Habitat Protection Law and Species Protection Law
The European legal requirements of the Habitats Directive (FFH Directive) must be implemented into the national law of each member state. Therefore, the following paragraphs mainly refer German context. In Germany, this was primarily done in 1998, 2007, and 2010 through amendments to the Federal Nature Conservation Act (BNatSchG) (see TLUBN, www.buzer.de/BNatSchG.htm). The BNatSchG contains fundamental regulations concerning habitat and species protection laws. Section 2 of the BNatSchG deals with habitat protection law, which regulates the protection of Natura 2000 areas, i.e., the protected areas under the Habitats Directive (Directive 92/43/EEC) and the Birds Directive (Directive 2009/147/EC). Species protection law refers to the protection of wild animal and plant species.
Habitat Protection Law
The designation of Natura 2000 areas is regulated in § 32 Paras. 2 to 4 of the BNatSchG. The areas are to be declared as protected parts of nature and landscape by the federal states. Consequently, Natura 2000 areas are not an additional national category of protected areas; instead, they are assigned to one of the categories in the BNatSchG (e.g., nature reserve, landscape protection area). Alternatively, Natura 2000 areas can be designated through a legal ordinance (§ 32 Para. 4 BNatSchG), such as the Thuringian Natura 2000 Conservation Objectives Ordinance, provided they ensure equivalent protection.
According to Art. 6 Para. 1 of the Habitats Directive, necessary conservation measures are to be determined by the member states, which is partly done by means of management plans (see § 32 Para. 5 BNatSchG).
If a Natura 2000 site could be significantly affected by plans or projects, they must be subjected to an FFH (Habitat) impact assessment to evaluate their compatibility with the protection and conservation objectives of the areas. A preliminary assessment determines whether a plan or project could potentially cause a significant impact on a Natura 2000 site (see BfN 2022).
If the FFH impact assessment concludes that a significant impact is likely, the project or plan is not permissible (see Art. 6 para. 3 of the Habitats Directive and § 34 BNatSchG). However, if a project or plan is deemed necessary "for imperative reasons of overriding public interest" (Art. 6 Para. 4 FH Directive) and no reasonable alternative solution exists, an exception can be made. In such cases, an FFH exception assessment must be carried out (§ 34 Para. 3 to 5 BNatSchG).
Species Protection Law
The BNatSchG differentiates between specially protected and strictly protected species (§ 7 Para. 2 BNatSchG). Specially protected species include all European bird species, and the animal and plant species listed in Annex IV of the Habitats Directive (§ 7 Para. 2 No. 13). These species are subject to restrictions on possession and marketing (§ 44 Para. 2 BNatSchG), as well as prohibitions against interference as outlined in § 44 Para. 1 No. 1, No. 3, and No. 4 BNatSchG.
For strictly protected species and European bird species, an additional interference prohibition applies (§ 44 Para. 1 No. 2 BNatSchG): "It is prohibited… to significantly disturb wild animals of strictly protected species and European bird species during their breeding, rearing, molting, wintering, and migration periods; a significant disturbance is defined as any action that negatively affects the conservation status of the local population of a species…". These prohibitions include, among other things, bans on killing the species in question, disturbing their occurrence, or destroying their habitats.
In planning and approval procedures, only species listed in Annex IV of the Habitats Directive and wild bird species are protected by the interference prohibitions (§ 44 Para. 5 Sentence 5 BNatSchG). Whether these species are affected by the prohibitions is determined by a special species protection assessment (saP). Particularly under the second interference prohibition (significant disturbance with a deterioration in the conservation status of the local population), and certain birds from Annex I of the Birds Directive often become prominent as "planning-relevant species" and potential "construction stoppers" in various construction projects.
Sources
BfN: Federal Agency for Nature Conservation (2022). FFH Impact Assessment. Retrieved on 26.10.2022, available at https://www.bfn.de/ffh-vertraeglichkeitspruefung
BNatSchG: Federal Nature Conservation Act of July 29, 2009 (BGBl. I p. 2542), last amended by Article 1 of the Act of July 20, 2022 (BGBl. I p. 1362, 1436). Retrieved on 28.10.22, available at https://www.buzer.de/BNatSchG.htm
FFH-RL: Council Directive 92/43/EEC of May 21, 1992 on the conservation of natural habitats and wild fauna and flora, available at https://eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri=CELEX:01992L0043-20130701&from=DE
TLUBN: Thuringian State Office for the Environment, Mining and Nature Conservation (n.d.). Legal Frameworks. European Birds Directive and Habitats Directive. Retrieved on 26.10.2022, available at https://natura2000.thueringen.de/rechtliche-grundlagen