EU Nature Protection Legislation – Focus on Species Protection

The aim of Articles 12 to 16 of the Habitats Directive is to establish and implement a strict protection regime for animal species listed in Annex IV (a) of the Habitats Directive within the whole territory of the Member States.

Articles 12 and 13 provide for measures which should establish a system of strict protection for the flora and fauna listed in Annex IV of the Directive.

Article 12 (1) of the Habitats Directive prohibits deliberate killing or capture of animal species which need high protection. The species concerned are listed in Annex IV of the Directive. Further, deliberate disturbance, deliberate destruction or taking of eggs from the wild, deterioration or destruction of breeding sites or resting places is also forbidden. Paragraph two of the Directive prohibits the keeping of, or trading in, the protected species.

The purpose of the prohibitions laid down in Article 12(1) is to achieve strict protection for animal species. Therefore, the scheme of protection laid down in Article 12 must be sufficient effectively to prevent interference with protected animal species and, in particular, their habitats.

The system of strict protection presupposes the adoption of coherent and coordinated measures of a preventive nature. In other words, the Member States cannot stay passive but must enable the actual avoidance of deliberate capture or killing in the wild, and of deterioration or destruction of breeding sites or resting places, of the animal species.

The CJEU has held that the acts referred to in Article 12(1)(d) are not only intentional acts, but also include non-deliberate acts. By not limiting the prohibition laid down in Article 12(1)(d) of the directive to deliberate acts, which it has done in respect of the acts referred to in Article 12(1)(a) to (c), the EU legislature has demonstrated its intention to give breeding sites or resting places increased protection against acts causing their deterioration or destruction.

As regards the territorial scope of Article 12(1), the protection provided by this provision does not in principle comprise any limits or borders, with the result that a wild specimen of an animal species which strays close to or into human settlements, passing through such areas or feeding on resources produced by humans, cannot be regarded as an animal that has left its ‘natural range’. In Case C-88/19 Alian?a pentru combaterea abuzurilor, the CJEU confirmed that the system of strict protection laid down in respect of the species listed in point (a) of Annex IV to that directive, such as the wolf, also applies to specimens that leave their natural habitat and stray into human settlements. In so far as concerns protected animal species which, like the wolf, occupy vast stretches of territory, the concept of ‘natural range’ is greater than the geographical space that contains the essential physical or biological elements for their life and reproductions, and therefore corresponds to the geographical space in which the animal species concerned is present or to which it extends in the course of its natural behaviour.

Furthermore, the protective regime applies to resting and breeding sites even if the animals no longer claim them, but may return there. In Case C-477/19 Magistrat der Stadt Wien, the CJEU held that the term ‘resting places’ referred to in that provision also includes resting places which are no longer occupied by one of the protected animal species listed in Annex IV(a), such as the Cricetus cricetus (European hamster), where there is a sufficiently high probability that that species will return to such places, which is a matter for the referring court to determine. Therefore, the national court must clarify whether there is a likelihood of the rodents returning.