The Development of Ecological Corridors: Member States’ Obligation under the Habitats and Birds Directives?

In: Journal for European Environmental & Planning Law

While several Dutch academics consider the development of ecological corridors in the Netherlands a duty under the Birds and/or the Habitats Directive, other academics and the Dutch government consider them as being measures going further than required by Union law, alias gold plating. In 2010, the Dutch government blocked the development of these corridors. On the basis of the analysis of the Habitats Directive’s preliminary documents and the case law of the CJEU, this Article concludes that, generally, the development of ecological corridors is not an obligation. However, if not developing them seriously compromises the achievement of the goals pursued by the Union legislator, there is a duty to develop them. Furthermore, although in most of the cases their development is not an obligation, it can be argued that, in the light of the principle of sincere cooperation, the Member States have to perform a case-by-case assessment of whether the competence to develop ecological corridors should be exercised.

  • 3)

    TK 1989/90, 21149, nrs. 2-3, p. 78 et seq., and Ministerie van LNV, Nota, Natuur voor Mensen, Mensen voor Natuur.

  • 5)

    TK 2003/04, 29435, nr. 1-2, p. 115.

  • 18)

    TK 1989/90, 21149, nrs. 2-3, p. 78 et seq.

  • 29)

    Id., Annex, p. 6. Provinces where informed by letter, see for example the letter that the Secretary of State for Economic affairs, Agriculture and Innovation has sent to Province Flevoland concerning the development of an ecological corridor between the Veluwe en the Oostvaardersplassen, reference number NLP 2010-3065.

  • 41)

    COM(2009) 147 final, p. 11 and M. Kettunen et al., Guidance on the maintenance of landscape connectivity features of major importance for wild flora and fauna: Guidance on the implementation of Article 3 of the Birds Directive (79/409/EEC) and Article 10 of the Habitats Directive (92/43/EEC), 2007.

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