§2.2 Approach to decision making

Like all EU environmental legislation, the Habitats Directive is based on the precautionary principle (8), i.e. that absence of scientific evidence on the significant negative effect of an action cannot be used as justification for approval of this action. When applied to Article 6(3) procedure, the precautionary principle implies that the absence of a negative effect on Natura 2000 sites has to be demonstrated before a plan or project can be authorised. In other words, if there is a lack of certainty as to whether there will be any negative effects, then the plan or project cannot be approved. In practical terms, this means that the burden of proof lies with the plan or project developer to demonstrate – and for the competent authority to confirm – without reasonable doubt that: — in stage 1 (screening) – likely significant effects can be excluded; or — in stage 2 (appropriate assessment) – adverse effects on the integrity of a Natura 2000 site can be excluded. When adverse effects on the integrity of a site are either certain or cannot be excluded, the plan or project can still be authorised by way of exception under Article 6(4) on condition that there are no alternatives, it is justified for imperative reasons of overriding public interest and sufficient compensatory measures are put in place to protect the overall coherence of the Natura 2000 network. The precautionary principle may also have some applications in such cases, particularly in relation to the extent of the compensatory measures to be applied (see section 3.3.3). The Habitats Directive explicitly refers to the ‘site’s conservation objectives’ as a basis for applying Article 6(3). The CJEU, in its judgment in Case C-849/19, Commission v Greece, confirmed that conservation objectives must be formally established and that these must be site specific, refer to the specific values present in the site, and be precise (9). Furthermore, the Court has repeatedly held that it is in the light of the conservation objectives that the scope of the obligation to carry out an appropriate assessment of the effects of a plan or a project on a protected site should be determined. (10) In other words, the decision as to whether the plan or project is likely to have significant impact on a Natura 2000 site should be taken in view of the site’s conservation objectives (see section 3.1 ‘Screening’). It is therefore essential that site-specific conservation objectives are set without delay for all Natura 2000 sites and that these are made publicly available. As explained in section 3.2.2 below, site-specific conservation objectives must be set for all protected habitats and species that are significantly present on the site (i.e. habitats and species with A, B or C, but not D, site assessment in the Standard Data Form for the site (11)). The conservation objectives must specify targets to be achieved for each of the attributes or parameters that determine the conservation condition of the protected features. The assessments must be reviewed – at both the screening and the appropriate assessment stages – if the plan or project is modified or further developed during the preparation process. For example if, during the screening phase, it cannot be excluded that there is a likelihood of significant effects, the plan or project developer may decide to revise the plan or project design in order to exclude the risk of possible significant effects. In such cases, the modified plan or project should be screened again to determine whether or not it is still likely to have a significant effect on the site. Box 1 Making a decision on the basis of the appropriate assessment It is the responsibility of the competent authorities, in the light of the conclusions of the appropriate assessment on the implications of a plan or project for the Natura 2000 site concerned, to decide whether or not to approve the plan or project. Approval can be given only after they are certain that the proposed plan or project will not adversely affect the integrity of the Natura 2000 site. That is the case where no reasonable scientific doubt remains as to the absence of such effects (12). The focus is therefore on demonstrating the absence of adverse effects rather than their presence, reflecting the precautionary principle (13). The appropriate assessment must therefore be sufficiently detailed and substantiated to demonstrate the absence of adverse effects, in light of the best existing scientific knowledge in the field (14). The same level of certainty is required if the decision is made during the screening stage; also at this stage there should no reasonable doubt as to the absence of likely significant effects

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07