Introduction
Biodiversity has always been an important topic in the field of environmental protection. The diversity is vital for keeping the ecosystem in balance and humans to gain natural resources.[1] It is also closely linked to climate change. The loss of both affects each other negatively, while their preservation can be mutually reinforcing.[2] For example, altering wildfires frequency is beneficial for maintaining biodiversity, and the maintained forest can mitigate the extreme weather.[3]
Nonetheless, a persistent tension exists between environmental protection and human activities. Biodiversity is not an exception. Whether the exploitation or the conservation of natural areas should be the priority has been long debated. Recently in EU, there is a trend of hardening the protections, as litigation to enforce the Directive before national courts is increasing.[4] The Joined Cases C-473/19 and C-474/19 Föreningen Skydda Skogen and Others v Länsstyrelsen i Västra Götalands län and Others is notable example in this trend, which strengthened the enforcement of both Birds Directive and the Habitats Directive.
Factual background
The Skogsstyrelsen (Forest Agency, Sweden) received a notification of tree falling in the forest area in in the municipality of Härryda, which would allow the removal of almost all trees in the involved area. The notification covers the natural habitats of the Rana arvalis species (moor frog), which is strictly protected under the Habitat Directive. Several endangered bird species included in Annex I of the Birds Directive also inhabit this region. Logging activities would cause severe risk to these species.
The Forest Agency issued guidelines on the precautionary measures, and held the opinion that if the tree felling follows this guidance, it would not violate the prohibitions laid down in the Swedish law Species Protection Ordinance (2007:845) (the “ASF”). The Föreningen Skydda Skogen (the Protect the Forest Association), the Göteborgs Ornitologiska Förening (Gothenburg Ornithological Association) and the Naturskyddsföreningen i Härryda (Association for the protection of nature in Härryda) argued that the planned felling violates the prohibitions in the ASF. In 2016 and 2018, they requested that the Länsstyrelsen i Västra Götalands län (Regional Administrative Board of Västra Götaland, abbreviated as RAB), the regional supervisory authority pursuant to the ASF, take actions against the tree falling and the Forest Agency’s guidance, specifically to supervise the compliance with the ASF. The RAB rejected their request. Thus, the three associations brought an action before referring court against the RAB’s decision not to take supervision measures.
Legal background
The Article 12 of the Habitats Directive and the Article 5 of the Birds Directive both prohibit various forms of harm to animal species and individual specimens. Although both of the Directives include provisions of derogations from the prohibitions, they do not permit undifferentiated killing or disruption in a specific area under guidance. The prohibitions in Article 5 of the Birds Directive and Article 12 of the Habitats Directive are transposed by the Species Protection Ordinance (2007:845) of Sweden, ‘the ASF’, in its 4th paragraph.
The applicants assert that the planned felling contravenes both the ASF and the EU Habitats Directive, even if it follows the guidance issued by the Forest Agency, because the forest concerned in the felling notification is a priority forest type listed in the Annex I of Habitats Directive — Western Taïga — and serves as habitat of many species protected under the Birds Directive and the Habitats Directive.[5] Thus, the applicants requested that RAB fulfill its supervisory responsibilities regarding the logging notification and the Forest Agency’s guidelines. In the following litigation, they further contend that the planned felling violates the ASF, thereby urging the court to revoke the RAB’s decision take no action and to rule the planned forest management measures not permissible. On the contrary, the RAB holds that the planned felling does not need a derogation assessment, as it takes precautionary measures provided in the Forestry Agency’s guidelines.
The main legal question in this case is whether the planned felling notification, carried out under the guidelines, contravenes the prohibitions laid down in the ASF, furthermore, those in the Habitats Directive and the Birds Directive. Addressing this matter, the referring court has uncertainty regarding certain concepts in these directives, particularly concerning the scope of protected species, definition of “deliberate” and the applicability of “favourable conservation status”. The referring court listed the following questions:
‘(1) Is Article 5 of the [Birds] Directive to be interpreted as precluding a national practice whereby the prohibition covers only those species which were listed in Annex I to that directive, or are at some level at risk, or are suffering a long-term decline in population?
