Briels: habitat mitigation and compensation
T C Briels and others v Minister van Infrastructuur en Milieu, Case C-521/12, explains why promising replacement habitat is not necessarily the same as preventing harm to a protected site.
The Court of Justice rejected an approach which relied on creating a larger area of meadow elsewhere within the site to offset adverse effects on the existing protected meadow.
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- Neutral citation
- Case C-521/12; EU:C:2014:330
- Court
- Court of Justice of the European Union, Second Chamber
- Judgment date
- 15th May 2014
- Judge
- R. Silva de Lapuerta, J.L. da Cruz Vilaça, G. Arestis, J.-C. Bonichot and A. Arabadjiev
- Case number
- C-521/12
A motorway scheme affecting protected meadows
The case concerned widening the A2 motorway in the Netherlands. Increased nitrogen deposition would affect molinia meadows within a Natura 2000 site through drying and acidification.
The proposed response included changes to the water system which were expected to create a larger area of better-quality meadow in another part of the same protected site.
The referring court asked whether those new meadows could be taken into account to conclude that the project would not adversely affect the site’s integrity.
Avoiding harm and replacing what is lost are different
The court distinguished protective measures aimed at avoiding or reducing the project’s direct adverse effects from measures compensating for those effects after they occur.
The proposed replacement meadows did not prevent the existing protected habitat from suffering the adverse effects. Describing them as mitigation, or locating them within the same designated site, did not change that conclusion.
The uncertain benefits of future habitat creation were also significant. A replacement might take years to develop and did not provide the necessary certainty that the project would leave site integrity unharmed.
Compensation belongs to a separate legal route
Article 6(3) requires the authority to establish the necessary conclusion about site integrity. Read Waddenzee and Sweetman for the underlying assessment principles.
Where an adverse conclusion is reached, Article 6(4) provides a distinct route involving the absence of alternatives, imperative reasons of overriding public interest and the necessary compensatory measures. It cannot be used properly without first understanding the harm through assessment.
Compensation under that route may be located within or outside the affected site. Location alone does not determine whether a measure is mitigation or compensation.
What Briels does not establish
Briels does not make all habitat creation legally irrelevant. The question is what the measure actually does in relation to the effects on the protected site and its conservation objectives.
Nor does it merge appropriate assessment with the earlier screening stage. People Over Wind concerns the separate restriction on taking mitigation into account when deciding whether an appropriate assessment is required.
Proposals involving other habitats or functionally linked land require their own analysis. They should not be assumed to have the same facts as the loss and future replacement of the protected habitat in Briels.
Read the Briels judgment
The complete Court of Justice judgment is available to Gold Members. Its application to a present proposal requires the applicable domestic framework and later authorities to be identified.
Briels Case Law Page Updated: 12th September 2026