Article 6(3)

• Pages: 33-52

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4. Article 63

Clarif‌ication of the concepts of plan or project, likelihood of

signif‌icant ef‌fects, appropriate assessment, site’s conservation

objectives; cumulative ef‌fects, competent authorities, opinion of

the public, integrity of the site

.. T

‘Any plan or project not directly connected with or necessary to the management of the site but likely to

have a signif‌icant ef‌fect thereon, either individually or in combination with other plans or projects, shall

be subject to appropriate assessment of its implications for the site in view of the site’s conservation

objectives. In the light of the conclusions of the assessment of the implications for the site and subject

to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project

only aer having ascertained that it will not adversely af‌fect the integrity of the site concerned and, if

appropriate, aer having obtained the opinion of the general public.’

.. S

As regards purpose and context,the roleofthethirdandfourthparagraphsofArticle6needsto

be considered in relation to that of the f‌irst (or, in the case of SPAs, with that of the f‌irst and second

paragraphsofArticles3and4oftheBirdsDirective)andsecondparagraphsofArticle6.Inparticular,

it is important to remember that, even if it is determined that an initiative or activity does not fall within

thescopeofArticle6(3),itwillstillbenecessarytomakeitcompatiblewiththeotheraforementioned

provisions.

It may be noted that activities which contribute to or are compatible with the site conservation

objectivesmayalreadybeaccommodatedwithinArticle6(1)and(2)–forexample,traditionalfarming

practiceswhich sustainparticular habitattypes and species. Theprovisionsof Article 6(3)and (4)

constitute a form of permitting regime, setting out the circumstances within which plans and projects

with likely signif‌icant negative ef‌fects on Natura 2000 sites may or may not be allowed. They thus

ensure that economic and other non-ecological requirements can be fully considered in light of the

site’s conservation objectives.

Article6(3)denesastep-wise procedure for considering plans and projects39.

a) The f‌irst part of this procedure consists of a pre-assessment stage (‘screening’) to determine

whether, f‌irstly, the plan or project is directly connected with or necessary to the management of

the site, and secondly, whether it is likely to have a signif‌icant ef‌fect on the site; it is governed by

Article6(3),rstsentence.

b) The second part of theprocedure, governed byAr ticle 6(3), second sentence, relates to the

appropriate assessment and the decision of the competent national authorities.

39 A simplif‌ied f‌low chart of this procedure is presented in Annex II at the end of this document.

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Athirdpartoftheprocedure(governedbyArticle6(4))comesintoplayif,despiteanegativeassessment,

itisproposednottorejectaplanorprojectbuttogiveitfurtherconsideration.InthiscaseArticle6(4)

allowsforderogationsfromArticle6(3)undercertainconditions.

The applicability of the procedure, and the extent to which it applies, depend on several factors, and in

the sequence of steps, each step is inf‌luenced by the previous step. The order in which the steps are

followedisthereforeessentialforthecorrectapplicationofArticle6(3).

As regards geographical scope,theprovisionsofArticle6(3)arenotrestrictedtoplansandprojects

that exclusively occur in or cover a protected site; they also target plans and projects situated outside

the site but likely to have a signif‌icant ef‌fect on it regardless of their distance from the site in question

(cases C-98/03 paragraph 51 and C-418/04 paragraphs 232, 233).

Furthermore,theCourthasstatedthatArticle6(3)oftheHabitatsDirectivedoesnotprecludeamore

stringent national protective measure which might for instance impose an absolute prohibition of a

certain type of activity, without any requirement for an assessment of the environmental impact of the

individualprojectorplanontheNatura2000siteconcerned(C-2/10paragraphs39–75).

.. T   A ()  A ()

Articles6(2)and6(3)arebothintendedtopreventanynegativeeectsonasite.InthecaseofArticle

6(2)theintentionistoavoid‘deterioration …or signif‌icant disturbance’.InthecaseofArticle6(3)the

aim is to avoid the authorisation of any plans or projects that could ‘adversely af‌fect the integrity of the

site’. The objectives are therefore broadly similar. However, it should be recalled that the provisions of

Article6(2)applytothesiteat all times whereasthoseunderArticle6(3)onlycomeintoplayif a plan or

project is being proposed that may have signif‌icant ef‌fects on the site. Because both paragraphs serve

the same overall objective, it is logical to conclude that any plan or project approved in compliance with

Article6(3)willalsobeinconformitywiththeprovisionsofArticle6(2),unlessitsubsequentlyproves

likely to deteriorate the habitat and/or disturb the species for which the site has been designated.

ThiswasconrmedbytheCourt(caseC-127/02paragraphs35–37):‘the fact that a plan or project has

been authorised according to the procedure laid down in Article 6(3) renders superf‌luous, as regards the

action to be taken on the protected site under the plan or project, a concomitant application of the rule

of general protection laid down in Article 6(2). Authorisation of a plan or project granted in accordance

with Article 6(3) necessarily assumes that it is considered not likely adversely to af‌fect the integrity of

the site concerned and, consequently, not likely to give rise to deterioration or signif‌icant disturbances

within the meaning of Article 6(2).

Nevertheless, it cannot be precluded that such a plan or project subsequently proves likely to give rise to

such deterioration or disturbance, even where the competent authorities cannot be held responsible for

any error. Under those conditions, application of Article6(2) of the Habitats Directive makes it possible

Article 6(3) def‌ines a step-wise procedure for considering plans and projects that may have a

signif‌icant ef‌fect on a Natura 2000 site. Activities not falling within the scope of Article 6(3) will

still have to be compatible with the provisions of Article 6(1) – or, in the case of SPAs, Articles 3,

4(1) and (2) of the Birds Directive – and 6(2) of the Habitats Directive.