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Enlistment of Community protected sites can only be contested on environmental grounds, EU Court says

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By Leo Gasteen

The European Court of Justice (ECJ) has ruled that Member States can only refuse to give their agreement to the list of protected sites of Community importance drawn up by the Commission on environmental grounds, following some ambiguity as to the circumstances surrounding the development of a protected site in Germany.

The ruling come after the German Court asked the ECJ to clarify the circumstances in which a Member State can refuse to agree to a draft list of sites of Community importance. It wished also to know whether the continued dredging planned in the Ems and granted permission by the German authorities before the expiry of the time-limit for transposing the directive must undergo the assessment provided for in that directive.

Papenburg is a port town in Lower Saxony (Germany) on the river Ems, where there is a shipyard. In order to enable large ships to navigate between the shipyard and the North Sea, the Ems must be deepened by means of dredging operations.

 In 1994, Stadt Papenburg (the municipality of Papenburg) was granted permission to dredge that river. The permission is definitive and means that future required dredging operations are considered to have been granted permission. However, the Commission included parts of the Ems situated downriver from Stadt Papenburg’s local authority area in its draft list of sites of Community importance in 2000, and requested Germany to give its agreement thereto.

Consequently, Stadt Papenburg brought an action before the Verwaltungsgericht Oldenburg (Administrative Court, Oldenburg) seeking to prevent Germany from giving its agreement and to ensure that the dredging required for the Ems to remain navigable would not in future, and in every case, have to undergo an assessment of the implications within the meaning of the directive.

In its ruling, the ECJ highlighted the fact that Member States can refuse to agree to the inclusion of a site on the list of sites of Community importance drawn up by the Commission only on environmental grounds. Such a refusal cannot be based on economic, social and cultural grounds and regional and local characteristics.

The ECJ also pointed out that the dredging in the Ems was definitively authorised under German law before the expiry of the time-limit for transposition of the directive. However, it noted that it does not hide the fact that each intervention in the navigable channel focused on separate and distinct projects. In that case, each of those projects must, to the extent that they are likely to have a significant effect on the site concerned, undergo an assessment of their implications pursuant to the directive.

Background

Natura 2000, which is provided for by the Habitats Directive, is a coherent European ecological network of special areas of conservation. That network is composed of sites hosting the natural habitat types and habitats of the species listed in the directive. It seeks to ensure that they are maintained at or restored to a favourable conservation status.

According to the directive, each Member State transmits to the Commission a list of sites that may be protected as sites of Community importance. Next, the Commission establishes, on the basis of environmental criteria and in agreement with the Member States, a list of sites of Community importance.

Any plan or project likely to have a significant effect on a protected area must be subject, at national level, to an appropriate assessment of its implications for the site concerned in view of that site’s conservation objectives. The national authorities can agree to plans or projects only if they will not adversely affect the integrity of the site concerned.

The European Court of Justice - Justice and Application - Full Text


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