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Legislative provisions

Nature conservation in the European Union is based on the Birds Directive (79/409/EEC codified version) and the Habitats Directive (92/43/EEC consolidated version).

The Bird Directive relates to the ‘conservation of all species of naturally occurring birds in the wild state in the European territory of the Member states’ (Art. 1). Articles 3 and 4 of the Directive contain provisions for habitat protection: establishment of Special Protection Areas (SPA) for endangered species from Annex 1 Birds Directive (Art. 4) as well as the preservation, maintenance and re-establishment measures for protected areas (Art. 3). Articles 5 through 9 contain provisions for species protection: prohibition to kill or capture birds, destroy or damage to their nests and eggs, disturb birds, sell birds or parts of birds. As an exception species from Annex II may be hunted under national legislation. Derogation from species protection is only allowed under the limited requirements of art. 9.

The aim of the Habitat Directive is to ‘contribute towards ensuring biodiversity through the conservation of natural habitats of wild flora and fauna in the European territory of the Member states’ (Art. 1). Articles 3 to 11 and Annexes I to III contain provisions for habitat protection. Within 3 years of the notification of the Directive, each Member State shall propose a list of sites indicating habitat types in Annex I and species in Annex II (Art. 4 par. 1). Within 6 years of the notification of the Directive, the Commission in agreement with each Member State will establish the list of Sites of Community Importance drawn from the Member States’ list of proposed sites (Art. 4 par. 2-3). Within at most 6 years of the establishment of the list of sites, the Member States shall designate that site as a Special Area of Conservation (SAC) (Art. 4 par. 4).

By far the most far-reaching provisions of the Habitat Directive are found in Article 6. Paragraph 1 requires the Member states to establish the necessary conservation measures in SACs, involving if need be, a management plan. Paragraph 2 obliges the Member States to take appropriate steps to avoid the deterioration of natural habitats and the habitats of species as well as disturbance of the species in SACs.

Paragraphs 3 and 4 introduced the so-called ‘habitat assessment’. Paragraph 3 requires an appropriate assessment for any plan or project not directly connected with or necessary to the management of the Natura 2000 site but likely to have a significant effect thereon. Competent authorities shall only agree to a project in the absence of negative effect. Paragraph 4 stipulates that, in case 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.

Habitat assessment also applies to SPAs designated under Birds Directive, thereby replacing Art. 4 par. 4 of the Birds Directive. Furthermore, provisions of art. 6 Habitat Directive (including appropriate assessment) apply to Sites of Community Importance as soon as they are established by the European Commission according to art. 4 par. 4.

Articles 12 to 16 and Annex IV to VI of the Habitat Directive contain provision for species protection. Strict protection applies to animal species listed in the Annexes and prohibits capture hunting, disturbance, deliberate destruction or taking of eggs, deterioration or destruction of breeding sites or resting places. Derogation from prohibition is allowed for imperative reasons of overriding public interest, and hunting is subject to restrictions. Some species and areas in the Annexes are indicated as priority species and habitats. These are endangered species that require special protection measures.

The Habitat Directive provides for the creation of a coherent European biodiversity network Natura 2000, which includes the SAC classified under the Birds directive and SPA classified under the Habitat Directive.

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