RECIEL 10 (3) 2001 THE EC HABITATS DIRECTIVE
concerned is given early and effective opportunities to
participate in the development consent procedure’.
Article 6(4) of the Directive addresses the exceptions
to the general rule of the previous paragraph, according
to which only plans and projects that do not affect the
integrity of SACs can be authorized. The condition that
must be met, according to this provision, is the absence
of alternative solutions to the proposed plan or project.
These could imply alternative locations or different
scales of development, including the ‘zero option’, i.e.
not undertaking that particular project or plan at all.
The Commission guidance stresses that Article 6(4)
needs to be interpreted in a restrictive way.
If alternative solutions cannot be found, the next step
is to examine whether there are ‘imperative reasons of
overriding public interest, including those of a social or
economic nature’. The ECJ has not been called to pro-
vide interpretation of this expression. The Commission
guidance refers to other areas of Community law that
use similar concepts, such as competition law.
National authorities should balance the interest
between the conservation objectives of the site affected
and the mentioned ‘imperative reasons’. In case the
authorities rule in favour of the latter, ‘all compen-
satory measures necessary to ensure the overall
coherence of Natura 2000’ must be taken. Again, the
Directive provides no definition as to what these meas-
ures might be. The Commission advises that they can
be mitigation measures or strictly compensatory, such
as the re-creation of a habitat on a new site; habitat
improvement in another site, proportional to the habi-
tat loss suffered; and ‘in exceptional cases’, proposing
a new site under the Directive.
The last paragraph of Article 6(4) includes the qualifier
that when a site hosts a priority natural habitat and/or
a priority species, the only circumstances that are
allowed in order to authorize a plan or project that will
have a negative impact on that site are ‘human health’,
‘public safety’ and ‘primary beneficial consequences for
the environment’. A prior opinion from the Com-
mission is required for all ‘imperative reasons’ other
than these three. It is considered that this opinion
needs to cover: the assessment of the ecological values
likely to be affected by the plan or project; the relevance
of the alleged imperative reasons; and the balance of
the two opposed interests, as well as evaluation of the
compensation measures proposed. This opinion is not
binding in the Member State but legal action could fol-
low in case of non-conformity with Community law.
Article 2(2)(a) of the proposed Directive.
See n. 21, at 44.
Ibid., at 46.
Ibid., at 50.
Blackwell Publishers Ltd. 2001.
There have so far only been two cases when the Com-
mission has been asked to rule on a proposed exemp-
tion from the Habitats Directive, both from Germany.
The first was in 1995, when the Commission approved
the construction of a section of the A20 motorway. The
second took place in April 2000, when the Commission
agreed that a German aerospace firm could partially
destroy a protected area to expand its manufacturing
facility. The Commission took the view that ‘imperative
reasons of overriding public interest’ outweighed the
adverse environmental effects of allowing the aircraft
manufacturer to build over part of a nearby wetland in
preparation for building a new Airbus jet. The affected
site is the Mu
¨hlenberger Loch, in Hamburg, which,
extending over 700 hectares, makes it Europe’s biggest
and boasts rare species such as
the hemlock water dropwort, listed in the Habitats
Directive. In a request for clarification sent to the Com-
mission, the German Government argued that the plant
could not be located elsewhere and it added that the
project would create up to 8000 jobs.
Germany was not legally obliged to request clearance
for the developments since the list of proposed Natura
2000 sites has not yet been approved. The Government
had asked for a ruling to ensure that it would not be in
contravention of the Directive once the list is approved.
Ironically, the scientific confirmation of the network
has been delayed principally by Germany’s failure to
provide the Commission with adequate lists of pro-
posed protected areas. The Commission said this meant
it could not assess the compensatory measures that
Germany must take when it builds the plant.
environmental non-government organizations (NGOs)
took legal action but Hamburg’s administrative court
lifted an injunction to stop the works in February 2001.
German NGOs do not consider the case as closed yet
and they may seek to challenge the ruling in their coun-
try’s constitutional court.
The European Commission took France to the ECJ in
relation to its implementation of Article 6(3) and (4) of
the Habitats Directive.
France’s legislation allows the
waiving of the requirement to conduct an EIA for cer-
tain projects based on ‘their low cost or their purpose’.
This was considered by the Court to be unjustified
within the discretion of Member States, which is
implied by the expression ‘likely to have a significant
effect [on the site]’. In any event, the Court ruled that
the provision cannot authorize a Member State to enact
national legislation which allows the EIA obligation for
ENDS Daily, 20 February 2001.
ENDS Daily, 19 April 2000.
ENDS Daily, 20 February 2001.
Republic,  ECR I-2487.