‘Member States shall also strive to avoid polluon or deterioraon of habitats’.
In a noteworthy ruling of 13 December 2007 the ECJ stated that, although this provision does not constute
an obligaon of result, it sll obliges Member States ‘to make a serious aempt at protecng those habitats
which lie outside the SPAs’. It therefore held Ireland liable for not having suciently translated conservaon
requirements, especially related to farmland birds, into its naonal planning legislaon.163 Whereas this
ruling remains somewhat ambivalent, it certainly has the potenal to inspire environmental ligaon in
which authories are forced, by a combined referral to both Arcle 6(2) of the Habitats Direcve and the
second sentence of Arcle 4(4) of the Birds Direcve and/or Arcle 10 of the Habitats Direcve, to take
further measures for protecng and restoring corridors deemed vital in the context of two or more isolated
Natura 2000 sites.
4.3. Applying a well-dened temporal reference scenario in a remediaon context: tackling ongoing and
interim losses via Arcle 6(2) of the Habitats Direcve?
It has been determined that Arcle 6(2) of the Habitats Direcve not only has the potenal to ensure
non-regression of the environmental quality but, as the case may be, also obliges Member States to take
measures to bolster recovery opportunies. The applicable conservaon objecves are instrumental
to determine the relevance of possible ongoing degradaon. Even so, if deterioraon is indeed deemed
relevant, the queson remains against which specic temporal baseline the scope of the potenal recovery
and/or remediaon acons under Arcle 6(2) of the Habitats Direcve needs to be assessed. It is interesng
to note here that Arcle 6(2) seems to present, albeit implicitly, a concrete reference state against which any
further degradaon needs to be measured and, if necessary, restored.
4.3.1. A clear-cut temporal baseline: the date of designaon of a Natura 2000 site?
The specic meframe for the protecon rules linked to Natura 2000 sites allows us to introduce a more
explicit temporal baseline against which possible ongoing forms of degradaon can be measured and the
precise scope of potenal remediaon measures can be framed.
The starng point for sites designated under the umbrella of the Habitats Direcve is Arcle 4(5), which
spulates that Arcle 6(2) of the Habitats Direcve is applicable from the moment of the inclusion of the
site concerned in the list of sites of community interest (SCIs). Admiedly, under the Draggagi164 and Bund
Naturschutz165-raonale, proposed SCIs also enjoy a certain degree of protecon. Accordingly, Member
States are for instance prohibited from authorizing impairments which jeopardize the ecological interests
of such sites.166 Yet, from the moment a site is included in the list of SCIs, the more stringent non-regression
obligaon enshrined in Arcle 6(2) of the Habitats Direcve applies.167 As regards protected sites under
the Birds Direcve (SPAs), the non-deterioraon obligaon applies from the moment the site has been
designated as a protected area under naonal legislaon. In the context of the Flemish Region (Belgium),
for instance, this means that potenal degradaon has needed to be considered since 1988 (as far as SPAs
are concerned) and 2004 (as far as SACs are concerned).168 In other Western-European countries similar
dates will have to be used as baseline, while more recently joined Member States will have to go back less
far in me.
In other words, when applying the non-regression or standsll obligaon included in Arcle 6(2) of the
Habitats Direcve, one must not only focus on the applicable conservaon objecves but also take into
163 Commission v Ireland, supra note 88, para. 179-187.
164 Case C-117/03, Draggagi et al., [2005] ECR I-167, para. 26-27.
165 Case C-244/05, Bund Natuurschutz in Bayern et al., [2006] ECR I-8445, para. 46.
166 See more extensively: H. Schoukens & H. Woldendorp, ‘Site selecon and designaon under the Habitats and Birds Direcve: a Sisyphean
task’, in Born et al. (eds.), supra note 14, pp. 49-51.
167 For an illustraon of the disncon between the provisional protecon regime and Art. 6(2) of the Habitats Direcve, see: Commission v
Spain, supra note 65, para. 163-171.
168 H. Schoukens et al., ‘The implementaon of the Habitats Direcve in Belgium (Flanders): back to the origin of species?’, (2007) 4 Journal
of European Environmental & Planning Law, pp. 127-138.
