Non-Regression Clauses in Times of Ecological Restoration Law: Article 6(2) of the EU Habitats Directive as an Unusual Ally to Restore Natura 2000?

Abstract

Recently, the concept of ecological restoration has risen to the fore in international and regional biodiversity policies as a newly coined tool for the intentional recovery of degraded ecosystems. The EU Biodiversity Strategy to 2020 has also embraced ecological restoration and translated it into an ambitious target to restore 15% of the degraded ecosystems in the EU. Although the concrete delineation of these recent policies remains uncertain, to say the least, it is obvious that the EU Nature Directives will play a crucial role in achieving these restoration targets. In recent years, the relevance of the non-regression or standstill clause contained in Article 6(2) of the Habitats Directive – which does not seem to focus on recovery but rather on avoiding additional losses in Natura 2000 sites – to achieving these objectives has gained considerable traction. This paper argues that taking into account recent CJEU case-law developments and the lack of proper enforcement of conservation duties during the past two decades, Article 6(2) of the Habitats Directive will be a major catalyst for the implementation of more robust recovery policies, especially in cases of previous non-compliance with the conservation duties that EU Member States have regarding the Natura 2000 Network. Its legal teeth allow it to bolster recovery and remediation programmes across the EU, tackling past, interim and ongoing biodiversity losses in the context of the Natura 2000 Network, and to remove bothersome obstacles that stand in the way of further restoration.

Keywords: nature conservation law, non-regression, ecological restoration, prevention, EU Habitats Directive, Natura 2000