Case C‑357/20

IE

v

Magistrat der Stadt Wien

(Request for a preliminary ruling from the Verwaltungsgericht Wien)

Judgment of the Court (Second Chamber), 28 October 2021

(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)

1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Strict protection for the animal species listed in Annex IV(a) – Prohibition on the deterioration or destruction of breeding sites or resting places – ‘Breeding site’ – Surroundings of the breeding site – Included

   (Council Directive 92/43, Art. 12(1)(d), and Annex IV(a))

   (see paragraphs 21-34, operative part 1)

2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Strict protection for the animal species listed in Annex IV(a) – Prohibition on the deterioration or destruction of breeding sites or resting places – Scope – Protection of breeding sites no longer occupied by a protected animal species – Included – Condition – Sufficiently high probability of the protected species returning

   (Council Directive 92/43, Art. 12(1)(d), and Annex IV(a))

   (see paragraphs 37-43, operative part 2)

3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Strict protection for the animal species listed in Annex IV(a) – Prohibition on the deterioration or destruction of breeding sites or resting places – Distinction between ‘deterioration’ and ‘destruction’ – Criterion – Degree of harm to the ecological functionality of the breeding site or resting place

   (Council Directive 92/43, Art. 12(1)(d), and Annex IV(a))

   (see paragraphs 47-54, operative part 3)

Résumé

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, ( 1 ) 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 Wien (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 follows 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 habitats and species of wild fauna and flora of interest for the European Union. It follows therefrom that the system of protection provided for in Article 12(1) of the Habitats Directive must therefore be capable of effectively preventing harm being caused to the habitat of protected animal species.

An interpretation of the term ‘breeding site’ which seeks to limit the scope of that concept only to the burrows of the European hamster is liable to exclude from that protection areas necessary for the reproduction and for the birth of the offspring of that animal species. Furthermore, the protection of a breeding site would be rendered redundant if human activities, carried out in the vicinity of that site, had the aim or effect of that animal species no longer frequenting the breeding site concerned.

Next, as regards the temporal scope of the protection of breeding sites, the Court adopts a broad interpretation of that protection, akin to the broad interpretation given to the temporal scope of the concept of ‘resting place’. ( 2 )

Thus, in order to ensure the strict protection offered by Article 12(1)(d) of the Habitats Directive, the breeding sites of a protected animal species must enjoy protection for as long as is necessary in order for that animal species successfully to reproduce. From that point of view, the protection referred to therein also extends to breeding sites that are no longer occupied, where there is a sufficiently high probability that that animal species will return to those sites in order to reproduce there.

Finally, the Court clarifies the criterion for distinguishing between the concepts of ‘deterioration’ and ‘destruction’ of a breeding site or resting place within the meaning of Article 12(1)(d) of the Habitats Directive.

Taking into consideration the usual meaning in everyday language of those words, the context in which they are used and the objectives pursued by the Habitats Directive, the Court concludes that the decisive criterion for establishing a distinction between, on the one hand, an act causing deterioration of a breeding site or a resting place and, on the other, an act causing its destruction, is the degree of harm to the ecological functionality of the breeding site or of that resting place, whether or not that interference is intentional. For the purposes of that determination, account must be taken of the ecological requirements of each animal species concerned and of the situation at individual level of the members of that animal species occupying the breeding site or resting place concerned.

It follows that the concepts of ‘deterioration’ and ‘destruction’, referred to in Article 12(1)(d) of the Habitats Directive, must be interpreted as meaning, respectively, the gradual reduction of the ecological functionality of a breeding site or resting place of a protected animal species and the total loss of that functionality, irrespective of whether or not such harm is intentional.

( 1 ) 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’).

( 2 ) The dispute in the main proceedings has already given rise to a request for a preliminary ruling, on which the Court ruled in the judgment of 2 July 2020, Magistrat der Stadt Wien (Grand hamster) (C‑477/19, EU:C:2020:517). In that judgment, the Court held that the protection of the resting places of the European hamster (Cricetus cricetus) also covers resting places which are no longer occupied by that animal species where there is a sufficiently high probability that that animal species will return to those resting places.