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account the reference situaon on the date on which the site was protected.169 This view, which indirectly
underlines the clear potenal of Arcle 6(2) of the Habitats Direcve in terms of recovery or remediaon,
has been reinforced by the European Commission in its Guidance document on Arcle 6 of the Habitats
Direcve, which explicitly states that ‘the maintenance of the favourable conservaon status has to be
evaluated against the inial condions provided in the Natura 2000 standard data forms when the site was
proposed for selecon or designaon, according to the contribuon of the site to the ecological coherence
of the network’.170 Accordingly, these dates could be used as a xed temporal baseline, against which the
viability of acts – or failures to act – of Member States is to be assessed in the context of Arcle 6(2) of the
Habitats Direcve.171
Interesngly, the Environmental Liability Direcve, while having a disnct focus on concrete accidents and
events causing ecological damage, seems to lead to a similar conclusion, although it does not explicitly refer
to the date of designaon of a Natura 2000 site.172 In view of determining whether the signicance threshold
is exceeded as to damage to protected natural habitats and species, it denes the baseline condion as
‘the condion at the me of the damage of the natural resources and services that would have existed had
the environmental damage not occurred, esmated on the basis of the best informaon available’. Annex
I to the Environmental Damage Direcve contains more detailed criteria on how to determine whether
signicant adverse changes to the baseline condion have occurred. These criteria cover e.g. the number,
density and role of individuals in a species, the rarity of a species, its capacity for propagaon or natural
regeneraon, respecvely, and the capacity to recover within a short me to a condion equivalent or
superior to the baseline condion.173 Mutas mutandis similar criteria could also be of use to determine the
baseline condion for a Natura 2000 site at the me of its designaon, and thus help to establish a reference
baseline.
4.3.2. An enforceable duty to restore to a past reference situaon?
Against the background of this case law, however, it sll remained unclear whether one could infer an
enforceable obligaon to restore a Natura 2000 site to the reference state which it was in when it was
designated. Given the relavely poor enforcement in many Member States of the protecon rules aached
to Natura 2000 sites in the early years, it is obvious that a stricter reading of Arcle 6(2) of the Habitats
Direcve might pave the way for more ambious restoraon claims, that may be enforced before naonal
courts. The very fact that in its previous case law, the ECJ had already held that a Member State cannot
derive an advantage from its failure to adhere to its obligaons under the EU Nature Direcves, already
pointed to more scruny in this respect.174
The Italian Cascina Tre Pini case, which dealt with the queson of declassicaon of an exisng Natura 2000
site, provided the CJEU with an interesng opportunity to address this issue in a more comprehensive
manner. These naonal court proceedings more specically revolved around an Italian Natura 2000 site
which suered from signicant degradaon due to its locaon close to the Malpensa Airport, among other
things. In her Opinion, Advocate General Koko already held that ‘Arcle 6(2) of the Habitats Direcve
requires the Member States to protect SCIs against deterioraon. A Member State’s failure to full those
obligaons to aord protecon does not warrant the withdrawal of protected status. (…) Member States
should rather take the necessary measures to restore the site’.175
In its nal ruling on the maer, the CJEU reached a similar conclusion, although in a slightly more indirect
manner in terms of restoraon dues. The Court concluded that not every environmental degradaon of a
169 Grüne Liga Sachsen, supra note 107, para. 58 and 60.
170 European Commission, supra note 52, p. 27.
171 Commission v Spain, supra note 65, para. 155.
172 The Environmental Liability Direcve does not explicitly refer to the concept of ‘Natura 2000’, which has led some authors to submit
that damage to Annex I habitats located outside the designated Natura 2000 sites can also be covered by the system of preventave
and remedying dues. See: C. Piroe, ‘La direcve 2004/35/CE du 21 avril 2004 sur la responsabilité environnementale: premiers
commentaires’, in G. Viney & B. Dubuisson (eds.), Les responsabilités environnementales dans l’espace Européen (2006), pp. 661-664.
173 Art. 2(1) and Annex I of the Environmental Damage Direcve.
174 Case C-347/98, Commission v France, [2000] ECR I-10799, para. 50.
175 Case C-301/12, Cascina Tre Pini ss, ECLI:EU:C:2014:214, Opinion of AG Koko, para. 50 (emphasis added).
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site on the list of SCIs juses its declassicaon. In its pivotal paragraph 32, however, the CJEU emphasized
that Arcle 6(2) of the Habitats Direcve requires the Member States to protect the SCIs by adopng
measures to avoid deterioraon or disturbance. By doing so, the CJEU claried that ‘the failure of a Member
State to full that obligaon of protecng a parcular site does not necessarily jusfy the declassicaon
of that site (…). On the contrary, it is for that State to take the measures necessary to safeguard that site.’176
This clearly underscores the potenal of Arcle 6(2) of the Habitats Direcve as groundwork for recovery
claims in the context of degraded Natura 2000 sites. As has become clear, such measures can be qualied as
remediaon measures or osets to compensate previous non-compliance situaons.
4.3.3. A dynamic temporal baseline, oering more opportunies for restoraon claims?
Evidently, the use of a clear-cut reference date will make it easier to specify the exact scope of possible
restoraon or remediaon claims vis-à-vis government actors in the context of Natura 2000 sites that
have been poorly managed and conserved over the past decades. However, the queson arose whether
degradaon which has materialized since the reference date needs to be taken into account as well in
the context of Arcle 6(2) of the Habitats Direcve. Or, translated in terms of restoraon: Should possible
recovery eorts mainly focus on restoring a site to its baseline scenario or should such recovery eorts
equally take into account the addional degradaon that has occurred in the meanme, including the so-
called ‘interim losses’?
