Judicial review of the application of article 6(3) Habitats Directive: How the Dutch Council of State integrates science, expertise and scientific uncertainty

The Habitats Directive (HD) is a very frequent protagonist in national judicial proceedings in the Netherlands, as species and ecosystems struggle to cope with severe human pressures in heavily fragmented landscapes extending across a large number of comparatively small ‘Special Areas of Conservation’ and ‘Special Protection Areas’ together indicated as Natura 2000 areas or sites.

The Netherlands has 166 designated Natura 2000 areas; efforts to connect all sites in a network have been dragging on for years. Only 25 % of the species and 4% of protected Natura 2000 sites have a favourable conservation status. This makes the conservation of biodiversity a challenging enterprise, and the need for management particularly great. In particular, the application of Article 6(3) HD, and the underlying appropriate assessment, has led to extensive case law. A big proportion of these cases resolves around the problem of excessive nitrogen deposition caused mainly by agricultural activities.

This Chapter begins by briefly setting the Dutch legal context in which the Habitats Directive operates. Before examining the way that the courts deal with (contested) science, it is essential to address the conditions under which NGOs and interested parties have access to the courts. This is especially so since the Dutch courts have increasingly narrowed standing rights in recent years and have recently been critically scrutinized by the Court of Justice of the European Union (CJEU) in light of the Arhus Convention.

Judicial protection, especially before the administrative courts, requires an understanding of the complex technical and scientific environmental issues at hand. The process of integrating expert knowledge into the judicial process, and of reviewing the legality of decisions with a scientific underpinning as required by Article 9(2) Arhus Convention, is considered in this chapter. Finally, we will zoom in on some controversial case law of the Dutch administrative courts regarding the application of articles 6(3) and 6(4), highlighting the shift in the Dutch case law caused by the interpretation of Article 6 by the CJEU.