Abstract
The paper focuses on recent amendments made by Act No. 225/2017 Coll. to the § 45i of the Nature and Landscape Protection Act. These changes mainly concerned the conditions under which a project with significant negative effect on a NATURA 2000 site can be authorised.
Particularly, it is no longer required that compensatory measures had been taken before the authorisation of the project as well as that they are deemed to be taken if certain statutory conditions are met - even though the measures are not fully functional. In order to ascertain whether the new rules are in line with the requirements of the EU law, the author examines Art. 6 (4) of the Habitats Directive and relevant case law.
It is established that neither the Directive nor the case law support the conclusion that compensatory measures must be taken before the authorisation. The author then tries to determine to such interpretation of the current provisions that would preserve the effectiveness of Art. 6 (4) of the Habitats Directive.
It is concluded that the new regulation is in compliance with EU law, provided it will be interpreted accordingly. However, it constitutes a step back in terms of both nature protection and achieving the overall objectives of EU law in the area of the environment since it provides for yet another exception from the general rules and its possible misapplication cannot be contested by the public concerned.