§5.2.3 Relationship between SEA/EIA/appropriate assessment and the strict species protection provisions of the Nature Directives

Article 3 of the EIA Directive stipulates that ‘the environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors: […] (b) biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC and Directive 2009/147/EC’. Similar provisions are applicable to plans pursuant to Article 5(1) of the SEA Directive. On this occasion it is important to note that the Birds and Habitats Directives, in addition to site protection regulated by Article 4 of the Birds Directive and Article 6 of the Habitats Directive, also establish a system of strict protection of certain species across their entire natural range within the EU, i.e. both within and outside Natura 2000 sites. These protection measures apply to species listed in Annex IV to the Habitats Directive and to all wild bird species in the EU. The exact terms are laid down in Article 5 of the Birds Directive and Articles 12 (for animals) and 13 (for plants) of the Habitats Directive. In essence they require Member States to prohibit: — the deliberate capture or killing of species; — their deliberate disturbance, in particular during breeding, rearing, hibernation and migration; — the deterioration or destruction of breeding sites or resting places; — the deliberate destruction of nests or eggs, or the uprooting or destruction of protected plants. The implementation of a plan or development/operation of a project can lead to conflicts with these prohibitions. During the appropriate assessment and EIA/SEA the developer together with the competent authority should therefore check if the plan or project is compatible with these strict species protection provisions. Such a check would require identification of species and their habitats, which could be potentially affected, verification of their presence on the area affected by a plan or project as well as of their breeding sites or resting places, analysis of possible impacts on the species and of suitable mitigation measures. If impacts on the individuals of the species or on their breeding sites and resting places are confirmed, or if it cannot be excluded, the derogations from strict species protection may be required. However, it has to be noted that derogations are only allowed in limited cases, e.g. in the interest of public health and safety, provided that there is no other satisfactory alternative and provided that the consequences of these derogations are not incompatible with the overall aims of the Directives. The conditions for applying derogations are set out in Article 9 of the Birds Directive and Article 16 of the Habitats Directive. It is important to note as well that these provisions may also apply to plans and projects which are screened out from appropriate assessment and/or from EIA/SEA. In such cases the analysis of whether derogations under Article 9 of the Birds Directive and 16 of the Habitats Directive are applicable will have to be performed in a separate procedure. A permit to derogate from strict species protection can be granted as a separate decision or within a single permit resulting from different assessments and authorisation procedures. Either way it needs to clearly specify the reasons for and conditions of such derogation. Further information on the strict species protection requirements, including latest guidelines, are available on the European Commission website (51).

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