The European Court of Justice has recently clarified how the Birds Directive should be interpreted. The ruling has major implications for forestry, wind power and other activities where bird protection is relevant. Ecogain's lawyers explain what the ruling means and what it could mean for future permit assessments.
How to apply bird protection
The Estonian Supreme Court has referred questions on the interpretation of the Birds Directive in relation to forestry, and the European Court of Justice has ruled.
The case concerns forest felling, where the national environmental authority decided to stop thinning and clear-cutting during the bird nesting period. The authority points out that scientific evidence shows that there is at least one breeding pair of birds per hectare in each forest area and that around ten different species of birds were likely to be nesting in the parcels in question.
The CJEU ruling clarifies the following:
- The prohibition covers acts of deliberately capturing or killing wild birds or deliberately destroying or damaging their nests or eggs, even if that is not the actual purpose of the act.
Cutting down forest where birds nest, either by clear-cutting or thinning during the birds' nesting period, involves the deliberate killing of birds and the destruction or damage of their nests or eggs and is covered by the prohibition. The reason is that it implies acceptance of the risk of birds being caught, killed or their nests and eggs being destroyed or damaged. The same applies if the harvesting disturbs birds, if the disturbance has a significant impact on the objective of maintaining the population of the bird species concerned at a satisfactory level, or restoring the population to such a level.
- It is only for the prohibition to deliberately disturb wild birds that a significant impact on the objective of maintaining the population of the bird species concerned at a satisfactory level, or restoring the population to such a level, is required for the prohibition to apply. For the prohibitions on deliberately capturing or killing wild birds or deliberately destroying or damaging their nests or eggs, there is no such requirement. This means that all birds at the individual level are protected from being captured or killed and from having their nests and eggs destroyed - regardless of their good or bad conservation status.
Thus, it is not relevant to assess the impact of the activity on the conservation status of the bird species concerned when considering prohibitions on the deliberate capture or killing of wild birds or the deliberate destruction or damage of their nests or eggs. This applies regardless of whether the purpose of the activity is, or is not, to capture or kill birds or to destroy or damage their nests or eggs.The Court stated that such a test is, however, relevant in the exemption procedure. - It is not necessary to know the exact species or number of birds affected. If, on the basis of scientific data and observations, it can be concluded that the forest where felling is to take place contains approximately ten breeding pairs of birds, then such felling during the breeding and rearing period of birds is subject to the prohibitions on deliberately capturing or killing wild birds or deliberately destroying or damaging their nests or eggs. This also applies to the prohibition of deliberate disturbance if the disturbance has a significant impact on the objective of maintaining the population of the bird species concerned at a satisfactory level, or restoring it to such a level.
What is the significance of the ruling?
The ruling means that the prohibitions on deliberately capturing or killing wild birds or deliberately destroying or damaging their nests or eggs apply broadly and are not limited to endangered bird species, but apply to all species regardless of their good or poor conservation status. The ruling also means that the prohibitions also cover activities where it is clear that the activity has a purpose other than capturing or killing and destroying or damaging the eggs or nests of wild birds. In other words, bird protection is to be interpreted more strictly than the Swedish interpretation of the legal text has previously been. For example, the guidance produced by the Swedish Forest Agency and the Swedish Environmental Protection Agency regarding the protection of birds in forestry is in conflict with the ruling of the European Court of Justice.
How the ruling affects wind, solar, forestry and agriculture
For wind and solar energy developments and forestry and agriculture, the interpretation implies that harvesting during the breeding season can be prohibited already on the basis of general scientific data on bird abundance and that project planning has to take into account a broader interpretation of the protection provisions of the Birds Directive. Other forms of indirect killing, such as the collision of a bird with a wind turbine, should also be covered by the prohibition, regardless of the conservation status of the species.
The judgment and exemption from bird protection
This is an important ruling in principle. The European Court of Justice makes it clear that the prohibitions on deliberately capturing or killing wild birds and deliberately destroying or damaging nests or eggs in the Species Protection Regulation are very far-reaching, and that the assessment of population levels belongs first in the exemption assessment. Our assessment is that the issue of exemption from the ban will be raised to a greater extent than today. However, the next question is how much success an operator would have in such a procedure, as there are several different requirements that need to be met for an exemption to be granted.
Permit assessments and project planning under the stricter Birds Directive
The ruling means that bird protection will become more relevant in permit assessments and our assessment is that operators have much to gain from having good knowledge of the bird population in their project area. At Ecogain, we follow developments closely and assist our clients in analyzing what the decision means for ongoing and planned activities. Our bird experts are used to assessing the impact of an activity on birds and to inventory the birds that may be affected.
Read more about our bird survey services
Please contact us if you would like to discuss how the judgment may affect your business.
Ecogain's lawyers have extensive experience in permitting and species protection issues and can guide you through the entire process.
