Ref. Ares(2017)3615167 - 18/07/2017
EUROPEAN COMMISSION
Legal Service
Brussels, 18 July 2017
sj.h(2017)4097785
TO THE PRESIDENT AND THE MEMBERS OF THE
COURT OF JUSTICE
OBSERVATIONS
Submitted by the
EUROPEAN COMMISSION, represented by Mr. Christoph Hermes
and Mr. Emmanuel Manhaeve, members of its Legal Service, acting as agents, with an
address for service at the Legal Service, Greffe contentieux, BERL 1/169, 1049 Brussels,
and consenting to service by e-curia, in
Case C-164/17
Edel Grace and Peter Sweetman v An Bord Pleanála
on a request for a preliminary ruling pursuant to Article 267 TFEU by the Irish Supreme
Court concerning the interpretation of 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.
2
I.
INTRODUCTION
1.
The Irish Supreme Court referred to the Court of Justice a question for preliminary
ruling under Article 267 TFEU concerning the interpretation of Article 6(3) and (4)
of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna
and flora1 (hereinafter "the Habitats Directive"), with particular reference to the
distinction between compensatory and mitigatory elements of a project
2.
The case concerns the effects of a wind farm project on a special area of protection
(SPA) under Directive 2009/147/EC on the conservation of wild birds2 (hereinafter
"the Birds Directive") that was designated for the hen harrier (
circus cyaneus). The
key question is whether certain positive measures set out in a plan accompanying
the project exclude adverse effects on the integrity of the site.
3.
The Court clarified the distinction between mitigation and compensation measures
under Article 6(3) and (4) of the Habitats Directive in a number of recent judgments
in cases
Briels,
Orleans and
Commission v Germany (Moorburg). Nevertheless, the
Irish Supreme Court perceives a difficulty of interpretation because one feature of
the site beneficial to the hen harrier is “dynamic” in the sense that it necessarily
changes over time. The Commission considers that this “dynamic” feature of the site
is not decisive for the characterization of the measures in question.
II.
FACTS AND PROCEDURE
4.
In the proceedings before the national courts, the claimants, Edel Grace and Peter
Sweetman, challenged the decision of An Bórd Pleanála, an Irish planning authority,
which granted permission for the development of a wind farm. The wind farm
project comprises the erection of 16 turbines and related infrastructure. It is located
in the Slievefelim to Silvermines Mountains Special Protection Area (thereinafter
"the SPA").
1
Official Journal L 206 , 22/07/1992 P. 0007 – 0050.
2
Official Journal L 20, 26.1.2010, p. 7–25.
2
3
The site
5.
The SPA3 was designated in 2007 to protect the hen harrier (
Circus cyaneus), a
species listed in Annex I of the Birds Directive. The hen harrier is a rare and
vulnerable breeding species in Ireland with an estimated 108 to 157 breeding pairs
in 2015.4 The designation of the SPA followed infringement proceedings in which
the Commission inter alia claimed that Ireland failed to designate sufficient SPAs,
including for the hen harrier. The Court ruled against Ireland on this and other
claims under the Birds Directive in its judgment of 13 December 2007.5 The
conservation objective of the SPA is
“to maintain or restore the favourable
conservation condition” of the hen harrier.6
6.
According to the standard data form of the SPA,
“(a)pproximately half of the site is
afforested, including both first and second rotation plantations and clear fell areas.
Roughly one-quarter of the site is unplanted blanket bog and heath, with both wet
and dry heath present. The remainder of the site is largely rough grassland that is
used for hill farming. Some stands of deciduous woodland also occur, especially in
the river valley”.7 The standard data form for the SPA indicates that the site covers
a surface area of around 20.913 ha. According to the Schedule of facts submitted by
the referring court (hereinafter "the Schedule"), commercial coniferous forest makes
up 12.078 ha (57,7%) of the surface area. The commercial forest management has
an average life cycle of 40 years with the following phases: 1st rotation (open
canopy, closed canopy, clear-fell), 2nd rotation (open canopy, closed canopy).
7.
The standard data form for the SPA indicates that the site
“(s)upports c. 3% of the
all-Ireland population of Circus cyaneus and among the top 5 most important sites
in the country for the species. Habitat excellent for both nesting and foraging
3 S.I. No. 587/2011 - European Communities (Conservation of Wild Birds (Slievefelim to Silvermines
Mountains Special Protection Area 004165)) Regulations 2011, schedule 3, available at
http://www.irishstatutebook.ie/eli/2011/si/587/made/en/print .
