Case law and recent studies on Natura 2000
A considerable amount of case law on the application of EU Bird and Habitat Directive appeared before 2006 and most of it involved waterways and ports. An analysis of the case law showed that decision-making up until that time often lacked attention, knowledge and awareness of the requirements of the Directives and hence ended in court. More thorough impact assessments carried out recently demonstrated that the number of decisions reversed in court is actually modest.
Case law involving waterways and ports was analysed by van Hooydonk (2006). The author considered selected cases on the Birds and Habitats Directives both in national courts and the European Court of Justice. He concluded that the lack of clarity in these directives is a barrier to waterways' and ports' commercial interests, because of the uncertainties for business development.
Zonneveld et al. (2008) concluded that the European Birds and Habitat guidelines have a direct impact on spatial planning because they require a detailed description of nature aims for specific locations. The main impact of EU rules on projects brought before the court was on how things were done, notably with additional studies and longer procedures. The instances of decision-making being really blocked as a result of the EU legislation were limited.
A review of lawsuits in which the Bird and Habitat Directives played a prominent role in the Netherlands between 2003 and 2008 showed that many plans and projects have been delayed by the directive, but in the end, most of them proceeded (Algemene Rekenkamer 2007, Beunen 2006, Kistenkas and Kuindersma 2005, cited in Beunen et al., 2009). Only a small number of the requests for consent have been denied because they were in conflict with European Nature conservation laws. The actual effect of the Bird and Habitat Directive on land use is limited. What the directives have changed are the decision making procedures (Beunen et al. 2009).
Broekmeyer et al. (2008) studied all available data on the permits under Art. 19d of the Dutch Nature Conservation Act issued between October 1, 2005 and July 31, 2008, i.e. after the Habitat assessment was correctly transposed in the Netherlands. A total of 1951 permit applications were analysed, with a decision available for 1716 of them. From these 1716 decisions, 37% did not require a permit at all (no chance of negative effect). The remaining applications required a permit, which was granted or extended, sometimes with restrictive conditions, in 95% of the cases. In some of these cases, preliminary assessment of effect sufficed (possible negative effect, but not significant) and in some an appropriate assessment was needed (chance of significant negative effect). As far as the authors were able to retrieve the data, only two applications resulted in the test of alternatives, overriding public interest and compensation: Second Maasvlakte and Eemshaven Power station.
A study by Bovens and Yesilkagit (2010) found that the total overall impact of EU directives on Laws, Royal Decrees and Ministerial decisions in the Netherlands was 12,6%. This means that the entire bodies of legislation in force in the Netherlands by mid-2003 contained a total of 12,6% of rules devoted to the transposition of EU Directives. The impact on the ministry of LNV (now the Ministry of Economy, Agriculture and Innovation) was the largest, yet still almost 80% of their legislation was home-made. Hence, the impact of EU directives on Dutch national legislation is fairly limited when compared to the claims that are sometimes made by academics and politicians (Bovens and Yesilkagit 2010).
Overall the studies show that the fear of European law is unwarranted, because in the end in many cases the plans were not blocked. However, the rules and procedures do lead to an additional administrative burden and longer run-times of projects. For BwN this means that an investment in legal expertise at the start of the project, to prevent court cases as much as possible, is generally worth it.