In its ruling in the Waldschlösschen Bridge case, the CJEU rearmed that any step taken on the basis of
Arcle 6(2) cannot relate to a date going back to a period in which the site was not protected. Even so, it
held that the objecve of this provision would be ignored if one were to disregard factors that have caused
or that are likely to connue to cause deterioraon or disturbance aer the date on which the site was
protected.177 Therefore, when assessing potenal recovery acons in order to halt ongoing degradaon,
one should focus both on factors exisng on the date of the designaon of a site and on all eects that
have arisen aer that date.178 This seems to suggest that also interim losses, which result from the fact that
the damaged nature was not able to perform its dues unl remediaon measures took eect, need to be
considered. This again underlines the relevance of Arcle 6(2) of the Habitats Direcve in implemenng
the EU’s restoraon targets. The CJEU’s understanding of Arcle 6(2) of the Habitats Direcve is in line with
the approach set forth by the Environmental Liability Direcve, which explicitly presents ‘compensatory
measures’ in order to compensate for interim loss of natural resources and services pending recovery.179
However, in view of the polluter-pays principle, the exact repercussions of this interpretaon may give rise
to complexies when enforced at the individual level, especially in cases of diuse polluon.
Be that as it may, the Dutch Programmac Approach to Nitrogen provides an apt illustraon of using
correct reference dates in the context of Arcle 6(2) of the Habitats Direcve. In its 2012 Opinion on the
legal foundaons of the PAN, the Dutch Council of State repeatedly underlined the need to take into account
correct reference points for the Dutch Natura 2000 sites included in the PAN.180 To be more precise, the
Dutch restoraon acons aimed at the recovery of aected Natura 2000 sites should not only focus on
remedying the ongoing degradaon that was present in the summer of 2015, when the PAN entered into
force. It should also take into consideraon the damage that had arisen since 2004 (in the context of SACs)
and 1988 (in the context of SPAs), the addional and possible interim losses.
Accordingly, the recovery acons should equally be aimed at remedying the losses that have been
unlawfully allowed since the designaon of the Natura 2000 sites. Likewise, the dynamic nature of the
baseline is highlighted by the Commission’s Guidance document on Arcle 6 of the Habitats Direcve. Here,
it is held that the conservaon status to be used in the context of Arcle 6(2) of the Habitats Direcve is, as
the case may be, assessed ‘against the aim of improving the conservaon status announced at the me of
176 Cascina Tre Pini, supra note 175, para. 32.
177 Grüne Liga Sachsen, supra note 107, para. 60.
178 Ibid., para. 61.
179 See Annex II, 1.1 to the Environmental Liability Direcve.
180 Advisory Division of the Dutch Council of State (2012) No.W.15.12.0046/IV.
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the seng-up of the network’.181 Consequently, when applying the protecon duty contained in Arcle 6(2)
of the Habitats Direcve, it is only logical to take restoraon targets into consideraon. As a result, the focus
on a well-dened reference status – i.e. the date of the designaon of the Natura 2000 site – should not
blur the fact that the scope of a possible recovery duty under Arcle 6(2) of the Habitats Direcve can be
expanded in view of changed circumstances and interim losses.
4.4. Obligaon of result or of means: Arcle 6(2) of the Habitats Direcve as an enforceable protecon
and restoraon duty?
It is obvious that, if Arcle 6(2) of the Habitats Direcve is to be interpreted as a so-called obligaon of result,
this would pave the way for more progressively tailored restoraon-based approaches in the context of
degraded Natura 2000 sites. Under such circumstances, an environmental NGO only needs to demonstrate
that deterioraon or disturbance within the meaning of Arcle 6(2) of the Habitats Direcve has occurred
in the eld and then base its restoraon claims on these ndings. However, if Arcle 6(2) of the Habitats
Direcve is to be interpreted as a best eorts obligaon, a Member State can suce by stang that it has
acted with the required due care and diligence and that it has taken all the measures one could reasonably
expect from it.182 In this case, the burden of proof is shied to the applicant, who must prove not only
that the result has not been achieved (i.e. deterioraon or disturbance) but addionally that the Member
State has not acted diligently. In view of the wording and the mulple vague terms used in Arcle 6(2) of
the Habitats Direcve, such as the noon of ‘deterioraon’, it may be tempng to conclude that this non-
regression duty cannot be interpreted as an obligaon of result.