4 Ruddock, M., Mee, A., Lusby, J., Nagle, A., O’Neill, S. & O’Toole, L. (2016) The 2015 National Survey
of Breeding Hen Harrier in Ireland.
Irish Wildlife Manuals, No. 93, National Parks and Wildlife Service,
Department
of
the
Arts,
Heritage
and
the
Gaeltacht,
Ireland,
available
at
https://www.npws.ie/sites/default/files/publications/pdf/IWM93.pdf .
5 Judgment, C-418/04,
Commission v Ireland [2007] ECLI:EU:C:2007:780.
6 See Conservation objectives for Slievefelim to Silvermines Mountains SPA, available at
https://www.npws.ie/sites/default/files/protected-sites/conservation_objectives/CO004165.pdf .
7 Natura 200 Standard Data Form for site IE0004165, Slievefelim to Silvermines Mountains SPA, available
at http://natura2000.eea.europa.eu/Natura2000/SDF.aspx?site=IE0004165 , section 4.1.
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purposes”.8 The standard data form gives the site an A-grade for the hen harrier
identifying 7 permanent pairs on the site (see section 3.2 of the standard data form).
This corresponds roughly to the information provided in the Schedule (at para. 2).
The hen harrier
8.
According to this Schedule (paras. 3-5), hen harriers are primarily birds of open
countryside that need extensive areas of suitable land over which to forage. Prime
hen harrier foraging habitat is unplanted bog and heath. Hen harriers however also
forage on hill farmland with rough grazing and rushy pasture, new forestry
plantations where the trees are under 2 meters high and later stages of second
rotation pre-thicket plantations where the trees are between 3 and 10 years old. The
birds avoid intensive farmland, mature forest plantations with closed canopy and
recently cleared forest plantations.
Impacts of the project
9.
The area of the proposed wind farm covers around 832 hectares and is fully within
the SPA. About half the area is closed canopy forest not currently suitable for hen
harrier foraging. A quarter of the proposed development site is unplanted bog and
heath. The remainder is pre thicket second rotation forest and rough grassland used
for hill farming. From this information it would appear that at least half the site is
currently suitable for hen harrier foraging and has potential for nesting too.
10. The Schedule identifies a range of potential impacts of the project on hen harriers
within the site (paras. 19-23). The construction of the wind farm and related access
road and repository areas will generate the direct loss of 9 hectares of habitat. This
loss includes one hectare of cutover bog and wet grassland, which are currently
suitable foraging habitats, and an additional two hectares of cutover bog that could
recover to some extent in the medium to long term. The remaining 6 hectares mostly
consist of mature conifer forest that would be of value to the hen harrier if or when
replanted, which is excluded during the lifetime of the project. In addition it is
assumed that an additional 162.7 hectares of foraging habitat will be unavailable
during the lifetime of the project due to the displacement effect within 250 meters of
the wind turbines. Aside from the loss of habitat, the construction activity is
8 Natura 200 Standard Data Form for site IE0004165, Slievefelim to Silvermines Mountains SPA, available
at http://natura2000.eea.europa.eu/Natura2000/SDF.aspx?site=IE0004165 , section 4.2.
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expected to generate disturbance to the species. Lastly, the risk of collision with the
wind turbines has been determined to be low.
The SHMP
11. The project is accompanied by a species and habitat management plan (hereinafter
"the SHMP") that seeks to address the adverse effects on the site though a number
of positive measures (Schedule, paras. 24-33). First, the SHMP aims at restoring
three currently planted areas as blanket bog and wet heath involving a total of 41.2
hectares (of which 14.2 hectares are located within 250 meters of a turbine).
Secondly, the SHMP subjects another area of further 137.3 hectares of second
rotation forest to "sensitive" management. This “sensitive” management foresees
phased felling and replanting of the current closed canopy forest with the goal of
ensuring 137.3 hectares of perpetually open canopy forest as foraging habitat for the
hen harrier. Thirdly, the SHMP confines construction works to times outside the
main breeding season. The SHMP also foresees monitoring of hen harriers in the
vicinity of the project so that temporary closedown of turbines could be envisaged.
Procedure and question
12. The An Bórd Pleanála carried out an appropriate assessment within the meaning of
Article 6(3) of the Habitats Directive and authorized the wind farm project.
According to the national court file to which the Commission got access, the An
Bórd Pleanála concluded that "[s]ubject to the implementation of the identified
mitigation measures […] the Board is satisfied that no adverse long term
implications for hen harrier would arise […]"(High Court, Grace & anor v An Bord
Pleanála & ors [2015] IEHC 593, para 37). This decision followed the opinion of
the Inspector who concluded that "the Board could be satisfied that the proposed
development would not give rise to loss of hen harrier habitat within the site, and
the measures set out in the SHMP would in fact mitigate the loss of the 162.7
hectares” (para 32).
13. In the proceedings before the national courts, the claimants argued that the
envisaged replacement of lost foraging habitat could not be characterized as a
mitigation measure under Article 6(3) of the Habitats Directive. The An Bórd
Pleanála, on the other hand, considered that habitats within the site are not of
intrinsic value, but are only valuable to the extent they constitute foraging habitat
for the hen harrier. Given that the suitable foraging habitat of the hen harrier in the
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site changes over time, one should assess whether the site as a whole continues to
provide a sufficient amount of suitable habitat.
14. The High Court dismissed the claimants’ challenge of the permit. On appeal, the
Supreme Court referred the following question to the Court of Justice:
“Where
(a) a protected site has as its essential purpose the provision of
habitat for a specified species
(b) the nature of the habitat which is beneficial for that species
means that the part of the site which is beneficial will
necessarily alter over time, and
(c) as part of a proposed development a management plan for
the site as a whole (including changes to the management of
parts of the site not directly affected by the development itself)
is to be put in place which is designed to ensure that, at any
given time, the amount of the site suitable as habitat as
aforesaid is not reduced and indeed may be enhanced; but
(d) some of the site will, for the lifetime of the development
project, be excluded from having the potential to provide
appropriate habitat,
can such measures as are described in (c) properly be regarded
as mitigatory?”
III.
THE LEGAL FRAMEWORK
15. Article 6 of the Habitats Directive provides:
“(…)
2. Member States shall take appropriate steps to avoid, in
the special areas of conservation, the deterioration of
natural habitats and the habitats of species as well as
disturbance of the species for which the areas have been
designated, in so far as such disturbance could be
significant in relation to the objectives of this Directive.
3. 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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4. If, in spite of a negative assessment of the implications
for the site and in the absence of alternative solutions, a
plan or project must nevertheless be carried out for
imperative reasons of overriding public interest, including
those of a social or economic nature, the Member State
shall take all compensatory measures necessary to ensure
that the overall coherence of Natura 2000 is protected. It
shall inform the Commission of the compensatory
measures adopted.
Where the site concerned hosts a priority natural habitat
type and/or a priority species, the only considerations
which may be raised are those relating to human health or
public safety, to beneficial consequences of primary
importance for the environment or, further to an opinion
from the Commission, to other imperative reasons of
overriding public interest.”
16. Pursuant to Art. 7 of the Habitats Directive, the obligations arising under Article
6(2), (3), and (4) apply to classified SPAs.
IV.
CONSIDERATION OF THE QUESTIONS REFERRED
17. The Supreme Court essentially wants to know whether Article 6(3) of the Habitats
Directive must be interpreted as meaning that a project which has negative
implications for a site because it excludes, during the lifetime of the project, some
area from being suitable habitat for the species for which the site was designated,
but which is accompanied by a plan which is designed to ensure that the overall
amount of suitable habitat is not reduced and indeed may be enhanced, does not
adversely affect the integrity of the site. In the view of the Supreme Court it may be
relevant that some habitat on the site is "dynamic" in the sense that it is not
constantly suitable for the species, but only from time to time.
18. Pursuant to Article 6(3) of the Habitats Directive, competent national authorities
may only approve a plan or project after having ascertained that it will not adversely
affect the integrity of the site concerned. The Court has considered that
"[t]his is so
when there is no reasonable doubt from a scientific point of view as to the absence
of such adverse effects".9 Based on the precautionary principle, the national
competent authorities must therefore refrain from approving a plan or project if
there remain any sort of scientific uncertainties as to the absence of adverse effects
9 Case C-142/16,
European Commission v Federal Republic of Germany [2017] ECLI:EU:C:2017:301,
para 33 and case-law cited therein.
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8
on the integrity of the site.10 According to the Court, the integrity of the site will not
be adversely affected if the site is preserved at a favourable conservation status,
which "
entails the lasting preservation of the constitutive characteristics of the site
concerned that are connected to the presence of a natural habitat type whose
preservation was the objective justifying the designation of that site […]"11
19. By analogy, where a site is designated for the maintenance or restoration of a
species, this entails the lasting preservation of the constitutive characteristics of the
site concerned that are connected to the presence of a species and species' habitat
whose preservation was the objective justifying the designation of that site.
