Commission notice

Guidance document on the strict protection of animal species of Community interest under the Habitats Directive

Guidance document on the strict protection

of animal species of Community interest under

the Habitats Directive

TABLE OF CONTENTS

FOREWORD     4

1. CONTEXT     6

2. ARTICLE 12     8

2.1 General legal considerations    8

2.2 Requisite measures for a system of strict protection    11

2.2.1    Measures to establish and effectively implement

   a system of strict protection    11

2.2.2    Measures to ensure favourable conservation status    13

2.2.3    Measures regarding the situations described in Article 12    15

2.2.4    Provisions of Article 12(1)(a)-(d) in relation to

   ongoing activities    18

2.3 The specific protection provisions under Article 12    24

2.3.1    Deliberate capture or killing of specimens of

   Annex IV(a) species    24

2.3.2    Deliberate disturbance of Annex IV(a) species,

   particularly during periods of breeding, rearing,

   hibernation and migration    26

2.3.3    Deliberate destruction or taking of eggs from the wild    29

2.3.4    Deterioration or destruction of breeding sites or

   resting places    29

2.3.5    Keeping, transport and sale or exchange, and offering

   for sale or exchange, of specimens taken from the wild    40

2.3.6    Monitoring system for the incidental capture and

   killing of Annex IV(a) species    40

3. ARTICLE 16    44    

3.1 General legal considerations    45    

3.1.1    Obligation to ensure full, clear and precise

   transposition of Article 16    45

3.1.2    Appropriate overall application of derogations    46

3.2 A carefully controlled system for granting derogations: the 3 tests    48    

3.2.1    Demonstration of one of the reasons under

   Article 16(1)(a) to (e) (Test 1)    50

3.2.2    Absence of a satisfactory alternative (Test 2)    61

3.2.3    Impact of a derogation on conservation status (Test 3)    64

3.3 Additional considerations    67    

3.3.1    The role of species action plans    68

3.3.2    Impact assessment for plans or projects and species

   Protection.    69

3.3.3    The role of compensation measures    70

3.3.4    Multi-species derogations    71

3.3.5    “Temporary nature”: dealing with the colonisation of sites

   under development by species listed in Annex IV    71

3.4 Monitoring and reporting of derogations    73    

3.4.1    Monitoring the impacts of derogations    73

3.4.2    Reporting obligations under Article 16(2) and 16(3)     74

Annex I. Court case references    76

Annex II. List of animal species covered by Annex II, IV and V    78

Annex III. Implementation of Article 12 of Habitats Directive –

   The Wolf example    91

   

FOREWORD

Why an updated guidance document on the strict protection of animal species?

The first guidance document on the strict protection of animal species of Community interest under the Habitats Directive 1 was published in 2007. Its aim was to provide a better understanding of the provisions for species protection and of the specific terms used.

Following the fitness check of the EU Nature Directives (2014-2016), the European Commission adopted the Action Plan for nature, people and the economy 2 to promote a better, smarter and more cost-effective implementation of the Directives. Action 1 of the Action Plan called for an update of this guidance document. This was deemed necessary in light of the latest rulings of the Court of Justice of the European Union (CJEU) and to ensure better coherence with broader socio-economic objectives.

The present guidance is the result of this revision process. It takes account of the practical experience gained from implementation of the species protection provisions of the Habitats Directive over the years since the publication of the first version of the guidance.

Purpose of the guidance document

This document focuses on the obligations arising from Articles 12 and 16 of the Habitats Directive. These establish a system of strict protection for the animal species listed in Annex IV(a) to the Directive, while allowing for a derogation from these provisions under defined conditions. The document is mainly based on relevant CJEU judgments and examples of species protection systems in place in various Member States.

The document is destined for national, regional and local authorities, conservation bodies and other organisations responsible for, or involved in, implementation of the Habitats Directive, and stakeholders. It aims to assist them in devising effective and pragmatic ways of applying the provisions, while fully respecting the legal framework. Member States and key stakeholders have been consulted on various drafts of the document and their comments have been taken into consideration.

Limitations of the guidance document

This guide sets out the Commission’s understanding of the relevant provisions of the Directive but is not in itself legislative; it does not make new rules but provides guidance on the application of those that exist. Only the CJEU is competent to authoritatively interpret EU law.

The guidance, which will be further updated at regular intervals, should be read in light of any emerging jurisprudence on this subject, and also with experience arising from the implementation of Articles 12 and 16 in the Member States.

Structure of the document

The document is presented in three main chapters. Chapter 1 looks at the place of species protection within the overall scheme of the Habitats Directive. Chapter 2 takes a more in-depth look at the relevant legal provisions of Article 12 of the Directive. Chapter 3 examines the derogation possibilities under Article 16.

The key points arising from the analyses are summarised (in italics) at the beginning of each section. Full references to the Court cases quoted throughout the text are provided in Annex I. Annex II presents the list of animal species covered by the species protection provisions. Annex III provides an example, in the case of the wolf, of how the guidance document can be applied.

1.CONTEXT

1.1 Species conservation under Directive 92/43/EEC

(1-1)    Article 2(1) sets out the overall objective of the Habitats Directive, which is ‘to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies’.

In accordance with Article 2(2), the measures taken pursuant to the Directive ‘shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest’. These measures, as per Article 2(3), ‘shall take account of economic, social and cultural requirements and regional and local characteristics’ 3 .

Therefore, the primary objective of the Habitats Directive is the maintenance or restoration at favourable conservation status of all natural habitats and species of Community interest. Article 1(i) of the Directive defines what is meant by the term ‘favourable conservation status’ for species 4 .

(1-2)    In order to attain this objective, the Directive has two main sets of provisions. The first set relates to the conservation of natural habitats and habitats of species (Articles 3-11) and the second to the protection of species (Articles 12-16).

(1-3)    The provisions on the protection of species (Articles 12-16) apply across the entire natural range of species within the Member States, both within and beyond Natura 2000 sites. These provisions are complementary to those governing Natura 2000 sites, which focus on protecting natural habitats and core areas of habitats of protected species listed in Annex II of the Directive.

(1-4)    A directive is binding as to the result to be achieved, but leaves Member States the choice as to the form and methods of achieving that result. Settled case law clarifies that transposition into national law must be clear and precise, faithful and with unquestionable binding force (see CJEU cases C-363/85, C-361/88, C-159/99 paragraph 32, C-415/01 paragraph 21, C-58/02, C-6/04 paragraphs 21, 25 and 26, C-508/04 paragraph 80).

(1-5) The interpretation and application of the provisions of the Directive should also take into account the precautionary principle, as established in Article 191 of the Treaty on the Functioning of the European Union (TFEU), which aims at ensuring a higher level of environmental protection through preventive decision-taking in the case of risk.

(1-6)    It is also important to underline that implementation of the species protection provisions of the Directive requires a species-by-species approach. Member States should therefore always consider their implementation actions in light of the intended objective, the species concerned, and the circumstances surrounding each case.

(1-7)    These concepts of flexibility and proportionality should not be misunderstood. They do not reduce the obligations on Member States to act in an effective way, but instead provide the authorities with sufficient room for manoeuvre to adapt their way of implementation to specific circumstances (in conservation status terms, but also in social, economic and cultural terms).

(1-8) According to the Court, ‘Articles 12, 13 and 16 of the Habitats Directive form a coherent body of provisions intended to protect the populations of the species concerned, so that any derogation incompatible with the directive would infringe both the prohibitions set out in Articles 12 and 13 and the rule that derogations may be granted in accordance with Article 16’ 5 . The Court further clarified that ‘Articles 12 to 14 and 15a and b of the Directive form a coherent body of provisions which require the Member States to establish strict regimes of protection for the animal and plant species concerned’ 6 . Whatever approach is taken as regards the implementation of these provisions, they will need to respect the overall objective of the Directive, namely to ensure biodiversity and to maintain or restore, at a favourable status, natural habitats and species of Community interest.

The natural range of species and habitats — a dynamic concept

(1-9) The natural range roughly describes the spatial limits within which the habitat or species occurs. It is not identical to the precise localities (the area actually occupied) or territory where a habitat, species or subspecies permanently occurs. Such actual localities or territories might be patchy or disjointed (i.e. habitats and species might not be evenly spread) within their natural range. If the reason for disjunction proves to be natural, i.e. caused by ecological factors, the isolated localities should not be interpreted as a continuous natural range. For example, for an alpine species, the range may be the Alps and the Pyrenees, but not the lowlands between them. However, the natural range includes areas that are not permanently used: for example, for migratory species, their range includes all the areas of land or water that a migratory species inhabits, stays in temporarily, crosses or flies over at any time during its normal migration 7 .

(1-10) A natural range is not static but dynamic: it can decrease and expand. A natural range can constitute one aspect for the assessment of the conditions of a habitat or species. If the natural range is insufficient in size to allow for the long-term existence of that habitat or species, Member States are asked to define a reference value for a range that would allow for favourable conditions and to work towards this, for instance by fostering expansion of the current range.

(1-11) When a species or habitat spreads on its own to a new area or territory, or when a species has been reintroduced into its former natural range (in accordance with the rules in Article 22 of the Habitats Directive), this territory has to be considered part of the natural range. Similarly, restoring or recreating or managing habitat areas, and certain agricultural and forestry practices, can contribute to the expansion of a habitat or a species natural range. However, individuals or feral populations of an animal species introduced deliberately or accidentally by man to locations where they have never occurred naturally, or to where they would not have spread naturally in a foreseeable future, should be considered to be outside their natural range and consequently not covered by the Directive.

2. ARTICLE 12

Text of Article 12

Article 12 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 specimens of these species in the wild; (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; (c) deliberate destruction or taking of eggs from the wild; (d) deterioration or destruction of breeding sites or resting places. 2. For these species, Member States shall prohibit the keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild, except for those taken legally before this Directive is implemented. 3. The prohibition referred to in paragraph 1(a) and (b) and paragraph 2 shall apply to all stages of life of the animals to which this Article applies. 4. Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in Annex IV(a). In the light of the information gathered, Member States shall take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.

(2-1)    Article 12 addresses the protection of species listed in Annex IV(a). The article applies throughout the natural range of the species within the EU and aims to address their direct threats, rather than those of their habitats, with the exception of Article 12(1)(d).

(2-2)    Annex IV(a) encompasses a wide variety of species, from large, wide-ranging vertebrates to small invertebrates with very small home ranges. Some species are also listed under Annex II and therefore also benefit from measures aimed at the conservation of their habitats within special areas of conservation (Articles 3 to 10). Others, however, are only listed in Annex IV(a), which means that for them Article 12 (for animal species) and Article 13 (for plant species) provide the principal provisions for achieving the conservation aim of the Directive as stated in Article 2.

(2-3)    Before addressing the provisions of Article 12 in detail, it is worth recalling some general legal considerations that have been developed by the CJEU.

2.1. General legal considerations

(2-4)    The effective implementation of Article 12 of the Habitats Directive requires full, clear and precise transposition by Member States. According to established case law, ‘the provisions of Directives must be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty’ 8 .

(2-5) According to the Court, “while the transposition of a directive into domestic law does not necessarily require that the content of the directive be incorporated formally and verbatim in express, specific legislation and, depending on its content, a general legal context may be adequate for the purpose, that is on condition that that context does indeed guarantee the full application of the directive in a sufficiently clear and precise manner”  9 . The Court has consistently held that, in order to satisfy the requirement of legal certainty, individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to defend them before the national courts 10 .

Different types of restriction may be enshrined in legislation in various forms. However, whichever form is used, it must be sufficiently clear, precise and strict. For instance, a prohibition on the use of pesticides where this is likely to have seriously harmful effects on the balance of nature has been held not to express, in a sufficiently clear, precise and strict manner, the need to prohibit the deterioration of breeding sites or resting places of protected animals as laid down in Article 12(1)(d) 11 .

(2-6)    Any provisions establishing a strict protection framework should specifically address Annex IV species and meet all the requirements laid down in Article 12. The Court 12 emphasised the importance of this in the Caretta caretta (loggerhead sea turtle) case. When asked by the Court to identify the provisions in force in their legal system that it believed met the requirements laid down by Article 12, ‘the Greek Government merely listed a series of laws, regulations and administrative measures without referring to any specific provisions capable of meeting those requirements.’

Given the specific character of Article 12, the Court ruled that legislative or administrative provisions of a general character, e.g. a mere repetition of the wording of Article 12 in national legislation, do not always satisfy the requirements of species protection or guarantee the effective implementation of Article 12. The formal transposition of Article 12 into national legislation is not sufficient in itself to guarantee its effectiveness. It must be complemented by further implementing provisions to ensure strict protection based on the particularities, and the specific problems and threats faced by species or groups of species listed in Annex IV.

(2-7)    When transposing the Directive, Member States must respect the meaning of the terms and concepts used by the Directive to ensure uniformity in its interpretation and application 13 . This also implies that national transposition measures should guarantee full application of the Directive without modifying its terms, selectively applying its provisions, or adding supplementary conditions or derogations not provided for in the Directive 14 .

As the Court has observed, ‘faithful transposition becomes particularly important in an instance such as the present one, where management of the common heritage is entrusted to the Member States in their respective territories… It follows that, in the context of the [Habitats] Directive, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise’ 15 .

For instance, the transposition of Article 12(1)(d) prohibiting only the deterioration or destruction of breeding sites and resting places that are ‘clearly perceptible’ or ‘perfectly known and identified as such’, or prohibiting only the deliberate deterioration or destruction of breeding sites or resting places 16 , is deemed to have modified the substance of Article 12(1)(d) and limit its scope of application. This provision requires Member States to prohibit the destruction of all breeding sites and resting sites, whether deliberate or not – and not just those that are well known. It also excludes the exemption of lawful acts from the prohibition in Article 12(1)(d). This kind of transposition is therefore incompatible with Article 12(1)(d) since it does not prohibit the destruction – deliberate or otherwise - of all breeding sites and resting sites.

(2-8)    In addition, ‘mere administrative practices, which by their nature may be changed at will by the authorities, cannot be regarded as constituting proper compliance with the obligation on Member States to which a Directive is addressed, pursuant to Article 189 of the Treaty’ 17 . Another Court case reinforced this decision 18 . The existence of national case law alone, with no specific legal provision, cannot be considered as properly complying with the obligation to fully transpose a Directive. Conversely, ‘failure to fulfil obligations may arise due to the existence of an administrative practice which infringes Community law, even if the applicable national legislation itself complies with that law’ 19 .

2.2. Requisite measures for a system of strict protection

(2-9)    Article 12(1) of the Habitats Directive obliges Member States to take ‘the requisite measures to establish an effective system of strict protection’ for the species listed in Annex IV in their natural range. This raises several questions as to the definition of certain terms used. While clearly setting out the prohibitions, the Directive does not, for instance, define in detail what is meant by ‘requisite’ measures or a ‘system’ of strict protection.

(2-10) It is important therefore to recall that the interpretation and implementation of Article 12(1)(a) to (d) should take into account the aim of the Directive as laid down in Article 2. Thus, the Directive gives a certain margin of manoeuvre to the Member States in establishing a ‘system’ of strict protection for the species listed in Annex IV. However, this discretionary power is subject to limitations and must respect a number of minimum requirements as detailed below.

2.2.1.Measures to establish and effectively implement a system of strict protection

(2-11)    The full and effective application of Article 12 requires, on the one hand, the establishment of a coherent legal framework, i.e. the adoption of specific laws, regulations or administrative measures to effectively prohibit the activities indicated in Article 12 and, on the other hand, the application of concrete measures to enforce these provisions on the ground for the protection of the species listed in Annex IV. This double safeguard is fundamental to the application of Article 12.

The Court has confirmed this approach in cases C-103/00 (concerning the protection of Caretta caretta in Zakynthos 20 ), C-518/04 (concerning the protection of Vipera schweizeri in Milos 21 ), C-183/05 (concerning the protection of several Annex IV species in Ireland 22 ), C-383/09 (concerning the protection of Cricetus cricetus in France 23 ) and C-504/14 (concerning the protection of Caretta caretta in the Kyparissia area 24 ).

(2-12) Thus, Article 12(1) requires both the establishment and the implementation of a system of strict protection that effectively prohibits the activities listed therein. Therefore, an adequate system of strict protection for Annex IV species also requires a set of coherent and coordinated measures of a preventive nature. This should also apply, where relevant, to cross-border coordination between neighbouring Member States, namely when they share the same population of a protected species.

In the Cricetus cricetus case (C-383/09), the Court declared that the transposition of the provision under Article 12(1)d requires, besides the adoption of a comprehensive legislative framework, the implementation of concrete and specific protection measures and the adoption of prevention measures that are coherent and coordinated 25 (see also Case C‑518/04 26 , and Case C‑183/05 27 ). Such a system of strict protection must therefore enable the effective avoidance of deterioration or destruction of breeding sites or resting places of the animal species listed in Annex IV(a) of the Habitats Directive (see Case C‑103/00 28 ).

In the Skydda Skogen case (C‑473/19 and C‑474/19), the Court has confirmed that it is in fact important, for the purposes of achieving the objectives of the Habitats Directive, that the competent authorities be able to anticipate activities that would be harmful to the species protected by that directive, regardless of whether or not the object of the activity in question is the killing or disturbance of these species 29 .

(2-13) This results directly from the term ‘system of strict protection’ and also takes account of the need to establish a link between the adopted measures and the objectives of Article 12 and the Directive in general. These measures must contribute to the goal of maintaining the species in the long term or restoring its population in its habitat, and must be effectively enforced.

This interpretation is borne out by recitals 3 30 and 15 31 of the Directive, which refer to the encouragement of human activities and to management measures as being necessary for maintaining or restoring species at a favourable conservation status. The recitals themselves do not have any binding legal effect and can never override the substantive provisions of the Directive, but they give a clear indication of intent. So, although the Court does not use the preamble to directly ground a judgment, it is still often used as an aid in interpreting the substantive provisions of secondary legislation 32 .

(2-14) The need for concrete, coherent and coordinated measures of a preventive nature in order to implement the requirement for the strict protection of Annex IV species does not necessarily imply the establishment of new structures or authorisation procedures at national level. For instance, as regards projects that may affect an Annex IV species, Member States can adapt existing planning procedures to meet the requirements of Article 12. This means that the assessment of the impact on species and their breeding sites and resting places can be built into existing decision-making processes at various levels in a Member State, including, for example, land-use planning decisions or environmental impact assessment procedures for plans and projects.

With regard to ongoing activities, Member States can employ planning procedures, regulations or best practice codes (which need to be sufficiently detailed and clear) as tools to implement Article 12 provisions. However, as explained in Section 2.3.4., such approaches and tools complement, rather than replace, formal legal protection.

2.2.2. Measures to ensure favourable conservation status

(2-15)    Interpretation of Article 12 has to take into consideration the objective of the Habitats Directive as set out in Article 2, which applies, without distinction, to habitats and species listed in all annexes. Consequently, strict protection measures adopted under Article 12 should ensure or contribute to the maintenance or restoration, at favourable conservation status, of Annex IV species of Community interest.

(2-16)    Furthermore, Article 12 has to be interpreted in light of Article 1(i), which defines the favourable conservation status of a species. This implies that the measures to be taken must be decided based on the particular circumstances of each situation and taking into account the specificity of each species. For instance, the characteristics of a species, such as its conservation status, may justify more specific or intense protection measures.

In the Cricetus cricetus case (C-383/09, paragraphs 37 and 25), the Court stated that the measures implemented ‘were not adequate to enable effective avoidance of deterioration or destruction of the breeding sites or resting places of the European hamster.’ The Court considered that ‘despite the application of the measures set out in the [European hamster] recovery plan (2007-2011) and the mutual obligations of the parties involved in the safeguarding of the species, the biological results obtained to date are insufficient to safeguard that species in France’. Accordingly ‘it is vital that the measures in favour of the European hamster are markedly and rapidly improved so as to obtain biological results in the short term which show the recovery of the species.’ This means that the system of strict protection has to be adapted to the needs and the conservation status of the species.

2.2.3. Measures regarding the situations described in Article 12

(2-17)    The scope and type of measures taken to establish a system of strict protection are circumscribed by the list of the prohibitions and other obligations in Article 12 (see also Section 2.3 below). Consequently, the measures taken must relate to actions that threaten the species themselves (12(1)(a)-(c), 12(2), 12(3) and 12(4)) or defined elements of their habitats (Article 12(1)(d)). Article 12(1) does not, by itself or in conjunction with Article 2, oblige Member States to take proactive habitat management measures 34 ; it just requires measures to effectively prohibit all activities listed in Article 12(1). In addition, under Article 12(4), ‘Member States shall take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.’

(2-18) Different types of measures may be required for different species listed in Annex IV, and for different situations. This can vary depending on the different ecological requirements of the species and on specific problems and threats faced by the species or groups of species. It is the responsibility of national authorities to define the measures that are necessary to effectively implement the prohibitions of Article 12(1) and to ensure the strict protection of species.

(2-19) Therefore, Member States have the obligation both to introduce a prohibition in the legislation (in accordance with Article 12(1)) and to effectively enforce and implement that prohibition, which includes preventive measures (such as raising awareness of the prohibitions in place, monitoring, etc.). It is also evident from the wording of Articles 12 and 1(i), and from the objective of ‘maintaining’ a favourable conservation status, that Member States are bound by their obligations under Article 12 even before any reduction in species numbers has been confirmed or the risk of a protected species disappearing has become a reality 35 . Even if a species has a favourable conservation status and is likely to have this in the foreseeable future, Member States should also take preventive measures to protect the species from activities listed in Article 12.

Indeed, the CJEU has clarified that “the implementation of the protection system laid down in Article 12(1)(a) to (c) of the Habitats Directive is not subject to the condition that a given activity causes a risk of an adverse effect on the conservation status of the animal species concerned” 36 and “the protection afforded by that provision does not cease to apply to species which have attained a favourable conservation status” 37 . Furthermore, “since the implementation of the system of protection laid down in Article 12(1)(d) of that directive is not dependent on the number of specimens of the species concerned, it cannot be dependent (…) on the risk of an adverse effect on the conservation status of that species”  38 .

(2-20)    This view is supported by cases C-103/00, C-518/04, C-183/05 and C-383/09, where the Court stressed the importance of the preventive character of the measures taken 39 . The Court rejected the Greek Government’s argument that a decrease in the number of nests needed to be proven in order to demonstrate the absence of strict protection for Caretta caretta. According to the Court ‘the fact that it does not appear that the number of nests of that species has decreased over the last 15 years does not, of itself, call this finding into question’, i.e. the absence of a system of strict protection for Caretta caretta.

The Court has held that the transposition of Article 12 requires Member States not only to adopt a comprehensive legislative framework but also to implement practical and specific protection measures in that regard and that the system of strict protection presupposes the adoption of coherent and coordinated measures of a preventive nature 40 . Such a system of strict protection must therefore enable the effective avoidance of deterioration or destruction of breeding sites or resting places of the animal species listed in Annex IV(a) to the Habitats Directive (see, to that effect, Case C‑103/00, Commission v Greece, European Court Reports2002, I‑1147, paragraph 39).

(2-21)    Such an approach is also founded on Article 191 TFEU, according to which ‘Union policy on the environment shall aim at a high level of protection’, and is based on the precautionary principle and on the principle that preventive action should be taken. Preventive measures anticipate and address the threats and risks a species may face.Consequently, for some species, preventive measures should also form part of the ‘requisite measures’ to establish the system of strict protection.

2.2.4. Provisions of Article 12(1)(a)-(d) and 12(4) in relation to ongoing activities

(2-22) While the application of protective regulations can be clearly linked to project approval procedures (e.g. for construction and infrastructure projects), their application in the case of recurring and widespread activities, such as agriculture, forestry or fisheries 43 , can be a more complex issue.

The Directive does nevertheless apply to these activities as well. Indeed, the CJEU has clarified that the prohibitions in Article 12(1)(a) to (c) of the Habitats Directive may apply to an activity, such as forestry work or land development, the purpose of which is clearly other than the capture or killing, disturbance of animal species or the deliberate destruction or collection of eggs 44 . By analogy, the same is true for the prohibition in Article 12(1)(d) of the Habitats Directive.

Member States must therefore ensure they meet their obligations to protect the species in Annex IV in the case of ongoing activities as well. This does not necessarily mean that new structures or authorisation procedures need to be introduced at national level. Member States will most likely have in place planning procedures, regulations or best practice codes that could be adapted to incorporate the provisions of Article 12. Nevertheless, independently of the approach chosen to apply Article 12 requirements to ongoing activities (creation of a new mechanism or adaptation of existing mechanisms), Member States must ensure that the strict protection requirements are adequately met. As agriculture, forestry and fisheries differ significantly on this point, each is discussed separately below.

(2-23)    As regards agriculture 45 , a number of Member States have opted for preventive measures to ensure compliance with Article 12. This can involve, for instance, the development of guidance and codes of conduct (even if they are not legally binding) that are sufficiently detailed and clear. It is useful to note that basic farming practice rules often include the protection of certain landscape features — such as hedges, ponds, etc. — that might also be habitats for species listed in Annex IV. The range of species concerned is, however, very broad and, in some cases, Member States have found it appropriate to produce more detailed species-specific guidance.

The Directive nevertheless requires that such approaches and tools complement, rather than replace, formal legal protection, i.e. if these tools (e.g. codes of conduct, best practices) are ignored or not properly implemented, there must be legal procedures in place to effectively enforce the strict species protection system under Article 12.

(2-24)    In this context, it should be stressed that the occurrence of protected species in agricultural land is often the result of traditional land-use and farming practices, usually of an extensive nature. Where land-use practices are clearly supportive of the conservation status of a species under consideration, it is obvious that the continuation of such practices should be encouraged. In addition to the requirements under Article 12(1), incidental capture or killing of protected animal species linked to such ongoing activities needs to be monitored and evaluated in accordance with Article 12(4).

(2-25)    Applying Article 12 to forestry is, in some respects, more complex in that it is more likely that the trees to be harvested are themselves also the habitat (breeding site or resting place) of the Annex IV species concerned. The specific characteristics of the sector, i.e. long production cycles and, consequently, the need for long-term planning, add to the special challenges of species conservation in forests.

In the search for sustainable forest management practices that are consistent with conservation requirements, a variety of approaches has been developed in different Member States to address the issue. Existing approaches vary from detailed forestry planning and prior approval of forest management plans, or general codes of practice, to the pre-notification of felling proposals to enable environmental authorities to intervene where known populations of protected species may be involved.

As in the case of agricultural practices, these preventive approaches can ensure the protection of the species concerned, provided that they are communicated effectively and implemented with good will and sufficient resources. Economic incentives can help promote acceptance for such an approach, as in the case of forest certification schemes, which may require compliance with certain environmental protection provisions, including biodiversity and species protection. The approaches may, of course, need to be adapted to conform to the protection requirements of Annex IV species. However, such approaches do not provide an absolute guarantee, except where full prior approval of forest management plans is obligatory, and must therefore (as indicated above) be supported by an enforceable legal protection regime.

 (2-26) Forestry measures would also comply with Article 12 if they were planned in a way to avoid any of the situations specified in Article 12 from arising in the first place. An appropriate preventive approach could avoid conflicts with the prohibitions in Article 12 if it excluded any damaging forestry practices when the species is at its most vulnerable, e.g. when breeding. Outside the breeding season, the measures required by Article 12 should be identified on a case-by-case basis, based on the ecological needs of the species, ideally in the framework of forest management plans 46 and aiming at avoiding any deterioration or destruction of breeding sites or resting places.

The CJEU has clarified that forestry work should be based on a preventive approach taking account of the conservation needs of the species concerned and be planned and carried out so as not to infringe the prohibitions arising from Article 12(1)(a) to (c) of the Habitats Directive, while taking into consideration, as is apparent from Article 2(3) of the directive, the economic, social, cultural, regional and local requirements 47 . By analogy, the same is true for the prohibition in Article 12(1)(d) of the Habitats Directive.

(2-27) Another example of recurring activities is the maintenance of public infrastructure. Maintenance measures can be designed in a way to help preserve and connect habitats for strictly protected species, such as the sand lizard (Lacerta agilis) on railway lines (e.g. careful maintenance of roadside greenery, railway ballast and riverine vegetation). Member States can draw up good practice guidance for such maintenance measures to help ensure compliance with the requirements of the Habitats Directive.

(2-28) Member States may also use voluntary measures, such as contracts for forest-environment-climate services and forest conservation under the common agricultural policy, to contribute to implementation of the Article 12 provisions. Such measures have the potential to successfully combine the preventive approach with (voluntary) proactive habitat management. Nevertheless, these measures can only complement, but not replace, a formal legal protection.

(2-29) Applying Article 12 to fisheries requires regulating fishing activities to prevent negative effects on strictly protected species, such as deterioration of their breeding or resting places, deliberate capturing or killing of those species, or their bycatch in fishing gear. Application of the necessary preventive measures could be done through planning tools such as fisheries management plans or through fishing licences including specific requirements. To ensure adequate and effective protection, they should be based on a good knowledge of the risks posed by certain types of fishing gear. In addition, specific attention should be paid to areas where there is a risk of interaction resulting in incidental catches.

Since conservation of marine biological resources is the exclusive competence of the European Union under the common fisheries policy, implementation of the necessary measures must be done through this policy framework. The basic rules that apply are set out in Regulation (EU) No 1380/2013, which applies an ecosystem-based approach to fisheries management aiming to limit environmental impacts and ensuring coherence with environmental legislation. Different fisheries management tools can be used to implement the necessary prevention measures, such as those under the ‘technical measures regulation’ (Regulation (EU) 2019/1241 49 ).

In the framework of the regionalisation process under that Regulation, Member States must submit joint recommendations to the Commission to adopt delegated acts containing the necessary measures. As a general rule, Member States can apply the necessary rules and preventive measures to fishing fleets flying their own flag. For other fleets fishing in the marine territory of Member States, the measures need to be implemented through the Commission’s delegated acts. Under Regulation 1380/2013, Member States can adopt emergency measures applicable to all vessels under certain conditions in order to alleviate a serious threat to species. They can also take non-discriminatory measures within 12 nautical miles of its baselines applicable to all vessels under certain conditions.

Considering the fact that by-catch is one of the main pressures on marine protected species, particularly cetaceans, turtles and seabirds according to current knowledge, it is very important to adopt and implement effective preventive measures addressing relevant fishing activities. The available mechanisms under the common fisheries policy, and more specifically the technical measures regulation (Regulation (EU) 2019/1241), should be used for that purpose. Preventive measures can, for instance, include modifications of, or restrictions on, certain types of fishing gear, spatial/temporal regulation of fishing activity (e.g. total prohibition on the use of certain fishing gear within an area where such gear represents a threat to the conservation status of species in that area, or a threat to their habitats) or development of alternative gears.

 

(2-30)    The overall conclusion that can be drawn from this section is that ongoing activities should ideally be undertaken in such a way that avoids conflicts with species protection provisions arising in the first place. Such an approach also has the advantage of potentially protecting the person engaging in an activity (i.e. from prosecution) as long as that person adheres to these measures. Tools such as planning instruments, systems of prior consent, codes of conduct and practical information or guidance are options to this end. Such measures should:

a)form part of the ‘requisite measures’ needed under Article 12 to ‘establish and implement an effective system of strict protection’;

b)incorporate the strict protection requirements;

c)ensure that any harmful action takes full account of the conservation needs of the species or population concerned, and be accompanied by a legal framework for strict protection that ensures adequate enforcement by the regulatory authorities in the case of non-compliance (legal certainty aspects are met); and

d)help define appropriate levels of surveillance (required under Article 11 of the Directive) and how these should be funded.

2.3.The specific protection provisions under Article 12

2.3.1. Deliberate capture or killing of specimens of Annex IV(a) species

(2-31)    Article 12(1)(a) prohibits all forms of deliberate capture or killing 50 in the wild of specimens of species listed in Annex IV(a). In accordance with Article 12(3), this prohibition applies to all stages of the life of the animals. According to Article 1(m), ‘specimen means any animal or plant, whether alive or dead, of the species listed in Annex IV and Annex V, any part or derivative thereof, as well as any other goods which appear, from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be parts or derivatives of animals or plants of those species.’

(2-32)    In the Caretta caretta Case C-103/00 (paragraph 37), the Court referred to the element of ‘intent’, observing that: ‘the use of mopeds on the breeding beaches was prohibited and notices indicating the presence of turtle nests on the beaches had been erected. As regards the sea area around Gerakas and Dafni, it had been classified as an absolute protection area and special notices had been erected there.’ According to the Court, the fact that, despite the information available to the public on the need to protect these areas, mopeds were used by people on the beach and pedalos and small boats were present in the surrounding sea area 51 constituted deliberate disturbance of the turtles during their breeding period for the purposes of Article 12(1)(b). Thus, the Court ‘seems to interpret the term “deliberate” in the sense of conscious acceptance of consequences’ 52 .

(2-33)    In Case C-221/04 53 , the reasoning of the Court was more specific. In that case, the Commission brought an action before the Court because, due to the authorisation by the authorities in Castilla y León of snares in several private hunting areas, Spain had failed to comply with Article 12(1)(a) as regards the protection of the otter (Lutra lutra). The Court recalled the findings of the Caretta caretta case and stated that ‘for the condition as to “deliberate” action in Article 12(1)(a) of the Directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing’ 54 .

This was used as a ‘requisite criterion’ by the Court, which — in that case— found that the contested permit related to fox hunting and accordingly was not in itself intended to allow the capture of otters. In addition, the Court stressed that the presence of otters in the area had not been formally proven, so that it had also not been established that the Spanish authorities knew that they risked endangering otters by issuing the contested permits for fox hunting. Thus, the Court concluded that the requisite criteria ‑ for determining that the capture or killing of a specimen belonging to a protected animal species was deliberate ‑ had not been met 55 .

In Case C-340/10, the Court declared that Cyprus had failed to fulfil its obligations under Article 12(1) by tolerating activities that seriously compromised the ecological characteristics of Paralimni Lake and by not having taken the protective measures necessary to maintain the population of Natrix natrix cypriaca (Cypriot grass snake) and by not having taken the requisite measures to establish and apply a system of strict protection for that species.

(2-34)    On the basis of the approach taken by the Court in cases C-103/00 and C-221/04, ‘deliberate’ actions are to be understood as actions carried out by a person who is aware that these actions will lead to capturing or killing a species listed in Annex IV, or consciously accepts the possibility of such an offence.

In other words, the provision applies not only to a person who fully intends to capture or kill a specimen of a protected species but also to a person who is sufficiently informed and aware of the consequences his or her action will most likely have and nevertheless still performs the action, which leads to the capturing or killing of specimens (e.g. as an unwanted but accepted side-effect) (conditional intent).

National authorities should, using all appropriate means, proactively disseminate information about protected species occurrence and about any existing rules for their protection. The beach notices indicating the presence of turtle nests on the beaches in the Caretta caretta case is an example of this.

(2-35)    This need for information is also highly relevant for species caught accidentally during fisheries operations conducted in breach of fisheries rules. The EU has adopted certain rules to protect cetaceans from capture and killing in fishing gear. Regulation 2019/1241 prohibits certain vessels from using certain types of fishing gear in specific areas without the simultaneous use of active acoustic deterrent devices, which can prevent entanglement of harbour porpoises in fishing nets (see also Section 2.3.6). In such cases, Member States must not only ensure that the use of acoustic deterrents is effectively controlled and enforced but also that the fishers are fully informed of this obligation.

2.3.2. Deliberate disturbance of Annex IV(a) species, particularly during periods of breeding, rearing, hibernation and migration

(2-36)    Article 12(1)(b) prohibits the deliberate disturbance of Annex IV species especially during periods of breeding, rearing, hibernation and migration, when the species are more vulnerable 57 . Article 12(3) states that this prohibition applies to all stages of the life of the species concerned.

2.3.2.a) Deliberate disturbance

(2-37)    Neither Article 12 nor Article 1 of the Habitats Directive contains a definition of the term ‘disturbance’ 58 . The provision is not explicitly restricted to ‘significant’ disturbances, as is the case under Article 6(2) of the Directive, but the scope of the provision has to be interpreted in light of the Directive’s overarching objective.

As already mentioned above, implementation of the protection regime prescribed in Article 12(1)(a) to (d) of the Habitats Directive “is not subject to the condition that a given activity causes a risk of an adverse effect on the conservation status of the animal species concerned” 59 and ‘the protection afforded by that provision does not cease to apply to species which have attained a favourable conservation status’ 60 .

It is clear that any activity that deliberately disturbs a species to the extent that it may affect its chances of survival, breeding success or reproductive ability, or leads to a reduction in the occupied area or the relocation or displacement of the species, should be regarded as a ‘disturbance’ under the terms of Article 12.

(2-38) Considering their specific life histories (in particular their reproductive strategy or mobility) and the often complex social interactions of some animals, disturbance of individuals can often have impacts on population levels. For example, this would be the case if disturbing a pregnant female or separating a mother from calf of large, long-living and highly mobile animals with low fecundity, such as marine mammals.

(2-39) Generally, the intensity, duration and frequency of repetition of disturbances are important parameters when assessing their impact on a species. Different species will have different sensitivities or responses to the same type of disturbance, which has to be taken into account. Factors causing disturbance for one species might not create disturbance for another. Also, the sensitivity of a single individual of a certain species might be different depending on the season or on certain periods in its life cycle (e.g. breeding period).

Article 12(1)(b) takes into account this possibility by stressing that deliberate disturbances should be prohibited, particularly during the sensitive periods of breeding, rearing, hibernation and migration. It also has to be considered that disturbance (e.g. by noise, source of light) does not necessarily always directly affect the physical integrity of a species. It can also have an indirect negative effect on the species (e.g. by forcing them to use lots of energy to flee: bats, for example, when disturbed during hibernation, heat up as a consequence and take flight, so are less likely to survive the winter due to high loss of energy resources).

