Unlawfully Authorised Projects under the Habitats Directive: Remediation at All Costs?

Abstract

On 10 November 2022, the cjeu delivered its judgment in AquaPri concerning a Danish fish farm, which had been authorised in breach of the requirement to carry out an appropriate assessment laid down in Article 6(3) hd. The case provided the Court with an opportunity to clarify several important issues that may occur when the national authorities fail to carry out an appropriate assessment in line with this provision. In this annotation, we discuss the three main issues dealt with by the Court, namely (i) whether the renewal of existing permits falls under the concept of ‘project’ under Article 6(3) hd, (ii) the extent to which Member States must remedy the consequences of a failure to carry out an appropriate assessment, and (iii) the role of already conducted programme-based impact assessments in this regard.