The Habitats Directive
Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the ‘Habitats Directive’) has, since its adoption in 1992, been the cornerstone of the EU’s nature protection policy.22 It provides the main legal platform for the EU-wide network of nature protection areas known as Natura 2000. Its adoption was prompted by the continuing deterioration of natural habitats in the Member States and the growing number of wild species that were seriously threatened. The threatened habitats and species are seen as part of the EU’s natural heritage and since the threats to them are often of a transboundary nature, it was necessary to take measures at EU level in order to conserve them.23
Defining areas and species to be protected
As may be expected, the Habitats Directive is based on a previous Treaty article corresponding to the current Article 192(1) TFEU, that is, the legal basis for environmental policy. The protective measures prescribed by the Directive are, with some exceptions, directed at particular listed species and areas. It is therefore appropriate to begin an examination of the Directive with a look at the definitions, set out in the extensive Article 1, of the different kinds of areas, species, and habitat types whose identification or designation provide the basis for the protection mechanisms of the
- 21 Case C-169/89 Gourmetterie Van den BurgECLI:EU:C:1990:227.
- 22  OJ L 206/7. 23 Preamble para 4.
Directive. Before engaging with these definitions it should, for the sake of clarity, be pointed out that since the Habitats Directive dates from the 1990s, it uses the word ‘Community’ for what would today be referred to as ‘Union’.
‘Natural habitat types of Community interest’ are habitat types which are in danger of disappearance in their natural range within the EU/4 or which have a small natural range following their regression or by reason of their intrinsically restricted area. It can also be habitat types that present outstanding examples of typical characteristics of one or more of nine listed biogeographical regions, including Alpine, Atlantic, Continental, and Mediterranean. These habitat types are listed or may be listed in Annex I. About 230 habitat types are currently on the list. Among the natural habitat types of Community interest, some qualify as ‘priority natural habitat types’, and are indicated by an asterisk in Annex I. These are natural habitat types in danger of disappearance, which are present in the EU and for the conservation of which the Union has particular responsibility in view of the proportion of their natural range which falls within the EU.
There are also ‘species of Community interest’, which, with certain exceptions, are species that are endangered, vulnerable, rare,25 or endemic within the EU. Such species are listed or may be listed in Annex II and/or Annex IV or V. A subcategory, indicated by an asterisk in Annex II, is so-called ‘priority species’. These are endangered species for the conservation of which the EU has particular responsibility in view of the proportion of their natural range which falls within the EU’s territory.
When it comes to the identification of specific sites or areas there are two core notions. The first of these, ‘site of Community importance’ (SCI), is any site which, in the biogeographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II. It may also contribute significantly to the coherence of Natura 2000. A site may also qualify if it contributes significantly to the maintenance of biological diversity within the biogeographic region or regions concerned.
An equally important notion is ‘special area of conservation’ (SAC), that is, a site of Community importance designated by the Member States through a statutory, administrative, and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated. The procedure for designation of such areas is further discussed presently.
The overall aim of the Habitats Directive is to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States (here referred to as ‘the EU’).26
- 24 Or, more precisely, within the European territory of the Member States. In order to keep the text reasonably short this is referred to as the EU in this section.
- 25 The terms ‘vulnerable’ and ‘rare’ are defined in Art 1.
- 26 Only those parts of the European territory of the Member States to which the Treaties apply are covered. This means that, inter alia, the Faroe Islands fall outside the geographical scope of the Directive. Art 355 TFEU.
Measures taken pursuant to the Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest. The measures shall take account of economic, social, and cultural requirements and regional and local characteristics. (Art 2.)
For the conservation status of a natural habitat to be considered ‘favourable’, its natural range and the areas it covers within that range must be stable or increasing, and the specific structure and functions which are necessary for its long- term maintenance must exist and be likely to continue to exist for the foreseeable future. The conservation status of its typical species must also be favourable.
The conservation status of a species is ‘favourable’ when: (a) the population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats; (b) the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future; and (c) there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis. (Art 1.)