4.4.1. Obligaon of result: towards a recovery-based raonale?
In spite of the relavely vague concepts that are used in Arcle 6(2) of the Habitats Direcve, the legal
literature has consistently argued that this provision should be read as an obligaon of result.183 Following
earlier strict decisions with respect to the rst sentence of Arcle 4(4) of the Birds Direcve,184 the ECJ
issued one of its rst landmark rulings in the Commission v Ireland case, which concerned the problemac
overgrazing in some of the Irish SPAs. And while the ECJ acknowledged that Ireland had taken some measures
aimed at stabilizing and redressing the problem of overgrazing, Ireland was sll condemned for not taking
more measures to avoid the negave impact on the habitats of the red grouse in view of the evidence that
was presented.185 Interesngly enough, the ECJ indirectly pointed to the restoraon raonale underpinning
Arcle 6(2) of the Habitats Direcve, by holding that the competent Irish Government’s measures should not
merely focus on stabilizing the problem of overgrazing but should also aim at the recovery of the aected
habitats.186
In the Spanish brown bear case a similar approach is noceable given the focus on safeguarding the
re-establishment of the populaon of brown bears in Cantabria, which are currently not at a favourable
conservaon status.187 In its recent case law, the CJEU equally underscored that the precauonary principle
applies in the specic context of Arcle 6(2) of the Habitats Direcve. To be more precise, the mere existence
of a probability or a risk that economic acvity at a protected site might cause signicant disturbance for a
species may constute an infringement of Arcle 6(2) of the Habitats Direcve, ‘without a cause and eect
relaonship between that acvity and signicant disturbance to the species having to be proved’.188 These
case-law developments indirectly facilitate future recovery-based ligaon in the context of Arcle 6(2) of
181 European Commission, supra note 52, p. 27.
182 See more extensively on this topic in the context of Arcle 4 of the European Water Framework Direcve: J.J.H. van Kempen, ‘Countering
the Obscurity of Obligaons in European Environmental Law: An Analysis of Arcle 4 of the European Water Framework Direcve’,
(2012) 24 Journal of Environmental Law, pp. 499-533.
183 Cliquet et al., supra note 14, p. 276; Cliquet, supra note 25, pp. 537-538.
184 See, for instance: Commission v France, supra note 84, para. 35.
185 Commission v Ireland, supra note 83, para. 26-30.
186 Ibid., para. 31.
187 Ibid., para. 190.
188 Grüne Liga Sachsen, supra note 107, para. 42; Commission v Spain, supra note 65, para. 142.
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the Habitats Direcve. Accordingly, whenever the Member States have set their conservaon objecves,
more detailed standards to evaluate the acceptability of ongoing decline will be available which will allow
for more objecve enforcement of the standsll obligaon. Likewise, the fact that the CJEU explicitly allowed
the use of exempons, such as Arcle 6(4) of the Habitats Direcve, indirectly points to the fact that the
obligaon at issue is an obligaon of result.189
4.4.2. Safeguarding the recovery raonale: limited opons to declassify Natura 2000 sites?
The comprehensive nature of the implicit restoraon dues incumbent on the Member States by virtue of
Arcle 6(2) of the Habitats Direcve is further highlighted by the fact that the scope of this obligaon is, as
such, not limited to intenonal acts, but equally covers any chance events that may occur, such as oods
and wildre. In her Opinion in the Commission v UK case, Advocate General Koko refuted the argument of
the United Kingdom that only non-natural deterioraon is to be avoided, stang that measures to prevent
natural developments that may cause the conservaon status of species and habitats to deteriorate may be
deemed necessary in order to comply with Arcle 6(2) of the Habitats Direcve.190 In its nal ruling in this
case, however, the CJEU reasserted this raonale and indicated that Member States are therefore required
to tackle non-intenonal acts, and cannot limit their acons to intenonal human acvies.191 Whereas the
CJEU did not expressly express its view on the queson whether impacts such as climate change or sea-level
rise should be tackled through Arcle 6(2) of the Habitats Direcve, the European Commission sll went
on to clarify that the provision does not apply if a process cannot be inuenced by acve management.192
This again emphasizes the fact that Arcle 6(2) of the Habitats Direcve is principally to be regarded as
an obligaon of result. The recent jurisprudenal evoluons leave Member States relavely lile leeway,
since they conne opons to declassify already degraded Natura 2000 sites. Instead of trying to get rid of
the protected status of a degraded Natura 2000 site, Member States are expected to primarily focus on
stopping the ongoing decline and, subsequently, allow its long-term recovery. Evidently, one could argue
that such a rigid approach may be at odds with the proporonality principle as it requires Member States to
invest in ambious recovery measures in exchange for uncertain environmental gains. Ulmately, this could
lead to relavely ineecve restoraon programmes. It would considerably limit the Member States’ ability
to priorize restoraon acons in a cost-eecve manner. Indeed, few Member States will be found willing
to dedicate innite nancial resources to the conservaon and protecon of sites with limited prospects of
success, even when this is the result of their own failure to abide by the protecon rules during the previous
decades.193
As indicated above, however, Member States are oered several, albeit limited, juscaon or excuse
clauses in order to solve such a puzzle in the context of the Natura 2000 Network. For instance, a Member
State can sll try to jusfy deterioraon or signicant disturbance within the meaning of Arcle 6(2) of
the Habitats Direcve if it manages to successfully apply the derogaon clause contained in Arcle 6(4) of
the Habitats Direcve. Moreover, in its ruling in the Italian Cascina Tre Pini case, which was already partly
referred to above, the CJEU conrmed that a Member State is required to declassify a site on the list of
SCIs when it is denively no longer capable of contribung to the achievement of the objecves of the
Habitats Direcve and, accordingly, it is no longer warranted for the site to remain subject to the provisions
of that Direcve. Under such circumstances, the Member States are obliged to propose to the European
Commission that the site be declassied.194 However, the CJEU hastened to underline in this ruling that a
mere allegaon of environmental degradaon of a Natura 2000 site, made by the owner of land located
on that site, cannot suce to bring about such an adjustment to designated status of such as Natura 2000
site. It is essenal that the degradaon makes the site irretrievably unsuitable to ensure the conservaon
