Key Contacts: Alice Whittaker – Partner | Rachel Minch – Partner | Alison Hardiman – Consultant | Leonora Mullett – Partner | Niall Donnelly – Partner
In an important Opinion in Case C‑784/23 Voore Mets and Others delivered by Advocate General Kokott on Thursday 6 February 2025, some fresh clarity has been brought to the concept of ‘deliberate’ harm to wild birds that are protected across the EU by Article 5 of the Birds Directive 2009/147/EU. The eventual ruling of the Court of Justice (CJEU) will be keenly awaited by developers, decision-makers and regulators alike, particularly those involved in wind energy, forestry, and infrastructure projects.
Protection of Birds under Article 5 of the Birds Directive
Article 5 of the Birds Directive prohibits the deliberate killing of birds, the deliberate destruction of or damage to their nests, and the deliberate disturbance of birds, particularly during their nesting and breeding seasons.
Cats, shiny buildings, farming and forestry, turbines, pylons, traffic, roads – almost all human activities risk harming birds. Article 5 prohibits ‘deliberate’ acts of harm. Article 9 of the Birds Directive provides for a derogation from such prohibition, but only where certain conditions are satisfied.
Since the decision of the Court of Justice of the EU (CJEU) in Cases C-473/19 and C-474/19 Föreningen Skydda Skogen (“Swedish Logging”), developers and their lawyers have been concerned about how broadly the concept of ‘deliberateness’ might be applied to Article 5, and the protection of birds.
As I noted in the Regulatory Review Report: Project Woodland, that I prepared for the Minister for State with Responsibility for Forestry, the Swedish Logging case made findings on the concept of ‘deliberateness’ as it applies to the strict protection of species under Article 12 of the Habitats Directive 1992/43/EEC, and there was a fear that this concept would be applied to cover birds, which would have even farther-reaching consequences for forestry operations in Ireland and across the EU. The subsequent CJEU ruling in Case C-432/21 Commission v Poland seemed to tacitly equate the level of protection afforded under Article 12 of the Habitats Directive to all wild birds protected under Article 5 of the Birds Directive.
The reason why this is a problem for developers is carefully set out by Advocate General Kokott in the Opinion prepared for the CJEU in Swedish Logging, and in this recent Opinion of AG Kokott in Case C‑784/23 Voore Mets and Others.
Protection Proportionate to Conservation Status
The key point is that Article 5 protects all wild birds in the EU, including those species that are the most abundant and of no specific concern, conservation-wise. The CJEU in Swedish Logging responded by pointing out that bird species are generally in decline and therefore merit the protection afforded by Article 5, but AG Kokott points out in the Opinion delivered yesterday in Case C-784/23 that there are other measures in the Birds and Habitats Directives specifically designed to prevent and reduce such decline.
AG Kokott further points out that an overly broad interpretation of ‘deliberateness’ for Article 5 leads to a disproportionate level of protection for bird species whose conservation status does not require the prohibition of normal but important economic activities and development that may unintentionally harm birds. The same issue does not arise for the strict protection of species under the Habitats Directive, because those species (listed in Annex IV of that Directive) are by definition rare or endangered and therefore less likely to be encountered through normal activity.
The Opinion highlights a further anomaly within the Birds Directive if Article 5 is interpreted too broadly. Article 7 of the Directive permits the hunting of species listed in Annex II of that Directive. Those species are also covered by the prohibition in Article 5. As noted by AG Kokott, it makes no sense for the Directive to permit the deliberate hunting of birds – a ‘leisure activity of very little economic significance’ – while prohibiting (without a derogation) other far more important human activities that might inadvertently harm those same species of bird.
While it is possible, in certain limited circumstances, to obtain a derogation under Article 9 from the prohibition under Article 5 of the Birds Direction, the conditions under which such derogation may be obtained are far more limited than the equivalent derogation provisions for strictly protected species under Article 16 of the Habitats Directive. Again, this leads to an interpretative incongruity if the concept of deliberateness is applied too broadly to Article 5 – it would lead to a situation in which it is far easier to obtain a derogation from the strict protection of rare and endangered species listed in Annex IV of the Habitats Directive than it is to obtain a derogation to permit the inadvertent harm to abundant and commonly occurring bird species that are of no specific conservation concern.