(2) Are the terms “deliberate killing/disturbance/destruction” in Article 5(a) to (d) of the Birds Directive and in Article 12(1)(a) to (c) of the Habitats Directive to be interpreted as precluding a national practice whereby, should the purpose of the measures be manifestly different from the killing or disturbance of species (for example, forestry measures or land development), there must be a risk of adverse effects on the conservation status of the species caused by the measures in order to apply the prohibitions?
The first and second questions are posed in the light, inter alia, of:
- the fact that Article 5 of the Birds Directive concerns the protection of all species of birds referred to in Article 1(1),
- the manner in which Article 1(m) of the Habitats Directive defines “specimens”;
- the fact that the question of the conservation status of the species is regarded as relevant mainly in the context of the derogation in Article 16 of the Habitats Directive (the derogation requires that there be no satisfactory alternative and that the derogation be not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range) or Article 9 of the Birds Directive (the derogation may not be incompatible with that directive which, in Article 2, requires Member States to take all requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements).
(3) If the answer to any part of the second question is that harm at a level other than the individual level is to be assessed in order for the prohibition to apply, is the assessment therefore to be carried out on any of the following scales or at any of these levels:
- a certain geographically restricted part of the population as defined under, for example within the boundaries of the region, the Member State or the European Union;
- the local population concerned (biologically isolated from other populations of the species);
- the meta-population concerned;
- the whole population of the species within the relevant biogeographical regional section of the species’ range?
(4) Is the expression “deterioration/destruction” as regards the animals’ breeding range in Article 12(1)(d) of the Habitats Directive to be interpreted as excluding a national practice which means that, in spite of precautionary measures, the continuous ecological functionality … of the habitat of the species concerned is lost in a single area, whether by harm, destruction or deterioration, directly or indirectly, individually or cumulatively, so that the prohibition is applied only if the conservation status of the species concerned, at one of the levels referred to in the third question, is likely to deteriorate?
(5) If the answer to any part of the fourth question is negative, that is to say that harm of a level other than one leading to the habitat in the individual area being assessed in order for the prohibition to be applied, is the assessment thus to be made on any of the following scales or at any of these levels:
- a certain geographically restricted part of the population as defined under (1.), for example within the boundaries of the region, the Member State or the European Union;
- the local population concerned (biologically isolated from other populations of the species);
- the meta-population concerned;
- the whole population of the species within the relevant biogeographical regional section of the species’ range?
The second and fourth questions … include the question of whether the strict protection in the [Birds and Habitats] Directives ceases to be applicable to species for which the objective of the [Habitats] Directive (favourable conservation status) has been achieved.’
Legal reasoning
Question (1)
Firstly, the Court concludes from the provisions of the Birds Directive that the application of the prohibition of Article 5 is not limited to the three species types listed by the referring court. Article 1 explicitly states that the directive aims for “conservation of all species”, which is reaffirmed in article 2. Article 3 further emphasizes that Member States should develop coherent legislation on this matter. Moreover, the classification of animals is already established in Article 4, indicating that the Article 5 should be protecting the species irrelevantly of their conservation status.
From a more contextual perspective, it is in compliance with the TFEU to interpret the article in question as requiring protection for all bird species referred to in Article 1 of the Birds Directive. Moreover, the conservation of declining birds is integral to the EU’s environmental objectives. In conclusion, the Court’s answer to this question is negative.
Question (2)
The Court reframed the second question as a question concerning the definition of “deliberate” and a question concerning the relevance of the “favourable conservation status” in protection provided in Article 12(1)(a) to (c).
Citing the case law from C‑221/04 Commission v Spain, the Court concludes that Article 12 applies to human activities that are manifestly different from the deliberate actions listed in that article, particularly when the actor acknowledges the potential harms to animals and fails to take preventive measures.
Analysing the relevant article, the Court points out that the wording of article 12 requires the State Members to conduct assessment at the level of individual animals. Conversly, according to Article 1 of that directive, the Court stresses that the definition of “conservation status of a species” indicates the status of broader population rather than individual specimens. The wording of Article 12(1)(b) — prohibit the disturbance of “specimens”, suggests whether the action brings a risk to the conservation status of animal species is not relevant. Thus, the Court affirms that the protection system laid down in Article 12(1)(a) to (c) of the Habitats Directive does not depend on the risk of an adverse effect on the conservation status of species.
