Opinion of Advocate General Kokott delivered on 6 February 2025.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2025:67
• Date: 06 February 2025

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 6 February 2025 (1)

Case C‑784/23

Voore Mets and Others

(Request for a preliminary ruling from the Riigikohus (Supreme Court, Estonia))

( Reference for a preliminary ruling – Conservation of wild birds – Directive 2009/147/EC – Article 5 – Prohibitions on the deliberate killing of birds, deliberate destruction of, or damage to, their nests and eggs or removal of their nests and the deliberate disturbance of bird species – Concept of ‘deliberateness’ – Felling during the breeding season of birds – Article 2 – Level of species which corresponds to ecological, scientific and cultural requirements, taking account of economic and recreational requirements – Article 9 – Derogations from the prohibitions – Prevention of serious damage to forests – Charter of Fundamental Rights – Article 16 – Freedom to conduct a business – Article 17 – Right to property )

I. Introduction

1. Both the Birds Directive (2) and the Habitats Directive (3) require Member States to prohibit certain types of deliberate harm to protected animal species, such as the killing of specimens. As regards the prohibitions laid down in the Habitats Directive, the Court interprets the concept of ‘deliberateness’ as including harm which the author of the act has intended or, at the very least, accepted as a possible result of the act. (4) That interpretation of the concept of ‘deliberateness’ also applies, in some Member States, to the prohibitions laid down in the Birds Directive. (5) The Republic of Estonia also subscribes to it in the present proceedings. Nevertheless, the Court has not yet expressly confirmed that interpretation.

2. In my Opinion in Föreningen Skydda Skogen, however, I have already examined the interpretation of the concept of ‘deliberateness’ in the prohibitions in the Birds Directive and warned against transferring, without restriction, the interpretation given in the context of the Habitats Directive to the Birds Directive. (6) The Riigikohus (Supreme Court, Estonia) now asks the Court to clarify this question on the basis of a dispute concerning the permissibility of felling during the breeding season for birds. In the event of direct applicability of the case-law on the Habitats Directive to the Birds Directive, it also asks whether a derogation under Article 9 of the Birds Directive might permit the work to be carried out. If no derogation applies, it wishes to know whether the prohibitions in the Birds Directive thus interpreted are compatible with freedom to conduct a business and the fundamental right to property.

II. Legal framework

A. Bern Convention

3. In international law, the Bern Convention on the Conservation of European Wildlife and Natural Habitats (7) is of particular importance. The European Economic Community ratified that convention in 1982. (8) In Estonia, the Convention entered into force on 1 December 1992. (9)

4. Article 6 of the Bern Convention contains fundamental prohibitions for the protection of wild fauna species:

‘Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the special protection of the wild fauna species specified in Appendix II. The following will in particular be prohibited for these species:

(a) all forms of deliberate capture and keeping and deliberate killing;

(b) the deliberate damage to or destruction of breeding or resting sites;

(c) the deliberate disturbance of wild fauna, particularly during the period of breeding, rearing and hibernation, in so far as disturbance would be significant in relation to the objectives of this Convention;

(d) the deliberate destruction or taking of eggs from the wild or keeping these eggs even if empty;

(e) the possession of and internal trade in these animals, alive or dead, including stuffed animals and any readily recognisable part or derivative thereof, where this would contribute to the effectiveness of the provisions of this article.’

5. Exceptions are regulated in Article 9(1) of the Convention:

‘Each Contracting Party may make exceptions from the provisions of Articles 4, 5, 6, 7 and from the prohibition of the use of the means mentioned in Article 8 provided that there is no other satisfactory solution and that the exception will not be detrimental to the survival of the population concerned:

– for the protection of flora and fauna,

– to prevent serious damage to crops, livestock, forests, fisheries, water and other forms of property,

– in the interests of public health and safety, air safety or other overriding public interests,

– for the purposes of research and education, of repopulation, of reintroduction and for the necessary breeding,

– to permit, under strictly supervised conditions, on a selective basis and to a limited extent, the taking, keeping or other judicious exploitation of certain wild animals and plants in small numbers.’

B. European Union law

1. The Birds Directive

6. According to recital 6 of the Birds Directive, the stringency of protective measures should be adapted to the particular situation of the various species:

‘The measures to be taken must apply to the various factors which may affect the numbers of birds, namely the repercussions of man’s activities and in particular the destruction and pollution of their habitats, capture and killing by man and the trade resulting from such practices; the stringency of such measures should be adapted to the particular situation of the various species within the framework of a conservation policy.’

7. Recital 10 of the Birds Directive requires, inter alia, that certain bird species be maintained at a ‘satisfactory level’:

‘Because of their high population level, geographical distribution and reproductive rate in the Community as a whole, certain species may be hunted, which constitutes acceptable exploitation where certain limits are established and respected, as such hunting must be compatible with maintenance of the population of these species at a satisfactory level.’

8. Article 1 of the Birds Directive governs its scope:

‘This Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation.’

9. Article 2 of the Birds Directive contains the basic obligation of the Member States as regards the maintenance of bird species:

‘Member States shall take the 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, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.’

10. Article 5 of the Birds Directive contains prohibitions that are not dependent on a specific area:

‘Without prejudice to Articles 7 and 9, Member States shall take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular:

(a) deliberate killing or capture by any method;

(b) deliberate destruction of, or damage to, their nests and eggs or removal of their nests;

(c) …;

(d) deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive;

(e) …’

11. Article 7 of the Birds Directive, by contrast, expressly authorises the hunting of certain bird species:

‘1. Owing to their population level, geographical distribution and reproductive rate throughout the Community, the species listed in Annex II may be hunted under national legislation. Member States shall ensure that the hunting of these species does not jeopardise conservation efforts in their distribution area.

2. …

…

4. Member States shall ensure that the practice of hunting, including falconry if practised, as carried on in accordance with the national measures in force, complies with the principles of wise use and ecologically balanced control of the species of birds concerned and that this practice is compatible as regards the population of these species, in particular migratory species, with the measures resulting from Article 2.

…’

12. Article 9 of the Birds Directive allows derogations from the prohibitions laid down in Article 5:

‘1. Member States may derogate from Articles 5 to 8, where there is no other satisfactory solution, for the following reasons:

(a) – in the interests of health and public safety,

– in the interests of air safety,

– to prevent serious damage to crops, livestock, forests, fisheries and water,

– for the protection of flora and fauna;

(b) for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes;

(c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.

2. The derogations referred to in paragraph 1 must specify:

(a) the species which are subject to the derogations;

(b) the means, arrangements or methods authorised for capture or killing;

(c) the conditions of risk and the circumstances of time and place under which such derogations may be granted;

(d) the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom;

(e) the controls which will be carried out.’

2. The Habitats Directive

13. Article 12(1) of the Habitats Directive requires the enactment of certain prohibitions:

‘1. Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of...