The European Union legal boundaries for semi-natural habitats management in Natura 2000 sites

The Habitats Directive provides for the setting up of Natura 2000, a coherent European ecological network of special areas of conservation as well as for the protection of these sites. The sites are characterised by the presence of specific habitat types as listed in Annex I of the Directive and of species as listed in Annex II. This contribution will focus on semi-natural habitats and the legal boundaries the Directive imposes on their management. Management measures affecting semi-natural habitats of Natura 2000 sites can fall under two different legal regimes. The first regime is comprised of the strict site protection requirements of Art. 6(2) − (4) of the Habitats Directive. These have been clarified by extensive jurisprudence. However, as it is indicated in Art. 6(3), at least the appropriate assessment under this provision does not apply to measures “directly connected with or necessary to the management of the site”. Such measures should fall under the second legal regime, laid down in Art. 6(1). Therefore, it is necessary to discuss the distinction between site management measures and other plans or projects as well as the legal boundaries applicable to the former. It will be demonstrated that the strict protection standard of Art. 6(3), absence of reasonable scientific doubt that the plan or project will not significantly affect the site, cannot be transposed to the management of semi-natural habitats because, irrespective of scientific uncertainty or doubt, some management strategy for semi-natural habitats needs to be chosen. Moreover, the necessity to decide on site management in the light of uncertainty also affects the question whether a measure needs to be considered directly connected with or necessary to the management of the site. Therefore, at least as far as EU law is concerned, only manifest errors with regard to both questions need to be sanctioned. Accordingly, judicial control needs to focus on the decision making process, that is procedural issues such as the collection of the relevant information, relying on the best available science, stakeholder participation or the duty to give reasons.