Slide 1 – Introduction

Presentation purpose:

to give an overview on introduction into the birds directive and its key

instruments and provisions

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Slide 2

- The original Birds Directive, adopted in 1979, is one of the first pieces of

Community environmental legislation.

- In the new version of the Directive only a few details have been changed,

and basically all references to the original Directive, in case law for example,

remain relevant.

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Slide 3

- The notion of a common natural heritage manifests in the preamble of the

Birds Directive, highlighted by migrating species of birds that do not respect

territorial borders. This understanding of a European natural heritage, the

protection of which is entrusted to the Member States, has since been

developed in later environmental legislation as well as the case law of the ECJ.

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Slide 4

This slide presents a general overview of the articles of the Birds Directive.

The presentation will follow the same structure.

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Slide 5

Clear from the Directive and stressed in the ECJ’s case law, is that the scope

of the implemented protection regime cannot be restricted to just the national

natural heritage.

(The specific mention of the exclusion of Greenland has been removed in the

new version of the Directive. This is because the Treaty in itself does not apply

in Greenland, and so the mention in the original Directive was unnecessary.)

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Slide 6

There is no mention yet in the Birds Directive of the concept of favourable

conservation status, which appeared later in the Habitats Directive. Here, as

well as in later articles of the Directive, some notions of this concept can be

seen, however.

- The referral to economic and recreational considerations, which are given a

subsidiary recognition in the protection regime, does not provide for a separate

derogation mechanism from protection. Instead the ECJ has held that the

mentioned principles serve as guidance in the interpretation of other parts of

the Directive.

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Slide 7

- Moving from the general objectives, next come more specific measures of

habitat protection

- This comprises classifying protection areas for certain specifically protected

species

- The directive pays particular attention to wetlands of international

importance, which has been seen as a reference to sites under the Ramsar

convention.

-With regard to the scientific criteria for designation, the ECJ has in several

decisions given consideration to the European IBA surveys (non-governmental

inventories of important bird areas), especially where no more thorough

studies are available.

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Slide 8

- SPAs have been included in the Natura 2000 network by

the Habitats Directive (see Article 3 of that Directive)

- The legal obligations arising this as well as possibilities to

derogate will be examined later as the Habitats Directive is

introduced.

- Meanwhile, the strict obligation to designate SPAs has

not been altered, which in line with the ECJ’s case law also

means the legal implications apply not only for designated

areas but also areas that should have been designated.

- Together with the previously mentioned significance of

the IBA surveys and similar studies as scientific evidence,

this has led to the need for courts to sometimes consider

whether the obligations apply to a site noted in such a

study despite lack of formal classification as SPAs.

-Regarding the last mentioned provision to protect habitats

outside SPAs, questions have been raised whether the

obligation is precise enough to be applied in a specific

case.

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Slide 9

- We now move to species protection under the Directive, i.e. the protection of

individual birds, nests and eggs.

- With the protection of nests as well as the prohibition against disturbance, a

certain overlap with habitat protection can be noted.

- Worth noting in this context, is that unlike from the protection of SPAs, which

is governed by the Habitats Directive, an exception based on overriding public

interest is not available from the general protection under the Birds Directive.

-The grounds for derogation that are available will be looked at later.

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Slide 10

It must be noted, that when marketing of birds/derivates is permissible under

the article, they must also be viewed from the perspective of the market, i.e. as

goods.

-In this context, a certain tension has been identified between free market and

more stringent protection, as can be seen in the relatively old and since-

debated judgment of the ECJ.

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Slide 11

- While the Birds Directive sets out a relatively strict regime of protection, it

does also recognise the traditional role of hunting in many of the Member

States.

- The annexes prescribing what species may be hunted are worth looking at,

because there are considerable differences between the Member States in this

regard.

-It can again be noted that the concept of favourable conservation status does

not yet appear in the Birds Directive, but some parallels have nonetheless

since been drawn to the mentioned principles of wise use and ecologically

balanced control.

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Slide 12

- This very central restriction to national hunting regimes has been ruled on

several times by the ECJ.

- The governing idea is that all birds, including species of game birds, are to be

adequately protected all through from their pre-mating migration to the end of

their nesting.

- Also essential is that hunting one species does not jeopardise the protection

of other species, e.g. through confusing targets or collateral disturbance. The

ECJ has consequently assigned the burden of proof to Member States when

setting dates for the hunting season.

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Slide 13

- In addition to the overall framework for permissible hunting under the

protection regime, there is a prohibition against certain means of hunting,

including both a general ban and specifically listed methods.

- The provisions have led to conflicts with some traditional hunting practices in

Member States and, consequently, judgments of the ECJ.

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Slide 14

- Depending on the order of the sessions, the participants may have already

been introduced to this article of the Directive. Otherwise, if the session will

come up later, it is worth pointing out that the article will be examined in a case

study.

- In order to derogate from the articles listed, the Directive requires that one of

the bases provided is present and that there are not satisfactory alternatives.

The ECJ has noted that the provision is subject to restrictive interpretation but

also drawn a certain link to proportionality (C-76/08).

- Protected interests: public health, air safety, damage to listed economic

interests, protection of other flora and fauna.

- With regard to the concept of judicious use under the last basis for

derogation, the ECJ has considered recreational hunting to satisfy this

requirement. As for “small numbers” and references to the ORNIS committee,

this is a scientific committee set up under the original Birds Directive. A

number that has been suggested by the committee to satisfy the condition 1 %

of the annual mortality of the population concerned. Naturally, this is not legally

binding.

- Another important lesson from the ECJ’s case law is that derogations cannot

be granted for the sole purpose of extending the hunting season (C-182/02)

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Slide 15

- The rest of the Directive will not be examined in the same detail as the

previously presented ones as they are usually not as relevant in cases dealt

with by the national courts.

- A note can be made of Article 11 on the introduction of non-naturally

occurring species, however, which may perhaps receive more attention in the

future, as invasive species are becoming an issue of environmental policy.

- The stand-still clause is also a bit ambiguous, with various transposition

dates for new Member States and the re-adoption of the codified Directive.

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Slide 16

- Mention is made of the previously noted ORNIS committee, set up under the

original Birds Directive.

- Annex VII contains a list of the article and annex numbering in the old

Directive corresponding to the numbering in the new Directive.

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Slide 17

- This last slide presents a couple of sources for guidance on interpreting the

Birds Directive.

- The first is a book of case law dealing with both the Birds and the Habitats

Directives, which comprises of direct excerpts from the ECJ’s judgments. In

this context it’s important to note that as will be regarded further on, the Birds

and the Habitats Directives contain many corresponding provisions, and so

analogous application of the case law may in some cases be warranted.

- The second is a guidance document put together by the Commission. Also

this document contains referrals to the case law, but it also includes the

Commissions own interpretations. Something to be mentioned, however, is

that both the ECJ and national courts have referred to this soft law document

in some decisions. Again, it is worth noting that other guidance documents are

available for the Habitats Directive, which due to the interconnection of the

directives could be useful when dealing with the Birds Directives as well.