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New CJEU case on compensation vs mitigation under the Habitats Directive

In Joined Cases C 387/15 and C 388/15 Orleans & Others v Denis Malcorps a proposed port development (Port development on the left bank’ referred to as ‘the RDIP’) was going to have a significant adverse effect on a SAC by causing the disappearance of 20 hectares of tidal mudflats and tidal marshes. The consents granted required that before the existing area was affected a new area of natural habitat was created.

The CJEU were asked whether this was mitigation or compensation and whether the fact that the replacement habitat had to be created first distinguished the position from Briels and Others (Case C 521/12, EU:C:2014:330).

The questions referred were:

‘The [RDIP] contains planning rules under which, in mandatory terms, the development of areas (more specifically, for seaport- and water-related businesses, for a logistics park, for waterway infrastructure and for traffic and transport infrastructure) that have ecological features (areas hosting a natural habitat type or the habitat of a species for which the special area of conservation concerned was designated) that contribute to the conservation objectives of the special areas of conservation concerned, is possible only after the creation of sustainable habitats in ecological core areas (designated within the Natura 2000 area) and following a decision by the Flemish Government preceded by an opinion from the Flemish administrative body responsible for nature conservation — which decision must form part of the application for a planning permit relating to the development of the aforementioned facilities — that the sustainable creation of the ecological core areas has been successful.

Can those planning rules with their envisaged positive developments of ecological core areas be taken into account in the determination, under Article 6(3) of the Habitats Directive, of potentially significant effects and/or in the making of the appropriate assessment, or can those planning rules be regarded only as ‘compensatory measures’, within the meaning of Article 6(4) of the Habitats Directive, in so far as the conditions laid down in that provision have been satisfied?’

The CJEU answered in a judgment on 21 July 2016:

‘30      By its question, the referring court asks, in essence, whether the provisions of Article 6 of the Habitats Directive must be interpreted as meaning that measures, contained in a plan or project not directly connected with or necessary to the management of a site of Community importance, providing, prior to the occurrence of adverse effects on a natural habitat type present thereon, for the future creation of an area of that type, but the completion of which will take place subsequently to the assessment of the significance of any adverse effects on the integrity of that site, may be taken into consideration in that assessment, under Article 6(3) of that directive, or whether those measures must be categorised as ‘compensatory measures’, within the meaning of Article 6(4) of that directive.

33      Accordingly, Article 6 of the Habitats Directive divides the measures into three categories, namely conservation measures, preventive measures and compensatory measures, provided for in Article 6(1), (2) and (4), respectively

64      In the light of the foregoing considerations, the answer to the question referred is that Article 6(3) of the Habitats Directive must be interpreted as meaning that measures, contained in a plan or project not directly connected with or necessary to the management of a site of Community importance, providing, prior to the occurrence of adverse effects on a natural habitat type present thereon, for the future creation of an area of that type, but the completion of which will take place subsequently to the assessment of the significance of any adverse effects on the integrity of that site, may not be taken into consideration in that assessment. Such measures can be categorised as ‘compensatory measures’, within the meaning of Article 6(4), only if the conditions laid down therein are satisfied.

On those grounds, the Court (Seventh Chamber) hereby rules:

Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that measures, contained in a plan or project not directly connected with or necessary to the management of a site of Community importance, providing, prior to the occurrence of adverse effects on a natural habitat type present thereon, for the future creation of an area of that type, but the completion of which will take place subsequently to the assessment of the significance of any adverse effects on the integrity of that site, may not be taken into consideration in that assessment. Such measures can be categorised as ‘compensatory measures’, within the meaning of Article 6(4), only if the conditions laid down therein are satisfied.’