The Conservation ofWild Birds

A Directive 79/409/EEC on the conservation of wild birds (the ‘Birds Directive’) was adopted as early as 1979,^[1] based on an article corresponding to the current Article 352 TFEU.^[2] Over the years several amendments were made, though mostly to the Annexes, and a new codified version was adopted in 2009 as Directive 2009/ 147/EC.^[3] It is still striking, however, how little has been changed in the main parts of the Directive over the more than thirty-five years since its original adoption.

The Birds Directive, which is now based on Article 192(1) TFEU, relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States (hereafter ‘the EU’).^{[4] [5]} It covers the protection, management, and control of these species and lays down rules for their exploitation. In addition to birds, the Directive applies to their eggs, nests, and habitats (Art 1). As is made clear in the preamble, most species of wild birds naturally occurring in the EU are migratory, thereby making effective bird protection a trans-frontier environment problem entailing common responsibilities.

Under the Directive’s slightly opaque overarching obligation, the Member States must take the requisite measures to maintain the population of all species of birds naturally occurring in the Union ‘at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level’ (Art 2). More concretely, the Member States shall take the requisite measures to preserve, maintain, or re-establish a sufficient diversity and area of habitats for all these species. This is to include primarily four types of measures: creation of protected areas; upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones; re-establishment of destroyed biotopes; and creation of biotopes. (Art 3.)

Annex I to the Directive contains a list of roughly 200 species and sub-species of birds that are endangered in the Union.ⁿ The habitats of these species shall be the subject of special conservation measures in order to ensure their survival and reproduction. In order to provide such protection, the Member States must classify the most suitable territories in number and size as so-called special protection areas (SPAs) for the conservation of these species. Similar measures are to be taken for regularly occurring migratory species not listed in Annex I, as regards their breeding, moulting, and wintering areas and staging posts along their migration routes. Member States must pay particular attention to the protection of wetlands.

The Birds Directive has been interpreted by the Court of Justice on many occasions. The Court has tended to favour a reading resulting in a strong protection of birds and their habitats. In the so-called Lappel Bank case it established, in 1995, that when designating SPAs and defining their boundaries the Member States must be guided by ornithological criteria. They are not authorised to take account of the economic requirements mentioned in Article 2 even if these were to constitute imperative reasons of overriding public interest/²

Both the Commission and the Court of Justice have tended to use the so-called IBA^{[6] [7] [8] [9] [10] [11] [12]} directory of priority sites for bird conservation as a basis of reference for assessing whether a Member State has classified a sufficient number and size of areas as SPAs/⁴ Member States must provide the Commission with all relevant information enabling it to ensure that the protection areas form a coherent whole, which meets the protection requirements. As will be further discussed below in the section on the Habitats Directive, the SPAs now form part of the Natura 2000 network.

In the protection areas the birds are to be protected from pollution, deterioration of habitats, and any other disturbances that could have a significant effect on their ability to survive and reproduce (Art 4).

However, part of Article 4 of the Birds Directive has been replaced by the provisions on protected areas in the Habitats Directive.15 In this way a number of legitimate grounds for making exceptions from the very strong protection established by the Birds Directive, as interpreted by the Court of Justice/⁶ have been introduced. These grounds are discussed in some detail presently in relation to the Habitats Directive/⁷ Interestingly, areas that have not been classified as SPAs although they should have been so classified continue, according to the Court of Justice, to be covered by the protection that follows from the part of the Birds Directive that has been replaced with respect to SPAs/⁸

In addition to protected areas, Member States must establish a general system of protection for all species of birds covered by the Birds Directive. That includes prohibiting a number of activities involving the birds, their eggs, or nests. Among the things that shall be prohibited are deliberate killing or capture; deliberate destruction of, or damage to, nests and eggs; taking eggs in the wild and keeping them even if empty; and deliberate and significant disturbance of the birds, particularly during the period of breeding and rearing. The Court of Justice has held that, for killing or capture to be considered deliberate, ‘it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing’.^[13] The keeping of birds of species the hunting and capture of which is prohibited must also be prohibited.

Furthermore, the sale, transport for sale, keeping for sale, and offering for sale of live or dead birds covered by the Directive and of any readily recognisable parts or derivatives of such birds shall be prohibited. However, the species referred to in Annex III, Part A, are exempted from these prohibitions provided that the birds in question have been legally killed or captured or otherwise legally acquired. With respect to the species listed in Part B of the same Annex, Member States may, under certain conditions and after having consulted the Commission, allow the otherwise prohibited activities. (Arts 5—6.)

