1. Updating the Article 6 guide Outline of envisaged changes
Joint Habitats/Ornis Committees meeting
Brussels, 29 April 2014

2. The need for an update
Usefuleness/recognition of the "Managing N2000 sites" guide.
Developments since the guide was first published (April 2000)
Updating on the basis of:
Landmark Rulings of the Court of Justice of the EU;
Commission notes on SAC designation, conservation objectives and conservation measures; and
More recent Commission sectoral guides.
Overall structure and contents will remain unchanged.
Integration of the 2007 updating of the Article 6(4) section.

3. Key changes proposed: Introduction
Inclusion of new CJEU jurisprudence as regards the duty of transposition of Art. 6.
Adjustments/clarifications as regards the dates of application of the provisions of Article 6 (accession of new Member States, key Rulings).
New text on the designation of SCIs as SACs.

4. Key changes proposed: Art. 6(1)
Clarify the link between the overall objective of achieving FCS and the role of individual Natura 2000 sites in this process (cf. Commission notes on ‘setting conservation objectives’ and ‘establishing conservation measures’).
Clarification of the term ‘necessary’ conservation measures to make clear that establishing conservation measures under Article 6(1) is not optional but obligatory.
Update the text on ‘management plans’ and ‘statutory, administrative or contractual measures’ (cf. Commission note on establishing conservation measures).

5. Key changes proposed: Art. 6(2)
Include CJEU jurisprudence regarding the scope of Article 6(2) (need to prevent deterioration at all times, not limited to human activities).
Clarify what it means to ‘take appropriate steps to avoid’ (legal regime must be specific, coherent and complete; purely administrative or voluntary measures are not sufficient).
Clarify distinction between preventing deterioration of habitats and disturbance of species and how this should be assessed in each case on the basis of the ecological characteristics of the site, its condition and its conservation objectives.

6. Key changes proposed – Art. 6(3)
Clarify the relationship between Article 6(2) and 6(3): a plan or project authorised under Article 6(3) renders superfluous the concomitant application of Article 6(2) (unless the PP subsequently gives rise to deterioration/disturbance); also where a PP has been authorised without complying to Article 6(3) a breach of Article 6(2) may be found.
Clarify the term ‘project’ (for activities carried out periodically; size of the project not relevant; not permitted to generally exempt certain activities from 6(3)).
Clarify the term ‘plan’ (need for a broad interpretation since they have a great influence on development decisions).
Further clarify the term ‘not directly connected with or necessary to the management’ (no systematic exemption of works in conservation plans).
Clarify the likelihood of significance: in the case of doubt as to the absence of significant effects an appropriate assessment must be carried out.

7. Key changes proposed: Art. 6(3) – cont'd
Further clarify the need to take account of cumulative effects (not restricted to similar types of plans; to be also assessed between projects and plans; to rely on sound data and not only on qualitative criteria; be an integral part of the AA).
Further clarify the term ‘appropriate assessment’ (it should contain 'complete, precise and definitive conclusions capable of removing all reasonable scientific doubts as to the effects of the works proposed'; emphasise the relationships between AA and EIA/SEA.
Updated guidance on the ‘contents of an AA’ (on basis of the 2007 Commission document on article 6(4), assessment to be based on best available scientific knowledge and techniques and methods to estimate the extent of the effects).
Stress the need to assess the implications for the site in view of the site’s conservation objectives.

8. Key changes proposed: Art. 6(3) – cont'd
Explain what is meant by assessing the ‘implications for the site’ (on the basis of Commission sectoral guidance: case by case assessment, use sound scientific baseline, results must be fully justified and reasoned and lead to clear conclusions as to the absence of adverse effects).
Clarify the term ‘affect the integrity of the site’ (a PP will adversely affect the integrity of a site 'if it is liable to prevent the lasting preservation of the constitutive characteristics of the site').
Further guidance on introducing mitigation measures (based on text from the sectoral guides: to be described in detail; be capable of demonstrating how they will remove, avoid or reduce the impacts; distinction between mitigation/compensation).
Further clarify the ‘competent national authority’.
Further clarifications on the opinion of the general public (when to obtain it, to address specifically the potential impacts of the PP on the N2000 site; rights of NGOs in relation to the EIA directive.)

9. Key changes proposed: Art. 6(4)
Incorporation of the 2007 Commission guide on Article 6(4) taking account of the need to:
Avoid repetition and keep text focussed on interpretation of key concepts (introductory sections regarding Article 6(3) in the guide can be significantly shortened);
Include new relevant CJEU Rulings since 2007
Correct the terminology used to ensure consistency throughout the guide

10. Next steps
The Habitats Committee is requested to consider the envisaged changes.
A draft updated text of the consolidated Art. 6 guide will be circulated to the members of the Habitats Committee for consultation before the summer.
Final discussion at the next Habitats Committee meeting and publication of the document by the end of 2014.