No obligation to perform a Strategic Environmental Assessment in the case of Natura 2000 protected area regulations

Berlin, 18 October 2024. Regulations designating an area as covered by special protection in the meaning of the Habitats Di‑​rective do not have to be subjected to a strategic environmental assessment prior to their issue. This decision was handed down yesterday by the ECJ following a referral for a preliminary ruling from the Superior Administrative Court of Lower Saxony (Case C 461/23, judgement of 17 October 2024).
Nor, according to the ECJ judgement, is an environmental assessment required for explicit exemptions from bans and prohibitions set out in a protected area regulation, for example for activities such as water management, fishing, agriculture and forestry.
This is a very important decision for the Federal Republic of Germany, which was advised in the pro‑​ceedings by Redeker lawyers Dr Frank Fellenberg, LL.M. (Cambridge), Kathrin Dingemann and Dr Dominik Römling, as protected area regulations and ordinances are generally issued without undergoing any prior strategic environmental assessment in Germany. If a decision had been handed down in line with the views of the referring court and the plaintiffs in the main proceedings, the protected area regulation that was the subject of the main proceedings and numerous comparable German regulations and ordinances would be deemed to be contrary to EU law. There would therefore have translated into a considerable deficit in structural implementation, with potentially serious consequences as well as costly remedial proce‑​dures.