189 See by analogy: Van Kempen, supra note 182, p. 526.
190 Case C-6/04, Commission v United Kingdom, [2005] ECR I-9017, Opinion of AG Koko, para. 18-22.
191 Commission v United Kingdom, supra note 190, para. 34.
192 European Commission, supra note 53, p. 55.
193 Backes et al., supra note 134, pp. 25-30.
194 Cascina Tre Pini, supra note 175, para. 28.
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of natural habitats and of the wild fauna and ora or the seng up of the Natura 2000 Network, so that the
site can denively no longer contribute to the achievement of the objecves of the Habitats Direcve, as
set out in Arcles 2 and 3. Therefore, not every single case of degradaon of a Natura 2000 sites juses
its declassicaon.195 Accordingly, Member States are principally obliged to prevent or, as the case may
be, remedy further incremental degradaon instead of simply abandoning an exisng Natura 2000 site in
exchange for the designaon of other areas with similar characteriscs.
Some might accuse the CJEU of rigidity, since the EU judges severely limit the discreon Member States
enjoy in the context of the conservaon and protecon of Natura 2000 sites, especially when located in
areas where important economic interests are at play. As a result of the fact that Member States were not
allowed to let economic criteria prevail in the context of their naonal designaon eorts, some Natura
2000 sites are located in the close vicinity of industrial acvies or port areas, which can put a heavy burden
on the connuaon of economic acvies that frequently clash with preservaon of at least some natural
habitats. Even so, a more relaxed stance may lead Member States to believe that no shi towards more
ambious and short-term recovery policies is needed in order to stave o further degradaon. It is also
important here to point out that Member States are required to take the restoraon possibilies of a site
into consideraon when selecng the ecologically most valuable sites for a parcular habitat or species.196
When evaluang the restoraon possibilies of a site, the Member States need to take into account the
scienc feasibility of the possible restoraon acons.197 In other words, by designang a site as a Natura
2000 site, a Member State already implicitly suggested that the conservaon and restoraon thereof is
feasible and primordial in view of the achievement of its conservaon objecves at naonal level. Only
new, superseding circumstances linked to natural developments which could not have reasonably avoided
by applying conservaon measures seem acceptable to declassify a Natura 2000 site instead of priorizing
its restoraon.
4.5. Beyond maintaining the status quo: proacve restoraon measures through Arcle 6(2) of the
Habitats Direcve?
Now that it has been clearly established that Arcle 6(2) of the Habitats Direcve does not merely focus
on maintaining the status quo and, as the case may be, may require the competent authories to issue
prohibions on acvies which might lead to further deterioraon of natural habitats or the disturbance
of protected species, the queson is whether Member States could also be forced to implement acve
restoraon measures in order to comply with their obligaons under Arcle 6(2) of the Habitats Direcve,
such as habitat restoraon measures. This queson is relevant because when faced with severe degradaon,
such proacve measures, aimed at the restoraon of severely impacted habitats, are key in avoiding further
deterioraon. Along the same lines, acons aimed at creang new breeding grounds could be crucial for the
recovery of species that are threatened by exncon through fragmentaon.
