Restore Now, Destroy Later? A Legal Analysis of the Non-Deterioration Obligations in the Nature Restoration Regulation and beyond

The report examines the three types of non-deterioration obligations in the Nature Restoration Regulation (NRL): continuous improvement, non-deterioration of good status, and pre-restoration non-deterioration. It argues that these obligations are not merely effort-based but require 'appropriate measures' and are essential for the long-term success of ecosystem restoration. The analysis highlights the interplay between the NRL and the Habitats Directive, particularly regarding Natura 2000 sites, and critiques the uniform National Restoration Plan (NRP) format for providing inadequate guidance on demonstrating compliance with these obligations. It also details the strict criteria for derogations, such as force majeure and overriding public interest, emphasizing that they must be interpreted narrowly to avoid undermining overall restoration targets.

• The NRL contains three distinct non-deterioration obligations with different temporal scopes: a 'pre-restoration non-deterioration obligation' (Art.4(12)) applying from August 2024; a 'continuous improvement obligation' (Art.4(11) first sentence) applying once restoration measures are taken; and a 'non-deterioration of restored habitats (and habitats in good condition) obligation' (Art.4(11) second sentence) applying once good condition or sufficient quality is reached.
• The obligations in Art.4(11) are classified as 'measures-based obligations' (obligations of conduct), which sit between strict 'obligations of result' and 'pure effort-based obligations'. While not guaranteeing a result, they require Member States to put in place 'appropriate measures' suitable for achieving the outcome.
• The pre-restoration non-deterioration obligation under Art.4(12) is a 'pure effort-based obligation' requiring Member States to make a 'serious attempt' to take all reasonable and targeted measures to prevent significant deterioration of Annex I habitats.
• Deterioration does not automatically prove non-compliance for measures-based obligations, but it serves as an indication that measures were inadequate, which shifts the burden of proof to the Member State to demonstrate that appropriate measures were taken.
• The NRL's non-deterioration obligations are 'without prejudice' to the Habitats Directive (HD). In Natura 2000 sites, the stricter Art.6(2) HD obligation of result continues to apply, meaning NRL derogations do not exempt Member States from their pre-existing HD obligations.
• The derogation allowing non-deterioration to be applied at a biogeographical level (Art.4(13)) is subject to strict conditions, including the 'absence of alternatives' and the provision of compensatory measures. This derogation can only be used on a maximum of 10% of Annex I habitats to avoid undermining the Art.4(17) target of 90% good condition.
• Exemptions for deterioration caused by force majeure or climate change (Art.4(14) and (15)) must be interpreted narrowly. For climate change, transformations must be 'unavoidable', and failure to comply with EU and international climate mitigation obligations may disqualify a Member State from relying on this derogation.
• The uniform National Restoration Plan (NRP) format adopted via Implementing Regulation 2025/912 is criticized for providing inadequate guidance and insufficient space for Member States to demonstrate compliance with the detailed, site-specific requirements of the NRL.

APA

Hildt, L., & Agapakis, I. (2025). Restore Now, Destroy Later? A Legal Analysis of the Non-Deterioration Obligations in the Nature Restoration Regulation and beyond. ClientEarth. https://www.clientearth.org/media/o0slabiy/nrl3.pdf

Chicago

Hildt, Laura, and Ioannis Agapakis. Restore Now, Destroy Later? A Legal Analysis of the Non-Deterioration Obligations in the Nature Restoration Regulation and beyond. ClientEarth, 2025. https://www.clientearth.org/media/o0slabiy/nrl3.pdf.

Wikipedia

{{cite report |last1=Hildt |first1=Laura |last2=Agapakis |first2=Ioannis |title=Restore Now, Destroy Later? A Legal Analysis of the Non-Deterioration Obligations in the Nature Restoration Regulation and beyond |publisher=ClientEarth |date=July 2025 |url=https://www.clientearth.org/media/o0slabiy/nrl3.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{hildt2025restore, author = {Hildt, Laura and Agapakis, Ioannis}, title = {{Restore Now, Destroy Later? A Legal Analysis of the Non-Deterioration Obligations in the Nature Restoration Regulation and beyond}}, institution = {ClientEarth}, year = {2025}, month = jul, url = {https://www.clientearth.org/media/o0slabiy/nrl3.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }