The European ecological network “Natura 2000” and its derogation procedure to ensure compatibility with competing public interests

Abstract

Natura 2000 network covers over 18 percent of the land area in the European Union. All proposals for development affecting these sites must be previously assessed for their implications for the site’s conservation objectives. In cases where it cannot be ascertained that there is no adverse effect on the integrity of a Natura 2000 site, the proposal for development can now only be approved within the scope of a derogation assessment pursuant to Article 6(4) of the Habitats Directive 92/43/EEC1 (HD). This article explores the requirements for an approval for derogation. In addition to the decisions of the European Court of Justice (ECJ)2 and the European Commission guidelines on this issue, this article focuses, in particular, on the comprehensive German Federal Administrative Court (BVerwG)3 decisions on this matter, which has had to assess a substantially greater number of cases to date, and provides a critical discussion on this in relation to the conservation aims of the Habitats Directive.