4.5.1. From benign neglect to acve recovery?
The majority of the above-menoned rulings of the ECJ/CJEU regarding Arcle 6(2) of the Habitats Direcve
related to the failure of Member States to adopt more stringent measures aimed at reducing the negave
eects of ongoing acvies that could lead to further degradaon at Natura 2000 sites. It is therefore not
surprising to see the European Commission focus almost exclusively on the prohibive nature of Arcle 6(2)
of the Habitats Direcve while conning the duty to implement more robust restoraon measures to
Arcle 6(1) of the Habitats Direcve, which more explicitly aims at the implementaon of acve conservaon
measures.198 This point of view seems to be underpinned by the CJEU’s ruling in the Orleans case, where
195 Ibid., para. 30-31.
196 Annex III, A, c and Annex III, B, b to the Habitats Direcve.
197 European Commission, Commission Implemenng Decision of 11 July 2011 2011/484/EU concerning a site informaon format for Natura
2000 sites, OJ L 198, 30.7.2011, p. 39.
198 European Commission, supra note 52, pp. 23-25.
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it clearly makes a disncon between ‘conservaon measures’, as meant by Arcle 6(1) of the Habitats
Direcve and ‘protecve measures’, as intended by Arcle 6(2) of the Habitats Direcve.199
Admiedly, in some of its rulings the CJEU has already indirectly opened the doors for a more proacve
approach towards Arcle 6(2) of the Habitats Direcve. Both in the ECJ’s 2002 ruling in the Commission v
Ireland case200 and in its decision in the Spanish brown bear case,201 the EU judges assessed this issue and
referred to the potenal for recovery of the natural habitats or species concerned. This case law clearly
points towards a more proacve interpretaon of the non-regression clause, especially when Natura 2000
sites are suering from connuing degradaon. And although the restoraon focus of Arcle 6(2) of the
Habitats Direcve might not go as far as the robust measures required under Arcle 6(1) of the Habitats
Direcve, because the focus is more on avoiding or remedying ongoing and interim losses, it sll paves the
way for more robust restoraon claims in the context of Arcle 6(2) of the Habitats Direcve.
4.5.2. Acve restoraon measures?
In spite of the clear hints towards the inclusion of a more restoraon-oriented approach to the non-
regression obligaon, the rulings in which the CJEU decisively held that proacve conservaon measures
are required under Arcle 6(2) of the Habitats Direcve remain relavely scarce. However, stang that
there is no room for acve restoraon measures under Arcle 6(2) of the Habitats Direcve is a foregone
conclusion. Back in 2002, Advocate General Léger already concluded in his Opinion in the above-menoned
Commission v Ireland case that Arcle 6(2) of the Habitats Direcve had been violated because no measures
likely to remedy the damage caused by the overgrazing had been implemented.202 Building on these ndings,
Advocate General Koko stated in her Opinion in the 2005 Commission v UK case that Arcle 6(2) of the
Habitats Direcve ‘in fact points to an obligaon to implement certain conservaon measures’. This led the
Advocate General to conclude that ‘it can be established only from the parcular deterioraon whether
certain conduct must be prohibited or conservaon measures adopted in order to avoid deterioraon’.203
Interesngly, the Advocate General referred to the example of scrub growth, which might cause the further
degradaon of open-land natural habitats. If not prevented by acve human intervenon, these habitats will
therefore degrade further. In other words, human intervenons in nature management are oen needed in
order to stave o further degradaon, at least in the short term. Moreover, since the concept ‘conservaon’,
as dened by Arcle 1(a) of the Habitats Direcve, encompasses ‘a series of measures required to maintain
or restore the natural habitats and the populaons of species of wild fauna and ora at a favourable status’,
also restoraon acons come into the picture.
While the ECJ did not explicitly elaborate on the duty to establish proacve habitat restoraon measures
in the above-treated rulings, it did not explicitly reject the raonale used by both Advocate Generals either.
The fact that the CJEU opened the door for the applicaon of Arcle 6(4) of the Habitats Direcve – which
also contains the obligaon to implement compensaon measures in order to maintain the coherence
of the Natura 2000 Network – its more recent case law indirectly highlights the room available for the
implementaon of ecological restoraon measures in the context of Arcle 6(2) of the Habitats Direcve.
Indeed, given the fact that both Arcle 6(2) and 6(3) of the Habitats Direcve aim to ensure the same level
of protecon, it would be illogical to exclude the use of acve restoraon acons that go beyond mere
passive protecon measures in the context of the former provision.
