HAVET & VANHUFFEL – Association d’avocats
In a judgment of 22 October 2026 (Case C‑548/25 – Dryade v Flemish Region of Belgium), the Court of Justice of the European Union held that Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora precludes national legislation which exempts certain categories of plans or projects from the requirement to carry out an appropriate assessment on the basis of predetermined criteria and thresholds, where those criteria and thresholds do not make it possible to rule out with certainty, on the basis of objective information, that those plans or projects are likely, either individually or in combination with other plans and projects, to have a significant effect on a special area of conservation.
1. Subject matter of the judgment
The Court of Justice of the European Union (CJEU) was asked to give a preliminary ruling on the interpretation of Article 6(3) of Directive 92/43/EEC of 21 May 1992, known as the “Habitats Directive”. That provision seeks to protect special areas of conservation (SACs) by requiring an appropriate assessment of the implications of certain plans and projects likely to have a significant effect on such sites. The question was whether national legislation may exempt certain projects from that assessment where they are subject merely to a notification requirement rather than to prior authorisation.
2. Facts and background to the case
On 13 November 2023, a company notified the City of Peer, Belgium, of a groundwater abstraction project. The project involved drilling a borehole to a depth of 60 metres, with a maximum abstraction rate of 175 m³ per day and 5,000 m³ per year. It was located approximately 425 metres from a special area of conservation known as “Abeek with adjacent marshland areas”, which is protected under the Habitats Directive.
The company had submitted, together with its notification, an ecological assessment concluding that no foreseeable adverse effects on the protected area would arise. In particular, it argued that the radius within which the groundwater level would fall by one centimetre would be limited to 137 metres. On 24 November 2023, the City of Peer acknowledged the notification, taking the view that the environmental risks and impacts could be limited to an acceptable level, subject to compliance with certain conditions.
The environmental association Dryade challenged that decision before the Belgian Council for Permit Disputes, seeking its annulment. It argued that the project was likely to have a significant effect on the special area of conservation and should therefore have been subject to an appropriate assessment in accordance with the Habitats Directive. According to Dryade, the assessment submitted by the company was insufficient, in particular because it was based on a questionable scientific criterion and failed to take account of the cumulative effects of other groundwater abstractions located within the protected area.
Under Flemish law, groundwater abstraction activities are divided into different classes according to criteria such as abstraction rate and depth. Projects falling within Classes 1 and 2 are subject to an authorisation requirement, whereas Class 3 projects are subject merely to a notification requirement. Under the national legislation at issue, however, the requirement to carry out an appropriate assessment applied only to activities subject to authorisation. Since the project at issue fell within Class 3, it was therefore systematically exempt from that requirement.
The Belgian court asked the CJEU whether Article 6(3) of the Habitats Directive precludes national legislation which exempts projects subject merely to a notification requirement from an appropriate assessment, even where those projects are likely to have a significant effect on the integrity of a special area of conservation. The Court was therefore required to determine whether predetermined criteria and thresholds may justify a general exemption from the environmental assessment requirement.
3. The Court’s reasoning
The Court recalled that Article 6(3) of the Habitats Directive provides for a two-stage assessment procedure. First, an appropriate assessment is required where a project is likely to have a significant effect on a protected site. Such a risk exists where it cannot be ruled out, on the basis of the best scientific knowledge available, that the project may adversely affect the conservation objectives of the site. Second, the competent authority may authorise the project only after having ascertained that it will not adversely affect the integrity of the site concerned, subject to the exceptions provided for by the Directive.
The Court recalled that, as a matter of principle, a Member State may not systematically exempt certain categories of projects from an appropriate assessment on account of their nature, size or the fact that they are subject to a notification procedure. Even a small-scale project, such as a limited water abstraction, may have significant effects depending on the ecological sensitivity of the site. An exemption is permissible only where objective information makes it possible to rule out with certainty that any of the projects concerned are likely to have significant effects, either individually or in combination with other projects.
The Court emphasised that the assessment must take account not only of the characteristics of the individual project concerned, but also of its cumulative effects in combination with other existing or planned projects. However, the criteria laid down by the Flemish legislation appeared to be limited to the characteristics of each individual water abstraction, without making it possible to take sufficient account of other abstractions located within or near the protected area. The Court also stated that general environmental protection measures, the possibility for the administrative authorities to impose conditions, or the existence of penalties cannot replace the prior assessment required by Article 6(3).
The CJEU concluded that Article 6(3) of the Habitats Directive precludes national legislation which exempts certain categories of plans or projects from an appropriate assessment where the predetermined criteria and thresholds do not make it possible to rule out with certainty, on the basis of objective information, that those projects are likely to have significant effects on a special area of conservation, either individually or cumulatively with other projects. The judgment therefore strengthens the protection of Natura 2000 sites by confirming that notification-only regimes cannot be used to circumvent the environmental assessment requirement where a risk of significant effects remains.
For those reasons, the Court ruled as follows:
Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora
must be interpreted as meaning that:
it precludes national legislation which exempts certain categories of plans or projects from the requirement to carry out an appropriate assessment on the basis of predetermined criteria and thresholds, where those criteria and thresholds do not make it possible to rule out with certainty, on the basis of objective information, that those plans or projects are likely, either individually or in combination with other plans and projects, to have a significant effect on a special area of conservation.
To access the judgment, please follow the link: https://infocuria.curia.europa.eu/tabs/document/C/2025/C-0548-25-00000000RP-01-P-01/ARRET/328440-FR-1-html.