Measures of Continued Ecological Functioning (short CEF-measures) have been introduced by theCommission of the European Union (EU) in its Guidance Document 2007 for the application on onespecies conservation norm of the EU-Habitats Directive. According to this Commission opinion, CEFMeasures with a certain effect are capable to exclude ahead the application of this species conservationprohibition (and in the following the procedure of issuing an derogation permit from this prohibition).
The presentation will analyse in how far the jurisdiction of the Court of Justice of the EU (CJEU) since2014 on compensatory measures especially related to Habitat Conservation (Natura 2000) but also toSpecies Protection in Natura 2000 areas challenges the legitimacy of CEF-measures.
The methods applied on CJEU-Case law are legal database research, in-depth literature review, andanalysis by means of different legal interpretation approaches. Material identified includes CJEUjudgements as well as the related Opinion of the Attorney Generals. Eight cases starting with the CaseBriels et al. from 2014 have been identified to be of relevance and will be assessed with a particular focuson the Case Skydda Skogen from 2021. Latter case has concerned species and habitat conservation issuesrelated to both Directives (HD and BD) and has been even rendered by the Grand Chamber of the CJEU.
The results
1. show how and which arguments the jurisdiction of the Court of Justice since 2014 developed thatsubstantially challenge the extension of this CEF-concept by member states as well as even theoriginal concept of the EU-Commission,
2. indicate that the EU-Commission itself in 2018 seems to have even refrained from following theCEF-Concept originally support in 2007, and
3. present how the Court in the 2021 judgement Skydda Skogen apparently requests that a plannedapplication of CEF-measures does not release from the prior application of derogation procedures.Such a request would also provide the precondition for the public participation in the sense of theÅrhus Convention in such procedures.
The results are in particular relevant for all Member States which already apply or tend to apply theoriginal CEF-measures concept of the EU-Commission or an extended version therefrom. They indicatedan increased duty to implements formal derogation procedures from the prohibitions of the speciesprotection norms of both Directives (HD and BD) instead of excluding ahead the application of speciesconservation prohibitions based on any CEF-measures.
The presentation has its focus on SDG 16 as it particular guides SDG 16.3. “16.3 Promote the rule of lawat the national and international levels and ensure equal access to justice for all” as well as 15.5 “Takeurgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and,by 2020, protect and prevent the extinction of threatened species”. It relates to the conference topic through its call for a systematic change in absolute terms of the human culture of excluding – by referenceto CEF-measures - formal derogation procedures and thereby excluding public participation.
Stockholm: Södertörns högskola, 2022. p. 1256-1257
28th Annual Conference, International Sustainable Development Research Society, Stockholm, June 15-17, 2022.