EU LEGISLATION ON NATURE PROTECTION 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. Directive 2009/147/EC on the Conservation of Wild Birds Introduction to the Birds Directive

EU LEGISLATION ON NATURE PROTECTION European Commission 2 Adoption Directive 79/409/EEC adopted in 1979 –legal basis: Article 235 EEC Amended numerous times –adaptation to enlargement of Community –modification of lists of species in annexes Directive 2009/147/EC adopted in 2009 –codified version in the interest of clarity –updated legal basis: Article 175 EC

EU LEGISLATION ON NATURE PROTECTION European Commission 3 According to preamble: adopted for the protection of species of wild birds –declining in numbers; serious threat to the natural environment –constituting a common heritage –trans-frontier problem; common responsibilities European conservation regime Adoption (2)

EU LEGISLATION ON NATURE PROTECTION European Commission 4 Scope and ratio legis Protection of habitats - general measures and SPAs Protection of species/specimen - general prohibitions - marketing, hunting, derogations Miscellaneous Preamble Articles 1-2 Articles 3-4 Articles 5-9 Articles Annexes I-VII Structure

EU LEGISLATION ON NATURE PROTECTION European Commission 5 Article 1: Scope of Application all species of naturally occurring birds in the wild state –birds, eggs, nests and habitats –does not apply to specimens born and bred in captivity in the European territory of Member States to which the Treaty applies –applies to exclusive economic zone, continental shelf –Greenland excluded

EU LEGISLATION ON NATURE PROTECTION European Commission 6 Articles 2 and 3: General principles maintain/adapt populations of species –at level corresponding with ecological, scientific, cultural requirements –while taking into account economic and recreational requirements former have precedence over latter latter cannot be invoked as an additional derogation from protection (C- 247/85; C-262/85)

EU LEGISLATION ON NATURE PROTECTION European Commission 7 preserve, maintain, re-establish sufficient diversity and area of habitats for species obligation exists before any reduction in numbers or risk of extinction materialises (C-355/90) Articles 2 and 3: General principles (2)

EU LEGISLATION ON NATURE PROTECTION European Commission 8 Article 4: Special conservation measures species listed in Annex I and regularly occurring migratory species –legal protection regime providing sufficient protection of habitats to ensure the survival and reproduction of species classify most suitable territories as special protection areas (SPAs), inform the Commission –objective, ornithological designation criteria; limited discretion (e.g. C-355/90)

EU LEGISLATION ON NATURE PROTECTION European Commission 9 Article 4 (2) legal implications of designation as SPA replaced by Article 6 of the Habitats Directive: avoid deterioration of habitats and significant disturbance of species assessment of plans/projects

EU LEGISLATION ON NATURE PROTECTION European Commission 10 –designation obligation and procedure not amended more lenient provisions regarding designation of an area under the Habitats Directive do not remove corresponding obligation under the Birds Directive –obligations outside SPAs not replaced: strive to avoid pollution or deterioration of habitats Article 4 (3)

EU LEGISLATION ON NATURE PROTECTION European Commission 11 Article 5: General protection prohibitions regarding species/specimens against: deliberate killing, capture, detention deliberate destruction, damaging, collection of nests and eggs deliberate significant disturbance, particularly during breeding and rearing season –slight overlap with protection of habitats unlike habitat protection, no exception available for reasons of overriding public interest exceptions under Art. 7 and 9

EU LEGISLATION ON NATURE PROTECTION European Commission 12 Article 6: Marketing additional prohibitions against sale and related activities of live or dead birds or parts/derivates exceptions: –trade in Annex III/A species permitted –Member States may further authorise trade in Annex III/B species after consulting the Commission –providing the birds have been legally killed, captured or acquired harmonisation of trade in game birds sets limits for the Member States right to adopt more stringent national protection (C-169/89)

EU LEGISLATION ON NATURE PROTECTION European Commission 13 Articles 7: Hunting Preamble: where compatible with protection, hunting constitutes acceptable exploitation species in Annex II may be hunted under national legislation –Annex II/A: in all Member States –Annex II/B: only in indicated Member States hunting of species may not jeopardise conservation efforts in their distribution area Member States must ensure that the practice of hunting complies with the principles of wise use and ecologically balanced control of concerned species

EU LEGISLATION ON NATURE PROTECTION European Commission 14 Article 7 (2) hunting must be prohibited during rearing season and various stages of reproduction; migratory species: period of reproduction and during return to rearing grounds –designed to secure complete system of protection in periods during which the survival of wild birds is particularly under threat (e.g. C-157/89, C-38/99) –single closing date for hunting according to the species earliest to migrate: satisfies requirement –staggering closing dates: MS must adduce case-specific evidence that this does not impede the complete protection of species liable to be affected (C-435/92)

EU LEGISLATION ON NATURE PROTECTION European Commission 15 Article 8: Hunting methods prohibited hunting means, arrangements and methods: –large-scale or non-selective or capable of causing the local disappearance of a species –in particular methods listed in Annex IV(a) –any hunting from modes of transport listed in Annex IV(b)

EU LEGISLATION ON NATURE PROTECTION European Commission 16 Article 9: Derogation from Articles 5-7 when there is no other satisfactory solution, derogation may be granted based on –an exhaustive list of protected interests –purposes of research, teaching, re-population, re-introduction –or for permitting, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers recreational hunting is judicious use (C-182/02) small numbers: ECJ has made references to criterion developed by the ORNIS committee (e.g. C-79/03; C- 344/03; C-60/05) precise formal conditions must be met

EU LEGISLATION ON NATURE PROTECTION European Commission 17 Further Articles Art. 10: –Encourage research, especially on subjects in Annex V Art. 11: –Prohibition against introduction of non-naturally occurring species Art. 12 and 17: –Reporting (MS / Commission) Art. 13: –Implementation may not lead to deterioration of present protection = stand-still clause

EU LEGISLATION ON NATURE PROTECTION European Commission 18 Further Articles (2) Art. 14: –Member States may introduce stricter national protection, but note C-169/89 above Art : –Adaptation of annexes to technical and scientific progress –Commission assisted by the Committee for Adaptation to Technical and Scientific Progress (ORNIS Committee) Art : –Replacement of prior Directive (see Annexes VI and VII) and entry into force 15 April 2010 Art. 20: –Addressed to the Member States

EU LEGISLATION ON NATURE PROTECTION European Commission 19 See also: European Commission (2006): Nature and biodiversity cases - Rulings of the European Court of Justice. – en.htmhttp://ec.europa.eu/environment/nature/legislation/caselaw/index_ en.htm European Commission (2008): Guidance document on hunting under Council Directive 79/409/EEC on the conservation of wild birds – ex_en.htm#huntingguidehttp://ec.europa.eu/environment/conservation/wildbirds/hunting/ind ex_en.htm#huntingguide