HAVET & VANHUFFEL – Association d’avocats
In a dispute between Estonian forestry operators seeking compensation for damages related to the immobilization and subsequent relocation of their forestry equipment, allegedly caused to them by the Environment Agency as a result of two injunctions concerning them, considered disproportionate (total ban on logging for approximately one and a half months) in view of the number of birds nesting on the land and the nesting periods of these birds, the Supreme Court of Estonia, which is the referring court, has been seized of appeals and raises the question of whether the concept of « intentionality », within the meaning of Article 5 of the « Birds » Directive, must be understood in the same way as in the case of Article 12 of the « Habitats » Directive, that is to say, in the sense, in particular, that the condition relating to intentional nature must be considered to be satisfied not only when it is established that the author of the act intended the killing or disturbance of a bird specimen or the destruction or damage to their nests or eggs, but also when it is established that he has, at the very least, accepted the possibility of such killing, disturbance, destruction or damage.
If this is the case, the Supreme Court of Estonia wishes to know what circumstances are sufficient to conclude that such acceptance exists.
Furthermore, the Court wishes to know, if the felling at issue in the main proceedings involves an intention to kill or disturb birds or to destroy or damage their nests or eggs, whether Article 9 of the Birds Directive allows for derogations from the prohibitions set out in Article 5(a), (b) and (d).
Finally, the Supreme Court of Estonia wishes to know, if it is impossible to grant a derogation or if the conditions are too strict, whether the provision is not, due to its disproportionate nature, contrary to the freedom to conduct a business and the fundamental right to property enshrined in Articles 16 and 17 of the Charter, such that, if necessary, the question of the conformity of the Birds Directive with the Treaties and its validity would arise.
In these circumstances, the Supreme Court of Estonia, by judgment of 19 December 2023, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
“1) Can Article 5(a), (b) and (d) of the [Birds Directive] be interpreted as meaning that the prohibitions it provides for apply only to the extent that they are necessary to maintain the population of the bird species concerned, within the meaning of Article 2 of that directive, at a level which corresponds, in particular, to ecological, scientific and cultural requirements, taking into account economic and recreational requirements, provided that the activity concerned is not intended to kill or disturb the birds, or to destroy or damage their nests or eggs ?
2) Should Article 5(a), (b) and (d) of the [Birds Directive], read in conjunction with Article 2 of that Directive be interpreted as meaning that the acts prohibited by those provisions are intentional during the breeding season of birds, in particular when scientific data and observations of various birds allow it to be considered that the forest in which it is planned to carry out a complete felling of trees (clear-felling) is home to approximately ten pairs of nesting birds per hectare, without it being established that there is nesting of bird species in an unfavourable conservation status in the felling area? 3) Must Article 5(a), (b) and (d) of the [Birds Directive], read in conjunction with Article 2 of that directive, be interpreted as meaning that the acts prohibited by those provisions are intentional during the breeding season of birds, in particular where scientific data and observations of various birds allow it to be considered that the forest in which only partial felling of trees (thinning) is planned is home to approximately ten pairs of nesting birds per hectare, without there being any reason to assume the presence of nesting bird species in an unfavourable conservation status in the felling area?
3) Must Article 5(a), (b) and (d) of the [Birds Directive], read in conjunction with Article 2 of that directive, be interpreted as meaning that the acts prohibited by those provisions are intentional during the breeding season of birds, in particular where scientific data and observations of various birds allow it to be considered that the forest in which only partial felling of trees (thinning) is planned is home to approximately ten pairs of nesting birds per hectare, without there being any reason to assume the presence of nesting bird species in an unfavourable conservation status in the felling area?
4) Can the third indent of Article 9(1)(a) of the [Birds Directive], read in conjunction with Article 2 of that directive, be interpreted as not precluding legislation of a Member State which allows derogation from the prohibitions laid down in Article 5(a), (b) and (d) of that directive in order to carry out clear-felling during the breeding and rearing period of birds, in order to prevent significant damage to forests as a form of property?
5) Can the third indent of Article 9(1)(a) of the [Birds Directive], read in conjunction with Article 2 of that directive, be interpreted as not precluding legislation of a Member State which allows derogation from the prohibitions laid down in Article 5(a), (b) and (d) of that directive in order to carry out thinning operations during the breeding and rearing period of birds, in order to prevent significant damage to forests as a form of property?
6) If the [Birds Directive] does not permit clear-felling during the breeding and dependent period of birds in order to prevent significant damage to forests as a form of property, is such a regulation consistent with Articles 16 and 17 of the [Charter] and is it valid, even if such clear-felling would not harm bird species in an unfavourable conservation status?
7) If the [Birds Directive] does not permit clear-felling during the breeding and dependent period of birds in order to prevent significant damage to forests as a form of property, is such a regulation consistent with Articles 16 and 17 of the [Charter] and is it valid, even if such clear-felling would not harm bird species in an unfavourable conservation status?
Answering the first three questions, the Court of Justice of the European Union, in a judgment of 1 August 2025 (C-734/23), considered that Article 5 of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, which provides that:
« Member States shall take the necessary measures to establish a general system of protection for all the species of birds referred to in Article 1 and including the prohibition of:
(a)to intentionally kill or capture them, regardless of the method used;
(b) to intentionally destroy or damage their nests and eggs and to remove their nests;
(c) to collect their eggs from the wild and to keep them, even if empty;
(d) to intentionally disturb them, in particular during the breeding and rearing period, provided that the disturbance has a significant effect with regard to the objectives of this Directive;
(e) to keep birds of species whose hunting and capture are not permitted. »
should be interpreted as meaning that:
1.
The prohibition laid down in Article 5(d) applies only on condition that it is necessary to prevent disturbances that would have a significant effect on the objective, referred to in Article 2 of that directive, of maintaining or adapting the population of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaties apply at a level which corresponds, in particular, to ecological, scientific, and cultural requirements, taking into account economic and recreational requirements.
On the other hand, the prohibitions set out in Article 5(a) and (b) of that directive are not subject to such a condition, even where the purpose of the human activity concerned is other than the capture or killing of birds or the destruction of or damage to their nests or eggs.
2.
The prohibitions set out in Article 5(a), (b) and (d) apply to the felling of trees during the breeding season, when scientific data and observations of various birds suggest that the forest in which the trees are to be completely felled (clear-felled) or partially felled (thinned) supports approximately ten pairs of breeding birds per hectare, without it being established that bird species in an unfavorable conservation status are nesting in the felling area, provided that the disturbance caused by such felling has a significant effect on the objective of maintaining or adapting the population of the bird species concerned to a satisfactory level.
It considers that the fourth to seventh questions are hypothetical and are therefore inadmissible.
The judgment is available via the following link: https://curia.europa.eu/juris/document/document.jsf?text=&docid=303009&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1753310