Clarifications on the interpretation of Articles 5 and 9 of the Birds Directive
The European Commission publishes a clarifying document on the application by Member States of Articles 5 and 9 of the Birds Directive.
Article 5 provides that it is prohibited to kill or intentionally capture birds, or to intentionally destroy or damage their nests and eggs, or to collect these and retain them, even if empty; to intentionally disturb birds, particularly during the breeding and rearing period; and to retain birds of species whose hunting and capture are not permitted.
Article 9 sets out the cases in which Member States may introduce exceptions to Articles 5 to 8 if there are no satisfactory solutions due to a number of specified reasons (health, safety, prevention…).
The aim of this new document (which has no legal force) is to provide guidance for the interpretation and application of the general protection system established by the Birds Directive and, at the same time, to help reduce the administrative burden. It clarifies the minimum requirements and explains how the species protection requirements can be properly applied, while simplifying this task for the competent authorities and economic operators.
To ensure a common application of the provisions, the guidance contained in this document also aims to clarify and streamline the application of the Directive, providing clear and practical guidance based on the experiences of the various Member States and on the insights gained from the Court of Justice of the European Union's interpretation of the Directive.
One of the things it clarifies is that the Court of Justice of the European Union has ruled that the Birds Directive requires Member States to protect wild birds of native origin in the EU, even if the species' natural habitat is not located within the territory of the Member State in question. Species introduced into a Member State are covered by the Birds Directive if they are native elsewhere in the EU.
It is also clarified that, according to the EU Directive, the term “intentionality” covers both activities whose purpose is the capture, killing or disturbance of birds, or the destruction or damage of their nests, and activities which, although not having that purpose, involve accepting the possibility of such capture, killing, disturbance, destruction or damage occurring.
Specific and concrete protective and preventive measures
As the AFG has always maintained regarding the rules derived from both the Birds Directive and the Habitats Directive, the ECJ holds that The transposition of a directive must be clear and precise, faithful, with indisputable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty. In addition to the obligation to correctly transpose the Directive's provisions into national law, Member States must also ensure that the established protection system is effectively applied in practice. Therefore, the competent authorities play a key role in raising awareness of the protection provisions, setting requirements, creating incentives, monitoring compliance and ensuring full and effective implementation.
It is indicated that the proper application of Article 5 requires Member States to establish a complete and effective legislative framework for the protection of birds, which leads to the implementation of concrete and specific protective measures that must ensure compliance with the prohibitions laid down in Article 5 of the Directive. Article 5 therefore requires not only the adoption of a comprehensive legislative framework but also the implementation of concrete and specific protective measures.
The mere constatation of the presence of birds is not sufficient in itself; there must also be a reasonable risk that the activity in question could cause prohibited harm to the birds present. In this context, it is important to take into account the species' needs and sensitivities, to know where it nests, its nesting habits, the areas it uses to forage or hunt, and other species-specific considerations. This knowledge may be based on information from species action plans, Natura 2000 site management plans or forestry plans, as well as any other relevant scientific data and research on the species in question.
National authorities (in our case, the regional ones) should base their regulation of economic activities on scientific data regarding the geographical and temporal distribution of birds. They should use all appropriate means to proactively disseminate information on bird distribution and on the existing regulations for their protection, as well as the available preventive measures. National authorities should also make this information available to affected stakeholders, so that their economic or recreational activities can coexist with the requirements for bird protection.
When an activity may breach the prohibitions established in Article 5, paragraphs a), b) or d), the competent national authorities may define preventive measures that actors (economic or otherwise) may adopt during the planning and/or implementation phase to allow the activity in question to be carried out, while at the same time avoiding, as far as possible, damage to the bird species present. These preventive measures must be concrete and specific, taking into account the relevant information on the affected species and designed to avoid, as far as possible, any of the prohibited impacts that the activity in question may have, in order to ensure the effective compliance with the prohibitions established in Article 5.
The competent authorities have a duty to take into account the most reliable available scientific data and the most recent findings of international research when assessing the effectiveness of preventive measures.
Article 5 therefore requires the adoption of a comprehensive and effective legislative framework through the implementation of concrete and specific protective measures that ensure the effective enforcement of the prohibitions. It further requires that the competent authorities of the Member States clearly communicate the prohibitions, as well as the information available on the presence of the species, and the protective measures available or prescribed to affected land and sea users and to the general public.
Member States should also establish a system that assesses the effectiveness of preventive measures and periodically reviews those measures as part of the general protection system required by Article 5, and defines the appropriate preventive measures in relation to the specific species and situation.
It is also indicated that financial incentives and support, among other things, for those who practise forestry are also important to help ensure that forestry activities are in line with bird protection.
Government advisory services should provide information on bird protection requirements to woodland owners. This information should be guided and supported by central online species-specific databases, specific guidelines on species protection in forestry, mapping tools, brochures on certain protected species, or an online service portal with information options for dialogue between forestry agencies and authorities.
Apply this same requirement of specificity to the application of the exceptions granted under Article 9.
The full text of the document can be accessed on this link.