Integrity of the site
20. In the present case, the SPA was designated for the preservation of the Hen Harrier.
Its conservation objective is to maintain or restore the favourable conservation
condition of the Hen harrier.12
21. According to the Schedule and confirmed by the site synopsis,13 it is the foraging
habitat, rather than nesting habitat, which limits the size of the population.
Unplanted bog and heath were traditionally recognised as prime harrier habitat.
More recently, the value for foraging of young conifer plantations on bog (trees
under 2m high) was observed. The birds avoid intensive farmland, mature plantation
and recently cleared plantation. Thus, a forest which is not thinned or harvested, but
is simply left to mature, resulting in a closed canopy, will not be a suitable foraging
area.14
10 Case C-127/02,
Waddenvereniging and Vogelbeschermingsvereniging [2004] ECLI:EU:C:2004:482,
paras 57 and 58; Case C-258/11,
Sweetman and others [2013] ECLI:EU:C:2013:220, para 41; Case C-
521/12,
T.C. Briels and Others [2014] ECLI:EU:C:2014:330, para 26.
11 Judgment
Sweetman, C-258/11, above n 10, para 39; Judgment
Briels C-521/12, above n 10, para 21;
Joined Cases C-387/15 and C-388/15,
Orleans and Others [2016] ECLI:EU:C:2016:583, para 47.
12 NPWS (2016) Conservation objectives for Slievefelim to Silvermines Mountains SPA [004165]. Generic
Version 5.0. Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs,
https://www.npws.ie/sites/default/files/protected-sites/conservation_objectives/CO004165.pdf
13 SITE SYNOPSIS, https://www.npws.ie/sites/default/files/protected-sites/synopsis/SY004165.pdf
14 Schedule, paras. 3-4.
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Adverse effects on the integrity of the site
22. According to the information provided by the Supreme Court, the project entails a
number of "potential impacts on hen harriers" within the site (see paras. 19-23 of the
Schedule).
23. First, the turbines and related infrastructure will cause a direct permanent loss of 1
hectare of cutover bog and wet grassland and a direct temporary loss of additional 2
hectares of cutover bog (Schedule, para. 21). These habitats are currently suitable
prime foraging habitats for the hen harrier.
24. Secondly, the project will entail the direct loss of 6 hectares currently covered by
mature conifer forest. This habitat is not presently of value as foraging habitat to hen
harriers, but would be so if or when replanted. During the lifetime of the project, it
cannot become foraging habitat any longer (Schedule, para. 21).
25. Thirdly, an additional 162.7 hectares of foraging habitat will be unavailable during
the lifetime of the project due to the displacement effect within 250 meters of the
wind turbines (Schedule, para. 22)
26. Fourth, the construction activity is expected to generate disturbance to the species
(Schedule, para. 20).
27. Lastly, the risk of collision with the wind turbines was determined to be low
(Schedule, para. 23).
28. Consequently, in the Commission's view there can be no doubt that the project will
have adverse effects on the integrity of the site.
No exclusion of adverse effects on the integrity of the site through the SHMP
29. The SHMP aims at restoring bog and heath land in other areas of the site, at
providing "optimum habitat for hen harriers" within the site during the lifetime of
the project, and at providing a corridor linking suitable bog habitats for hen harriers
(Schedule, para. 24).
30. In order to achieve these goals,, the SHMP sets out the following positive measures:
– Restoration of three currently planted areas as blanket bog and wet heath
involving a total of 41.2 hectares (of which 14.2 hectares are located within 250
meters of a turbine) (Schedule, para. 25);
– "sensitive" management of another area of further 137.3 hectares of second
rotation forest (phased felling and replanting of the current closed canopy forest
with the goal of ensuring 137.3 hectares of perpetually open canopy forest)
(Schedule, paras. 26-29);
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– confining construction works to times outside the main breeding season
(Schedule, para. 30);
– monitoring of hen harriers in the vicinity of the project to enable temporary
closedown of turbines (Schedule, para. 31).
31. In the view of the Commission, these positive measures set out in the SHMP cannot
exclude the negative effects on the integrity of the site identified above. In other
words, the measures of the SHMP cannot be characterized as mitigatory for the
purpose of Article 6(3) of the Habitats Directive.
32. The Court held in the
Briels case that pursuant to Article 6(3) of the Habitats
Directives, authorities may
"tak[e] into account the protective measures forming part of that project aimed at
avoiding or reducing any direct adverse effects for the site, in order to ensure that it
does not adversely affect the integrity of the site.
However, protective measures provided for in a project which are aimed at
compensating for the negative effects of the project on a Natura 2000 site cannot be
taken into account in the assessment of the implications of the project provided for
in Article 6(3)."15
33. This distinction between mitigating and compensatory measures was confirmed in
the judgments in cases
Orleans16 and
Commission v Germany (Moorburg).17
34. The Court has also repeatedly held that positive effects of measures which cannot be
predicted with certainty in the moment of authorization of the project cannot be
taken into account under Article 6(3) of the Habitats Directive. Thus, the Court held
in
Briels
"
It should further be noted that, as a rule, any positive effects of a future creation of
a new habitat which is aimed at compensating for the loss of area and quality of
that same habitat type on a protected site, even where the new area will be bigger
and of higher quality, are highly difficult to forecast with any degree of certainty
and, in any event, will be visible only several years into the future, a point made in
paragraph 87 of the order for reference. Consequently, they cannot be taken into
15 Judgment
Briels, C-521/12, above n 10, paras. 28-29.
16 Judgment
Orleans, C-388/15, above n 11.
17 Judgment
Commission v Germany, C-142/16, above n 9.
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account at the procedural stage provided for in Article 6(3) of the Habitats
Directive."18
35. Similarly, the Court found in
Orleans
"
In the present cases, first, the adverse effects on the Natura 2000 site in question
are certain, since the referring court was able to quantify them. Second, the benefits
resulting from the creation of the nature reserves have already been taken into
account in the assessment and in demonstrating the absence of significant adverse
effects on the site even though the result of the creation of those reserves is
uncertain, since it is not complete.
Consequently, the circumstances of the cases in the main proceedings and those
that gave rise to the judgment of 15 May 2014 in Briels and Others (C-521/12,
EU:C:2014:330) are similar in so far as they involve, at the time of assessing the
implications of the plan or project for the site concerned, the identical premise that
future benefits will mitigate the significant adverse effects on that site, even though
the development measures in question have not been completed."19
36. This was confirmed in the case
Commission v Germany (Moorburg) in which the
Court stated that
However, it is clear that the impact assessment itself did not contain definitive data
regarding the effectiveness of the fish ladder, and merely stated that its effectiveness
could only be confirmed following several years of monitoring.20
In that regard, it should be noted that it is at the date of adoption of the decision
authorising implementation of the project that there must be no reasonable scientific
doubt remaining as to the absence of adverse effects on the integrity of the site in
question (judgment of 26 October 2006, Commission v Portugal, C-239/04,
EU:C:2006:665, paragraph 24 and the case-law cited).21
37. The Court also emphasized the importance of properly distinguishing between
mitigating and compensatory measures stating that "
the effectiveness of the
protective measures provided for in Article 6 of the Habitats Directive is intended to
avoid a situation where competent national authorities allow so-called ‘mitigating’
measures – which are in reality compensatory measures – in order to circumvent
18 Judgment
Briels, C-521/12, above n 10, para 32.
19 Judgment
Orleans, C-388/15, above n 11, paras 55-56.
20 Judgment
Commission v Germany, C-142/16, above n 9, para 37.
21
Ibid, para 42.
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the specific procedures provided for in Article 6(3) and authorise projects which
adversely affect the integrity of the site concerned."22
38. Against this legal standard, only the third measure of the SHMP (i.e. the temporal
restriction of construction works depending on the breeding season) qualifies as
mitigatory. However, it only addresses one of several identified negative impacts
(i.e. disturbance of the species resulting from construction activity) and can,
therefore, not mitigate all identified negative effects on the site's integrity.
39. Importantly, there is no measure to mitigate the negative impact resulting from the
direct permanent loss of 1 hectare of cutover bog and wet grassland and the direct
temporary loss of additional 2 hectares of cutover bog. According to the Schedule
(para. 4), this is the prime foraging habitat of the hen harrier. The first measure of
the SHMP (i.e. restoration of blanket bog and wet heath areas) may compensate for
that loss in other parts of the site but does not in any way reduce or avoid it.
