1. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission COOPERATION WITH NATIONAL JUDGES AND PROSECUTORS IN THE FIELD OF EU ENVIRONMENTAL LAW WORKSHOP ON EU LEGISLATION NATURE PROTECTION © 2010 Microsoft Corporation. All rights reserved. Summary of important ECJ case law on Birds Directive

2. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 2 ECJ Decisions with respect to: Article 4Legal Protection Regime of SPA Article 5General system of protection of species Article 7Hunting, capture or killing of birds Article 9Derogations Content

3. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 3 It follows from Article 4(1) that each Member State has a specific obligation to designate sufficient SPAs to ensure the survival and reproduction of all the species of birds mentioned in Annex I which are on its territory. IBA 89 (inventory of important bird areas) identifies, on the basis of ornithological criteria used and explained in that study, 70 territories with a total area of 797 920 hectares suitable for classification as SPAs. Netherlands have only designated 23 territories with a total area of 327 602 hectares as SPAs and manifestly exceeded the limits of the discretion conferred on Member States by Article 4. Commissions point of view: Article 4Legal protection regime C-3/96, EU-Commission / The Netherlands

4. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 4 The designation of SPAs is only one of the measures by which a Member State may perform its obligation under Article 4(1) to take special conservation measures. Member States may also have recourse to other conservation measures to comply with that obligation. They have a margin of discretion in implementing Article 4(1) which merely requires designation of the most suitable territories. IBA 89 contains only a list of sites which, according to scientific criteria, could potentially serve for the conservation of endangered species. How- ever, the list is not included in the Directive and is not legally binding. When adopting the special conservation measures (Article 4(1)), Member States must take account also of economic and recreational requirements, in accordance with Article 2. Netherlands position:

5. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 5 1.To classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I is an obligation of Member States which it is not possible to avoid by adopting other special conservation methods. Otherwise the objective of creating a coherent network of SPAs, referred to in Article 4(3), might not be achieved. ECJ decision: 2.Where it appears that a MS has classified as SPA sites the number and total area of which are manifestly less than the number and total area of the sites considered to be the most suitable, it will be possible to find that that MS has failed to fulfill its obligation under Article 4(1).

6. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 6 3.For assessing the extent to which a Member State has complied with its obligation a reference may be the IBA which draws up an inventory of areas of great importance for the conservation of wild birds in the EU. ECJ decision: 4.Economic requirements mentioned in Article 2 may not be taken into account when selecting an SPA and defining its boundaries.

7. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 7 France has not taken sufficient special conservation measures concerning the habitat of the species referred to in Annex I and of migratory species which frequent that site. Existing decrees do not ensure sufficient and complete protection of all the bird species required to be protected in that site, either in relation to the protection regime established or in relation to its geographical extent. Three decrees for the protection of the biotope ensure complete protection of the bird species present in the areas. French authorities where not required to classify the whole area listed in national inventory as SPA. Commission position: French position: C-374/98, EU-Commission / France, Basses Corbières Site Case

8. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 8 There is nothing in the documents before the Court to show that the regime established by the three decrees for protecting the biotope is insufficient in relation to the conservation requirements of any of the bird species present in the areas covered by those decrees……….BUT: ECJ: The IBA, although not legally binding on the MS concerned, contains scientific evidence making it possible to assess whether a MS has complied with its obligation to classify as SPAs the most suitable territories in number and size for conservation of the protected species. It follows from the general scheme of Article 4 that, where a given area fulfills the criteria for classification as an SPA, it must be made the subject of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species mentioned in Annex I.

9. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 9 Consequence: France has failed to fulfil its obligations under Article 4(1) of the Birds Directive by not taking sufficient special conservation measures as to their geographical extent. (C-293/07, EU-Commission / Greece, Protection regime for SPAs) Greece has failed to take all the measures necessary to establish and apply a coherent, specific and integrated legal regime capable of ensuring viable management and effective protection of areas designated as SPA and hence failed to fulfill its obligations under Article 4(1) and (2).

10. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 10 (C-191/05, EU-Commission / Portugal) A Member State may not reduce the surface area of an SPA or alter its boundaries unless the areas excluded from the SPA are no longer the most suitable territories for the conservation of species of wild birds. (C-57/89, EU-Commission / Germany, Leybucht) Member States have a certain discretionary power to classify SPAs pursuant to Article 4(1), limited by the fact that the classification is subject to certain ornithological criteria such as presence of birds listed in Annex I and the designation of a habitat as a wetland area, on the other. However, Member States do not have the same discretion under Article 4(4) to reduce or modify the extent of such areas.

11. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 11 (C-96/98, EU-Commission / France, Poitevin Marsh) The first sentence of Article 4(4) requires Member States to take appropriate steps to avoid, inter alia, deterioration of habitats in the areas which are most suitable for the conservation of wild birds, even where the areas in question have not been classified as SPAs, provided that they should have been so classified. Failing to adopt appropriate measures to avoid deterioration of the sites in the Poitevin Marsh which should have been classified as SPA, France has failed to fulfill its obligations under Article 4.

12. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 12 Article 5General system of protection (C-252/85, EU-Commission / France) The prohibitions set out in Article 5 (b) and (c) must apply without any limitation in time. An uninterrupted protection of the birds habitats is necessary since many species re-use each year nests built in earlier years. (C-412/85, EU-Commission / Germany) If the national legislation permits derogation from the provisions for the protection of birds as long as the acts concerned are carried out in the course of the normal use of the land for agricultural, forestry or fishing purposes, then this does not provide a precise indication of the extent to which damage to the environment is permitted.

13. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 13 (C-247/85, Commission / Belgium) When a national legislation generally authorizes the disturbance, removal or destruction of birds nests built against houses and adjoining buildings – claimed that they would always represent a danger to health – this derogation is not limited to situations in which there is no other satisfactory solution. The removal or destruction of nests is necessary only in specific cases in which the higher ranking-interests of public health and security must override the protection of birds and their habitats. This does not comply with the formal requirements of Article 9(2) because it does not specify the conditions of risk.

14. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 14 Article 7Hunting, capture or killing of birds (C-247/85, EU-Commission / Belgium) National legislation must guarantee that species of birds not listed in Annex II may not be hunted. (C-262/85, EU-Commission / Italy) Article 7 authorizes Member States to allow hunting of species listed in Annex II under certain conditions and with certain limits – the national legislation may not extend this list.

15. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 15 C-435/92, preliminary ruling as concerns Article 7.4 Court of Nantes asked: 1.Should the closing date for the hunting of migratory birds be fixed as the date of the commencement of pre-mating migration or the varying date of commencement of migration? 2.May authorities set different closing dates for hunting seasons by reference to species? ECJ: Any hunting activity is liable to disturb wildlife - the regular elimination of individuals keeps the hunted populations in a permanent status of alert which as disastrous consequences for numerous aspects of their living conditions.

16. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 16 This is why Member States are to see in particular that the species to which hunting laws apply are not hunted during the rearing season or the various stages of reproduction or – as concerns migratory birds – during their return to the rearing grounds. Answer 1: The closing date must be in accordance with a method that guarantees complete protection during period of pre-mating migration. Methods that hinder a certain percentage of the birds to fall under such protection do not comply with Article 7(4). Answer 2: National authorities are not allowed to fix closing dates for the hunting season which vary according to species unless they can put forward scientific / technical evidence for each individual case, that varied closing dates do not impede the complete protection of species.

17. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 17 Article 9Derogations Article 9 authorizes Member States to derogate from provisions concerning hunting under three conditions: There is no other satisfactory solution Derogations must be based on at least one of the reasons listed in Article 9(1) a-c Derogation must comply with precise formal conditionsset in Article 9(2)

18. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 18 C-182/02 (preliminary ruling as concerns Article 9) Conseil dEtat asks: 1.Does Article 9(1)(c) permit a Member State to derogate from the opening and closing dates for hunting which follow from consideration of the objectives specified in Article 7(4) thereof? 2.If so, what are the criteria which make it possible to establish the limits of that derogation?

19. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 19 Answer 1 of ECJ: Hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) may constitute a judicious use authorised by Article 9(1)(c), as do the capture and sale of wild birds even outside the hunting season with a view to keeping them for use as live decoys or to using them for recreational purposes in fairs and markets. Answer 2 of ECJ: The third of the conditions of Article 9 cannot be satisfied if a hunting derogation does not ensure the maintenance of the population of the species concerned at a satisfactory level. Hunting must be carried out under strictly supervised conditions and on a selective basis and shall only apply to certain birds in small numbers.

20. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 20 C-60/05, preliminary ruling, WWF Italia and others Regional Administrative Court, Lombardy, asks: 1.What means the condition in Article 9(1)(c) that any hunting derogations must be restricted to small numbers of birds. 2.Does it mean that there is an obligation to set up consultation between the entities within a State which are responsible for granting authorisations for hunting derogations so that allocation of the number of birds which may be hunted for all those entities can be fixed in a binding manner?

21. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 21 Answer 1 of ECJ: Article 9(1) (c) requires that the national legislation system must ensure that in all cases of application of the derogation provided for therein and for all the protected species, authorised hunting does not exceed a ceiling consistent with the restriction on that hunting to small numbers imposed by that provision, and that ceiling must be determined on the basis of strict scientific data. ORNIS Committee determined that small numbers are any sample of less than 1% of the total annual mortality rate of the population in question (average value). This can constitute a basis of reference for assessing whether a derogation granted under Article 9(1)(c) complies with that provision.

22. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 22 Answer 2 of ECJ: Irrespective of the number and identity of the authorities within their territory responsible for applying that provision, the amount of authorised hunting derogations in respect of each protected species by each of those authorities shall not exceed the ceiling compatible with the restriction on that hunting to small numbers, fixed for that species for the entire national territory. Administrative procedures provided for must be organised in such a way that both the decisions of the competent authorities authorising hunting derogations and the manner in which those decisions are applied are subject to effective control exercised in a timely manner.

23. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 23 Quail and turtle dove, both appear in Annex II/2 (= may be hunted, but in accordance with provisions of Article 7). Malta wants to continue spring hunting of these birds, i.e. during their return to rearing grounds period. C-76/08 (EU-Commission / Malta) Article 7.4: In case of migratory species MS shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to the rearing grounds. Article 9.1: MS may derogate from the provisions of Article 7 where there is no other satisfactory solution, for the following reasons: c) To permit under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers. Facts of the case: Birds Directive text:

24. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 24 Measures taken by Malta fall outside the scope of the derogation in Article 9 (1) because the Maltese authorities have failed to show that there is no satis- factory solution other than spring hunting of the species concerned. Sole purpose of request is to extend the hunting seasons for species of birds. State of conservation of turtle doves and quails is unfavourable and birds are not killed in small numbers - compared with the total annual mortality rate. EU-Commissions point of view:

25. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 25 Maltas point of view: Hunting of the species concerned is possible in autumn, but these birds are not present then in sufficient numbers. In 2005, 15,239 quails were taken in the spring – only 5,109 in autumn. As regards turtle doves, 31,493 were taken in the spring - only 4,990 in the autumn. Total prohibition on spring hunting would in practice lead to entire prohibition of hunting of these species. Conservation status of quails and turtle doves is not at an unfavourable level, in IUCN report they are classified in least concern category.

26. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 26 ECJ decision in 2009: No need for derogation when species concerned are also present in autumn even if in considerably smaller numbers. That alone, though, does not mean that there is another satisfactory solution, i.e. here autumn hunting. There must be a balance between protection of species and certain leisure activities, i.e. derogation to be used must be proportionate to the needs. Here: In principle no other satisfactory solution, BUT: The killing of 3 times more quails and 8 times more turtle doves than in autumn season is no proportionate solution. Interpretation of Article 9 (1) in the light of proportionality leads to the result that Malta has failed to fulfill its obligations under the birds directive.