Renewable Energy Projects
The Opinion specifically addresses the measures that the EU Legislature has introduced since 2022, to facilitate the development of renewable energy and grid connections across the EU. These measures were introduced primarily as a response to energy security concerns, but have corresponding benefits in terms of the displacement of fossil fuel generation with higher levels of penetration of renewables across European grids.
Among other measures, the Accelerated Permitting Regulations introduced a presumption that renewable projects are required for imperative reasons of overriding public importance (IROPI) where a derogation is required under the Habitats, Birds and/or Water Framework Directives.
The revised Renewable Energy Directive – has very similar provisions, but also states that where a project has adopted necessary mitigation measures, any killing or disturbance of species protected under Article 12 of the Habitats Directive and Article 5 of the Birds Directive shall not be considered to be deliberate. Along similar lines, Recital 37 of Directive 2023/2413 states that the occasional killing or disturbance of birds resulting from the construction and operation of renewable energy plants is not ‘deliberate’ if appropriate mitigation measures are taken and monitored.
In Case C-784/23, the European Commission appears to have argued that these new EU legislative measures should lead to an interpretation that the concept of deliberateness is the same for both Article 12 of the Habitats Directive and Article 5 of the Birds Directive. AG Kokott disagreed, expressing the view that these measures must have been deemed necessary because Article 9 is formulated too restrictively to be generally understood to apply to renewable energy and grid projects, and because of a fear that if an overly broad concept of deliberateness is applied to Article 5 of the Birds Directive and Article 12 of the Habitats Directive, the aim of protecting species could unduly hamper the development of renewable energy.
The objective of the Birds Directive is found in Article 2: to maintain the population of the species … 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.
It is not, therefore, the aim of the Birds Directive to protect individual birds from all forms of harm however arising. This would, however, be the level of over-protection that would be conferred by Article 5 if the concept of ‘deliberateness’ is applied too broadly to Article 5.
AG Kokott therefore recommends to the CJEU that Article 5 should protect all birds from intentional harm, and it should protect birds that are especially rare or endangered from acts that foreseeably could cause harm, or where the author of the act has accepted the possibility of such harm. In this way, the objective of the Birds Directive in Article 2 is upheld, by maintaining or adapting the population of the species to a satisfactory conservation level, while not overly restricting in a disproportionate manner the ordinary course of human activities including developments that are important to society and to the economy.
In a discussion that will be particularly interesting to forestry owners and operators, the AG Opinion goes on to consider the extent to which the prohibitions and protections under the Birds Directive may infringe established rights to private property and to earn a livelihood, including the right to protect private forests from serious damage that may be caused if good forest management practices (such as clearance of trees following storm damage) are precluded under the Birds Directive. This discussion is particularly relevant in the context of the recent statement from Minister O’Brien regarding the necessary measures to enhance and increase the resilience of the Irish electricity distribution and transmission system.
CJEU Ruling and other References Pending
The CJEU ruling in Case C‑784/23 Voore Mets and Others, will be keenly awaited, and while it is possible the CJEU will not accept the AG’s recommended interpretative approach to Article 5, there are arguments within the Opinion which can be referred to in submissions and applications while that ruling is awaited.
A further Reference pending on similar forestry issues can be found in Case C-131/24 VIRUS. The CJEU is being asked two questions relating to Article 5(d) of the Birds Directive, and the prohibition on deliberate disturbance of birds, particularly during their nesting and breeding season. First, whether mitigation measures can be relied upon in order to exclude the risk of deliberate disturbance under Article 5(d); and second, the evidential burden to establish the effectiveness of the measure relied upon when ruling out deliberate disturbance. Interestingly, there was a court-appointed expert who gave evidence as to the effectiveness of the measures proposed, and the CJEU is being asked whether this is sufficient, or whether there needs to be further objective documentary evidence establishing through previous project experience that the measures are effective.
We will keep an eye on these cases with great interest.