The species listed in Annex II may be hunted according to national legislation either in the whole EU or in indicated Member States. The hunting must not be allowed to jeopardise conservation efforts in the distribution area of the respective species. The practice of hunting must comply with the principles of wise use and ecologically balanced control of the species concerned.

All methods used for the large-scale or non-selective capture or killing of birds or capable of causing the local disappearance of a species must be prohibited. This applies in particular to the use of the methods listed in Annex IV, point (a). These include snares (with a few exceptions), limes, hooks, tape recorders, artificial light sources, explosives, nets, traps, and poisoned bait. Hunting from aircraft, motor vehicles, and boats driven at a speed exceeding five kilometres per hour must also be prohibited. (Arts 7—8.)

In addition to the specific exemptions provided for in the respective articles there are also, in Article 9, general grounds on which a Member State may rely to make exemptions from the prohibitions that apply to all birds covered by the Directive. Such derogations (from the provisions of Articles 5—8) are only permissible if there is no other satisfactory solution and only for the listed reasons. Among the reasons are the interests of public health and safety; the prevention of serious damage to crops, livestock, forests, fisheries, and water; the protection of flora and fauna; and research and teaching. Member States may furthermore permit, under strictly supervised conditions and on a selective basis, the capture, keeping, or other judicious use of certain birds in small numbers.2° Any derogations shall be reported yearly to the Commission whose task it is to ensure that the consequences of the derogations are not incompatible with the Directive.

Member States shall see that any introduction of species of bird which do not occur naturally in the wild state in the EU does not prejudice the local flora and fauna (Art 11). However, since 2014 so-called invasive alien species have been the subject of a specific regulation discussed in section 15.5.

According to the general non-deterioration clause in Article 13, application of the measures taken pursuant to the Directive may not lead to deterioration in the present situation as regards the conservation of the species covered.

Every three years the Member States shall report to the Commission on the implementation of national provisions taken under the Directive (Art 12).

That Member States may introduce stricter protective measures than those provided for under the Directive follows from the fact that it is based on a treaty article corresponding to the current Article 192(1) TFEU but is also explicitly stated in Article 14. However, the Court of Justice has found that with respect to birds that are neither threatened (Annex I species) nor migratory, the Member States are not authorised to adopt stricter protective measures than those provided for under the Directive, except as regards species occurring within their own territory. Import restrictions may hence not be imposed on such species in order to enhance their protection.2¹

The implementation of the Directive in the Member States has been quite problematic and generated well over 100 cases in front of the Court of Justice. Among the issues to be addressed are the correct interpretation of Article 4 (SPAs), hunting of species referred to in Annex II (Article 7), and derogations (Article 9).

• [1] [1979] OJ L 103/1.
• [2] This article allows measures to be adopted to attain one of the objectives set out in the Treatieseven if the Treaties have not provided the necessary powers. This reflected the fact that this was beforethe then EEC was given explicit competence to adopt measures on environmental protection.
• [3] [2010] OJ L 20/7.
• [4] The ambit of the Directive is limited to the European territory of the Member States to which theTreaty applies. This means that eg the Faroe Islands are not covered. Art 355 TFEU.
• [5] More specifically they are listed on the ground of being in danger of extinction; vulnerable tospecific changes in their habitat; considered rare because of small populations or restricted local distribution; or requiring particular attention for reasons of the specific nature of habitat.
• [6] Case C-44/9 5 Royal Society for the Protection of Birds ECLI:EU:C:1996:297, paras 26—27 and 42.
• [7] IBA stands for Important Bird Area(s). The sites are identified locally, using internationallyagreed criteria, and compiled into a common list by BirdLife International, a partnership of nationalconservation NGOs.
• [8] 14 See eg Case C-235/04 Commission v Spain ECLI:EU:C:2007:386, para 26 with further references.
• [9] Dir 92/43/EEC, Art 7.
• [10] See, eg, Case C-57/89 Commission v Germany (Leybucht) ECLI:EU:C:1991:89.
• [11] See section 15.3.
• [12] Case C-374/98 Commission v France ECLI:EU:C:2000:670, para 47.
• [13] Case C-221/04 Commission v Spain ECLI:EU:C:2006:329, para 71. 2° On the notion of ‘small numbers’ of birds see Case C-60/05 WWF Italia and OthersECLI:EU:C:2006:378, paras 23-27.