Moreover, it can be indirectly inferred from the 2016 ruling in the Orleans case that acve restoraon
measures that do not lead to further deterioraon of a site denitely qualify as appropriate measures in the
context of Arcle 6(2) of the Habitats Direcve. Yet, since this was not the case for the habitat restoraon
measures that had been integrated into the spaal development plan for the Antwerp Port Expansion – for
they were basically meant to oset future damage – the CJEU repudiated their implementaon as Arcle 6(2)
199 Orleans, supra note 112, para. 32.
200 Commission v Ireland, supra note 83, para. 31.
201 Commission v Spain, supra note 65, para. 190.
202 Commission v Ireland, supra note 83, Opinion of AG Léger, para. 77.
203 Commission v UK, supra note 73, Opinion of AG Koko, para. 19.
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measures.204 A contrario, however, genuine restoraon measures aimed at halng ongoing deterioraon by
restoring degraded habitats or recreang new wetlands might sll qualify as genuine protecve measures
under Arcle 6(2) of the Habitats Direcve. This is especially the case if such acons are needed in order to
remedy a failure on the part of the Member State to enforce Arcle 6(2) of the Habitats Direcve since the
me of designaon of the site.
In this respect, the CJEU’s above-menoned decision in the Italian Cascina Tre Pini case needs to
be brought back to aenon, as it explicitly reasserted the duty that rested on a Member State to take
measures to safeguard its Natura 2000 sites from further deterioraon. And while the CJEU did not explicitly
refer to recovery measures, as did Advocate General Koko in her Opinion,205 the implicit raonale of this
ruling indirectly underscored the need for restoraon measures in the context of Arcle 6(2) of the Habitats
Direcve, albeit more as correcve acons in order to amend earlier shortcomings.206 Some years earlier,
the European Commission also appeared to present a similar raonale when quesoned about its acons
directed against the Netherlands with regard to the deteriorated conservaon status of the Western Scheldt
Natura 2000 site as a result of navigaon and ood protecon projects. In view of the uncertainty at the me
as to the concrete implementaon of the ooding of the Hedwige polder, which was deemed necessary to
avoid further deterioraon in light of recent and past dredging works, it held that ‘the Netherlands is obliged
to take appropriate measures to restore the Western Scheldt estuary to favourable conservaon status and
to avoid further deterioraon’.207 Admiedly, the Commission did refer to both Arcle 6(1) and 6(2) of the
Habitats Direcve in this respect, which adds to the exisng confusion. Either way, recovery measures can
be deemed encompassed under Arcle 6(2) of the Habitats Direcve both as a remedial measure to remedy
a past implementaon decit as well as means to halt an ongoing deterioraon.
Interesngly, the Netherlands provide yet another interesng example as to the use of restoraon
measures in the context of Arcle 6(2) of the Habitats Direcve. When implemenng the Programmac
Approach to Nitrogen, the Dutch Government presented the use of habitat restoraon and recovery
measures in the context of Arcle 6(2) of the Habitats Direcve. By means of the envisaged restoraon
strategies, the Dutch Government aims to halt the connuing deterioraon of natural habitats due to the
adverse atmospheric nitrogen impacts. Such measures include measures against acidicaon by adding
basic substances and/or restoraon of the water cycle, the removal of nitrogen by excavaon, dredging,
moving, burning or lier removal and intervenons in the vegetal succession by coppice management, for
instance.208
5. Conclusions and outlook
On paper, the EU’s ecosystem restoraon targets appear impressive and ambious. Even so, the lack of
clear-cut denions of key concepts, such as degradaon, the applicable baseline scenario and restoraon,
and the lack of a comprehensive legislave framework aimed at implemenng this shi towards recovery,
has given rise to mounng cricism, with some authors holding that the short-term achievement of these
targets is impraccal since it would require comprehensive restoraon programmes to be implemented over
large tracts of lands.209 The crics might be right. The 2015 mid-term review of the EU Biodiversity Strategy
to 2020 indicated that the restoraon targets are sll far from being achieved.210 The majority of habitats
and species that already had an unfavourable conservaon status are maintaining this status, and some
have been deteriorang even further. In addion, across the wider landscape, the ongoing deterioraon
of valuable nature has not been halted since 2010. It is therefore fair to say that the ongoing degradaon
204 Orleans, supra note 112, para. 39; Sweetman, supra note 69, para. 38.
205 Opinion AG Koko, supra note 174, para. 50.
206 See also: Cliquet, supra note 25, pp. 541-542.
207 European Commission, Answer given by Mr. Potocnik on behalf of the European Commission to parliamentary quesons E-006402/11,
E-006507/11, P-006822/11, 15 September 2011.
208 Schoukens, supra note 54, pp. 30-34.
209 Koaho, supra note 29.
210 European Commission, Report from the Commission to the European Parliament and the Council. The Mid-Term Review of the EU
Biodiversity Strategy to 2020, COM(2015) 478 nal.
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renders the achievement of the ambious restoraon targets an even less realisc policy target. The
simple fact that all Member States failed to honour their pledge to propose a sound naonal restoraon
priorizaon framework and the many examples of unsound management of Natura 2000 sites over the
past decades211 indicate that no short-term improvement is to be expected in this respect.212
As showcased by the analysis above, the non-regression clause contained in Arcle 6(2) of the Habitats
Direcve may serve as a legally enforceable instrument to oblige Member States to make the shi towards
more progressive recovery policies, at least for their Natura 2000 sites that are currently in a degraded
status. The case law analysis referred to above has indicated a threefold relevance of Arcle 6(2) of the
Habitats Direcve in light of the EU’s restoraon targets.
