Bund Naturschutz in Bayern Revisited: The Required Standard of Protection under the EU’s Habitats Directive Prior to a Site’s Adoption as a Site of Community Importance

This article presents a fresh analysis of the implications of the 2006 judgment of the Court of Justice of the European Union (CJEU) in Case C-244/05 Bund Naturschutz in Bayern, which clarified the standard of legal protection afforded to sites eligible for adoption as Sites of Community Importance (SCIs) under the EU’s Habitats Directive. The article argues that, as a result of this line of case law, it will be unlawful (at least in certain cases, and perhaps in all) to apply the Article 6(4) Habitats Directive derogation in respect of eligible sites which have not yet been adopted by the European Commission as SCIs. The Commission appears to have been aware of this potential implication, and acted swiftly to minimise the potentially disruptive impact of the judgment on plans and projects within the EU. The article also considers the relevance of the CJEU’s Sweetman judgment (C-258/11) to the Bund Naturschutz in Bayern line of jurisprudence.