The Court reinforced its reasoning by asserting the importance of not precluding the possibility that the activities do not bring risk to the conservation status of animal species. The assessment of the impact of activities relevant to derogations under the Article 16 of the Habitats Directive is not applicable within the context of Article 12, otherwise; it would contradict the precautionary principle and the principle of preventive action. This compliance with the aims of the Habitats Directive is entailed in the recitals of that directive.
Next, the Court explains the duties of the referring court at this issue. The referring court’s responsibilities flow from the requirement to implement concrete and specific protection measures, which is intrinsic in the purpose of the Habitats Directive.
Question (4)
The fourth question is about Article 12(1)(d) of the Habitats Directive and is similar with the second question. Since this provision is to protect the breeding sites or resting places of animal species, the Court emphasises that the referring court must to confirm whether the notified area is breeding site of the protected species and assess the potential impact on the ecological functionality of that area.
To answer this question, the Court first points out that this provision is different because it is targeted at “breeding sites or resting places”. As established in the answer of the second question, under the Article 12 of the Habitats Directive, non-deliberate acts are prohibited and the number of specimens concerned is irrelevant to these prohibitions. These rules also apply to Article 12(1)(d). Moreover, the Court cites the Białowieża Forest Case to illustrate that the breeding sites of animals enjoys a higher level of protection compared to other type of habitats covered under Article 12(1)(a) to (c). Consequently, the answer to the fourth question is negative.
There is no necessity to answer the third and fifth questions.
Critical assessment
The Court’s most important interpretation in this case is that the “conservation status of a species” is irrelevant in the application of Article 12 of the Habitats Directive. This interpretation shifts the focus from the overall status of an entire species to the individual animals. Consequently, even if a species has achieved the favourable conservation status, individual members of that species remain protected under that Article.[6] This shift, on the one hand, simplifies for national courts the process to determine the applicability of prohibitions by merely confirming the presence of protected animals in the concerned areas. On the other hand, it also results in more stringent prohibitions and increased responsibility for Member States.
The background of this case reveals an issue: the Member States frequently fail to meet EU standards when implementing the directives on biodiversity protection, especially by their governments.[7] This problem is more likely to worsen as responsibilities increase. Regional administrative authorities are often the first responders to potential harmful activities, yet they are usually limited by the persistent governance problems, such as lack of legal clarity and enforcement problems.[8] The social conflicts among local communities, land owners or investors are also difficulties that those authorities need to face.[9] The environmental activists are also demanding more. In 2020, the three applicants even joined again to actions to resist the construction of railroads in the forest area in Härryda.[10] Factors like limited budget, need of economic development and construction of infrastructure are also holding the local authorities from taking protective measures that are more radical.[11] No matter the local authorities comply with the stricter prohibitions or not, they face more social pressures, which pose risk on social integration and stability.
Given the inherent limitations faced by the institutions responsible for implementing those directives, always interpreting the provisions in a strict way is not advisable. Although the Birds Directive and Habitats Directive seeks a “a coherent European ecological network”,[12] taking into account the specificities of different Member States and regions can also enhance the effectiveness of these prohibitions. Allowing domestic authorities to design and implement more specific regulations of their own under the directives, such as zoning regimes, can help mitigate the conflict of interests.[13] This approach also aligns with the third recital of the Habitats Directive: “taking account of economic, social, cultural and regional requirements”. At the EU level, biodiversity still needs to be highly promoted to create a common belief; while at the regional level, the local regulation must be more “personalised” to better meet unique requirements of different regions.
Conclusion
In the Föreningen Skydda Skogen Case, the Court clarifies again the scope of application of the prohibitions laid down in the Article 5 of the Birds Directive and the Article 12 of the Habitats Directive, further intensifying the responsibilities of Member States under these Directives. While the biodiversity deserves a highly coherent protection system in EU, interpreting the law in a more restrictive manner does not necessarily facilitate the implementation of the provisions. By considering the ecological, economic, and social disparities across different regions, we may better achieve the goal of cohesion and integration in biodiversity protection.
