Research Article |
Corresponding author: Stefan Möckel ( stefan.moeckel@ufz.de ) Academic editor: Jukka Simila
© 2022 Stefan Möckel.
This is an open access article distributed under the terms of the Creative Commons Attribution License (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
Citation:
Möckel S (2022) Natura 2000-sites: Legal requirements for agricultural and forestry land-use. Nature Conservation 48: 161-184. https://doi.org/10.3897/natureconservation.48.77899
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The agricultural and forestry use of land does not only mark large parts of the European Union, but also a significant share of land within the European ecological network Natura 2000. Member States, therefore, try to exempt as far as possible these land uses from the protection regime of Natura 2000-sites. However, at the same time, Member States latest reports on habitats and wild species of Community importance indicate that, in particular, the intensification of agriculture and forestry in recent decades has made it more difficult to improve conservation statuses or even worsened them. Hence, the aim of this article is to examine in detail the extent to which the protection regime of Article 6(2 and 3) Habitats Directive is applicable to land-use in agriculture and forestry. In this context, of particular relevance is the question of when the use of land in agriculture and forestry or individual management measures within and near Natura 2000-sites are projects for which an appropriate assessment is necessary before implementation; and which, in the case that significant adverse effects to a site cannot be ruled out, are permitted only under the reasons for exemption given in Article 6(4) Habitats Directive. The analysis includes the case law of the European Court of Justice, as well as decisions of the German Federal Constitutional Court and the German Federal Administrative Court.
Agriculture, appropriate assessment, Birds Directive, forestry, Habitats Directive, Natura 2000
The Habitats Directive (HD) 1992/43/EEC and the Birds Directive 2009/147/EC (formerly Directive 79/409/EEC) are the most important EU instruments
According to the Member States status reports for the Habitats Directive reporting period 2013 to 2018, out of the 1,389 species in the EU’s biogeographical regions, only 27 percent display a good conservation status, while three quarters of the 233 habitat types display a poor or bad status.
The main cause for the often recorded unfavourable conservation statuses is the unsustainable use of land in agriculture and forestry and, in particular, the intensification of agriculture and the loss of high nature value farmlands via the conversion of natural grasslands and pastures into arable land, the greater use of fertilisers and pesticides, the removal of small landscape features and the drainage of areas, as well as the reduction of old-growth forests, clear-cutting and the removal of dead or old trees.
‘About 40% of the total land area of the EU-28 is agricultural land (Eurostat 2020a). Results show that current agricultural practices are by far the most dominant driver affecting habitats and species (...). However, the richness and abundance of biodiversity associated with agricultural habitats is strongly correlated with the degree of modification (e.g. draining, ploughing) and the intensification of management (e.g. use of fertilisers, irrigation and pesticides). Extensive agricultural management creates and maintains semi-natural habitats with a diverse fauna and flora. Since the 1950s, however, the intensification and specialisation of the agricultural sector has increasingly contributed to ongoing biodiversity loss. Changes in agricultural management are, thus, the most frequently reported type of pressure’.
In addition to the EU-wide provisions on species protection, Natura 2000-sites are the most important instrument for safeguarding favourable conservation statuses. In 2021, the European Commission registered a total of 26,935 Natura 2000-sites in the EU27 (excluding the United Kingdom), which together comprise around 17.5 percent of Europe’s land area (764,222 km2) and 450,752 km2 expanses of water.
The conservation status of habitat types and species of Community interest in the Natura 2000-sites is, on average, significantly better than outside of the network.
The following article examines the extent to which the protection regime of Article 6 (2 and 3) HD is applicable to land-use in agriculture and forestry within or in the vicinity of Natura 2000-sites. For this purpose, section 2 gives an overview of the legal protection regime of the Natura 2000-network. Then, in section 3, it is discussed whether and when the use of land in agriculture and forestry or individual management measures are projects that require assessment and which requirements apply to land-use that does not require assessment. A brief overview of the requirements for an appropriate assessment is given in section 4. Section 5 then looks into the question of when, in the event of an established incompatibility, land-use or individual management measures would be permitted as an exception.
Based on the Special Protection Areas (SPA) under Article 4 Birds Directive and Sites of Community Importance (SCI) under Article 3 and 4 HD, the European Union (EU) and its Member States created the ecological network Natura 2000. The Network serves to protect 231 habitat types and 450 wild species, which have been identified as conservation priorities.
With their regulations, the Member States must ensure that the requirements of the HD and Birds Directive are fully observed, when it comes to official decisions.
For Natura 2000-sites, in 1992, the Member States of the European Union agreed an ambitious protection regime in Article 6 HD,
Furthermore, under Article 6(2) HD, the Member States are obliged to avert deterioration and disruptions with the help of preventative protective measures. In addition, under Article 6(3) HD, all projects and plans that, individually or in combination with other plans and projects, could significantly adversely affect a Natura 2000-site, must be checked for their compatibility with the conservation objectives of the Natura 2000-site before they are approved and implemented.
‘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’ (Article 6(3)(1) HD). For the use of land in agriculture and forestry, it has, therefore, to be elucidated when measures are part of the conservation and restoration management within the meaning of Article 6(1) HD or projects that are subject to review.
As an exception, the scope of such site management measures is to be interpreted narrowly and only given, if they are intended to promote the respective conservation objectives in the area.
Neither the HD nor the Birds Directive define what a project is. According to the ECJ, it is, nevertheless, a term under European law that is not defined by the Member States individually.
The term ‘project’ thus includes all activities in or in the vicinity of Natura 2000-sites that are likely to have significant effect on a Natura 2000-site individually or in conjunction with other plans and projects.
In Germany, the Federal Administrative Court (BVerwG)
In their law or regulations for protected sites, Member States have repeatedly exempted land-use in agriculture and forestry from the appropriate assessment or did not classify it as a project within the meaning of Article 6(3) in their justifications or a rule in general.
With regard to land-use in agriculture and forestry, the ECJ has repeatedly affirmed its classification as a project and, therefore, the applicability of the appropriate assessment. In 2018, on the basis of a preliminary Dutch inquiry,
According to the Court of Justice, only recurrent agricultural land uses do not require an appropriate assessment that were permitted under national law before the Directive came into force (1992) and that continue to be classified as one and the same project.
According to the ECJ, the protective purpose of the HD requires that each intervention must be assessed separately as a matter of principle.
In principle, in view of the impact-focussed concept of a project and the existing dynamics in the Natura 2000-site concerned, like the development of species and climate change or changing emission situations, new interventions have to be assessed on the basis of the situation at the time of the planned measures, even if the latter are comparable with old interventions in terms of type and extent.
Using the example of agricultural fertilisation and grazing, the ECJ showed, in 2018, that land-use in agriculture and forestry can only be classified under certain conditions as permanent projects for which no Natura 2000-appropriate assessment is necessary.
Specifically, according to the ECJ, the obligation to assess land-use in agriculture and forestry depends on whether it has had a common purpose, since the HD came into force in 1992 and whether the location and circumstances of its practices (amongst others types, measures and techniques) have remained the same.
Agricultural and forestry land-use within and in close vicinity to a Natura 2000-site that is categorised as a permanent project does not require a Natura 2000-appropriate assessment; however, such activities fall under Article 6(2) HD, according to which Member States must ensure that the latter do not cause disturbances that can significantly impair the objectives of the HD and the conservation objectives of the Natura 2000-site concerned.
If individual management measures in agricultural and forestry land-uses change within and in the vicinity of Natura 2000-sites (e.g. due to different fertilisers or pesticides respectively or their quantities), this constitutes a new project,
The Dutch court had also asked the ECJ whether ‘certain projects which do not exceed a certain threshold value or a certain limit value in terms of nitrogen deposition from the requirement for individual approval, since the cumulative effects of all the plans or projects likely to create such deposition were subject in advance to an “appropriate assessment” [of the Programma Aanpak Stikstof 2015–2021] within the meaning of Article 6(3) of that Directive’.
In continuation of its case law on anticipated exemptions, the ECJ has now emphasised that exempting de minimis thresholds must not lead to projects being admitted without an appropriate assessment, although significant negative effects on a Natura 2000-site cannot be ruled out without scientific doubt.
According to the ECJ, also certain areas of activity or types of facilities cannot be excluded based on, for example, their small size or low cost of activities,
As a result, the requirements, specified by the ECJ for anticipated exemptions and de minimis thresholds, can only be ensured for individual Natura 2000-sites and, due to the dynamics in the area, only for a limited period of time.
The appropriate assessment requires an analysis of the relevant impact factors of a project, as well as a forecast of its negative impacts on the Natura 2000-site in question.
Whether an agricultural and forestry land-use or an individual management measure can lead to a significant impairment of a Natura 2000-site requires an individual assessment, which depends largely on nature conservation specific findings and assessments of the area and project in question.
In case of an incompatibility, the authorities can approve a project as an exception under Article 6(4) HD, if there are compelling reasons of overriding public interest, no reasonable alternatives exist with regard to ‘how’ and ‘where’ to achieve the project and the coherence of the Natura 2000-network is safeguarded by compensation measures.