40. This conclusion can be deduced from the
Briels case in which the Court considered
that the future creation of molinia meadows was designed to compensate but not to
avoid or reduce the impact of the project on the existing molinia meadows23 and the
Orleans case in which the Court similarly considered that the creation of habitats
and habitats of species in ecological core area was designed to compensate but not
to avoid or reduce the impact on existing natural habitats.24
41. The same goes for the direct loss of 6 hectares of mature conifer forest which will
not develop into suitable foraging habitat (i.e. open canopy forest following felling
and replanting) during the lifetime of the project. The second measure of the SHMP,
the "sensitive" management of other forest areas, does not address this loss of
potentially suitable foraging habitat. It merely seeks to ensure that globally there
will be a certain amount of perpetually open canopy forest throughout the site.
42. Neither does the "sensitive" management of certain forest areas mitigate the
negative impact resulting from the unavailability of additional 162.7 hectares of
foraging habitat due to the displacement effect of the wind turbines.
43. The planned restoration and "sensitive" management are not designed to avoid or
reduce these adverse effects. They rather seek to compensate for those effects.
Indeed, the project will undoubtedly result in the direct loss of 9 hectares of suitable
22 Judgment
Briels, C-521/12, above n 10, para 33; Judgment
Orleans, C-388/15, above n 11, para 58.
23 Judgment
Briels, C-521/12, above n 10, para 39.
24 Judgment
Orleans, C-388/15, above n 11, para 64.
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and/or potential habitat and the additional loss of 162.7 hectares of foraging habitat
during the life of the project as a result of the displacement effect.
44. In addition, any benefits expected from the planned restoration of bog land or the
envisaged "sensitive" management could not be predicted with the required certainty
in the moment the authorities authorized the project. With regard to the envisaged
"sensitive" forest management, this uncertainty is explicitly acknowledged with the
inclusion of planting of certain tree species "on a trial basis" (at para. 29).
Furthermore, any benefits expected from bog land restoration or "sensitive"
management can only be expected at some point in the future whereas the loss of
foraging habitat will be immediate and certain.
45. In this regard, the condition that the measures be implemented before negative
impacts occur is not sufficient. Indeed, in
Orleans, the Court specifically considered
that hypothesis and stated that measures to be completed before the adverse effects
"
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".25
Thus, measures that are not completed before
the appropriate assessment may not be considered in the context of Article 6(3).
No other assessment because of the "dynamic" nature of part of the site
46. According to the Supreme Court,
"the difficulty of interpretation which arises on the
facts of this case stems from the fact that part of the habitat which is beneficial to
the hen harrier, and thus which is essential to the maintenance of the integrity of the
site, is itself a changing habitat which will, over time, be located in different parts of
the site" (Referral, p. 3).
47. In the view of the Commission, it is correct that part of the site is "dynamic" in the
sense that forests only constitute suitable foraging ground for the hen harrier at
certain phases of the forestry cycle. Whereas hen harriers forage on new forestry
plantations where the trees are under 2 meters high and later stages of second
rotation pre-thicket plantations where the trees are between 3 and 10 years old, they
avoid mature forest plantations with closed canopy and recently cleared forest
plantations.
48. Therefore, the envisaged "sensitive" forest management which seeks to ensure the
availability of forest habitats that are suitable for the hen harrier is certainly positive
25
Ibid.
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and may even be a necessary conservation measure for the site pursuant to Article
6(1) of the Habitats Directive. However, this "sensitive" management does not
qualify as a mitigating measure under Article 6(3) of the Habitats Directive for the
reasons set out above, in particular since it is not designed to prevent the identified
and certain loss of foraging habitat and because of the uncertainty of the benefits
expected from the "sensitive" forest management.
49. Furthermore, the Commission would stress that important aspects of the site are not
"dynamic" at all. This applies in particular to bog and heather areas which are the
prime foraging habitat of the hen harrier, irrespective of any "dynamics" relating to
forest management cycles.
V.
CONCLUSION
50. For the above reasons, the Commission submits that the answer to the question
referred by the Supreme Court should be:
"Article 6(3) of the Habitats Directive must be interpreted as meaning that a project
which has negative implications for a site because it excludes, during the lifetime of
the project, some area from being suitable habitat for the species for which the site
was designated, and which is accompanied by a plan which is designed to ensure
that the overall amount of suitable habitat is not reduced and indeed may be
enhanced, adversely affects the integrity of the site, even if some habitat on the site
is 'dynamic' in the sense that it is not constantly suitable for the species, but only
from time to time."
Christoph HERMES
Emmanuel MANHAEVE
Agents for the Commission
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