[1] ‘Diversity: What is it and how can we protect it?’ (United Nations, 22 January 2024)
<https://news.un.org/en/story/2024/01/1145772> accessed 15 December 2024.
[2] ‘Why Biodiversity Matters’ (United Nations: Climate Change, 10 September 2021)
<https://unfccc.int/news/why-biodiversity-matters> accessed 15 December 2024.
[3] Pörtner, H.O., Scholes, R.J., Agard, J., Archer, E., Arneth, A., Bai, X., Barnes, D., Burrows, M., Chan, L., Cheung, W.L., Diamond, S., Donatti, C., Duarte, C., Eisenhauer, N., Foden, W., Gasalla, M. A., Handa, C., Hickler, T., Hoegh-Guldberg, O., Ichii, K., Jacob, U., Insarov, G., Kiessling, W., Leadley, P., Leemans, R., Levin, L., Lim, M., Maharaj, S., Managi, S., Marquet, P. A., McElwee, P., Midgley, G., Oberdorff, T., Obura, D., Osman, E., Pandit, R., Pascual, U., Pires, A. P. F., Popp, A., ReyesGarcía, V., Sankaran, M., Settele, J., Shin, Y. J., Sintayehu, D. W., Smith, P., Steiner, N., Strassburg, B., Sukumar, R., Trisos, C., Val, A.L., Wu, J., Aldrian, E., Parmesan, C., Pichs-Madruga, R., Roberts, D.C., Rogers, A.D., Díaz, S., Fischer, M., Hashimoto, S., Lavorel, S., Wu, N., Ngo, ‘IPBES-IPCC co-sponsored workshop report on biodiversity and climate change’ (IPBES and IPCC, 10 June 2021) para.25.
[4] Yaffa Epstein, José Vicente López-Bao and Guillaume Chapron, ‘Strict protection of Species in the EU: Controversies and trends’ in Adrew L. R. Jackson (eds), Nature Law and Policy in Europe (Routledge 2023).
[5] ‘Skogsavverkning hotar unik skog vid Göteborg’ (Naturskyddsföreningen i Härryda, 21 December 2016) <https://harryda.naturskyddsforeningen.se/wp-content/uploads/sites/209/2013/12/PRESSM-Avverkning-hotar-unik- skog.pdf> accessed 10 December 2024.
[6] Yaffa Epstein, José Vicente López-Bao and Guillaume Chapron, ‘Strict protection of Species in the EU: Controversies and trends’ in Adrew L. R. Jackson (eds), Nature Law and Policy in Europe (Routledge 2023).
[7] Jessica Stubenrauch, Beatrice Garske, ‘Forest protection in the EU’s renewable energy directive and nature conservation legislation in light of the climate and biodiversity crisis – Identifying legal shortcomings and solutions’ (2023)153 Forest Policy and Economics 102996.
[8] Ibid.
[9] Naja Marot, Špela Kolarič, Mojca Golobič, ‘Slovenia as the Natural Park of Europe? Territorial Impact Assessment in the Case of Natura 2000’ (2013)53-1 Acta Geographica Slovenica 91.
[10] ‘JÄRNVÄGEN HOTAR HÄRRYDAS VÄRDEFULLASTE NATUR!’ (Naturskyddsföreningen i Härryda, 16 December 2020) < https://harryda.naturskyddsforeningen.se/aktuellt/ > accessed 15 December 2024.
[11] Ute Collier, ‘Local authorities and climate protection in the European union: Putting subsidiarity into practice?’ (1997)2 The International Journal of Justice and Sustainability 39.
[12] Joined Cases C‑473/19 and C‑474/19 Föreningen Skydda Skogen and Others v Länsstyrelsen i Västra Götalands län and Others [2021] ECRI.
[13] Arie Trouwborst, ‘Wolves not welcome? Zoning for large carnivore conservation and management under the Bern Convention and EU Habitats Directive’ (2018)27-3 Review of European Comparative & International Environmental Law 306.