First, there is the wide material scope of Arcle 6(2) of the Habitats Direcve, which makes it a very
promising legal tool to avoid any further degradaon, regardless of the origin thereof, at least in the context
of Natura 2000 sites. Most importantly, it also covers cases of diuse damage and polluon, which oen
fall outside the realm of other EU environmental direcves such as the EIA Direcve and the Environmental
Liability Direcve. In an ideal world, Arcle 6(2) of the Habitats Direcve is thus used by Member States to
create a more favourable deparng point, from which the achievement of the more ambious recovery
acons required by Arcle 6(1) of the Habitats Direcve becomes possible. Past, interim and current
losses are to be tackled through Arcle 6(2) of the Habitats Direcve as long as they give rise to ongoing
degradaon of Natura 2000 sites.
Second, as demonstrated, the relevance of Arcle 6(2) goes beyond the introducon of mere passive
restoraon acons and prescripons. Substanvely speaking, the provision also requires Member States to
assess possible impairments vis-à-vis the applicable conservaon and/or restoraon targets, which points
to a relavely low applicable de minimis threshold given the imperave improvement which is prevalent.
Yet, even more interesngly, the use of the designaon date of a Natura 2000 site as a well-established
reference scenario might render the posive outcome of restoraon ligaon against Member States, both
before EU and naonal courts, ever more likely and urges Member State to tackle addional interim losses
linked to past non-compliance by implemenng acve recovery measures. As a result, the CJEU modestly
opens the door for restoraon claims which are based on the poor enforcement of the protecon and
conservaon dues in previous decades.
Since the poor implementaon of the conservaon dues in Natura 2000 sites has been singled out as
one of the major focal points in the REFIT Fitness Check, Arcle 6(2) of the Habitats Direcve is expected to
play a crucial role in safeguarding the remediaon of these implementaon decits and, as a result thereof,
in achieving the ambious restoraon targets.
Third, the available case law indicates that acve restoraon measures can be required in order to
comply with Arcle 6(2) of the Habitats Direcve, especially in instances where such acons are deemed
necessary to halt the ongoing degradaon. Whereas such acons are not specically aimed at achieving the
applicable conservaon acons, they sll have to remedy the biodiversity losses caused by non-compliance
with the conservaon dues since the designaon of the Natura 2000 sites.
Conclusively, it is rather ironic to note that a standsll clause that was originally intended to halt ongoing
losses might ulmately constute one the most important legal instrument to urge Member States to pursue
more ambious restoraon and recovery policies. Obviously, progressive case law developments before the
CJEU as regards the applicaon of Arcle 6(2) of the Habitats Direcve, even when endorsed by naonal
courts, will be but one step towards the achievement of the EU restoraon targets. Given the fact that only
a limited selecon of cases ever reaches the EU courts in Luxembourg, it would certainly be naïve to think
that the case law developments at EU level alone are powerful enough to speed up the restoraon of the
EU ecosystems in their enrety. Some may even dismiss the rigor reected in recent case law as an obstacle
to smart governance and more cost-eecve priorizaon of restoraon acons, which is evidently crucial
in view of the exisng budgetary constraints. Indeed, a mere legalist approach to ecological restoraon fails
211 S. Leemans, ‘Prevenng paper parks: How to make the EU Nature Laws work’, WWF UK (2017), <hp://www.wwf.eu/?291910/Prevenng-
Paper-Parks-How-to-make-the-EU-nature-laws-work> (accessed 10 February 2017).
212 J. Corna-Segarra et al., ‘Biodiversity: Speed restoraon of EU ecosystems’, (2016) 535 Nature, hp://doi.org/doi:10.1038/535231d, p. 231.
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to grasp the more comprehensive nature of the restoraon challenges that lie before us, which are best
addressed through a parcipatory and deliberave approach including all relevant stakeholders. However,
these more deliberave approaches are to be framed within a progressive restoraon logic, as is evident from
the CJEU’s case law. Moreover, the case law of the CJEU cannot be interpreted as overly rigid given the leeway
it leaves to the Member States in implemenng concrete measures to address the current degradaon. The
raonale used by the EU judges may therefore inspire both environmentalists and competent authories to
step up the implementaon of the EU’s important ecological restoraon commitments, at least in the context
of Natura 2000. It serves as a clear warning that, rather than losing oneself in eternal standos before courts,
private landowners, environmentalists and public authories should focus on forging innovave alliances
aimed at the recovery of our most treasured natural sites in the EU.
