Judgment of the Court Second Chamber of 28 October 2021, Magistrat der Stadt Wien Grand hamster – II, C-357/20

• Date: 28 October 2021
• Year: 2021

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IX. ENVIRONMENT: HABITATS DIRECTIVE

Judgment of the Court (Second Chamber) of 28 October 2021, Magistrat der Stadt Wien

(Grand hamster – II), C-357/20

Link to the complete text of the judgment

Reference for a preliminary ruling – Conservation of natural habitats and of wild fauna and flora –

Directive 92/43/EEC – Article 12(1) – System of strict protection for animal species – Annex IV(a) –

European hamster (Cricetus cricetus) – Resting places and breeding sites – Deterioration or destruction

A property developer carried out construction work on land on which the European hamster ( Cricetus

cricetus), a species protected under Annex IV(a) to the Habitats Directive,

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had settled. Before the

works in question were carried out, the property developer, without the prior authorisation of the

competent authority, took steps, inter alia, to remove that species from the construction site to other

specially protected areas, which led to the destruction of at least two of the burrow entrances.

The Magistrat der Stadt W ien (City Council of Vienna, Austria) therefore ordered IE, as an employee of

the property developer, to pay a fine for having damaged and destroyed resting places and breeding

sites of the European hamster.

IE brought an action before the Verwaltungsgericht Wien (Administrative Court, Vienna, Austria)

challenging the imposition of the fine on the grounds that the burrows on the relevant land were not

being used by the European hamster (Cricetus cricetus) when the harmful measures were

implemented and, moreover, that those measures did not lead to the deterioration or destruction of

resting places or breeding sites of that animal species.

It was in that context that the referring court decided to ask the Court of Justice about the scope in

both place and time of the concept of ‘breeding site’ and of the criteria for distinguishing between

‘deterioration’ and ‘destruction’ of a breeding site and/or a resting place, within the meaning of

Article 12(1)(d) of the Habitats Directive.

Findings of the Court

First of all, as regards the scope of the spatial protection of breeding sites, the Court gives a literal,

systematic and teleological interpretation of Article 12(1)(d) of the Habitats Directive.

As is apparent, first, from the wording of that provision, Article 12(1)(d) of the Habitats Directive

requires Member States to take the requisite measures to establish a system of strict protection for

the animal species listed in Annex IV(a) to the directive in their natural range, prohibiting the

deterioration or destruction of breeding sites or resting places.

As regards, secondly, the context of which that provision forms part, the Court points out that the

prohibition laid down therein seeks to safeguard the ecological functionality of breeding sites and to

preserve significant parts of the habitat of protected animal species, so that those species may benefit

from the conditions required in order, inter alia, to reproduce there. It fo llows that the term ‘breeding

site’ must be understood as encompassing all the areas necessary to enable the animal species

concerned to reproduce successfully, including the surroundings of that site.

That interpretation is borne out by the objectives of the directive. That directive aims, with a view to

the preservation of biodiversity, to maintain or restore, at favourable conservation status, natural

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Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) (‘the

Habitats Directive’).