Designation of areas

As mentioned, the Habitats Directive establishes the Natura 2000 European ecological network of SACs. The network, which is composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned to be maintained or restored at a favourable conservation status in their natural range. The network also includes the special protection areas (SPAs) classified by the Member States pursuant to the Birds Directive (2009/147/EC).

Each Member State’s contribution to the creation of Natura 2000 shall be proportional to the representation within its territory of the natural habitat types and the habitats of species referred to previously.

The Court of Justice has made clear that the Directive is applicable beyond the Member States’ territorial waters and applies in their exclusive economic zones and on their continental shelves to the extent that the Member States exercise sovereign rights in those areas.'^[1]

For the establishment of Natura 2000, each Member State must propose to the Commission a list of sites indicating which natural habitat types listed in Annex I and which species listed in Annex II that are native to its territory the sites host. The list must be based on the criteria set out in Annex III (Stage 1) and relevant scientific information. Where appropriate, Member States shall propose adaptation of the list in the light of the results of surveillance activities carried out.

The Court of Justice has emphasised that the creation of a coherent European ecological network of SACs, that is, the Natura 20 00,^[2] requires the Commission to have access to an exhaustive list of the sites which, at national level, have an ecological interest which is relevant from the point of view of the Habitats Directive’s objective. It is not permissible for the Member States to take account of economic, social, and cultural requirements when selecting and defining the boundaries of the sites to be included in the list which they must draw up and transmit to the Commission.^[3] However, many Member States have been reluctant not to allow such considerations to play a part in the selection of SPAs.^{[4] [5] [6] [7] [8] [9] [10]} An ‘Interpretation Manual of European Union Habitats’ has been developed to assist in the application of Annex I.3¹

On the basis of the lists submitted by the Member States and the criteria set out in Annex III (Stage 2), the Commission establishes, in agreement with each Member State, a draft list of SCIs. A Member State may not refuse to agree to the inclusion of a site in the draft list on grounds other than environmental protection.32 The list is then adopted by the Commission in accordance with a committee procedure involving the Committee on the conservation of natural habitats and of wild fauna and flora.33

Once a site has been adopted as a SCI, the Member State concerned shall designate that site as a SAC as soon as possible and within six years at most. However, already by submitting a list of proposed sites to the Commission the Member State incurs an obligation to take protective measures that are appropriate, from the point of view of the Directive’s conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level.3⁴ The Member State concerned may not authorise interventions which may pose the risk of seriously compromising the ecological characteristics of such a site.35 (Art 4.)

Even sites which have not been included in the national list, but which the Member State concerned does not dispute satisfy the ecological criteria for listing as SCIs and which should therefore have been on the list, are subject to the same protection.3⁶

If a site on the list of SCIs is found to be definitively no longer capable of contributing to the achievement of the objectives of the Habitats Directive, the Member State concerned must propose to the Commission that the site be declassified. This is to prevent resources being used in vain to manage sites which are of no use to the conservation of natural habitats and species.^{[11] [12] [13]}

There is a procedure for including on the list of SCIs, in exceptional cases, a site not mentioned on a list submitted by a Member State. Such a site must, in the Commission’s view, be essential for the maintenance of a priority natural habitat type or for the survival of a priority species, and it can only be included after a unanimous decision by the Council. The Member State submitting the list can thus prevent the site from being listed as a SCI by opposing such a decision in the Council. However, during the consultation period and pending a Council decision, the site concerned is subject to some additional protection under the Directive. (Art 5.)

• [1] Case C-6/04 Commission v United Kingdom ECLI:EU:C:2005:626, para 117. On the significance of the Directive for the protection of marine species see A Christiernsson, G Michanek, andP Nilsson ‘Marine Natura 2000 and Fishery—The Case of Sweden’ (2015) 12 Journal for EuropeanEnvironmental & Planning Law 22—49 and S Luk and S Gregerson ‘Marine Species Protection andManagement in the European Union: Who Will Save Our Dolphins?’ in C-H Born and others (eds)The Habitats Directive in its EUEnvironmental Law Context: European Nature's Best Hope? (Routledge,2014) 399-416.
• [2] Although Natura 2000 also includes the SPAs established under the Birds Directive.
• [3] Case C-371/98 First Corporate ShippingECLI:EU:C:2000:600, paras 22—24.
• [4] See H Schoukens and H E Woldendorp ‘Site Selection and Designation under the Habitats andBirds Directives: a Sisyphean Task?’ in C-H Born and others (eds) The Habitats Directive in Its EUEnvironmental Law Context: European Nature's Best Hope? (Routledge, 2014) 31—55.
• [5] Interpretation Manual of European Union Habitats EUR 28 (April 2013) European CommissionDG Environment, Nature ENV B.3.
• [6] Case C-226/08 StadtPapenburgECLI:EU:C:2010:10, para 33.
• [7] On the procedure see Art 21.
• [8] Case C-117/03 Societa Italiana Dragaggi and Others ECLI:EU:C:2005:16, para 30.
• [9] The meaning of this was further elaborated in Case C-244/05 Bund Naturschutz in Bayern andOthers ECLI:EU:C:2006:579, para 46.
• [10] 36 Case C-340/10 Commission v Cyprus ECLI:EU:C:2012:143, para 46.
• [11] Case C-301/12 Cascina Tre Pini ECLI:EU:C:2014:214, paras 27—28.
• [12] This obligation to protect the site applies also with respect to the implementation of projects thatwere authorised before a particular site was classified as an SPA. Case C-404/09 Commission v SpainECLI:EU:C:2011:425, paras 124—125. On possible exemptions from this protection see ibid paras 156-157.
• [13] Ibid, paras 142 and 152.