(2-40) A case-by-case approach is therefore required. The competent authorities will have to reflect carefully on the level of disturbance that is to be considered harmful, taking into account the specific characteristics of the species concerned and the situation, as explained above. For instance, repeated disturbance of cetaceans by whale-watching boats could lead to significant impacts on individual specimens, with negative consequences for the local population. On the other hand, sporadic disturbances without any likely negative impact on the individual animal or local population, such as for example scaring away a wolf from entering a sheep enclosure in order to prevent damage, should not be considered as disturbance under Article 12.

(2-41) The disturbance also has to be ‘deliberate’ in order to fall within the scope of Article 12(1)(b) (for definition of ‘deliberate’, see Section 2.3.1). Again, in the Caretta caretta Case C-103/00, the Court analysed each of the various activities on the breeding beaches with a view to establishing a causal link between those activities and the disturbance of the species. It found, first of all, that riding mopeds on a breeding Caretta caretta beach was likely to disturb this species, mainly because of the noise nuisance, particularly during the egg laying, incubation and hatching period and when the young turtles were making their way out to sea. The presence of small craft close to the breeding beaches also constituted a threat to the lives and well-being of the turtles. In the eyes of the Court, this sufficed to constitute, for the purposes of Article 12(1)(b), a deliberate disturbance of the species in question during its breeding period.

   

2.3.2.b)    Periods of breeding, rearing, hibernation and migration

(2-42)    The periods of breeding, rearing, hibernation and migration are considered to be especially sensitive periods for a species in relation to its disturbance. There is, however, no definition of these terms in the Habitats Directive. As Annex IV(a) of the Directive includes a very wide range of species, which are very different ecologically, biologically and behaviourally, it is necessary to use, once more, a ‘species-by-species’ approach when defining periods of breeding, rearing, hibernation and migration (where these periods apply at all).

(2-43)    For the purposes of Article 12, the following definitions should be applied:

- Period of breeding and rearing: This period may include (where applicable) the period of courtship, mating, nest construction or selection of egg laying or parturition site, parturition or egg laying, or production of offspring where reproduction is asexual, egg development and egg hatching, and rearing of young.

- Period of hibernation: Hibernation is a period of time when an animal becomes inactive and remains in a state of sleep, a torpid or resting state, usually during winter. Usually such a state is accompanied by a lowered body temperature and slowed heartbeat and breathing. Hibernation allows an animal to survive harsh conditions by using less energy than if it were active (for example some bats, rodents, amphibians or reptiles).

- Period of migration: Migration is the periodic movement of specimens from one area to another as a natural part of their life cycle, usually in response to seasonal changes or changes in the food supply.

2.3.3. Deliberate destruction or taking of eggs from the wild

(2-44)    Under Article 12(1)(c), the deliberate destruction or taking of eggs from the wild is forbidden.

2.3.4. Deterioration or destruction of breeding sites or resting places

(2-45)    Article 12(1)(d) is a stand-alone provision. Unlike the other prohibitions of Article 12, it does not concern the specimens directly but instead aims to protect important elements of their habitats, since it prohibits the deterioration or destruction of breeding sites or resting places. In addition, while points (a), (b) and (c) of Article 12(1) use the term ‘deliberate’, this is not the case for point (d).

2.3.4.a)    Consequences of the word ‘deliberate’ not being included in Article 12(1)(d)

(2-46)    Under Article 12(1)(a-c), only deliberate acts are prohibited and must be prevented, whereas under subparagraph (d) a deliberate act is not required as a necessary precondition 65 . Article 12(1)(d) requires all acts resulting in deterioration or destruction of breeding sites or resting places to be prohibited irrespective of whether they are deliberate or not 66 .

The Court further confirmed that ‘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 acts referred to in Article 12(1)(a) to (c), the Community legislature has demonstrated its intention to give breeding grounds or resting places increased protection against acts causing their deterioration or destruction. Given the importance of the objectives of protecting biodiversity which the Directive aims to achieve, it is by no means disproportionate that the prohibition laid down in Article 12(1)(d) is not limited to deliberate acts’ 67 .

(2-47)    In criminal law, a distinction is made between intentional or deliberate acts and unintentional acts. ‘Deliberate’ also covers situations where the result is not directly intended but the person ought to have taken into account the consequences that could follow from the action. This clearly indicates that, when omitting the word ‘deliberate’ from subparagraph (d), the intention was to include non-deliberate acts leading to deterioration or destruction in the scope of this provision as well. This introduces a special quality to this provision: all deterioration or destruction of breeding sites or resting places is to be effectively prohibited, i.e. avoided.

(2-48)    This does not, however, mean that proactive habitat management measures are required under Article 12(1)(d) of the Directive (e.g. to actively manage a meadow for butterflies). Nonetheless, in order to protect breeding sites or resting places from deterioration or destruction, a simple prohibition in a legal text is not sufficient and must be supported by an adequate enforcement mechanism, including preventive measures. Under a strict protection system, Member States should anticipate the threats that sites may face from human action and take measures to ensure that those likely to commit an offence (intentionally or not) are aware of the prohibition in force and act accordingly.

(2-49) In the first Caretta caretta case 68 , the Court declared that the presence of buildings on a beach used by the species for breeding was liable to lead to the deterioration or destruction of the breeding site within the meaning of Article 12(1)(d) of the Directive 69 . Significantly, the Court did not require that these buildings were ”illegal”. The mere fact that buildings had been built there and were liable to cause deterioration and destruction was the overriding argument for the Court. Therefore, the construction of buildings on a beach classified as ‘an absolute protection area’ and, in particular, where in addition ‘special notices had been erected’, is sufficient to constitute an infringement of Article 12(1)(d).

(2-50) The Court also clarified in Case C-441/17 (concerning the protection of certain Annex IV saproxylic beetle species - Buprestis splendens, Cucujus cinnaberinus, Phryganophilus ruficollis and Pytho kolwensis - in Białowieża Forest, Poland) 70  that the prohibitions in Article 12 of the Habitats Directive apply, irrespective of the number of specimens of the species covered by the strict protection. More recently, the Court has reiterated that ‘the implementation of the system of protection laid down in Article 12(1)(d) of that directive is not dependent on the number of specimens of the species concerned’ 71 . In other words, the fact that a species may have a strong presence within a given location and that its survival in the area is not threatened does not diminish the obligations of strict species protection. Such facts should be taken into account in the derogation process instead. The opposite scenario is also true, i.e. the fact that an area constitutes a breeding site or a resting place only for one or few individuals of a species listed in Annex IV(a) does not diminish the obligation to protect this area against actions that may deteriorate or destroy it.

(2-51)    On the other hand, there will be occasions when the deterioration of natural habitats takes place naturally (including through natural succession after cessation of a certain land use like agriculture) or is caused by unforeseeable events, so that the habitat is no longer a suitable breeding site or resting place for certain species. In this case, where no act has been committed to provoke the deterioration or destruction of breeding sites or resting places, but where this has arisen through natural causes, Article 12(1)(d) does not apply 72 .

2.3.4.b)    Identification of ‘breeding sites and resting places’

(2-52)    In light of the objectives of the Directive, breeding sites and resting places require strict protection because they are crucial to the life cycle of animals and are very important elements of a species’ entire habitat 74 , needed to ensure its survival. Their protection is directly connected with the conservation status of a species. The provision in Article 12(1)(d) should therefore be understood as aiming to safeguard the ecological functionality of breeding sites and resting places. Thus, Article 12(1)(d) provides that such sites and places are not to be damaged or destroyed by human activities so that they can continue to provide all that is required for a specific animal to rest or to breed successfully.

(2-53) In Case C-383/09, Advocate General Kokott interpreted ‘breeding sites and resting places’ to extend not only to the burrows but also to the surrounding habitats. The Court judged not only direct destruction of burrows but also the processes of urbanisation and changes in crop structure in wider areas as failing to fulfil obligations under Article 12(1)(d) 75 .

(2-54) Thus, it follows from Article 12(1)(d) that such breeding sites and resting places also need to be protected when they are used only occasionally or are even abandoned 76 but where there is a reasonably high probability that the species concerned will return to these sites and places. If, for example, a certain cave is used every year by a number of bats for hibernation (because the species has the habit of returning to the same winter roost every year), the functionality of this cave as a hibernating site should be protected in summer as well so that the bats can reuse it in winter.

(2-55)    The identification of general criteria for breeding sites and resting places is difficult, because Annex IV(a) lists species from many taxa with many different life history strategies. It is not possible to provide a rigid definition of ‘breeding site’ and ‘resting places’ that will apply to all taxa. Any interpretation of the terms ‘breeding sites’ and ‘resting places’ must therefore take into account this variety and reflect different prevailing conditions. The following general definitions aim at providing some guidance in this regard and they are based on the assumption that the sites in question can be identified and reasonably delimited. They are intended to be used as a checklist of elements to be considered as not all these elements will be applicable to all species. Knowledge gaps for species can also be identified here. The two definitions below are detailed in separate sections, though in practice they will often interlink and overlap and so could be considered together.

(2-56)    For the purposes of Article 12, the following definitions should be applied.

·Breeding sites

Breeding is defined here as mating, giving birth to young (including egg laying) or production of offspring where reproduction is asexual. A breeding site is defined here as the areas needed to mate and to give birth in, and covers also the vicinity of the nest or parturition site, where offspring are dependent on such sites. For some species, a breeding site will also include associated structures needed for territorial definition and defence. For species that reproduce asexually, a breeding site is defined as the area needed to produce offspring. Breeding sites that are used regularly, either within or between years, must be protected even when not occupied.

The breeding site may thus include areas required for:

1.courtship;

2.mating;

3.nest construction or selection of egg laying or parturition site;

4.places used for the purpose of parturition or egg laying or production of offspring where reproduction is asexual;

5.places of egg development and egg hatching;

6.nest or parturition sites when occupied by young dependent on that site; and

7.wider habitats that make reproduction successful, including feeding grounds.

·Resting places

Resting places are defined here as the areas essential to sustain an animal or group of animals when they are not active. For species that have a sessile stage, a resting place is defined as the site of attachment. Resting places will include structures created by animals to function as resting places, such as roosts, burrows or hides. Resting places that are used regularly, either within or between years, must be protected even when not occupied.

Resting places essential for survival may include one or more structures and habitat features required for:

1.thermoregulatory behaviour, e.g. Lacerta agilis (sand lizard);

2.resting, sleeping or recuperation, e.g. Nyctalus leisleri (Leisler's bat) roosts;

3.hiding, protection or refuge, e.g. Macrothele calpeiana burrows; and

4.hibernation, e.g. bat dormitories, and Muscardinus avellanarius (common dormouse) hides.

(2-57)    A proper implementation of Article 12(1)(d) requires a good knowledge of the ecology (biology, habitats, population size, distribution and dynamics) and behaviour of the species (life cycle, organisation, interaction within and between species).

Examples of breeding sites and resting places

	Breeding site	Resting place
Triturus cristatus (crested newt)	The pond used for mating has individual male territories within which courtship and mating take place. Eggs are laid singly on emergent plants and mature over a period of 12–18 days. Young larvae emerge and swim freely. The pond is therefore the breeding site.	During the terrestrial phase of its life, T. cristatus makes use of refuges such as stones, tree roosts and logs to hide under during the day. Similar refuges are used for periods of hibernation (in cold regions) or summer dormancy (in hot regions). During the aquatic phase of their life, adults and larvae make use of submerged and emergent vegetation as a place of refuge. T. cristatus does disperse to adjacent pools. Healthy populations of T. cristatus utilise a series of pools and move between them, dispersing over a suitable interconnecting terrestrial habitat. Individuals may move approximately 1km from their natal pool. The resting places for T. cristatus are thus the ponds they inhabit and the adjacent terrestrial habitat that supports them during the terrestrial part of their life cycle.
Nyctalus Leisleri (Leisler's bat)	Males are living separately from females during breeding time. Males establish mating territories in tree holes in the autumn. Mating takes place in late autumn and females delay fertilisation until the spring. Young are born in a maternity roost and are dependent on their mother until they are weaned in the summer. Breeding territories and maternity roosts are therefore breeding sites. This strict application of the definition omits winter hibernation roosts, which are covered by ‘resting places’ in Article 12(1)(d).	For hibernation N. leisleri is principally a tree-dwelling bat that hibernates over winter. In the winter, they roost in tree holes, buildings and occasionally caves and tunnels that provide a suitable microclimate. They will also utilise artificial roost boxes. Tree roosts have been found in parkland and urban areas and deciduous and coniferous woodland. These roosts must be in a relatively undisturbed position as bats roused from their torpor expend valuable energy reserves that cannot be replaced in winter. Day roosts during their active period (in spring) are also essential to all bat species, requiring a relatively undisturbed site during daylight hours, again in the cracks and crevices of old trees and buildings. Depending on their location, a colony may use several summer roosts in turn, the larger of which may be used as maternity roosts, while males will become solitary or live in small groups. During migration N. leisleri is known to migrate in some parts of its European range: individuals ringed in Germany have been found to winter in France and Switzerland (National report 2003 77 ). Exact migration patterns are not known. However, other populations appear more sedentary with both maternity and winter roosts located in the same location. Roosts used by N. leisleri to rest during the day and in which to hibernate are resting places.

	Breeding site	Resting place
Maculinea arion (large blue)	M. arion requires a site with its larval food plant (Thymus species) and larval host and food source (Myrmica ant nests) to complete its development. Eggs are laid in the bud of a Thymus flower where they feed and develop. At a certain stage, the larva drops from the plant and attracts an ant to pick it up and take it into the ants’ nest. The larva continues its development within the nest, preying on ant larvae. Pupation occurs within the nest and the adults emerge in early summer. The breeding site for M. arion will be a site with Thymus species plants close to the site of adult emergence and the Myrmica ant nest where the larvae and pupae develop.	This species has no clearly defined resting places other than those needed for larval development and pupation. These life stages are covered by the definition of breeding site on the left.
Osmoderma eremita (hermit beetle)	Resting place and breeding site are in effect synonymous for O. eremita. This saproxylic species lives for the majority of its life within the rot-filled cavities of mature deciduous trees, usually of the Quercus species. A high proportion of individuals do not leave the natal tree. Mating takes place inside the substrate, and eggs are deposited deep within the substrate. The development from egg to beetle takes several years. Pupae develop in the autumn; adults emerge in the late spring or early summer. A series of mature and substantially hollow deciduous trees, usually Quercus species with heart rot, being used by the species is the resting place for O. eremita.

(2-58)    The species example on Triturus cristatus (see box above) illustrates that for some species that have small home ranges, breeding sites and resting places can overlap. In such cases, it is important to protect a functionally viable and coherent area for the species that includes both its resting and breeding sites and other areas that are considered necessary to maintain the ecological functionality of the breeding and/or resting site. Defining the 'local' population of such a species could play a useful role in defining such an area.

(2-59)    There is also a need to consider how to handle wide-ranging species within the context of Article 12. The particular problem posed by wide-ranging species is already recognised in Article 4(1) of the Directive. Here, it may be advisable to restrict the definition of breeding and resting site to a locality that can be clearly delimited: e.g. the roosts for bats, the winter dens for bears or the holt of an otter, or other areas that can be clearly identified as being important for breeding or resting.

(2-60)    In the Caretta caretta case, the Court did not give any definition of breeding sites and resting places for species and followed a case-by-case/species-by-species approach. In the case in question, the Court emphasised the importance of Laganas Bay as a ‘vital breeding region for the protected species Caretta caretta’ 78 . This area had the physical and biological factors essential for the reproduction of the species (marine area and nesting beaches). It is difficult to establish a general definition of ‘breeding sites’ and ‘resting places’ because of the wide range of differences in the ecological characteristics of species. The up-to-date knowledge on species’ ecology and behaviour needs to be considered.

2.3.4.c) Concept of ‘deterioration’

(2-61)    Neither Article 12(1)(d) nor Article 1 of the Habitats Directive contains a definition of the concept of ‘deterioration’, although this term is also present in other provisions of the Directive (e.g. Article 6(2)).

(2-62)    In general, deterioration can be defined as the physical degradation affecting a habitat (in this case a breeding site or resting place). In contrast to destruction, degradation may occur slowly and gradually reduce the functionality of the site or place. Deterioration may therefore not immediately lead to a loss of functionality of a site or place. However, it would adversely affect functionality in terms of the quality or quantity of the ecological elements present and might, over a period of time, lead to its complete loss. Because of the wide variety of species listed in Annex IV(a), the assessment of deterioration of a particular breeding site or resting place must be carried out on a case-by-case basis.

(2-63)    When trying to identify and avoid the causes that lead to the deterioration or even loss of breeding or resting functionality, it is important to establish a clear cause-effect relationship between one or more human-induced activities and the deterioration or destruction of a breeding site or resting place. Obviously, the causes for deterioration can be located inside or outside, and possibly even at some distance from, the breeding site or resting place under consideration. Such causes and activities then need to be controlled in such a way that deterioration and destruction can be avoided. Only a clear view of the causes will enable the authorities to act accordingly and avoid further or future deterioration or destruction.

(2-64) Therefore, the tolerance of activities that degrade or damage, directly or indirectly, the habitat of protected species can constitute a breach of Article 12(1), as recognised by the Court in Case C-340/10. In this case, the Court concluded that the excessive extraction of water and other damaging activities in the proximity of Paralimni Lake was capable of having a considerable negative impact on the habitat of the Cypriot grass snake and on the conservation of that species, particularly during years of drought. By tolerating that type of operation, Cyprus had failed to fulfil its obligations under Article 12(1).

(2-65)    In order to define the limits of what one can regard as ‘deterioration’, an analysis of Article 12(1)(d) as a whole is indispensable. The purpose of Article 12 is to introduce a system of strict protection for Annex IV(a) species. The explicit protection of breeding sites and resting places in addition to the protection of the species as such, without the qualification ‘deliberate’, demonstrates the importance granted to these sites by the Directive. This specific protection against the deterioration or destruction of breeding sites and resting places is self-evidently linked with the essential function of these sites, which must continue to provide all the elements required by a specific animal (or group of animals) to breed or to rest.

(2-66)    Examples of activities that may lead to deterioration under Article 12(1)(d):

-Filling in of parts of spawning grounds for the crested newt (Triturus cristatus) or other strictly protected amphibians, thereby reducing (in sum) their function as a breeding site.

-Deterioration in the function of parts of a hamster burrow as a breeding and resting place caused by deep ploughing.

-Engineering works along a stretch of a river that is a resting and breeding site for the Atlantic Sturgeon (Acipenser sturio) or other strictly protected fishes.

-Land drainage or other activities causing changes in hydrology that seriously compromise the ecological characteristics of habitat and influence the population of Natrix natrix cypriaca (Cypriot grass snake, see Section 2.33).

-Felling/removing of dead or dying trees that constitute important habitats for certain Annex IV strictly protected saproxylic beetle species 79 (Buprestis splendens, Cucujus cinnaberinus, Phryganophilus ruficollis and Pytho kolwensis).

-Construction of houses, resorts, roads and other infrastructures, as well as light pollution or fishing activities, in or closely around the loggerhead sea turtle (Caretta caretta) breeding areas 80 .

2.3.4.d) Measures to ensure the continued ecological functionality of breeding sites or resting places

(2-67) Measures used to ensure continued ecological functionality (hereinafter referred to as ‘CEF measures’) are preventive measures aimed at minimising or even eliminating the negative impact of an activity on breeding sites or resting places of protected species. However, they may also go beyond this and include actions that actively improve a certain breeding site or resting place so that it does not suffer – at any time - a reduction or loss of ecological functionality. This could include, for example, enlarging the site or creating new habitats in, or in direct functional relation to, a breeding site or resting place, in order to maintain its functionality. The maintenance or improvement of ecological functionality linked to such measures for the species in question would of course have to be clearly demonstrated.

(2-68)    Such measures can be used only in situations where an authorisation or planning regime with formal procedures is in place, and where the competent authorities are able to assess whether the measures taken to preserve the ‘breeding’ or ‘resting’ functionality of a site are sufficient. CEF measures may be an option when an activity might affect parts of a breeding site or resting place only. If the breeding site or resting place, as a result of CEF measures, will still remain at least the same (or greater) size and retain the same (or better) quality for the species in question, there will be no deterioration in the function, quality or integrity of the site. It is crucial that the continued ecological functionality of the site is maintained or improved. Therefore, monitoring the effectiveness of CEF measures is important.

(2-69)    In accordance with the precautionary principle, if the measures proposed (e.g. by the project developer in the context of a project) do not guarantee the continued ecological functionality of a site, they should not be considered to be in line with Article 12(1)(d). For Article 12(1)(d) to be complied with, there must be a high degree of certainty that the measures are sufficient to avoid any deterioration or destruction and the measures should be effectively in place in the appropriate time and form so as to avoid any deterioration or destruction. The assessment of the probability of success must be made on the basis of objective information and in light of the characteristics and specific environmental conditions of the site concerned.

(2-70) Appropriate CEF measures ensuring that there will be no deterioration in the function, quality or integrity of the site will have an overall positive impact with regard to the protection of the species concerned.

(2-71)    CEF measures could be an integral part of the specifications of an activity or project; they could also form part of preventive measures under a strict protection system to comply with Article 12(1)(d).

(2-72)    Based on the definition of breeding sites and resting places (see Section 2.3.4.b), the approach outlined above seems especially relevant when dealing with animals with small home ranges, where breeding sites or resting places are delimited as ‘functional units’ (i.e. the wider approach is used). Here, it should be stressed that a Member State must be consistent in its definition of breeding sites and resting places for a given species and consequently in providing for their protection across its territory.

(2-73)    CEF measures are different from compensatory measures in the strict sense (including compensatory measures under article 6(4) of the Habitats Directive). Compensation measures aim to compensate for specific negative effects on a species and thus imply that there is, or has been, a deterioration or destruction of a breeding site or resting place. This is not the case with CEF measures, which ensure that the continued ecological functionality of the breeding site or resting place remains fully intact (in quantitative and qualitative terms) after the activity has taken place. Where there is deterioration or destruction of a breeding site or resting place, a derogation under Article 16 is always necessary whenever the conditions thereby established are fulfilled. Section 3.2.3.b deals with the use of compensation measures under Article 16.

2.3.5.Keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild

(2-74)    For Annex IV(a) species, Article 12(2) states that: ‘Member States shall prohibit the keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild, except for those taken legally before this Directive is implemented.’ Article 12(3) stipulates that the prohibitions in Article 12(1)(a) and (b) and Article 12(2) apply to all life stages of Annex IV(a) species.

2.3.6.Monitoring system for the incidental capture and killing of Annex IV(a) species

(2-75) Article 12(4) requires the establishment of a system to monitor incidental capture and killing of the animal species listed in Annex IV(a). The monitoring system must be robust enough to be able to acquire reliable data on the impact of all activities that might entail a risk of incidental capture and killing for the species concerned. The information collected must be able to provide a reliable estimate of incidental capture and killing that can, combined with the results of the surveillance of their conservation status, lead to an informed decision on whether conservation measures are needed to ensure that there is no significant negative impact on the species concerned.

Examples include the monitoring of the by-catch of cetaceans or sea turtles in fishing gear, or of their killing by ship strikes, the monitoring of bat deaths around wind turbines, or the monitoring of roadkills (e.g. amphibians during spring migrations). In Case C-308/08, the Court addressed the issue of the implementation of Article 12(4) in relation to the Iberian lynx (Lynx pardinus) in Andalusia and noted the existence of a system for monitoring the incidental killing of Iberian lynx in relation to road traffic (see box below).

(2-76) Systematic monitoring and collection of reliable data on incidental capture and killing is an essential prerequisite for implementation of effective conservation measures. For example, concerning bycatch in fishing gear, a monitoring system can rely on the data collected by Member States under the fisheries data collection framework 82 . Regulation 2017/1004 establishes rules on the collection, management and use of biological, environmental, technical and socio-economic data concerning the fisheries sector, contributing to the objectives of the common fisheries policy and environmental legislation.Modern control technologies, such as remote electronic monitoring (REM) tools incorporating closed-circuit television and sensors, have much potential. Recent developments in artificial intelligence can facilitate the automatic reviewing of large volumes of REM data. Such control tools offer a cost effective and viable means for authorities to monitor and account for incidental catches of sensitive species. Such REM tools are being increasingly used around the world as a solution to various fisheries control issues, in scenarios where cost effective continuous monitoring is required for data collection and for control and enforcement purposes.

Member States are obliged to establish national work plans in accordance with the multiannual EU programme for data collection. Such a programme for 2020-2021 was adopted by the Commission Delegated Decision (EU) 2019/910 and Commission Implementing Decision (EU) 2019/909. The programme includes an obligation to collect data on incidental catches of all birds, mammals, reptiles and fish protected under European Union legislation and international agreements. Data must be collected for all types of fisheries and vessels, during scientific observer trips on fishing vessels, or by the fishers themselves through logbooks.

Where the data collected during observer trips do not provide sufficient insights regarding incidental catches for end-user needs, other methodologies must be implemented by Member States, for example the use of remote electronic monitoring (REM) by cameras on vessels which are recording the hauling of gear and the catch. Data collection methods and quality need to be appropriate for the intended purposes and should follow best practices and relevant methodologies advised by relevant scientific bodies. They should cover a sufficient proportion of the fleet in order to provide a reliable estimate of bycatch. The collection of data on incidental catches of protected and sensitive species under relevant regulations and directives, and the implementation of appropriate conservation measures requires close intersectoral and interinstitutional cooperation, enforcement of rules and adequate support for and by fishers.

(2-77) For wide-ranging species like cetaceans that move across the waters of Member States, cooperation with other countries in the species natural range is essential because the monitoring and measures concern fishing vessels from different countries. It is therefore useful to highlight that obligations under Article 12 are a shared responsibility of Member States. This view is supported by the wording of the aforementioned provisions and the supranational objective of the Directive, which is to protect species and habitats of Community interest across their natural range, as well as by the duty of sincere cooperation under the Treaty. Therefore, even though the primary responsibility to implement Article 12 falls on the Member State hosting the species, other Member States must cooperate if such cooperation is necessary to comply with their legal duties. This is the case both for monitoring and implementation of conservation measures.

(2-78) In the light of information gathered through the monitoring system, Member States must undertake further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned. It is therefore also essential to have reliable information on the population, range and conservation status of the species, which requires full implementation of surveillance as required by Article 11 of the Directive.

(2-79) Although Article 12(4) does not define ‘significant negative impact’ 83 , it can be understood that this involves a detailed examination of the effect of incidental capture and killing on the status of subpopulations and populations of species, and finally on the achievement or maintenance of its favourable conservation status. The significance of impact will need to be assessed on a case-by-case basis, taking into account the life history of the species, the magnitude and duration of the negative impact, and the conservation status and trend of the species concerned. For example, the impact can be deemed significant if a species is in unfavourable conservation status and there is a further decline in numbers due to incidental capture and killing, in particular if it affects future recovery prospects. The impact should also be assessed as significant if there is a regular and large number of animals captured and killed incidentally, which could affect a subpopulation or local population of the species concerned. In the case of lack of data on the conservation status and/or the actual level of incidental capture and killing, the precautionary principle should apply.

(2-80) Another activity that can cause incidental killing of strictly protected marine species is maritime traffic, in particular through collisions of animals with ships (ship strikes). Member States could consider a wide range of preventive measures, including reducing the speed of vessels or rerouting the traffic. These measures will usually need to be implemented under the rules of the International Maritime Organization (IMO). Depending on the scope of the measures proposed and their impact on the normal maritime traffic, and pursuant to Directive 2002/59/EC, this might need to be done through an EU submission to the IMO.

(2-81) Some military activities, in particular the use of active sonars in the marine environment or dumping or destruction of unexploded munitions, could cause killing of sensitive species like cetaceans. Military activities are not exempted from the provisions of Article 12, hence various Member State navies have developed policy initiatives for the use of military sonar, taking into account the need to minimise potential environmental effects. For example, precautionary zones can be designated where the use of these sonar activities is restricted. This should be done while respecting existing international legislation, mainly regulated under the framework of the United Nations Convention on the Law of the Sea, including specific provisions in relation to particular rights and obligations of warships.

3. ARTICLE 16

Text of Article 16

1. Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) and (b): (a) in the interest of protecting wild fauna and flora and conserving natural habitats; (b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property; (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; (d) for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants; (e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities. 2. Member States shall forward to the Commission every two years a report in accordance with the format established by the Committee on the derogations applied under paragraph 1. The Commission shall give its opinion on these derogations within a maximum time limit of 12 months following receipt of the report and shall give an account to the Committee. 3. The reports shall specify: (a) the species which are subject to the derogations and the reason for the derogation, including the nature of the risk, with, if appropriate, a reference to alternatives rejected and scientific data used; (b) the means, devices or methods authorised for the capture or killing of animal species and the reasons for their use; (c) the circumstances of when and where such derogations are granted; (d) the authority empowered to declare and check that the required conditions obtain and to decide what means, devices or methods may be used, within what limits and by what agencies, and which persons are to carry out the task; (e) the supervisory measures used and the results obtained.

(3-1)    Article 16 of the Directive provides for the possibility of derogations, including from the system of strict protection for animal species set up under Article 12.

(3-2)    There is limited scope under Article 16 for derogating from the restrictions and prohibitions under Article 12. Derogations must not only be justified in relation to the overall aim of the Directive, but also subject to three specific conditions (see 3.2).

(3-3)    Failure to fulfil any one of these conditions renders the derogation invalid. The Member State authorities must therefore carefully examine all general and specific requirements before granting a derogation.

3.1. General legal considerations

3.1.1. Obligation to ensure full, clear and precise transposition of Article 16

(3-4)    Transposing Article 16 into national law must guarantee the implementation of the derogation provisions by the competent authorities. Note that a Directive is binding in terms of the result to be achieved, but leaves Member States the choice as to how to achieve that result. However, the Court has set limits to this margin of manoeuvre. Hence, the national transposition of the derogation system under Article 16 must comply with all the basic legal principles of EU law and a number of requirements, as explained below.

(3-5)    According to CJEU case law 84 , ‘transposition of a Directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation. A general legal context may, depending on the content of the Directive, be adequate for the purpose, provided that it does indeed guarantee the full application of the Directive in a sufficiently clear and precise manner.’ Administrative provisions alone, which by their nature may be changed by the authorities and which are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State’s obligations under the TFEU and the Directive 85 .

(3-6) Accordingly, application of the requirements under Article 16 in practice is not a substitute for formal transposition. In Case C-46/11, the Court confirmed that correct implementation of the provisions of a Directive could not, on its own, provide the clarity and precision required to fulfil the legal certainty principle. Moreover, administrative practices alone cannot be regarded as implementation of the Member States’ obligation to transpose the Directive 86 into national law.

(3-7)    Moreover, the provisions of the Directives must be implemented with unquestionable binding force, and with the specificity, precision and clarity necessary to meet the requirements of legal certainty 87 . The Court was more explicit in Case C-339/87 and stated that ‘the criteria which the Member States must meet in order to derogate from the prohibitions laid down in the Directive must be reproduced in specific national provisions, since a faithful transposition becomes particularly important in a case where the management of the common heritage is entrusted to the Member States in their respective territories.’ In its judgment of 20 October 2005, the Court applied this case law to the Habitats Directive and observed that ‘in the context of the Habitats Directive, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise’ 88 .

(3-8)    As the Court has held, with regard to Article 16 of the Habitats Directive, the criteria on the basis of which Member States may derogate from the prohibitions imposed by the Directive must be reproduced unambiguously in the provisions of national law. In doing so, Article 16 of the Habitats Directive must be interpreted restrictively, since it defines in a precise manner the circumstances under which Member States may derogate from Articles 12 to 15 of the Directive 89 . The Court reiterated this position in Case C-46/11 90 .

(3-9) When transposing Article 16, Member States must follow the meaning of terms and concepts used by the Directive with the aim of ensuring uniformity in both interpretation and application 91 . This also implies that national transposition measures must ensure full application of the Directive, without modifying its terms and without adding supplementary conditions or derogations not provided for by the Directive 92 . For instance, in Case C-6/04 93 , the Court found that a derogation authorising acts that lead to the killing of protected species and to the deterioration or destruction of their breeding and resting places, provided such acts are lawful and cannot be reasonably avoided, ‘is contrary both to the spirit and purpose of the Habitats Directive and to the wording of Article 16 thereof’.

In Case C-183/05 94 , the Court considered that the regime of derogations under Irish legislation (Section 23(7)(b) of the Wildlife Act) was inconsistent with Articles 12 and 16 of the Directive. Under Irish legislation, acts that unintentionally interfere with or destroy breeding sites or resting places of wild species do not constitute an offence. According to the Court, not only does this provision not meet the requirements of Article 12(1)(d) of the Directive, which prohibits such acts, whether or not they are intentional, but it also goes beyond what is provided for in Article 16 of the Directive, since the Directive sets out in an exhaustive manner the conditions under which derogations may be granted.

(3-10)    National provisions must ensure that all the conditions laid down in Article 16 are strictly and thoroughly transposed, without selectively applying only some provisions. In Case C-98/03 95 , the Court found that German law (paragraph 43(4) of the Federal Nature Conservation Act) was not compatible with Article 16 since it did not make derogations subject to all of the conditions laid down in that article.

In Case C-508/04 96 , the Court clarified that ‘national provisions under which the grant of derogations from the prohibitions established by Articles 12 to 14 and 15(a) and (b) of the Directive is subject not to all the criteria and conditions set out in Article 16 of the Directive but, incompletely, to certain elements of them, cannot constitute a regime consistent with Article 16’. In Case C-46/11 the Court found that Polish law was not compatible with Article 16 because it did not make derogations subject to all criteria and conditions set out in that article.

3.1.2. Appropriate overall application of derogations

(3-11) Issuing Article 16 derogations must be a last resort 97 . National authorities responsible for issuing derogations must take into consideration that derogations must be interpreted and implemented restrictively to avoid undermining the overall objective and key provisions of the Directive 98 . In Case C-6/04, the Court made clear that this principle also applies in the context of Article 16 99 . In Case C-674/17, the CJEU ruled that ‘a derogation based on Article 16(1) of the Habitats Directive must be applied appropriately in order to deal with precise requirements and specific situations’ 100 .

(3-12)    As regards measures to be taken under Article 12 of the Habitats Directive, the need to implement appropriate and effective measures in a sufficient and verifiable manner has been underlined. The same approach can be followed for the derogations scheme. If used correctly, this ensures that granting derogations does not go against the objective of the Directive 101 . In Case C-6/04, the Court observed that ‘Articles 12, 13 and 16 of the Habitats Directive form a coherent body of provisions intended to protect the populations of the species concerned, so that any derogation incompatible with the directive would infringe both the prohibitions set out in Articles 12 and 13 and the rule that derogations may be granted in accordance with Article 16’.

As a general rule, the severity of any of the conditions or ‘tests’ will increase with the severity of the potential impact of a derogation on a species or population.

(3-13)    Issuing a derogation presupposes that the competent national authorities have ensured that all the conditions set in Article 16 have been met. Member States must also ensure that the cumulative effects of derogations do not produce impacts that go against the objectives of Article 12 and the Directive as a whole 102 .

(3-14) Consequently, the use of derogations is often best managed within a national conservation framework to ensure that, overall, the cumulative impacts of derogations for a particular species are not detrimental to maintaining the species at favourable conservation status at national and/or biogeographic level within a Member State. In any case, Member States must have an overview and supervise the use of derogations at national level (and, if necessary, also an overview extending beyond borders for cross-border populations). This may require, depending on the organisational structure in a Member State, regional or local authorities to look at the effects of derogations beyond their own territories.

An example of how the national authority can frame the use of the derogations issued within its territory can be found in Case C-342/05. On this case, the Court clarifies that ‘as to the fact that decisions to issue wolf hunting permits are also subject to a maximum regional limit of specimens which may be killed in each game management district, this cannot be regarded as contrary to Article 16(1) of the Habitats Directive. That limit, which is set according to the number of specimens which may be killed without endangering the species in question, is only the framework within which the game management districts may issue hunting permits where, in addition, the conditions in Article 16(1) of the Habitats Directive are fulfilled.’ 103 In other words, it is possible to set a maximum limit of specimens that may be killed (to avoid negative impact on conservation status) but this does not remove the need for each derogation to fulfil all the conditions in Article 16(1).

3.2. A carefully controlled system for granting derogations: the three tests

(3-15) Article 16 sets three tests, all of which must be met before granting a derogation:

1) demonstration of one or more of the reasons listed in Article 16(1) (a)-(d) or to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities (letter ‘e’),

2) absence of a satisfactory alternative, and

3) assurance that a derogation is not detrimental to the maintenance of populations at a favourable conservation status.

The third test reflects the overarching objective of the Habitat Directive, which is to contribute to biodiversity through the conservation of natural habitats and wild fauna and flora (Article 2(1)). The measures taken must be designed to maintain or restore the protected natural habitats and species of wild fauna and flora, at favourable conservation status. They must also take account of economic, social and cultural requirements and regional and local characteristics (Article 2(2) and (3)).

Before the second and third tests can be examined, the application must meet the first test. In practical terms, there is little point examining the issue of satisfactory alternatives and impact on conservation status if the action does not meet Article 16(1)(a)-(e).

(3-16)    Member States must nevertheless ensure that all the three tests are met. The burden of proof lies with the competent authorities to demonstrate that each derogation meets all tests, as explained by the Court in the Case C-342/05: ‘Since Article 16(1) provides exceptional arrangements which must be interpreted strictly and must impose on the authority taking the decision the burden of proving that the necessary conditions are present for each derogation, the Member States are required to ensure that all action affecting the protected species is authorised only on the basis of decisions containing a clear and sufficient statement of reasons which refers to the reasons, conditions and requirements laid down in Article 16(1) of the Habitats Directive’ 104 .

Flow chart for issuing a derogation under Article 16(1)

3.2.1.TEST 1: Demonstration of one of the reasons under Article 16(1)(a-d) or to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities (Article 16(1) (e))

(3-17) Derogations are granted because there is a specific problem or situation that needs to be tackled. Derogations must be based on at least one of the options listed in Article 16(1)(a), (b), (c), (d) and (e). Specific derogations not justified by any of these reasons/options are contrary both to the spirit and purpose of the Habitats Directive and to the wording of Article 16 105 .

In Case C-508/04 106 , the Court found that the Austrian legislation was not consistent with Article 16(1) of the Directive, in part because the grounds for the derogation under Austrian legislation (i.e. commercial operation of an agricultural or silvicultural nature, production of beverages, and the construction of installations) did not fall within any of the reasons/options exhaustively listed in Article 16(1) of the Directive.

(3-18)    When granting a derogation, the objective pursued must be stated in a clear and precise manner and the national authority must establish, in the light of rigorous scientific data, that the derogations are appropriate with a view to achieving that objective, must justify the choice of a reason/option under Article 16(1)(a) to (e) and verify that the specific conditions are met 107 .

(a) In the interest of protecting wild fauna and flora and conserving natural habitats

(3-19) The first reason for granting a derogation is the protection of wild flora and fauna and the conservation of natural habitats. Article 16(1)(a) specifies neither the type of fauna, flora or natural habitats covered nor the type of threats. Given the general objective of the Directive, vulnerable, rare, endangered or endemic species and natural habitats (for example, those listed in the annexes to the Habitats Directive) are more likely to be covered by this reason, which would effectively aim to reduce the negative impact of a given species on them. It would be unusual to prioritise the interests of a species that is common and thriving over the interests of a species that meets the criteria of Article 1(g) of the Directive.

(3-20)    The competent authority should thoroughly examine whether the interests of protecting a habitat or species of Community interest may justify affecting another species of Community interest, for example where a prey species could be locally threatened by a carnivor species 108 , on a case-by-case basis. Before considering issuing a derogation to protect a prey species, it should assess and address all other possible threats (e.g. habitat deterioration, overhunting, disturbance, competition from domestic species). The assessment should cover the conservation status of the species covered by the possible derogation versus the conservation status of the ‘fauna, flora and habitats’ in question, the long-term impact on the affected population(s), the long-term efficacy in reducing the threat, etc. The assessment should follow the proportionality principle: the disadvantages caused must not be disproportionate to the aims pursued.

 (b) To prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property

(3-21) The second reason for granting a derogation is to prevent serious damage, in particular to crops, livestock, forests, fisheries, water, and other types of property. This derogation takes into account economic interests, and, as noted, the damage to be prevented must be serious. The list is not exhaustive, however; it may cover other types of property. Serious damage relates to specific interests, i.e. it leads, or could lead, inter alia to a direct or indirect economic and/or financial loss, loss of property value, or to the loss of production material.

(3-22)    However, as highlighted by the Court in its ruling in Case C-46/11, Article 16(1)(b) does not allow authorities to derogate from the prohibitions set under Articles 12 merely because complying with such prohibitions compel a change in agricultural, forestry or fish farm activities. In Case C-46/11, the Court ruling stated that Article 16(1)(b) does not authorise derogating from the Article 12 prohibitions on the grounds that compliance with those prohibitions would not allow the use of technologies normally used in agriculture, forestry or fish farming 109 .

(3-23)    Ruling on the comparable derogation procedure under Article 9 of the Birds Directive 2009/147/CE, the Court noted that the Directive is not designed to prevent minor damage but only serious damage, i.e. exceeding a certain degree 110 . It follows that mere nuisance and normal business risks cannot constitute legitimate reasons for granting derogations. What is considered serious damage should be evaluated on a case-by-case basis when the issue arises.

(3-24)    The Court specified that ‘Article 16(1) of the Habitats Directive does not require serious damage to be sustained before derogating measures can be adopted’ 111 . As this provision is intended to prevent serious damage, it is not necessary that the serious damage itself has already occurred; likelihood of serious damage occurring is sufficient. However, the mere chance that damage might occur does not suffice; the likelihood that damage will occur must be high, and so must the extent of the damage. The high probability of serious damage occurring must be demonstrated by sufficient evidence. There must also be sufficient evidence that the risk of serious damage is largely attributable to the species targeted by the derogation and that there must be a strong likelihood that serious damage would occur if action is not taken. Past experience should demonstrate a high probability of the occurrence of damage.

(3-25)    When granting derogations, Member States must be in a position to demonstrate that any control method used under the derogation is effective and durable in preventing or limiting the serious damage, e.g. specifically targeted to the location and time where damage is occurring or likely to occur and targeting the damage-causing individuals etc. In Case C-342/05 112 , the Court found that Finland had failed to fulfil its obligations under Articles 12(1) and 16(1)(b) of the Habitats Directive by authorising wolf hunting on a preventive basis, without it being established that the hunting would prevent serious damage within the meaning of Article 16(1)(b). It follows that derogations should be targeted at the necessary scale even to that of an individual specimen (e.g. a single problem bear).

(3-26)    Derogations for the prevention of serious damage are mainly issued for species that have a significant impact on different sectors, such as large carnivores, Castor fiber and, to a lesser extent, Lutra lutra. These are topical examples of species whose presence and expansion can lead to a number of conflicts with human interests in different Member States. Mitigating these conflicts may require developing comprehensive conservation strategies and adjusting, when possible, human practices that give rise to conflicts in order to develop a culture of coexistence. It may also require developing plans that are locally adapted to the specific characteristics of the species and of the impacted activities, which may include derogations in line with Article 16(1)(b).

(3.27) The European Commission has supported multiple LIFE projects and initiatives that have developed good practice guidelines for managing conflicts involving protected species (e.g. the EU Platform on coexistence between people and large carnivores 113 described in the box below). Species-specific guidelines have been produced at national or regional level in several Member States 114 . When the plan is to seek a derogation, it is advisable to explore the measures, practices and instruments suggested in these guidelines or experienced elsewhere, in order to find the best locally adapted solutions to reduce damages and conflict, following the principle of proportionality.

(c) In the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment

(3-28) The third possible reason for granting a derogation is for ‘imperative reasons of overriding public interest’. This concept is not defined in the Directive but the paragraph mentions public interest reasons such as public health and public safety. It also covers other non-specified reasons, such as reasons of a social or economic nature, reasons that have beneficial consequences of primary importance for the environment, etc. (the list is not exhaustive).

(3-29) In other fields of EU law where similar concepts appear, for instance the free movement of goods, the European Court of Justice has held that overriding requirements or public interest justify national measures restricting the principle of freedom of movement. In this context, it has recognised public health, environmental protection, and the pursuit of legitimate goals of economic and social policy as such imperative requirements.

(3-30)    The same concept also appears in Article 6(4) of the Directive. So far, the Court has not issued any jurisprudence on how to interpret this specific concept but it can be considered that demonstrating the overriding considerations for a plan or project should be equally applicable to derogations. The Commission’s analysis in its Article 6 guidance document 116 is helpful to explain this concept.

(3-31)    Firstly, it is clear from the wording that only public interests, promoted either by public or private bodies, can be balanced against the conservation aims of the Directive. Thus, projects that are entirely in the interest of companies or individuals are not typically considered as being in the public interest.

(3-32)    Secondly, the ‘overriding’ nature of this public interest must be underlined. This implies that not every form of public interest of a social or economic nature is sufficient, in particular when set against the particular weight of the interests protected by the Directive. Careful balancing of interests is needed here. It is also reasonable to assume that in most cases, the public interest is likely to be overriding only if it is a long-term interest: short-term interests that only yield short-term benefits would not be sufficient to outweigh the long-term interest of species conservation.

(3-33)    The competent authority must thoroughly examine the ‘overriding’ nature of the public interest on a case-by-case basis, and strike an appropriate balance with the overall public interest of achieving the Directive’s objectives. It seems reasonable to consider, as for Article 16(1)(b), that the use of derogations under Article 16(1)(c) does not require damages to human health or safety to be sustained before the adoption of derogation measures. However, when using this derogation, Member States must be able to demonstrate, with sufficient evidence, a link between the derogation and the cited objectives of overriding public interest.

(3-34) Species derogations for overriding public interests may be needed for plans or projects that affect Natura 2000 sites, subject to the requirements of Article 6(3-4). Preventive, mitigation and compensation measures envisaged under Article 6 should therefore also take into account the species concerned by the derogations. To ensure consistency and streamline the Article 16 procedures with the Article 6 assessments, it is advisable to also streamline, where relevant, verification of the derogation conditions (lack of satisfactory alternative solutions and of detrimental effects on the species) in the context of the appropriate assessment, where applicable.

(d) For the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants

(3-35)    Such derogations could, for example, cover the marking of certain individuals of a species for research purposes (e.g. radio collars) in order to better understand their behaviour, or for conservation projects that aim to reintroduce species. Research projects must obviously also consider alternative methods. For example, where the research involves killing a specimen, the use of carcasses and samples from specimens killed for other reasons should be encouraged 117 . It is also necessary to demonstrate that the purpose of such research overrides the interests of strict protection of the species.

(3-36) The taking of eggs, capture and captive breeding, translocation, etc. can all be allowed for the purpose of restocking eroded populations, increasing their genetic diversity or re-introducing a species. However, although the aim of these derogations is the conservation of the species, they could have several potential negative impacts, involving ecological, social and economic aspects and animal welfare considerations. It is therefore advisable, when granting derogations of this type, to use the best available data, mechanisms, tools (IUCN Guidelines for Reintroductions and Other Conservation Translocations 118 ) and relevant species-specific experiences, to increase the chance of success and prevent possible risks for the reintroduced species or other species.

When the species to be repopulated or reintroduced is listed in both Annex IV and Annex II to the Habitats Directive, and the destination areas are outside Natura 2000, the authorities should also evaluate the opportunity/need to designate the core reproductive and feeding areas of the repopulated or reintroduced species population as Natura 2000, in particular for priority species. Moreover, possible alternatives to reintroduction or translocation must have been previously assessed as less effective or shown to be not feasible as a means to reach the specific and clearly defined conservation objectives of the reintroduction or translocation.

(e) To allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities

(3-37) The fifth and last reason to issue a derogation is to take or keep certain specimens of the species listed in Annex IV, under strictly supervised conditions, on a selective basis and to a limited extent.

(3-38) Contrary to the provisions of Article 16(1) (a) to (d), Article 16(1)(e) does not specify an objective to be pursued when using this derogation. Nevertheless, an objective must still be given when using Article 16(1)(e) and must be fully justified. The objective must also be in line with the overall objectives of the Directive. The CJEU clarified in Case C-674/17 that ‘a derogation decision must define the objectives relied upon in support of a derogation in a clear and precise manner’. The Court also considers that an exemption based on Article 16(1) of the Habitats Directive ‘must be applied appropriately in order to deal with precise requirements and specific situations’ 119 . It is therefore clear that there must be a specific objective for granting a derogation.

(3-39) In Case C-674/17 120 the CJEU ruled that ‘the objective of a derogation based on Article 16(1)(e) of the Habitats Directive cannot, in principle, be confused with the objectives of the derogations based on Article 16(1)(a) to (d) of that Directive, with the result that the former provision can only serve as a basis for the grant of a derogation in cases where the latter provisions are not relevant’ and that ‘Article 16(1)(e) of the Habitats Directive cannot serve as a general legal basis for granting derogations from Article 12(1) of that Directive, without depriving the other situations covered by Article 16(1) thereof as well as the system of strict protection of their effectiveness’.

Article 16(1)(e) is therefore not a general legal basis to provide derogations, but may only be applied if the objectives pursued with the derogation do not fall under Article 16(1)(a)-(d). Otherwise the provisions of 16(1)(a)-(d) and the system of strict protection would lose their effectiveness. In this particular case, the CJEU dealt explicitly with the problem of poaching a protected species, which it recognises as a major challenge to the conservation of endangered species. The Court acknowledged that, in principle, combating poaching may be cited as a method of contributing to maintaining or restoring the favourable conservation status of the species concerned and thus as an objective covered by Article 16(1)(e) of the Habitats Directive 121 .

(3-40) It follows from the ruling in Case C-674/17 that Article 16(1)(e) does not limit the range of objectives that can be pursued legitimately with a derogation. In addition to combating poaching, other reasons may justify the use of Article 16(1)(e), provided that the objective of the derogation is in line with the overall objective of the Directive to maintain and restore the favourable conservation status of the species concerned.

However, the CJEU in Case C-674/17 also ruled that ‘it is for the national authority to support, on the basis of rigorous scientific data, including, where appropriate, comparative data on the effects of hunting for population management purposes on the conservation status of wolves, the proposition that hunting for population management purposes is actually capable of reducing illegal hunting to such an extent that it would have a net positive effect on the conservation status of the wolf population, while taking account of the number of derogation permits envisaged and the most recent estimates of the number of wolves taken illegally’ 122 .

The CJEU also underlined that ‘it must be considered that the mere existence of an illegal activity such as poaching or difficulties associated with its monitoring cannot be sufficient to exempt a Member State from its obligation to ensure the safeguarding of species protected under Annex IV to the Habitats Directive. On the contrary, in such a situation, that Member State must give priority to strict and effective monitoring of that illegal activity and implement methods that do not involve failure to observe the prohibitions laid down in Articles 12 to 14 and Article 15(a) and (b) of that Directive’. 123

(3-41) Even when it has been demonstrated that a derogation is based on a legitimate objective that fulfils the above conditions, it can only be granted if it also meets a series of other criteria, namely it must only concern limited numbers of specimens of the species, it must be applied on a selective basis and to a limited extent, and done under strictly supervised conditions 124 . Each of these criteria are explored below.

·Limited numbers

(3-42)    This is a relative criterion which has to be compared to the population level of a species, its annual reproduction and mortality rates and is directly linked with its conservation status 125 . Therefore, it is essential to set a threshold for the number of individuals that can be taken/kept. In Case C-674/17, the CJEU clarified that this number depends on the population level (number of individuals), its conservation status and its biological characteristics. The ‘limited numbers’ will need to be established, under the responsibility of the competent national authority, on the basis of rigorous scientific information of geographical, climatic, environmental and biological data and in light of reproduction rates and total annual mortality due to natural causes but also losses due to other causes such as accidents, other derogations (e.g. under Article 16(1)(b)) and specimens, which are ‘missing’.

The number of animals taken must also ensure that it does not entail the risk of a significant negative impact on the structure of the population in question, even if it is not, in itself, detrimental to the maintenance of the populations of species concerned at a favourable conservation status in their natural range 126 . The ‘limited numbers’ must be clearly mentioned in the derogation decisions 127 . This limit should be set at population level; this requires coordination between all management units that share the population concerned. For wide-ranging vertebrates with cross-border populations, such as large carnivores, the Member States sharing a population must coordinate to establishing a common position on what can be considered limited numbers for purposes of granting derogations.

(3-43) Derogations should not be granted where there is a risk that the derogation might have a significant negative effect on the conservation of the local population concerned in quantitative or in qualitative (e.g. on population structure) terms (see also Chapter 3.2.3). Given that all derogations must in any case fulfil the precise condition of Article 16(1) of not being ‘detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range’, the express reference in Article 16(1)(e) to ‘limited numbers’ suggests that the legislator intended a greater level of constraint.

(3-44)    The ‘limited numbers’ concept for strictly protected species is much more restrictive than the ‘maximum sustainable quota’ or the ‘optimal sustainable yield’ for species subject to hunting management and listed under Annex V to the Directive. The ‘limited numbers’ condition is in line with the degree of protection sought by the Directive for non-exploitable species. The condition is more restrictive than the general derogation condition of ensuring the maintenance of populations of the species concerned at a favourable conservation status. It is therefore more restrictive than the ‘sustainable’ use required for Annex V species under Article 14, which ensures their exploitation is compatible with maintaining the species at a favourable conservation status 128 .

(3-45)    The ‘limited number’ threshold should be determined on the basis of specific criteria for each species, as it depends on the ecological requirements of each species. These may include spatial scale of distribution, habitat and landscape fragmentation, the availability of prey, social organisation of the species, patterns and levels of threat, including disease, pollution and contaminants, illegal and incidental mortality and climate change. In all cases, the ‘limited number’ ceiling ‘must be determined on the basis of strict scientific data’ 129 .

·Under strictly supervised conditions, on a selective basis and to a limited extent

(3-46) This qualification clearly demonstrates that the EU legislator intended to set significant constraints. The principle of strictly supervised conditions also implies that any use of this type of derogation must involve clear authorisations that must be related to particular individuals or groups of individuals, places, times and quantities. The term “to a limited extent” supports this interpretation. It also implies the need for strict territorial, temporal and personal controls to enforce the derogations and ensure compliance.

(3-47)    In turn, the principle of selectivity means that the activity in question must be highly specific in its effect, targeting certain individuals of one species, or even one gender or age class of that species (e.g. mature males only) to the exclusion of all others. This approach is supported by the specification in Article 16(1)(e) that the taking or keeping must be restricted to ‘certain specimens’. It also implies that certain technical aspects of the method used should verifiably demonstrate selectivity.

In Case C-674/17, the CJEU stressed this aspect by ruling: ‘As regards the conditions relating to the selective and limited basis on which certain specimens of species are taken or kept, it should be noted that they require the derogation to cover a number of specimens determined in the narrowest, most specific and efficient way possible, taking into account the objective pursued by the derogation in question. It may also be necessary, in view of the level of the population of the species in question, its conservation status and its biological characteristics, for the derogation to be limited not only to the species concerned or to the types or groups of specimens thereof, but also to individually identified specimens’  130 .

The same ruling clarified the term ‘under strictly supervised conditions’ as meaning: ‘…, in particular, that those conditions and the manner in which compliance with them is ensured can guarantee that the specimens of the species concerned are taken or kept on a selective basis and in limited numbers. Thus, for each derogation based on that provision, the competent national authority must ensure that the conditions laid down therein are satisfied before that derogation is granted and monitor its subsequent impact. The national legislation must ensure that the lawfulness of the decisions granting derogation permits under that provision and the manner in which those decisions are implemented, including as regards compliance with the accompanying conditions relating to, in particular, places, dates, numbers and types of specimens targeted, are subject to effective control in a timely manner” 131 .

(3-48)    The ‘selective basis’ condition echoes the ban under Article 15(a) on using non-selective means of capture and killing listed in Annex VI(a) for the taking, capture or killing, under derogations, of species listed in Annex IV(a). The method used for capture or trapping must be selective when derogations under Article 16(1)(e) are applied.

3.2.2. TEST 2: Absence of a satisfactory alternative

(3-49)    Under Article 16(1), Member States must be certain that there is no satisfactory alternative before using a derogation. This is an overarching condition applicable to all derogations. It is for the competent national authorities to make the necessary comparisons and to evaluate alternative solutions. This discretionary power is nevertheless subject to several constraints.

