SOURCE: Monthly Case-law Digest - March 2021
Reference for a preliminary ruling – Environment – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 12(1) – Directive 2009/147/EC – Conservation of wild birds – Article 5 – Forestry – Prohibitions intended to ensure the conservation of protected species – Plan for final felling of trees – Site hosting protected species
After receiving a notification of tree felling relating to an area of forest in the municipality of Härryda (Sweden), the Skogsstyrelsen (Forest Agency, Sweden) issued guidance stating that, on condition that the recommended precautionary measures were complied with, the final felling of almost all the trees in the area concerned, which is the natural habitat of a number of protected species, would not be contrary to Swedish legislation on the protection of species.
Three environment protection associations, which regard the planned felling as being in breach of that legislation, which transposes the Birds Directive and the Habitats Directive into Swedish law, requested the Länsstyrelsen i Västra Götalands län (Regional Administrative Board of Västra Götaland, Sweden) to take action. The Regional Administrative Board nevertheless decided not to take any oversight measures, endorsing, in essence, the favourable guidance issued by the Forest Agency.
The associations challenged the Regional Administrative Board’s decision in proceedings brought before the Vänersborgs tingsrätt, mark- och miljödomstolen (Vänersborg District Court, Land and Environment Court, Sweden). That court, which must therefore determine the impact of the forestry activity at issue on the protection of the species present in the area concerned, referred to the Court for a preliminary ruling several questions on the conditions for applying and the scope of the prohibitions laid down in that regard in the Birds and Habitats Directives.
The Court’s assessment
First of all, so far as concerns the Birds Directive, the Court notes that that directive requires the Member States, in accordance with its Article 5, to take the requisite measures to establish a general system of protection of birds, including, in particular, prohibitions on the deliberate killing, capture or disturbance of birds and their eggs.
The Court makes clear that the scope of those prohibitions covers all species of wild birds naturally occurring in the European territory of the Member States and, in contrast to Swedish practice, does not therefore cover only certain categories of species, namely those listed in Annex I to that directive, those which are at some level at risk or those which are suffering a long-term decline in population. That interpretation is supported by the object and purpose of the Birds Directive and by the context of Article 5 thereof. In that regard, it is noted that the conservation of bird species is necessary in order to achieve a high level of protection of the environment and the European Union’s objectives in terms of sustainable development and improvement of living conditions. The Court states, in addition, that the Birds Directive makes a distinction between the system of general protection applicable to all species of bird and the specifically targeted and reinforced protection regime established for the species of birds listed in its Annex I.
Next, the Court notes that, like the Birds Directive, the Habitats Directive provides for the establishment of a system of strict protection for protected animal species, based on, among other things, the prohibitions set out in Article 12(1)(a) to (c) on the deliberate capture, killing or disturbance of specimens of those species, and the destruction or taking of their eggs.
In that regard, the Court states that the condition as to deliberate action means that the author of the act at issue intended one of the types of harm referred to above or, at the very least, accepted the possibility of such a thing, such that the prohibitions listed in Article 12(1)(a) to (c) of the Habitats Directive are capable of being applied to an activity, such as forestry work, the purpose of which is manifestly different from the capture, killing or disturbance of animal species or the deliberate destruction or taking of eggs. Having regard to the objectives of the Habitats Directive, as well as to the wording and context of the aforementioned provision, the applicability of those prohibitions is likewise not subject to the condition of a risk of an adverse effect caused by a given activity on the conservation status of the species concerned. An interpretation to the contrary would lead to a circumvention of the examination of the effect of an activity on the conservation status of an animal species which is, by contrast, necessary for the purposes of adopting derogations from those prohibitions.
Furthermore, to the extent that the Habitats Directive seeks, for the purpose of preserving biodiversity, to ensure the restoration or maintenance of natural habitats and species of wild fauna and flora at a favourable conservation status, the prohibitions laid down in Article 12(1)(a) to (c) thereof apply even to species which have achieved such a conservation status, as those species must be protected against any deterioration of that status.
The Court then notes that, for the purpose of achieving the objectives of the Habitats Directive, the competent authorities must adopt preventive measures and anticipate what activities could harm protected species. It is thus a matter for the referring court to determine whether, in the main proceedings, the forestry work at issue is based on a preventive approach which has regard for the conservation needs of the species concerned, while taking into consideration the economic, social, cultural, regional and local requirements.
Lastly, as regards the prohibition on the deterioration or destruction of breeding sites or resting places, set out in Article 12(1)(d) of the Habitats Directive, the Court states that the strict protection laid down in that provision is not dependent on the number of specimens of a species present in the area concerned. A fortiori, that protection cannot depend on the risk of an adverse effect on the conservation status of the species concerned where, in spite of precautionary measures, the continuous ecological functionality of the natural habitat of that species is lost.