The permitting procedure under article 6 of the habitats directive

• Pages: 53-70

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7. THE PERMITTING PROCEDURE UNDER ARTICLE

6 OF THE HABITATS DIRECTIVE

7.1 Introduction

As stated before, EU nature legislation does not exclude development activities in and

around Natura 2000 sites. Instead, it requires that any plan or project that is likely to have a

significant negative effect on one or more Natura 2000 sites undergoes an appropriate

assessment (AA) in accordance with Article 6.3 of the Habitats Directive in order to assess

the implications of that plan or project on the site(s).

This chapter explains how to carry out an appropriate assessment under Article 6, paying

particular attention to energy transmission infrastructure plans and projects.

Because Natura 2000 concerns Europe’s most valuable and endangered habitats and

species, the procedures for approving developments that are likely to have a significant

negative effect on these sites are sufficiently rigorous to avoid undermining the overall

objectives of the Birds and Habitats Directives. Delays in the approval process are very often

caused by poor quality assessments that do not allow the competent authorities to make a

clear judgement on the impacts of the plan or project. Particular attention is therefore given

to the need for decisions to be taken on the basis of sound scientific information and

expertise.

It is also important to avoid confusion over the impact assessments carried out under the EIA

and SEA Directives and the Appropriate Assessment carried out under Article 6.3 of the

Habitats Directive. Whilst these assessments are very often carried out together, as part of

an integrated procedure, each one has a different purpose and assesses impacts on different

aspects of the environment. An SEA or an EIA cannot therefore replace, or be a

substitute for, an Appropriate Assessment.

The outcome of each assessment procedure is also different. In the case of the EIA or SEA

assessment, the authorities have to take the impacts into account. For the AA, however, the

outcome is legally binding for the competent authority and conditions its final decision.

Thus, if the AA cannot ascertain that there will be no adverse effect on the integrity of the

Natura 2000 site, despite the introduction of mitigation measures, then the plan or project

can only be approved if the conditions in the derogation procedure foreseen under Article 6.4

are met.

Annex 6 provides comparison between the impact assessments under the Habitats

directive, EIA and SEA.

Article 6(3) of the Habitats Directive

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 after having ascertained that it will not adversely affect the integrity of the site concerned and, if

appropriate, after having obtained the opinion of the general public.

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7.2. The scope of the Article 6 permitting procedure

The focus of the permit procedure and therefore of the Appropriate Assessment is on

species and habitat types protected by the Birds and Habitats Directives, and in particular on

those species and habitats for which the Natura 2000 site has been designated.

This means that the appropriate assessment does not have to assess the impact on other

fauna and flora unless they are ecologically relevant for the EU protected species and

habitats present on this site. An appropriate assessment under Article 6.3 is therefore

narrower in scope than an assessment under EIA and SEA Directives, being confined to

implications for Natura 2000 sites in view of their conservation objectives.

As regards its geographical scope, the provisions of Article 6.3 are not restricted to plans and

projects carried out exclusively in a Natura 2000 site; they also target developments situated

outside Natura 2000 sites but which are likely to have a significant effect thereon. The trigger

for such an assessment is not based on whether the project is located inside the Natura

2000 or not but on whether it is likely to have a significant effect on a Natura 2000 site and its

conservation objectives.

This includes the consideration of any likely transboundary effects. If a plan or project in one

country is likely to have a significant effect on Natura 2000 site in a second country, either

individually or in combination with other plans or projects, then the effects on the integrity of

Natura 2000 sites in that second country will have be assessed as well. This is in line with

the Espoo Convention and its SEA Protocol which are implemented within the EU through

the EIA and SEA Directives (see point 6.3.5 of this guidance document)

The effects need to be determined in function of the species and habitat types for which a

particular site has been designated. This will influence how far from the project area one

should look for possible effects. For instance, a rare plant which is very localised and only

occurs in specialised habitat conditions may only be affected by projects in the immediate

vicinity compared to a migratory species which has wider habitat requirements and may

therefore be affected by plans or projects further afield.