(3-50) Based on case law of the Court on the comparable provision of Article 9 of the Birds Directive 79/409/EEC 132 , especially in Case C-10/96, analysing whether there is ‘no other satisfactory alternative’ can be considered as having three parts: What is the problem or specific situation that needs to be addressed? Are there any other solutions? If so, will these resolve the problem or specific situation for which the derogation is sought? The following remarks are based on CJEU case law on the comparable derogation provision of Article 9 of the Birds Directive and can be applied by analogy to Article 16.

(3-51)    The analysis of whether ‘there is no other satisfactory alternative’ presumes that a specific problem or situation exists and that it needs to be addressed. The competent national authorities are called upon to solve this problem or situation by choosing, among the possible alternatives, the most appropriate that will ensure the best protection of the species while solving the problem/situation. To ensure the strict protection of species, the alternatives must be assessed against the prohibitions listed in Article 12. For example, they could involve alternative locations of projects, different development scales or designs, or alternative activities, processes or methods.

For example, when assessing the existence of ‘other satisfactory alternatives’ to the measures under Article 16(1)(b), which aim to prevent serious damages to crops, livestock, forests, fisheries and water or other type of property, preventive non-lethal means compatible with Article 12 must first be implemented or, at least, seriously examined. In most cases, crop or livestock damage preventive measures (such as the use of appropriate fences, wildlife deterrent devices, livestock guarding dogs, shepherding or changes in livestock management practices, as well as promoting improvement of the habitat conditions or prey populations of the species concerned) may be a satisfactory alternative to the use of derogations under Article 16(1)(b) derogations. Other preventive measures, such as the dissemination of science-based information with the purpose of reducing conflict (for example husbandry methods or human behaviour) may be part of the satisfactory alternatives to the use of lethal control under both Article 16(1)(b) and Article 16(1)(c) derogations.

(3-52)    When ascertaining whether another satisfactory solution exists for a specific situation, all ecological, economic and social pros and cons should be considered, in order to identify the optimal alternative for the specific case. This analysis of pros and cons should look at the potential negative effects of the possible solutions as well as options and tools to annul or minimise any negative effects. The net result, in terms of solving the problem while avoiding or minimising secondary effects, should then be weighed against the effects of a derogation, taking into account the overall objective of the Directive.

(3-53) Once again, when authorising derogations, the competent national authorities must ascertain whether there are no satisfactory alternatives that can achieve the objective pursued, taking account in particular of the best relevant scientific and technical evidence, in the light of the circumstances of the specific situation and in compliance with the prohibitions laid down in the Habitats Directive. 133

(3-54) In Case C-674/17, for instance, the CJEU considered that the mere existence of an illegal activity, such as poaching or the difficulties encountered in monitoring this activity, are not sufficient to relieve a Member State of its obligation to safeguard the species in accordance with Annex IV to the Habitats Directive. In such a situation, it must give priority to the strict and effective control of that illegal activity and to adopting measures that are in line with the prohibitions laid down in Articles 12 to 14 and Article 15(a) and (b) of that Directive 134 .

(3-55) Only when it is sufficiently demonstrated that potential alternatives are not satisfactory, either because they are not able to solve the specific problem or are technically unfeasible, and when the other conditions are also met, can the use of the derogation be justified.

However, if a measure is partially satisfactory even if it does not sufficiently address the problem, but it can still reduce or mitigate the problem, it should be implemented first. Derogations for lethal intervention may only be justified for the residual problem, if no other methods are possible, but must be proportional to the problem remaining after non-lethal measures are taken.

(3-56)    The process to ascertain whether another alternative is unsatisfactory should be based on a well-documented assessment of all possible available options, including in terms of their effectiveness, based on the best available facts and data. The assessment of alternatives must be balanced in light of the overall objective of maintaining or restoring the favourable conservation status of the species of Community interest concerned (it must therefore take into account the conservation status, the impact of additional incidental or illegal removal of specimens and prospects of the population concerned). The assessment may also take into account proportionality in terms of cost. However, economic cost cannot be the sole determining factor when analysing alternative solutions. In particular, satisfactory alternative solutions cannot be rejected from the outset on the grounds that they would cost too much 135 .

(3-57)    In any case, issuing an Article 16 derogation must be a last resort 136 . The essential common characteristic of any derogation system is that it has to be subordinate to other requirements laid down in the Directive in the interest of conservation.

(3-58)    The same approach applies to the interpretation of the term ‘satisfactory’. Given the exceptional nature of the derogation regime and the duty of Member States under Article 4(3) TEU to help the EU achieve its tasks, a derogation would only be justified on the basis of an objective demonstration that there is no other satisfactory solution 137 .

(3-59)    The Advocate General in Case C-342/05 clarified the proportionality principle, according to which 138 a ‘measure may not be implemented if its objective can be attained by less drastic means, that is to say by means of a satisfactory alternative within the meaning of Article 16(1) of the Habitats Directive’. ‘An alternative is satisfactory not only if it would attain the objectives of the derogation equally well, but also if the disadvantages caused by the derogation would be disproportionate to the aims pursued and the alternative would ensure proportionality’.

(3-60)    The determination of whether an alternative is satisfactory in a given factual situation must be founded on objectively verifiable factors, such as scientific and technical considerations. Given the exceptional nature of the derogation regime, a derogation would only be justified on the basis of an objective demonstration of the grounds on which other prima facie satisfactory solutions cannot be adopted 139 .Evidently, the requirement to seriously consider other alternatives is of primary importance. Member States have limited discretionary power, and where another solution exists, any arguments that it is not satisfactory will need to be convincing. The judgment in Case C-182/02 illustrates the strict approach taken by the Court for derogations under the Birds Directive. In order to ascertain whether a satisfactory solution existed, the Court assessed both the ‘need’ and the ‘purpose’ of the derogation 140 .

This judgment confirms the importance of demonstrating that there are compelling reasons to justify a derogation 141 . Another solution cannot be deemed unsatisfactory merely because it would cause greater inconvenience to or compel a change in behaviour in the beneficiaries of the derogation. In this regard, the arguments based on the ‘deeply rooted tradition’ or ‘historical and cultural tradition’ of hunting practices were found to be insufficient to justify the need for a derogation from the Birds Directive 142 . The same logic applies to derogations under the Habitats Directive.

(3-61)    In addition, the solution finally selected, even if it involves a derogation, must be objectively limited to the extent necessary to resolve the specific problem or situation 143 . This means that derogations must be limited in time, place, numbers of specimens involved, specific specimens involved, persons authorised, etc. The need to limit a derogation to the extent necessary to resolve the problem was re-confirmed in Case C-10/96 on the comparable provision of Article 9 of the Birds Directive 144 . According to the Court, the number of specimens involved by the derogation must be ‘fixed at the level of what proves to be objectively necessary to provide a solution for those problems’. This limit is distinct from the ‘limited numbers’ in Article 16(1)(e), which is an overall ‘cap’ when applying this particular derogation 145 .

3.2.3.TEST 3: Impact of a derogation on conservation status

(3-62)    According to Article 16(1), derogations must not be ‘detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range’. Implementation of this provision should include a two-step assessment: firstly, to assess the conservation status of the specific populations of a species in its natural range within the Member State concerned (and possibly beyond national boundaries if the populations are shared with neighbouring countries) and, secondly, an evaluation of the impact of the derogation on the conservation status of the specific population or populations concerned. For the sake of clarity, ‘population’ is defined here as a group of individuals of the same species that live in a defined geographic area at the same time and are (potentially) interbreeding (i.e. sharing a common gene pool) 146 .

3.2.3.a) Scale of assessment

(3-63)    The question then arises as to the level that should be considered for evaluating whether the impact of a derogation is detrimental, neutral or could be positive for the conservation status of a species. The conservation status of a species must ultimately be considered across its natural range, according to Article 1(i). In discussions with the Habitats Committee, it was agreed that, for the purpose of reporting under Article 17 (in connection with Article 11), conservation status should be assessed at biogeographic level in each Member State. This would ultimately allow information to be aggregated for entire biogeographic regions across the EU. The conservation status of a species within the given biogeographic region in a Member State is therefore highly relevant information when considering a derogation.

(3-64)    However, an assessment of the impact of a specific derogation will in most cases have to be at a lower level than the biogeographic region in order to be meaningful in ecological terms. A useful level could be the (local) population. The wording of Article 16, which mentions ‘populations of the species concerned’, confirms this interpretation.

Of course, the approach must be adapted to the species in question: the cumulative effects of killing individuals of a wide-ranging large carnivore will need to be evaluated at population level (cross-border where applicable 147 ), while the impact of destroying a breeding site in a rather fragmented amphibian habitat may be better evaluated on an individual site or at meta-population level 148 .

According to established case law, derogations must be applied appropriately to deal with precise requirements and specific situations 149 . It follows that assessments at lower levels are normally essential, since the derogations must deal with specific problems and provide suitable solutions. Derogations must therefore be granted for a specific place since their primary impact is at local level. The assessment at a lower level would then have to be assessed against the situation on a larger scale (e.g. biogeographic, cross-border or national), for a complete picture of the situation.

In its ruling in Case C-674/17 on derogations for wolves, the CJEU follows this reasoning by stating that, before authorising derogations, the national authorities must assess the conservation status of the population concerned and the impact of the envisaged derogations at both local level and the level of the territory of the Member State or, where applicable, at the level of the biogeographical region in question where the borders of the Member State straddle several biogeographical regions or if the natural range of the species so requires and, to the extent possible, at cross-border level. The CJEU clarified that: ‘the assessment of the impact of a derogation at the level of the territory of a local population is generally necessary in order to determine its impact on the conservation status of the population concerned on a larger scale. (…) The most direct effects of such a derogation are generally felt in the local area to which it relates. Moreover the conservation status of a population at national or biogeographical level depends also on the cumulative impact of the various derogations affecting local areas’ 150 . ‘Therefore, such a derogation cannot be granted without an assessment of the conservation status of the populations of the species concerned and the impact that the envisaged derogation is capable of having on it at both local level and the level of the territory of that Member State or, where applicable, at the level of the biogeographical region in question where the borders of that Member State straddle several biogeographical regions or if the natural range of the species so requires and, to the extent possible, at cross-border level’ 151 . However, ‘it cannot be accepted that, for the purpose of that assessment, account should be taken of the part of the natural range of the population in question extending to certain parts of the territory of a third country which is not bound by an obligation of strict protection of species of interest for the European Union’ 152 .

(3-65) Where the authority to grant derogations is given at sub-national levels (e.g. by the regional administration), it is necessary to coordinate and have an overview and supervision of the granting of derogations at Member State level (and also beyond national borders in the case of cross-border populations), to avoid the risk that the sum of the derogations result in detrimental effects to the conservation status of the populations of the species concerned in their (national) natural range (see also 3.1.2).

3.2.3.b)    Derogations and the impact on conservation status

(3-66) As pointed out in applicable ECJ case law 153 , ‘Article 16(1) of the Directive makes the favourable conservation status of those populations in their natural range a necessary precondition in order for the derogations for which it provides to be granted’. Neither the granting of derogations for species in an unfavourable conservation status nor the use of compensation measures is explicitly provided for in the Directive. However, by interpreting and implementing the provision in 16(1) in a way that puts the focus on reaching the overall objective of favourable conservation status, both concepts may be incorporated in the interpretation provided that reaching this objective is not compromised in any way.

(3-67)    The favourable conservation status of the populations of the species concerned in their natural range is in principle a necessary precondition to grant a derogation 154 . Nonetheless, in Case C-342/05, having established that the conservation status of the wolf in Finland was not favourable, the Court considered 155 that the granting of derogations for killing wolf specimens remain possible ’by way of exception’ and ‘where it is duly established that they are not such as to worsen the unfavourable conservation status of those populations or to prevent their restoration at a favourable conservation status’. The killing of a limited number of specimens might have a negligible effect on the objective envisaged in Article 16(1) of the Habitats Directive, namely maintaining or restoring the wolf population at a favourable conservation status in its natural range. Such a derogation could therefore be neutral for the species concerned. Thus, if the conservation status of the concerned species is not favourable, a derogation can only be granted if it is justified as being under exceptional circumstances and only if the conservation status is not worsened and its restoration at a favourable status is not prevented (neutral effect), and provided that all the other requisite conditions under Article 16 are also fulfilled. In Case C-342/05, the Court found that in fact derogations were granted by the relevant national authorities ‘without relying on an assessment of the conservation status of the species, without providing a clear and sufficient statement of reasons as to the absence of a satisfactory alternative and without specifically identifying the wolves causing serious damage which could be killed’. Furthermore, the Court stated that such derogations ‘which are not based on an assessment of the effect of the killing of the wolves that they authorise on the maintenance at a favourable conservation status of the population of that species in its natural range, and which do not contain a clear and sufficient statement of reasons as to the absence of a satisfactory alternative, are contrary to Article 16(1) of the Habitats Directive’ 156 . In Case C-674/17, the EUCJ stressed that the above-mentioned assessment of the effect of the planned derogations on the favourable conservation status must be carried out in light of the precautionary principle. 157 In other words, ‘if, after examining the best scientific data available, there remains uncertainty as to whether or not a derogation will be detrimental to the maintenance or restoration of populations of an endangered species at a favourable conservation status, the Member State must refrain from granting or implementing that derogation’ 158 .

A similar approach should be adopted when the conservation status of the concerned species is unknown. In this case, it would be impossible to ascertain the impact of the derogation on the conservation status, so that the derogation could not be granted.

(3-68)    Obviously, the less favourable the conservation status and trends, the less likely that a derogation could be justified, except under the most exceptional circumstances.

It is also clear that taking this approach to derogations is best done within a clear and well-developed framework of species conservation measures. Again (as with protection measures), the conservation status of a species is the core consideration when assessing and justifying the use of derogations. It is therefore important not only to consider the current conservation status, but also to examine how it is changing.

(3-69) Regarding the current conservation status of the affected species, the state and condition of the local population of a species in a certain geographical area might well be different from the overall conservation status of populations in the biogeographic region in the Member State (or even the natural range). Therefore the conservation status at all levels should be known and properly assessed before deciding whether to issue a derogation.

(3-70) No derogation can be granted if it has – at any level - a detrimental effect on the conservation status or on the attainment of favourable conservation status for a species. In other words, if a derogation is likely to have a significantly negative effect on the population concerned (or the prospects of this population) or even on a local population within a Member State, the competent authority should not grant it. The net result of a derogation should be neutral or positive for the relevant populations of the species.

(3-71) When data are not sufficiently robust and reliable to prove that the conservation status is favourable and/or to ensure the derogation does not adversely affect the conservation status, the precautionary principle (requiring that the conservation objectives should prevail where there is uncertainty) should be applied and no derogations should be granted. As stated by the CJEU in Case C-674/17, ‘it must also be noted that, in accordance with the precautionary principle enshrined in Article 191(2) TFEU, if, after examining the best scientific data available, there remains uncertainty as to whether or not a derogation will be detrimental to the maintenance or restoration of populations of an endangered species at a favourable conservation status, the Member State must refrain from granting or implementing that derogation.’ 159

(3-72) Where the state and condition of the species is different in the different geographic levels, the assessment should first look at the local population level, and then the impact of the derogation on the population in the biogeographic region, taking into account also the cumulative effect of other derogations for the same species in that biogeographical region.

3.3.Additional considerations

(3-73)    When assessing whether a derogation could be detrimental to maintaining populations of the species at a favourable conservation status, consideration should also be given to the following elements in particular:

a) whether the requisite (appropriate, effective and verifiable) measures are established, implemented and enforced effectively for a species in a Member State to ensure its strict protection and that it reaches a favourable conservation status;

b) that the derogation does not work against, render ineffective or neutralise the requisite measures;

c) the impacts (including cumulative effects) of derogations are closely monitored and lessons are drawn for the future.

3.3.1.The role of species action plans

(3-74) One way of ensuring an appropriate use of derogations, as a part of a strict protection system, would be to draw up and implement comprehensive species action plans or conservation/management plans, even though these are not required under the Directive. These plans should aim to protect the species and restore or maintain its favourable conservation status. They should include not only the requisite measures under Article 12 but also measures to support or restore the viability of the population, its natural range and the habitats of the species. The plans could then provide a useful basis, and guiding framework, for issuing derogations, provided that the derogations are still granted on a case-by-case basis, that all the other conditions of Article 16 are met and that it has been demonstrated that the derogation is not detrimental to maintaining the populations of the species concerned at a favourable conservation status.

(3-75) For example, derogations to prevent serious damages to crops or property can be less effective in resolving the problem over the long term if they are done independently of any other measures for the species. However, if they are accompanied by a number of other measures (i.e. non-lethal arrangements, prevention measures, incentives, compensations, etc.), in the context of a species conservation/management plan, as a part of a strict protection system, the derogations could be rendered much more effective. Under such conditions, a species conservation/management plan, if properly implemented, could provide an appropriate framework for issuing derogations in line with the objectives of the Directive. Such plans would naturally have to be updated regularly in the light of improved knowledge and monitoring results.

(3-76)    To set an appropriate framework for issuing derogations, species conservation/management plans should be based on robust and updated scientific information about the species population status and trends and have as the main objective to maintain or restore the species to a favourable conservation status (specifying the conditions to be fulfilled for this goal). The plans should include a solid and comprehensive assessment of all the relevant threats and pressures on the species, as well as an analysis of existing mortality levels, either by natural causes or human-induced factors, such as illegal killing (poaching) or incidental capture and killing.

(3-77) On the basis of the best existing information and sound scientific assessments and monitoring systems, species conservation/management plans could then set out a coherent range of measures to be implemented and monitored in order to ensure that the favourable conservation status of the population concerned is achieved or maintained. Only under these circumstances could the species conservation/management plans constitute a suitable framework for issuing derogations, which may in turn help simplify the procedure for granting each specific derogation, provided that all the requisite conditions under Article 16 are also fulfilled.

3.3.2.Impact assessment for plans/projects and species protection

(3-78) The specific provisions and procedures under Article 16 need to be complied also in case of a plan or project, that might affect a EU protected species and is subject to the assessment procedures under Article 6(3) of the Habitats Directive or under the EIA or SEA Directives. In this case, the impact assessment procedures carried out for plans and projects can be used to assess the impact on the requirements under Article 12 and to verify whether the conditions for a derogation under Article 16 are fulfilled.

This would be relevant, for example, when the construction and/or operation of a project is likely to cause the deterioration or destruction of breeding sites or resting places or the disturbance of any species listed in Annex IV(a) and occurring in the project area.

In those circumstances, it is necessary to assess:

-    if any of the species listed in Annex IV(a) to the Habitats Directive is present in the project area;

-    if any of the breeding sites or resting places of the species listed in Annex IV(a) to the Habitats Directive are present in the project area;

-    if any of these species and/or their breeding sites or resting places will be ‘impacted’ (killed, disturbed, damaged, etc.) by the construction and/or operation of the project and, if so;

-    if the conditions set out in Article 16 are fulfilled.

