INTRODUCTION

The Wild Birds and Habitats Directives are the cornerstones of EU nature conservation law, aiming to achieve the conservation of the Natura 2000 network, a network of protected sites under these directives, and the protection of species. The protection regime for these sites and species is not absolute: Member States may, under certain conditions, allow plans or projects that can have an adverse impact on nature. In this case compensatory measures can play an important role in safeguarding the Natura 2000 network and ensuring the survival of the protected species. In this contribution we will discuss the obligations of the Member States under the Wild Birds and Habitats Directives to compensate for biodiversity loss within the framework of Article 6(4) of the Habitats Directive. This provision requires the Member States to take compensatory measures to ensure the coherence of Natura 2000 in cases where plans or projects causing negative impacts on a Natura 2000 site have been allowed because of overriding public interests. For a long time, there was no European case law regarding the characteristics of compensatory measures, but in 2012 the Acheloos River case in Greece came before the Court of Justice on a reference for a preliminary ruling, and in 2014 the issue arose again in the Briels case, a preliminary reference from the Netherlands. Therefore we will focus on these two cases (in particular on the Briels case), which regard on the one hand to the relationship between compensation, mitigation, and conservation (usual nature conservation measures, nature development measures), and the assessment of alternative solutions, and on the other hand to the naturalness of compensation.

TEXT OF ARTICLE 6(4) OF THE HABITATS DIRECTIVE

The obligation relating to compensatory measures in Article 6(4) of the Habitats Directive is formulated as follows: