Article 6(4)

• Pages: 53-70

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5. Article 64

Clarif‌ication of the Concepts of alternative solutions, Imperative

reasons of overriding public interest, Compensatory measures,

Overall Coherence, Opinion of the Commission.

.. T

‘If, in spite of a negative assessment of the implications for the site and in the absence of alternative

solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public

interest, including those of a social or economic nature, the Member State shall take all compensatory

measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform

the Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only

considerations which may be raised are those relating to human health or public safety, to benef‌icial

consequences of primary importance for the environment or, further to an opinion from the Commission,

to other imperative reasons of overriding public interest’.

.. S

This provision forms part of the procedure of assessment and possible authorisation, by the competent

national authorities, of plans and projects likely to af‌fect a Special Area of Conservation (SAC), a Special

Protection Area (SPA) or a Site of Community Importance (SCI). Two fundamental considerations arise:

● onthe onehand, itdeals withexceptionsto thegeneralrule inArticle6(3),accordingto which

authorisation can only be granted to plans or projects not af‌fecting the integrity of the site(s)

concerned;

● on the other hand, its application in practice has to abide by the various steps provided for and in

the sequential order established by the Directive. This has been repeatedly conf‌irmed by the Court

(C-209/02,C-239/04,C-304/05,C-560/08,C-404/09).

In its ruling in case C-304/05, paragraph 83, the Court clearly stated that: ‘Article 6(4) of Directive 92/43

can apply only aer the implications of a plan or project have been studied in accordance with

Article 6(3) of that directive. Knowledge of those implications in the light of the conservation

objectives relating to the site in question is a necessary prerequisite for application of

Article 6(4) since, in the absence thereof, no condition for application of that derogating provision

can be assessed. The assessment of any imperative reasons of overriding public interest

and that of the existence of less harmful alternatives require a weighing up against the

damage caused to the site by the plan or project under consideration. In addition, in order

to determine the nature of any compensatory measures, the damage to the site must be

precisely identif‌ied’ (seealsoC-399/14,C-387&388/15,C-142/16).

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The application of Article 6(4) is not automatic. It is up to the authorities to decide whether the

conditionsforaderogationfromArticle6(3)canbeappliedintheeventthattheappropriateassessment

has concluded that the plan or project will adversely af‌fect the integrity of the site concerned, or in case

of doubt over the absence of such adverse ef‌fects.

TheoptionalnatureofArticle6(4)wasconrmedbytheCourtincaseC-241/08,paragraph72:‘Thus,

following the assessment of the implications undertaken pursuant to Article 6(3) of the Habitats Directive

and in the event of a negative assessment, the competent authorities have the choice of either

refusing authorisation for the plan or project or of granting authorisation under Article6(4) of

that directive, provided that the conditions laid down in that provision are satisf‌ied’.

The decision to go ahead with a plan or project must meet the conditions and requirements of Article

6(4).Inparticular,itmustbedocumentedthat:

1. the alternative put forward for approval is the least damaging for habitats, for species and for

the integrity of the Natura 2000 site(s), regardless of economic considerations, and that no other

feasible alternative exists that would not adversely af‌fect the integrity of the site(s);

2. there are imperative reasons of overriding public interest, including ‘those of a social or

economic nature’;

3. all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is

protected are taken.

Beingan exceptiontoAr ticle6(3),thisprovisionmust beinterpretedstrictly (C-239/04paragraphs

25–39) and can only be applied to circumstances where all the conditions required by the Directive

are fully satisf‌ied. In this regard, it falls on whoever wants to make use of this exception to prove, as a

prerequisite, that the aforementioned conditions are indeed met in each particular case.

Once the lack of suitable alternatives and the acceptance of imperative reasons of overriding public

interest are fully ascertained and documented, all compensatory measures that are needed to ensure

the protection of the overall coherence of the Natura 2000 network have to be taken. The compensatory

measures adopted must always be communicated to the Commission.

.. I 

5.3.1. Examining alternative solutions

TherstobligationoftheArticle6(4)derogationprocedureistoexaminewhethertherearealternative

solutions to the plan or project. In this respect the Court has made it clear that this examination

fallsformallywithinthescopeofArticle6(4)andnotArticle6(3)(C-441/03paragraph15,C-241/08

paragraph69,C-142/16paragraph72).

In line with the need to prevent undesired impairment to the Natura 2000 network, the thorough

revision and/or withdrawal of a proposed plan or project should be considered when negative ef‌fects

Article 6(4) allows for exceptions to the general rule of Article 6(3) but its application is not

automatic. It is up to the authority to decide whether a derogation from Article 6(3) can be applied.

Article 6(4) must be applied in the sequential order established by the Directive – that is aer all

the provisions of Article 6(3) have been undertaken in a satisfactory manner.