Complex Environmental Procedures and European Biodiversity Protection: Protected-Species Derogations, Time Limits for Judicial Review and Access to Justice

Abstract

This article examines, in the light of the Court of Justice’s judgment in Drumakilla, the relationship between the strict protection of animal species under the Habitats Directive, the environmental impact assessment process and national rules governing judicial review. The Court held that EU law does not preclude a Member State from treating a derogation granted under Article 16 of the Habitats Directive as an autonomous act subject to a three-month limitation period, even where that period may expire before final development consent is issued. Such procedural autonomy remains subject to equivalence and effectiveness, actual or reasonable knowledge of both the operative part and the reasons of the decision, and foreseeability of the applicable remedy. The judgment departs from Advocate General Medina’s integrated approach, under which the period could not expire before final consent. The analysis shows that the Court separates the substantive unity of environmental decision-making from the procedural autonomy of its component acts and insufficiently addresses the cumulative burden generated by multiple authorisations and proceedings. The comparison with French, German and Italian law points towards a model of procedural integration without mandatory institutional fusion.