As a rule for exception, Article 6(4) HD and the requirements specified there must be interpreted strictly.
While coherence measures are usually possible regarding operating areas belonging to the project when it comes to land-use in agriculture and forestry, the other two preconditions raise larger issues. Even if there is a great public interest in maintaining food security and preserving forests as carbon sinks and as a source for numerous ecosystem services, the individual areas used for agriculture and forestry are unlikely to be of any particular public interest, since due to the many agricultural and forestry areas within and outside of a member state, individual areas are dispensable. This may have to be assessed differently, however, if intervention is required to address an acute pest and disease infestation in order to avoid large-scale spread and, thus, greater social damage. An overriding interest could also come into consideration, if the agricultural and forestry land-use is necessary for the preservation of the protected habitat types or species (e.g. in the case of open land biotopes). However, this is unlikely to be the case, if management results in significant adverse effects on a Natura 2000-site. Mere private interests (e.g. economic profits), on the other hand, do not suffice as justification for exceptions,
The question of the local and factual lack of alternatives to agricultural and forestry land-use also raises major difficulties. On the one hand, at least in individual cases, the agricultural and forestry land-use can regularly be carried out on other areas outside of a Natura 2000-site and its protective area by purchasing or leasing corresponding areas. On the other hand, generally recognised and proven extensive ways of agricultural and forestry land-uses are established (e.g. organic farming,
Overall, the requirements for an exception under Article 6(4) HD are rarely met fully, when it comes to land-use in agriculture and forestry.
The ECJ decision of 7 November 2018 has far-reaching legal and practical implications for agricultural and forestry land-use in the EU. In practice, a large number of agricultural and forestry land-uses and management measures within and in the vicinity of Natura 2000-sites require an official screening and, if necessary, a full appropriate assessment under Article 6(3) HD and are only permitted if significant effects can be excluded. All agricultural and forestry measures in and in the vicinity of Natura 2000-sites are subject to the reservation of examination and prohibition, if their application has changed since 1992 or is being implemented for the first time and, according to general experience, is likely to prejudice the conservation objectives of the Habitats Directive (e.g. by dint of the use of fertilisers and plant protection products, the conversion of permanent pastures and other near-natural or extensive areas, drainage measures).
In legal terms, national laws or protected area-regulations for Natura 2000-sites may no longer exempt agricultural and forestry land-use generally from the prohibition of deterioration and disturbance, as well as from the applicability of an appropriate assessment, since such general exemption clauses violate Article 6(2) and (3) HD.
According to the ECJ, no deviating standards can be derived from the fact that implemented projects have previously been unregulated or approved by the authorities, since proportionality is ensured by the exception options in Article 6(4) HD and, furthermore, no preservation of legitimate expectations exists in an unchangeable legal situation.
There is also no right under European law or human right to intensive agricultural and forestry land-use with maximum yields, given that economic efficiency of private land-use is given even with extensive cultivation (e.g. due to higher market prices for organic products, European direct or agri-environmental payments). In addition, restrictions on agriculture and forestry in Natura 2000-sites can be compensated by Member States, based on Article 30 EAFRD Regulation 1305/2013/EU (from 1.1.2023 according to Art. 72 CAP Regulation 2021/2115/EU).
‘If the natural or spatial features of a plot of land are worth preserving in the general interest and require protection, this results in a kind of immanent, i.e. property innate restriction of the owner’s powers, which is only given manifestation by nature and landscape protection regulations’.
Even if, in view of the considerable spatial extent of agricultural and forestry land-uses within and in the vicinity of Natura 2000-sites, as well as the multitude of different management methods and measures, it is understandable that Member States have hitherto refrained from subjecting these land-uses to an appropriate assessment as far as possible, as the interest in limiting assessing efforts for land users and authorities cannot justify a weakening of the protection standards required by European law.
In order to meet the legal and practical requirements of European law by applying a reasonable amount of effort, it is advisable to subject agricultural and forestry land-uses that were previously free of approval to a general reservation of permission with a concentration effect, instead of assessing each individual management measure.
The author declares no conflicts of interest. The founding sponsors had no role in the design of the study; in the collection, analyses or interpretation of data; in the writing of the manuscript and in the decision to publish the results
The author thanks Harry Bauer for translating the vast majority of the manuscript, as well as Prof. Dr. Chris Backes and Prof. Dr. Hendrik Schoukens for their reviews and helpful comments.
The work was funded by the German Federal Ministry of Education and Research (BMBF) in the framework of the funding measure “Soil as a Sustainable Resource for the Bioeconomy—BonaRes”, project “BonaRes (Module B): BonaRes Centre for Soil Research, subproject A” (grant 031A608A).