ECJ rules on habitat protection

The European Court of Justice has told the German state of Bavaria that it must take into account the ecological impact of developments in areas likely to be designated as environmentally sensitive.

Reference for a preliminary ruling (Case C-244/05)

The Advocate General also issued his Opinion on 18 May 2006 in Case C-244/05. The case arose following a request for a preliminary ruling having been made by the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) in the case of Bund Naturschutz in Bayern e.V. v Freistaat Bayern. The following 3 questions were referred to the ECJ:

  • What protection regime is required under Article 3(1) of the Habitats Directive (Directive 92/43 EEC) in conjunction with the sixth recital in the preamble to that Directive in the light of the prohibition on frustrating the objectives of the Treaty laid down in Article 10(2) of the EC Treaty and following the judgment of the ECJ in Case C-117/03 for sites which could be designated sites of Community importance, particularly those with priority natural habitat types and/or priority species, before they appear on the list of sites of Community importance adopted by the Commission of the European Communities under the procedure provided for in Article 21 of the Directive?

  • What is the effect on that protection regime if the said sites already appear on the list of national recommendations submitted to the Commission under Article 4(1) of the Habitats Directive?

  • Is a national protection regime for the said sites under Article 48(2) of the Bavarian Naturschutzgesetz (Nature Conservancy Law) sufficient to satisfy the requirements of Community law under Article 3(1) of the Habitats Directive in conjunction with the sixth recital in the preamble to that Directive in the light of the prohibition on frustrating the objectives of the Treaty laid down in Article 10(2) of the EC Treaty?

    In answer to the request for a preliminary ruling, the Advocate General has stated that under the terms of the Habitats Directive, read alongside articles 10 and 249 of the EC Treaty, the Member States must ensure that the implementation of plans and projects does not affect the ecological interest of the sites which are proposed for designation or of the sites which, because of their characteristics, should be registered on the Community list.

    However, such a decision rests with the national judge to decide if this is the case in respect of the particular projects in question.

    The full Opinion of the Advocate General can be found here in a variety of European languages and should shortly be available in English.

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