(3-79) Only after the above checks are carried out may a derogation under Article 16 be granted and project be lawfully carried out (after having obtained development consent). If, for example, a breeding site of an Annex IV(a) species is present and will be destroyed by the project construction or operation, authorisation of the project would constitute a breach of Article 12, unless a derogation under Article 16 is granted and that the conditions for issuing a derogation are fulfilled.

(3-80) When projects are likely to have a significant effects on Natura 2000 sites, either individually or in combination with other plans or projects, they are subject to an appropriate assessment under Article 6(3) of the Directive, which would also carry out the checks in the above-mentioned list and follow up as appropriate.

For projects that are not subject to Article 6(3) because they are not likely to have a significant effects on Natura 2000 sites, either individually or in combination with other plans or projects, Member States can adapt existing procedures to meet the requirements of Article 12 and 16. This means that the checks in the list above can be built into the appraisals that form part of the decision-making processes at various levels in a Member State, including land-use planning decisions or environmental assessment procedures for programmes, plans and projects.

The underlying purpose is to correctly and promptly identify the impacts of a project, including the impact on protected species listed in Annex IV(a) to the Habitats Directive and their habitats, before the project is carried out. The EIA procedure is a possible vehicle for this.

(3-81) Coordinating legal procedures may avoid legal complications. Ideally, after receipt of the request for development consent on a project falling within the scope of the EIA Directive, an EIA (at least the screening stage) is started so that all potential impacts can be identified. Thus, the need for derogation can be identified without delay and it can be assessed whether the requirements of Article 16 Habitats Directive can be met. If so, the development consent could then be given together with the derogation. If the project needs to be modified due to the findings of the EIA, the derogation can be based on the modified project.

Ideally, the EIA carried out following the application for the single permit will cover all relevant impacts on the environment (including the impact on species listed in Annex IV(a) to the Habitats Directive and their breeding sites or resting places) which can be dealt with when granting the permit. For example, this can be done by setting conditions mitigating the negative impacts and/or by granting derogations to certain prohibitions set in law, if they fulfil the conditions for the derogations.

(3-82) Although it is not obligatory under Articles 12 and 16 of the Habitats Directive to carry out the above-mentioned checks within an appropriate assessment under Article 6(3) of the Habitats Directive or as part of the EIA procedure, this is the best way to ensure compliance with Articles 12 and 16 of the Habitats Directive. The EIA procedure can identify the impact on species listed in Annex IV to the Habitats Directive associated to a project as well as the potential consequences of the project in terms of breaching any of the prohibitions in Article 12 of the Habitats Directive. Carrying out the impact assessment including the multiple consultations required before issuing a derogation and the development is the best way forward as it facilitates coordination in decision-making.

3.3.3.The role of compensation measures (derogations from Article 12(1)(d))

(3-83)    Compensation measures may be envisaged for justified derogations, namely from Article 12(1)(d), i.e. where there is a deterioration or destruction of breeding sites and resting places. Depending on the biology, ecology and behaviour of species, such measures may work well for some species, but not for others.

Unlike mitigation measures, compensation measures are independent of the activity that causes the deterioration or destruction of a breeding site or resting place. Such measures are intended to compensate for specific negative effects on a breeding site or resting place, which in no case results in a detrimental impact on the conservation status for the species concerned. Ideally, compensation measures should match the negative effects on the breeding site or resting place, and be in place and effective before the negative effect occurs.

(3-84)     Compensation measures are not mentioned in Article 16, and therefore are not obligatory. They also cannot justify or compensate for a breach of Article 12, but can be one element to seek to ensure compliance with the requirement in Article 16(1) that there be no detrimental impact on the conservation status for the species concerned.

Ideally, compensation measures would:

I)compensate for the negative impact of the activity on the species’ breeding sites and resting places, under the specific circumstances (at local population level);

II)have a good chance of success and be based on best practice;

III)improve a species’ prospects of achieving favourable conservation status;

IV)be effective before or at the latest when the deterioration or destruction of a breeding site or resting place starts to take place.

(3-85)    Carried out in this way, compensation measures could guarantee that no overall detrimental effect is produced on the species’ breeding sites and resting places at either population or biogeographic level. However, it does not replace or reduce the need for derogations under Article 16 to comply with the three tests mentioned above. This means that adoption of a compensation scheme cannot be used to bypass the need for a derogation and the need to pass all three tests described in Chapter 3.2.

3.3.4.Multi-species derogations

(3-86)    Some projects (e.g. large infrastructure projects of public interest, such as transport networks) can affect a number of Annex IV species. In these cases, the impact on each of the affected species should be assessed and, based on this information, an overview of the overall impact should be formed in order to select the best solutions. The solutions must also meet all three tests. It is not enough to simply list the number of species potentially affected without taking the further step of assessing the extent of the problems and finding ways to avoid them.

3.3.5.Temporary nature: dealing with the colonisation of sites under development by species listed in Annex IV

(3-87) There will be occasions when already licensed land development activities (for instance the construction of new infrastructure such as roads, houses etc. or ongoing quarrying activities) lead to the creation of favourable new habitats that become colonised by species listed in Annex IV to the Directive. Such typical nature features, for instance on extraction sites, could include new ponds (benefiting amphibians and dragonflies), open ground, sand and gravel areas (attracting insects and birds), pioneer grasslands (attracting insects and birds), loose cliffs (benefiting birds and solitary bees), and the creation of areas providing shelter (for reptiles, amphibians, and insects).

As the strict protection regime under Article 12 does not distinguish between temporary (e.g. up to 5-10 years) or permanent, artificially or naturally created environments, it must be considered that protected animal or plant species listed in Annex IV that start to occupy a new site as a result of permitted land development activities are also fully covered by the scope of the protection provisions of Article 12.

(3-88) Applying the strict protection regime under Article 12 to such cases can present a significant challenge to project developers and land owners who, by the nature of the work, may need to remove these ‘temporary’ habitats in order to advance their work as permitted. Removing the habitats, either during a preparatory, operational or decommissioning phase of a project, requires a derogation under Article 16(1) if the conditions are fulfilled (see below).

Without legal certainty that the area in question can legitimately be used for the permitted purpose as planned, land owners or project developers may want to prevent the intrusion of protected species (for instance, by using pesticides or tillage) in the interim period when the land is not actively being developed in order to avoid additional burdens, restrictions or limitations linked to the presence of protected species that were not originally present on their land. This could present a lost opportunity as any additional temporary habitats that would not have otherwise thrived in the area concerned can, under certain conditions, contribute positively to the objectives of the Directive.

(3-89) To provide this legal certainty, and thereby an incentive to enable temporary nature sites to be created or maintained, developers can apply for a derogation under Article 16 at an early stage of the planning process, when protected species have not yet colonised the site but where such colonisation can be expected with some certainty (this may be the case for instance when the species is already present in the surrounding areas). This form of prior derogation would allow the subsequent removal of temporary nature features in line with the project development needs. However, the legal standards for such derogations cannot be lower than those for derogations for already occurring protected species and their habitats, and they must still fulfil all the conditions set out in Article 16. Among other issues, this means that derogations granted prior to the actual settlement of the colonising species or its habitat must specify the objectives sought through the derogation in a clear and precise manner 160 .

(3-90) Therefore, it will be important that applications for an Article 16 derogation are preceded by a complete field inventory that aims to detect all protected species, not only within the project area but also in surrounding areas. This will ensure that all ‘predictable’ Annex IV species are identified, together with their abundance and the likelihood of them colonising the project area. The Article 16 decision can then be used to set conditions for maintaining the continued ecological functionality of the species’ habitat in the event that the new colonised habitat within the project area has to be removed for the purposes of the permitted project/activity. This could, for instance, include creating and protecting similar habitats outside the project area and relocating the species within the project area to these habitats, supported by long-term monitoring. As with all derogations, correct implementation must also be verified and recorded.

(3-91) Derogations that address temporary nature situations as described above, require an objective justification, under one of the grounds set out in Article 16(1). One possibility is to base the derogation on the reasons set out in Article 16(1)(a) which justifies a derogation ’in the interest of protecting wild fauna and flora and conserving natural habitats’. The wording of the provision is not limited to derogations granted to protect a plant or animal species against other competing protected species. The wording can be interpreted to also allow for a derogation from the strict protection regime for a protected species for its own benefit. The wording ’interest’ in the provision suggests that the derogation must provide an added value to the species concerned. This would mean that Article 16(1)(a) would be applicable if it can be shown that there is a net benefit for the species concerned which was only made possible by granting the derogation in the first place.

(3-92) Article 16(1)(c) provides for the possibility to grant a derogation ‘for (…) imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment’. The reference to ’primary importance for the environment’ could be interpreted in a similar way to the one suggested above with regard to the reference made to ‘the interest of protecting wild fauna and flora and conserving natural habitats’, as contained in Article 16(1)(a), i.e. assuming that a derogation from the strict protection regime for a species could be granted also for its own benefit. However, the added value would have to be of ‘primary importance’ which in this case sets a higher threshold than under Article 16(1)(a).

(3-93) The possibility of using derogations for temporary nature sites should be carefully addressed at the project-planning phase, and should include a detailed scientific assessment of where protected species may settle in the different phases of the project. The planning phase should include an assessment of how the species having colonised the temporary habitats can be preserved during and after the project, to the extent possible, e.g. by implementing suitable mitigation measures and supporting relocation.

(3-94) The derogation decision must nevertheless still fulfil all the other criteria laid down in Article 16 (absence of alternatives, no detriment to conservation status) and should set out strict surveillance and monitoring commitments in advance 161 . These will ensure that development of the temporary site corresponds to the predicted emergence/occurrence of protected species on the site. This monitoring work would also provide the evidence needed to apply for an additional derogation to address any new occurrences that were not anticipated from the outset.

3.4.Monitoring and reporting of derogations

3.4.1.Monitoring the impacts of derogations

(3-95) Competent national authorities must not only ensure that all the conditions of the derogation scheme are met before granting a derogation, but they must also monitor the impact of derogations (and the effectiveness of any compensation measures) after they are implemented 163 . Article 16(3)(e) requires that Member States’ derogation reports specify ‘the supervisory measures used and results obtained’. This means they must supervise and monitor implementation of the derogations granted.

Monitoring the impact of derogations is also needed to verify whether the derogations have been implemented correctly and whether they achieved their objective, supported by scientifically based evidence, and, if necessary, to take corrective measures. This should ensure that any unintentional risk or damage to the species as a result of the implementation of the derogation is detected. An appropriate use of the derogation system requires that that the framework conditions must be right to ensure that the approach does not lead to undesired effects. Monitoring is key to achieve this.

(3-96) After implementing derogations, the national authorities must also monitor the cumulative impact of all derogations granted in the national territory for each species covered by the derogations, regardless of the reasons for which they were granted, and to confirm the initial assessment that the derogations are not detrimental to maintaining the populations of the species at a favourable conservation status. The results of this monitoring should obviously be taken into account in any future decisions to grant derogations.

(3-97) This monitoring could also come under the general surveillance obligation under Article 11 of the Directive. It would be reasonable for such surveillance to be sensitive to the effects (including cumulative effects and the effects of compensation measures) of derogations implemented for species for which derogations are recurrently granted or which are in an unfavourable conservation status (and are nevertheless, in exceptional circumstance, the subject of derogations). It would be also reasonable that such surveillance includes monitoring other factors that may have a negative impact on species’ conservation status (such as illegal killing). Such data can be used when assessing the conservation status of the species.

3.4.2.Reporting obligations under Article 16(2) and 16(3)

(3-98) Derogations must also fulfil the formal conditions set out in Article 16(2) and (3). In the words of the Court in Case C-118/94, (a Birds Directive case), these formal conditions ’are intended to limit derogations to what is strictly necessary and to enable the Commission to supervise them’.

(3-99) Member States do not need to consult the Commission before applying derogations but they have an obligation to submit a report every two years to the Commission on implementation of Article 16. Article 16(2) does not specify the precise content of these reports. It is, however, clear that the information must be complete, factual and cover all the details set out in Article 16(3). On the basis of the information provided in the derogation reports, the Commission must be in a position to supervise the application of Article 16 within the Member States and check its compatibility with the Directive. In cases where the Commission concludes that the use of derogations breaches the requirements of the Directive, it has the right to initiate an infringement procedure against the Member State concerned.

(3-100) The current derogation reporting format also covers all reporting obligations under Article 9 of the Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention) 164 and aims to improve the efficiency and usability of the reporting on all levels (regional, national, EU). The new reporting format and a new IT tool, called the Habitats and Birds Directives Derogation System+ (HaBiDeS+), is currently used by the Commission and Member States 165 .

(3-101) The new format includes the formal conditions set out in Article 16(3) that need to be met and specified in any derogation granted, as well as additional information (e.g. details helpful to further understand the reason, means and methods, evidence of the specific requirements of Article 16(1)(e), references to alternatives rejected, evidence that the derogation is not detrimental to the population’s conservation status) that provide an understanding of the competent authorities’ reasoning in applying the derogation system under Article 16.

Annexes:

Annex I:        Court case references

Annex II:        List of species covered by Annex II, IV and V

Annex III:    Implementation of Article 12 of Habitats Directive - The wolf example

ANNEX I

Court case references

Species protection provisions of the Habitats Directive

12 November 1969, Stauder v Stadt Ulm, Case C-29/69, ECLI:EU:C:1969:57

27 October 1977, Regina v Bouchereau, Case C-30/77, ECLI:EU:C:1977:172

12 July 1979, Koschniske v Raad van Arbeid, Case C-9/79, ECLI:EU:C:1979:201

23 May 1985, Commission v Germany, Case C-29/84, ECLI:EU:C:1985:229

9 April 1987, Commission v Italy, Case C-363/85, ECLI:EU:C:1987:196

8 July 1987, Commission v Belgium, Case C-247/85, ECLI:EU:C:1987:339

8 July 1987, Commission v Italy, Case C-262/85, ECLI:EU:C:1987:340

23 February 1988, Commission v Italy, Case C-429/85, ECLI:EU:C:1988:83

27 April 1988, Commission v France, Case C-252/85, ECLI:EU:C:1988:202

7 July 1988, Moksel v BALM, Case C-55/87, ECLI:EU:C:1988:377

15 March 1990, Commission v Netherlands, Case C-339/87, ECLI:EU:C:1990:119

28 March 1990, Criminal proceedings against G. Vessoso and G. Zanetti, joined cases C-206 and 207/88, ECLI:EU:C:1990:145

17 January 1991, Commission v Italy, C-157/89, ECLI:EU:C:1991:22

28 February 1991, Commission v Germany, Case C-57/89, ECLI:EU:C:1991:89

28 February 1991, Commission v Germany, Case C-131/88, ECLI:EU:C:1991:87

30 May 1991, Commission v Germany, Case C-59/89, ECLI:EU:C:1991:225

2 August 1993, Commission/Spain, Case C-355/90, ECLI:EU:C:1993:331

7 March 1996, WWF Italy v Regione Veneto, Case C-118/94, ECLI:EU:C:1996:86

19 September 1996, Commission v Greece, Case C-236/95, ECLI:EU:C:1996:341

12 December 1996, Ligue royale belge pour la protection des oiseaux and Société d’études ornithologiques v Région Wallonne, Case C-10/96, ECLI:EU:C:1996:504

19 May 1999, Commission v France, Case C-225/97, ECLI:EU:C:1999:252

11 November 1999, Commission v Italy, Case C-315/98, ECLI:EU:C:1999:551

7 November 2000, First Cooperate Shipping. Case C-371/98, ECLI:EU:C:2000:600.

10 May 2001, Commission v Netherlands, Case C-144/99, ECLI:EU:C:2001:257

17 May 2001, Commission v Italy, Case C-159/99, ECLI:EU:C:2001:278

30 January 2002, Commission v Greece, Case C-103/00, ECLI:EU:C:2002:60

13 February 2003, Commission v Luxembourg, Case C-75/01, ECLI:EU:C:2003:95

16 October 2003, Ligue pour la protection des oiseaux and Others v Premier ministre and Ministre de l'Aménagement du territoire et de l'Environnement, Case C-182/02, ECR p.12105

6 November 2003, Commission v UK, Case C-434/01, ECLI:EU:C:2003:601

20 October 2005, Commission v UK, Case C-6/04, ECLI:EU:C:2005:626

15 December 2005, Commission v Finland, Case C-344/03, ECLI:EU:C:2005:770

10 January 2006, Commission v Germany, Case C-98/03, ECLI:EU:C:2006:3

16 March 2006, Commission v Greece, Case C-518/04, ECLI:EU:C:2006:183

18 May 2006, Commission v Spain, Case C-221/04, ECLI:EU:C:2006:329

8 June 2006, Commission/Italy, Case C-60/05, ECLI:EU:C:2006:378

19 December 2006, Commission v Italy, Case C-503/06, ECLI:EU:C:2008:279

11 January 2007, Commission v Ireland, Case C-183/05, ECLI:EU:C:2007:14

10 May 2007, Commission v Austria, Case C-508/04, ECLI:EU:C:2007:274

14 June 2007, Commission v Finland, Case C-342/05, ECLI:EU:C:2007:341

20 May 2010, Commission v Spain, Case C-308/08, ECLI:EU:C:2010:281

9 June 2011, Commission v France, Case C-383/09, ECLI:EU:C:2011:369

26 January 2012, Commission v Poland, Case C-192/11, ECLI:EU:C:2012:44

15 March 2012, Commission v Cyprus, Case C-340/10, ECLI:EU:C:2012:143

15 March 2012, Commission v Poland, Case C-46/11, ECLI:EU:C:2012:146

10 November 2016, Commission v Greece, Case C-504/14, ECLI:EU:C:2016:847

17 April 2018, Commission v Poland, Case C-441/17, ECLI:EU:C:2018:255

10 October 2019, Preliminary ruling Case C-674/17, ECLI:EU:C:2019:851

11 June 2020, Preliminary ruling Case C‑88/19, ECLI:EU:C:2020:458

4 March 2021, joined Cases C-473/19 and C-474/19 - Föreningen Skydda Skogen, ECLI:EU:C:2021:166

Pending Case C-477/19 – Magistrat Stadt Wien

ANNEX II

List of animal species covered by Annexes II, IV and V

of the Habitats Directive 92/43/EEC

The species listed in this annex are indicated:

Øby the name of the species or subspecies (in bold and italics), or

Øby all the species belonging to a higher taxon or to a designated part of that taxon. The abbreviation ‘spp.’ after the name of a family or genus should be taken to mean all the species belonging to that family or genus.

An asterisk (*) before the name of a species indicates that it is a priority species of Annex II (Annex VI and V do not distinguish between priority and non-priority species).

