Dryade lodged a complaint with the European Commission because Flanders does not require an impact assessment for notifiable activities (e.g. drainage) in or near Natura 2000 areas. The Commission agreed with Dryade and found that Flanders is violating European regulations. The Commission is not initiating a specific infringement procedure on this matter but is considering a general infringement procedure against the Flemish Region regarding nature protection.
In the judgment of 26 May 2011 (C‑538/09) the European Court of Justice condemned the Walloon Region for a breach of Article 6(3) of the Habitats Directive. The reason is that the Walloon Nature Decree (Decree of 22 May 2008) did not require an appropriate assessment for notifiable activities, only for activities requiring a permit. According to Walloon regulations, activities and installations requiring a permit were classified in classes 1 and 2, while notifiable activities were in class 3. Meanwhile, the Walloon Region has come into compliance.
The Flemish Nature Decree provides in Article 36ter, §3, paragraph 1 that only activities requiring a permit near Natura 2000 areas need an appropriate assessment. This is not the case for notifiable activities. Just like in Wallonia, Annex 1 to Vlarem II classifies installations and activities into 3 classes. In our case, classes 1 and 2 require a permit, while class 3 is only notifiable. In other words, the Flemish regulations are a perfect copy of the condemned and subsequently amended Walloon regulations.
On 10 February 2022, the environmental association Dryade submitted a complaint to the European Commission regarding this matter. The Flemish region has been aware of this infringement of Article 6(3) of the Habitats Directive for more than a decade but failed to remedy it.
On 24 June 2022 the European Commission expressed its views on the submitted complaint. The Commission confirms that the general exclusion of activities subject to notification from undergoing impact assessment constitutes an infringement of the Habitats Directive. In its decision, the Commission focuses on drainage projects and confirms that these can have significant effects on Natura 2000 areas. However, the decision encompasses all activities subject to notification.
The Commission indicates that it will not initiate infringement proceedings against the Flemish region. This infringement will be included in the analysis of the Flemish biodiversity strategy by the Commission. This investigation will be completed this autumn, after which a decision will be made on whether to initiate a general infringement procedure regarding all relevant aspects of nature conservation in Flanders.
Furthermore, the Commission advises raising this infringement with the government and in court. Noted!
An overview of the activities subject to notification can be found in Annex 1 to Vlarem II. Activities classified in class 3 are activities subject to notification.