implies that regardless of the human or natural origin of the deterioration, it has to
be averted in both an anticipatory and restoring sense (Trouwborst 2011, p. 74;
Schumacher et al. 2013, Sec. 5.4.2 et seq.). Plans and projects ought to be rejected
when they are expected to interact negatively with present or future climate change
induced impacts on the protected area (Schumacher and Schumacher 2012,
pp. 120–122; Cliquet et al. 2009, p. 170). Whereas Art. 6 (2)–(4) HD provide for
measures to avoid deterioration, area management according to Art. 6 (1) HD
(Art. 3 BD) requires positive measures for restoring favourable conservation status
(European Commission 2000, p. 16 et seq.). However, due to its vague formulation
and the lack of both strict measurement planning obligations and target dates, it is
not capable of enforcing satisfactory practical implementation, although the management duty is considered to be an obligation of result (Trouwborst 2011, p. 74, at
Fn. 144; European Commission 2000, p. 17). The consequence of this inconsistency
is that Art. 6 (1) HD cannot effectively guarantee active resilience improvement,
although it gives ample room for positive measures that are aimed at raising the
present protection standard through restoration (Verschuuren 2010, p. 437). Art. 4
WFD, in contrast, not only stipulates a deterioration prohibition, but also obliges
the member states to achieve a good status of all surface and ground water bodies.
These objectives and the required measures to achieve them can contribute to a
great extent to the resilience of aquatic ecosystems.
Some principled flexibility is contained in the regulations of Art. 4 (1) (4) HD
and Art. 4 (1), (2) BD, allowing adaptation of the list of proposed sites of community interest (Cliquet et al. 2009, p. 164 et seq.; Trouwborst 2011, p. 73 et seq.).
Whilst the procedure according to the Habitats Directive requires the participation
of the Commission, flexibility is inherent in the Birds Directive’s ongoing duty to
designate areas as required (Dodd et al. 2010, p. 147). Another hint of flexibility is
contained in Art. 9 HD that allows the declassification of areas in rare cases where it
is warranted by the results of the surveillance that has to take place according to
Art. 11 HD (Thomas 2008, p. 4, 11). The Birds Directive does not contain similar
provisions, but the criteria for declassification are just as strict (Schumacher and
Schumacher 2012, p. 115 et seq.; Thomas 2008, pp. 9–11). The results of surveillance and research can also lead to the formation of a new technical and scientific
standard and hence to an adaptation of the annexes according to Art. 19 HD (Art. 15
BD), including habitat type definitions, selection criteria and listed species
(Schumacher et al. 2013, Sec. 5.4.8 et seq.). The objectives of Art. 4 WFD are
flexible in two respects. Climate change may, on the one hand, justify the adaptation of the reference sites for good water status (cf. Annex II of the WFD), and, on
the other hand, it may be the reason for making use of the exemptions from good
water status (cf. Art. 4 (3) to (7) WFD) (Reese 2011, p. 72 et seq.). Exemptions
without justification in line with the directive are not to be seen as a general strategy
to cope with the consequences of climate change (EC 2009, p. 58).
Also management planning, Art. 6 (1) HD, and network coherence improvement, Art. 10 HD, are clear options for resilience improvement (Schumacher and
Schumacher 2012, p. 107). However, they are not mandatory and their implementation is not enforceable (Trouwborst 2011, p. 74 et seq.; Cliquet et al. 2009,
9 Legal Aspects of Climate Change Adaptation
143
be averted in both an anticipatory and restoring sense (Trouwborst 2011, p. 74;
Schumacher et al. 2013, Sec. 5.4.2 et seq.). Plans and projects ought to be rejected
when they are expected to interact negatively with present or future climate change
induced impacts on the protected area (Schumacher and Schumacher 2012,
pp. 120–122; Cliquet et al. 2009, p. 170). Whereas Art. 6 (2)–(4) HD provide for
measures to avoid deterioration, area management according to Art. 6 (1) HD
(Art. 3 BD) requires positive measures for restoring favourable conservation status
(European Commission 2000, p. 16 et seq.). However, due to its vague formulation
and the lack of both strict measurement planning obligations and target dates, it is
not capable of enforcing satisfactory practical implementation, although the management duty is considered to be an obligation of result (Trouwborst 2011, p. 74, at
Fn. 144; European Commission 2000, p. 17). The consequence of this inconsistency
is that Art. 6 (1) HD cannot effectively guarantee active resilience improvement,
although it gives ample room for positive measures that are aimed at raising the
present protection standard through restoration (Verschuuren 2010, p. 437). Art. 4
WFD, in contrast, not only stipulates a deterioration prohibition, but also obliges
the member states to achieve a good status of all surface and ground water bodies.
These objectives and the required measures to achieve them can contribute to a
great extent to the resilience of aquatic ecosystems.
Some principled flexibility is contained in the regulations of Art. 4 (1) (4) HD
and Art. 4 (1), (2) BD, allowing adaptation of the list of proposed sites of community interest (Cliquet et al. 2009, p. 164 et seq.; Trouwborst 2011, p. 73 et seq.).
Whilst the procedure according to the Habitats Directive requires the participation
of the Commission, flexibility is inherent in the Birds Directive’s ongoing duty to
designate areas as required (Dodd et al. 2010, p. 147). Another hint of flexibility is
contained in Art. 9 HD that allows the declassification of areas in rare cases where it
is warranted by the results of the surveillance that has to take place according to
Art. 11 HD (Thomas 2008, p. 4, 11). The Birds Directive does not contain similar
provisions, but the criteria for declassification are just as strict (Schumacher and
Schumacher 2012, p. 115 et seq.; Thomas 2008, pp. 9–11). The results of surveillance and research can also lead to the formation of a new technical and scientific
standard and hence to an adaptation of the annexes according to Art. 19 HD (Art. 15
BD), including habitat type definitions, selection criteria and listed species
(Schumacher et al. 2013, Sec. 5.4.8 et seq.). The objectives of Art. 4 WFD are
flexible in two respects. Climate change may, on the one hand, justify the adaptation of the reference sites for good water status (cf. Annex II of the WFD), and, on
the other hand, it may be the reason for making use of the exemptions from good
water status (cf. Art. 4 (3) to (7) WFD) (Reese 2011, p. 72 et seq.). Exemptions
without justification in line with the directive are not to be seen as a general strategy
to cope with the consequences of climate change (EC 2009, p. 58).
Also management planning, Art. 6 (1) HD, and network coherence improvement, Art. 10 HD, are clear options for resilience improvement (Schumacher and
Schumacher 2012, p. 107). However, they are not mandatory and their implementation is not enforceable (Trouwborst 2011, p. 74 et seq.; Cliquet et al. 2009,
9 Legal Aspects of Climate Change Adaptation
143