The judicial interpretation of the Habitats Directive by the CJEU: a high water mark for offshore renewable energy developers

摘要

This paper offers a strong critique of the particular interpretation of the precautionary principle by the Court of Justice of the European Union (CJEU) under the appropriate assessment procedure of the Habitats Directive. The CJEU favours a 'criminal-like' standard of proof whereby project developers must provide the necessary evidence to inform national licensing authorities beyond all reasonable scientific doubt of the absence of threats to the integrity of nearby marine Natura 2000 sites. This strict application of the precautionary principle is no longer suitable with respect to nascent offshore renewable energy technologies. It erects a standard of proof that cannot be realistically met by project developers in the marine environment and stands as an obstacle in the way of technologies that are needed to tackle the greatest environmental threat of climate change.