• ECJ judgement clarifies habitats protection, but is it a deterrent?

    The European Court of Justice has confirmed a ruling which finds Portugal guilty of breaking the EU habitats directive. The case (C-239/04) is interesting for its relevance to several schemes in central and eastern Europe.

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    When drawing up plans in the 1990s for the A2 motorway linking Lisbon with the coastal Algarve region in the south, the Portuguese government routed a section of it through the Castro Verde special protection area (SPA).

    An environmental impact assessment in 1999 showed the route would have a very significant negative impact on 17 species of wild birds listed in Annex I of the habitats directive (92/43/EEC) and on their habitat.

    The Portuguese government went ahead anyway without considering alternative routes for the motorway, and the stretch of the A2 through the Castro Verde was opened in July 2001.

    The Commission told Portugal that the directive required it to at least investigate alternative routes (which effectively meant through the towns of Alcarias, Conceição, Aivados and Estação de Ourique), and that if routing the A2 through the Castro Verde was considered a matter of “overriding public concern”, it should take all possible steps to minimise damage to the SPA. Convinced that Portugal had not fulfilled its obligations under article 6(4) of the directive, it began legal action in 2001.

    In its judgement last month, the ECJ said: “The inevitable conclusion is that, when authorising the planned route of the A2 motorway, the Portuguese authorities were not entitled to take the view that it would have no adverse effects on the SPA’s integrity … The fact that, after its completion, the project may not have produced such effects is immaterial to that assessment.” It found for the Commission and awarded costs to Portugal.

    Yet the costs of the case may be the only punishment for Portugal. The motorway has been built, and what damage has happened to the Castro Verde site is now done. The danger for other SPAs, and perhaps for the credibility of EU law, is that governments may decide that the cost of a lost court case is simply something to be factored into the cost of a controversial road scheme.

    This news story is taken from the November 2006 edition of T&E Bulletin.