Case Study on interaction between the EIA and the Habitas Directive Comments to the solution Workshop in Trier, 17 – 19 March

1.Question a)EIA  Annex I 2. (a) and 24. to the Directive (if 300 or more MW) or  Annex II 3. (a ) b) FFH See: EU Commission’s guidance “ MANAGING NATURA 2000 SITES The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC” Workshop in Trier, 17 – 19 March

Page 31 “As regards geographical scope, the provisions of Article 6(3) are not restricted to plans and projects which exclusively occur in or cover a protected site; they also target developments situated outside the site but likely to have a significant effect on it.” 2. Question Principally national law applies, but –Interpretation consistent with the Directive –In case of conflict: Eventually direct effect of the Directive Workshop in Trier, 17 – 19 March

3.Question a)“Adversely effect”, yes b)Absence of alternative solutions, yes (extension!) c)“Imperative reasons of overriding public interest” ? EU Commission’s guidance, page 43: „Thus, projects that lie entirely in the interest of companies or individuals would not be considered to be covered.” Security of energy supply = public interest 4. Question A condition to the permit is better than refusal. Workshop in Trier, 17 – 19 March

5.Question Procedural autonomy of the Member States (MS) 6. Question Procedural autonomy of the MS. Such a consequence seems not to be requested by EU law. 7.Question  Transboundary effect: See Article 7 EIA Directive  Insufficient EIA:  Case C-72/12, Altrip, 7 November 2013  Challenge of a irregularly carried out EIA cannot be excluded Workshop in Trier, 17 – 19 March

 Condition of causality permissible  But: Burden of proof (of a casual link) must not fall on the applicant 8. Question The NGO has no damage 9. Question - Judicial restraint? - Procedural autonomy of the MS? - Problematic! 10. Question The answer depends on the solution according to the national law Workshop in Trier, 17 – 19 March