European Commission v French Republic (on habitat protection)

This case concerned attempts by the French Government systematically to exempt certain works and activities from the assessment procedures required by Article 6(2) and (3) of the Habitats Directive. The ECJ held that the relevant domestic legislation intended to have this effect constituted a failure of implementation of a Communityprovision. Article L.4141(V) of the Code de l’environnement purported to provide that fishing, aquaculture, hunting and other hunting-related activities practiced under regulated conditions would not cause a disturbance such as would engage Article 6(2) of the Habitats Directive. This Article requires a Member State to take appropriate steps to avoid such disturbance. The domestic regulations governing the listed activities were based on ‘statements of objectives’, which France submitted served as the basis for the adoption of site specific and targeted measures. The Commission complained that the domestic law failed to transpose the directive correctly because a statement of objectives had no binding force or accompanying sanction and hence could not provide for protection of an individual site. The ECJ found for the Commission. In particular it noted that the statement of objectives was a ‘diagnostic tool’ that allowed measures to be proposed to the competent authorities, and as such it did not provide for the necessary directly applicable measures. However, the real significance of the case lies in the ECJ’s rejection of a further complaint by the Commission that the domestic legislation had failed to ensure that an EA carried out pursuant to Article 6(3) included an examination of alternative solutions. The Court held that there was no such requirement under Article 6(3). Alternative solutions only needed to be considered under Article 6(4) of the directive – thus when a negative EA had been obtained but the plan or project still had to be implemented ‘for imperative reasons of overriding public interest’.