The annexes consolidated in this table are :

ANNEX II : SPECIES OF COMMUNITY INTEREST WHOSE CONSERVATION REQUIRES THE DESIGNATION OF SPECIAL AREAS OF CONSERVATION

ANNEX IV : SPECIES OF COMMUNITY INTEREST IN NEED OF STRICT PROTECTION

ANNEX V : SPECIES OF COMMUNITY INTEREST WHOSE TAKING IN THE WILD AND EXPLOITATION MAY BE SUBJECT TO MANAGEMENT MEASURES

Species name	Annex			Geographic restrictions
	II	IV	V
ANIMALS
VERTEBRATES
MAMMALS
INSECTIVORA
Erinaceidae
Erinaceus algirus		X
Soricidae
Crocidura canariensis		X
Crocidura sicula		X
Talpidae
Galemys pyrenaicus	X	X
CHIROPTERA
Microchiroptera
Rhinolophidae
Rhinolophus blasii	X	X
Rhinolophus euryale	X	X
Rhinolophus ferrumequinum	X	X
Rhinolophus hipposideros	X	X
Rhinolophus mehelyi	X	X
Vespertilionidae
Barbastella barbastellus	X	X
Miniopterus schreibersi	X	X
Myotis bechsteini	X	X
Myotis blythii	X	X
Myotis capaccinii	X	X
Myotis dasycneme	X	X
Myotis emarginatus	X	X
Myotis myotis	X	X
All other Microchiroptera		X
Megachiroptera
Pteropodidae
Rousettus aegiptiacus	X	X
RODENTIA
Gliridae
All species except Glis glis and Eliomys quercinus		X
Myomimus roachi	X	X
Sciuridae
* Marmota marmota latirostris	X	X
* Pteromys volans (Sciuropterus russicus)	X	X
Spermophilus citellus (Citellus citellus)	X	X
* Spermophilus suslicus (Citellus suslicus)	X	X
Sciurus anomalus		X
Castoridae
Castor fiber	X	X	X	Annex II : except the Estonian, Latvian, Lithuanian, Finnish and Swedish populations Annex IV : except the Estonian, Latvian, Lithuanian, Polish, Finnish and Swedish, populations Annex V : Finnish, Swedish, Latvian, Lithuanian, Estonian and Polish populations
Cricetidae
Cricetus cricetus		X	X	Annex IV : except the Hungarian populations Annex V : Hungarian populations
Mesocricetus newtoni	X	X
Microtidae
Dinaromys bogdanovi	X	X
Microtus cabrerae	X	X
* Microtus oeconomus arenicola	X	X
* Microtus oeconomus mehelyi	X	X
Microtus tatricus	X	X
Zapodidae
Sicista betulina		X
Sicista subtilis	X	X
Hystricidae
Hystrix cristata		X
CARNIVORA
Canidae
* Alopex lagopus	X	X
Canis aureus			X
* Canis lupus	X	X	X	Annex II : except the Estonian population; Greek populations : only south of the 39th parallel; Spanish populations : only those south of the Duero; Latvian, Lithuanian and Finnish populations Annex IV : except the Greek populations north of the 39th parallel; Estonian populations, Spanish populations north of the Duero; Latvian, Lithuanian, Polish, Slovak, Bulgarian populations and Finnish populations within the reindeer management area as defined in paragraph 2 of the Finnish Act No 848/90 of 14 September 1990 on reindeer management Annex V : Spanish pop-ulations north of the Duero, Greek populations north of the 39th parallel, Finnish populations within the reindeer management area as defined in paragraph 2 of the Finnish Act No 848/90 of 14 September 1990 on reindeer management, Bulgarian, Latvian, Lithuanian, Estonian, Polish and Slovak populations
Ursidae
* Ursus arctos	X	X		Annex II : except the Estonian, Finnish, and Swedish populations
Mustelidae
* Gulo gulo	X
Lutra lutra	X	X
Martes martes			X
Mustela eversmanii	X	X
Mustela putorius			X
* Mustela lutreola	X	X
Vormela peregusna	X	X
Felidae
Felis silvestris		X
Lynx lynx	X	X	X	Annex II : except the Estonian, Latvian and Finnish populations Annex IV : except the Estonian population Annex V : Estonian population
* Lynx pardinus	X	X
Phocidae
Halichoerus grypus	X		X
* Monachus monachus	X	X
Phoca hispida bottnica	X		X
* Phoca hispida saimensis	X	X
Phoca vitulina	X		X
All other Phocidae			X
Viverridae
Genetta genetta			X
Herpestes ichneumon			X
DUPLICIDENTATA
Leporidae
Lepus timidus			X
ARTIODACTYLA
Cervidae
* Cervus elaphus corsicanus	X	X
Rangifer tarandus fennicus	X
Bovidae
* Bison bonasus	X	X
Capra aegagrus (natural populations)	X	X
Capra ibex			X
Capra pyrenaica (except Capra pyrenaica pyrenaica)			X
* Capra pyrenaica pyrenaica	X	X
Ovis gmelini musimon(Ovis ammon musimon) (natural populations – Corsica and Sardinia)	X	X
Ovis orientalis ophion (Ovis gmelini ophion)	X	X
* Rupicapra pyrenaica ornata (Rupicapra rupicapra ornata)	X	X
Rupicapra rupicapra (except Rupicapra rupicapra balcanica, Rupicapra rupicapra ornata and Rupicapra rupicapra tatrica)			X
Rupicapra rupicapra balcanica	X	X
* Rupicapra rupicapra tatrica	X	X
CETACEA
Phocoena phocoena	X	X
Tursiops truncatus	X	X
All other Cetacea		X
REPTILES
CHELONIA (TESTUDINES)
Testudinidae
Testudo graeca	X	X
Testudo hermanni	X	X
Testudo marginata	X	X
Cheloniidae
* Caretta caretta	X	X
* Chelonia mydas	X	X
Lepidochelys kempii		X
Eretmochelys imbricata		X
Dermochelyidae
Dermochelys coriacea		X
Emydidae
Emys orbicularis	X	X
Mauremys caspica	X	X
Mauremys leprosa	X	X
SAURIA
Lacertidae
Algyroides fitzingeri		X
Algyroides marchi		X
Algyroides moreoticus		X
Algyroides nigropunctatus		X
Dalmatolacertaoxycephala		X
Dinarolacerta mosorensis	X	X
Gallotia atlantica		X
Gallotia galloti		X
Gallotia galloti insulanagae	X	X
* Gallotia simonyi	X	X
Gallotia stehlini		X
Lacerta agilis		X
Lacerta bedriagae		X
Lacerta bonnali (Lacerta monticola)	X	X
Lacerta monticola	X	X
Lacerta danfordi		X
Lacerta dugesi		X
Lacerta graeca		X
Lacerta horvathi		X
Lacerta schreiberi	X	X
Lacerta trilineata		X
Lacerta viridis		X
Lacerta vivipara pannonica		X
Ophisops elegans		X
Podarcis erhardii		X
Podarcis fifolensis		X
Podarcis hispanica atrata		X
Podarcis lilfordi	X	X
Podarcis melisellensis		X
Podarcis milensis		X
Podarcis muralis		X
Podarcis peloponnesiaca		X
Podarcis pityusensis	X	X
Podarcis sicula		X
Podarcis taurica		X
Podarcis tiliguerta		X
Podarcis wagleriana		X
Scincidae
Ablepharus kitaibelli		X
Chalcides bedriagai		X
Chalcides ocellatus		X
Chalcides sexlineatus		X
Chalcides simonyi(Chalcides occidentalis)	X	X
Chalcides viridianus		X
Ophiomorus punctatissimus		X
Gekkonidae
Cyrtopodion kotschyi		X
Phyllodactylus europaeus	X	X
Tarentola angustimentalis		X
Tarentola boettgeri		X
Tarentola delalandii		X
Tarentola gomerensis		X
Agamidae
Stellio stellio		X
Chamaeleontidae
Chamaeleo chamaeleon		X
Anguidae
Ophisaurus apodus		X
OPHIDIA (SERPENTES)
Colubridae
Coluber caspius		X
* Coluber cypriensis	X	X
Coluber hippocrepis		X
Coluber jugularis		X
Coluber laurenti		X
Coluber najadum		X
Coluber nummifer		X
Coluber viridiflavus		X
Coronella austriaca		X
Eirenis modesta		X
Elaphe longissima		X
Elaphe quatuorlineata	X	X
Elaphe situla	X	X
Natrix natrix cetti		X
Natrix natrix corsa		X
* Natrix natrix cypriaca	X	X
Natrix tessellata		X
Telescopus falax		X
Viperidae
Vipera ammodytes		X
* Macrovipera schweizeri (Vipera lebetina schweizeri)	X	X
Vipera seoanni		X		Annex IV : except Spanish populations
Vipera ursinii (except Vipera ursinii rakosiensis and Vipera ursinii macrops)	X	X
* Vipera ursinii macrops	X	X
* Vipera ursinii rakosiensis	X	X
Vipera xanthina		X
Boidae
Eryx jaculus		X
AMPHIBIANS
CAUDATA
Salamandridae
Chioglossa lusitanica	X	X
Euproctus asper		X
Euproctus montanus		X
Euproctus platycephalus		X
Mertensiella luschani (Salamandra luschani)	X	X
Salamandra atra		X
* Salamandra aurorae (Salamandra atra aurorae)	X	X
Salamandra lanzai		X
Salamandrina terdigitata	X	X
Triturus carnifex (Triturus cristatus carnifex)	X	X
Triturus cristatus (Triturus cristatus cristatus)	X	X
Triturus dobrogicus (Triturus cristatus dobrogicus)	X
Triturus italicus		X
Triturus karelinii (Triturus cristatus karelinii)	X	X
Triturus marmoratus		X
Triturus montandoni	X	X
Triturus vulgaris ampelensis	X	X
Proteidae
* Proteus anguinus	X	X
Plethodontidae
Hydromantes (Speleomantes) ambrosii	X	X
Hydromantes (Speleomantes) flavus	X	X
Hydromantes (Speleomantes) genei	X	X
Hydromantes (Speleomantes) imperialis	X	X
Hydromantes (Speleomantes) strinatii	X	X
Hydromantes (Speleomantes) supramontis	X	X
ANURA
Discoglossidae
Alytes cisternasii		X
* Alytes muletensis	X	X
Alytes obstetricans		X
Bombina bombina	X	X
Bombina variegata	X	X
Discoglossus galganoi (including Discoglossus « jeanneae »)	X	X
Discoglossus montalentii	X	X
Discoglossus pictus		X
Discoglossus sardus	X	X
Ranidae
Rana arvalis		X
Rana dalmatina		X
Rana esculenta			X
Rana graeca		X
Rana iberica		X
Rana italica		X
Rana latastei	X	X
Rana lessonae		X
Rana perezi			X
Rana ridibunda			X
Rana temporaria			X
Pelobatidae
Pelobates cultripes		X
Pelobates fuscus		X
* Pelobates fuscus insubricus	X	X
Pelobates syriacus		X
Bufonidae
Bufo calamita		X
Bufo viridis		X
Hylidae
Hyla arborea		X
Hyla meridionalis		X
Hyla sarda		X
FISH
PETROMYZONIFORMES
Petromyzonidae
Eudontomyzon spp.	X
Lampetra fluviatilis	X		X	Annex II : except the Finnish and Swedish populations
Lampetra planeri	X			Annex II : except the Estonian, Finnish, and Swedish populations
Lethenteron zanandreai	X		X
Petromyzon marinus	X			Annex II : except the Swedish populations
ACIPENSERIFORMES
Acipenseridae
* Acipenser naccarii	X	X
* Acipenser sturio	X	X
All other Acipenseridae species			X
CLUPEIFORMES
Clupeidae
Alosa spp.	X		X
SALMONIFORMES
Salmonidae / Coregonidae
Coregonus spp. (except Coregonus oxyrhynchus -anadromous populations in certain sectors of the North Sea)			X
* Coregonus oxyrhynchus (anadromous populations in certain sectors of the North Sea)	X	X
Hucho hucho (natural populations)	X		X
Salmo macrostigma	X
Salmo marmoratus	X
Salmo salar (only in fresh water)	X		X	Annex II : except the Finnish populations
Salmothymus obtusirostris	X
Thymallus thymallus			X
Umbridae
Umbra krameri	X
CYPRINIFORMES
Cyprinidae
Alburnus albidus (Alburnus vulturius)	X
Anaecypris hispanica	X	X
Aspius aspius	X		X	Annex II : except the Finnish populations
Aulopyge huegelii	X
Barbus spp.			X
Barbus comiza	X		X
Barbus meridionalis	X		X
Barbus plebejus	X		X
Chalcalburnus chalcoides	X
Chondrostoma genei	X
Chondrostoma knerii	X
Chondrostoma lusitanicum	X
Chondrostoma phoxinus	X
Chondrostoma polylepis (including C. willkommi)	X
Chondrostoma soetta	X
Chondrostoma toxostoma	X
Gobio albipinnatus	X
Gobio kessleri	X
Gobio uranoscopus	X
Iberocypris palaciosi	X
* Ladigesocypris ghigii	X
Leuciscus lucumonis	X
Leuciscus souffia	X
Pelecus cultratus	X		X
Phoxinellus spp.	X
* Phoxinus percnurus	X	X
Rhodeus sericeus amarus	X
Rutilus alburnoides	X
Rutilus arcasii	X
Rutilus frisii meidingeri	X		X
Rutilus lemmingii	X
Rutilus pigus	X		X
Rutilus rubilio	X
Rutilus macrolepidotus	X
Scardinius graecus	X
Squalius microlepis	X
Squalius svallize	X
Cobitidae
Cobitis elongata	X
Cobitis taenia	X			Annex II : except the Finnish populations
Cobitis trichonica	X
Misgurnus fossilis	X
Sabanejewia aurata	X
Sabanejewia larvata (Cobitis larvata and Cobitis conspersa)	X
SILURIFORMES
Siluridae
Silurus aristotelis	X		X
ATHERINIFORMES
Cyprinodontidae
Aphanius iberus	X
Aphanius fasciatus	X
* Valencia hispanica	X	X
* Valencia letourneuxi (Valencia hispanica)	X
PERCIFORMES
Percidae
Gymnocephalus baloni	X	X
Gymnocephalus schraetzer	X		X
* Romanichthys valsanicola	X	X
Zingel spp. (except Zingel asper and Zingel zingel)	X
Zingel asper	X	X
Zingel zingel	X		X
Gobiidae
Knipowitschia croatica	X
Knipowitschia (Padogobius) panizzae	X
Padogobius nigricans	X
Pomatoschistus canestrini	X
SCORPAENIFORMES
Cottidae
Cottus gobio	X			Annex II : except the Finnish populations
Cottus petiti	X
INVERTEBRATES
ANNELIDA
HIRUDINOIDEA – ARHYNCHOBDELLAE
Hirudinidae
Hirudo medicinalis							X
ARTHROPODS
CRUSTACEA
Decapoda
Astacus astacus							X
Austropotamobius pallipes					X		X
* Austropotamobius torrentium					X		X
Scyllarides latus							X
Isopoda
* Armadillidium ghardalamensis					X	X
INSECTA
Coleoptera
Agathidium pulchellum					X
Bolbelasmus unicornis					X	X
Boros schneideri					X
Buprestis splendens					X	X
Carabus hampei					X	X
Carabus hungaricus					X	X
* Carabus menetriesi pacholei					X
* Carabus olympiae					X	X
Carabus variolosus					X	X
Carabus zawadszkii					X	X
Cerambyx cerdo					X	X
Corticaria planula					X
Cucujus cinnaberinus					X	X
Dorcadion fulvum cervae					X	X
Duvalius gebhardti					X	X
Duvalius hungaricus					X	X
Dytiscus latissimus					X	X
Graphoderus bilineatus					X	X
Leptodirus hochenwarti					X	X
Limoniscus violaceus					X
Lucanus cervus					X
Macroplea pubipennis					X
Mesosa myops					X
Morimus funereus					X
* Osmoderma eremita					X	X
Oxyporus mannerheimii					X
Pilemia tigrina					X	X
* Phryganophilus ruficollis					X	X
Probaticus subrugosus					X	X
Propomacrus cypriacus					X	X
* Pseudogaurotina excellens					X	X
Pseudoseriscius cameroni					X	X
Pytho kolwensis					X	X
Rhysodes sulcatus					X
* Rosalia alpina					X	X
Stephanopachys linearis					X
Stephanopachys substriatus					X
Xyletinus tremulicola					X
Hemiptera
Aradus angularis					X
Lepidoptera
Agriades glandon aquilo					X
Apatura metis						X
Arytrura musculus					X	X
* Callimorpha (Euplagia, Panaxia) quadripunctaria					X
Catopta thrips					X	X
Chondrosoma fiduciarium					X	X
Clossiana improba					X
Coenonympha hero						X
Coenonympha oedippus					X	X
Colias myrmidone					X	X
Cucullia mixta					X	X
Dioszeghyana schmidtii					X	X
Erannis ankeraria					X	X
Erebia calcaria					X	X
Erebia christi					X	X
Erebia medusa polaris					X
Erebia sudetica						X
Eriogaster catax					X	X
Euphydryas (Eurodryas, Hypodryas) aurinia					X
Fabriciana elisa						X
Glyphipterix loricatella					X	X
Gortyna borelii lunata					X	X
Graellsia isabellae					X		X
Hesperia comma catena					X
Hypodryas maturna					X	X
Hyles hippophaes						X
Leptidea morsei					X	X
Lignyoptera fumidaria					X	X
Lopinga achine						X
Lycaena dispar					X	X
Lycaena helle					X	X
Maculinea arion						X
Maculinea nausithous					X	X
Maculinea teleius					X	X
Melanargia arge					X	X
* Nymphalis vaualbum					X	X
Papilio alexanor						X
Papilio hospiton					X	X
Parnassius apollo						X
Parnassius mnemosyne						X
Phyllometra culminaria					X	X
Plebicula golgus					X	X
Polymixis rufocincta isolata					X	X
Polyommatus eroides					X	X
Proterebia afra dalmata					X	X
Proserpinus proserpina						X
Pseudophilotes bavius					X	X
Xestia borealis					X
Xestia brunneopicta					X
* Xylomoia strix					X	X
Zerynthia polyxena						X
Mantodea
Apteromantis aptera					X	X
Odonata
Aeshna viridis						X
Coenagrion hylas					X
Coenagrion mercuriale					X
Coenagrion ornatum					X
Cordulegaster heros					X	X
Cordulegaster trinacriae					X	X
Gomphus graslinii					X	X
Leucorrhina albifrons						X
Leucorrhina caudalis						X
Leucorrhinia pectoralis					X	X
Lindenia tetraphylla					X	X
Macromia splendens					X	X
Ophiogomphus cecilia					X	X
Oxygastra curtisii					X	X
Stylurus flavipes						X
Sympecma braueri						X
Orthoptera
Baetica ustulata					X	X
Brachytrupes megacephalus					X	X
Isophya costata					X	X
Isophya harzi					X	X
Isophya stysi					X	X
Myrmecophilus baronii					X	X
Odontopodisma rubripes					X	X
Paracaloptenus caloptenoides					X	X
Pholidoptera transsylvanica					X	X
Saga pedo						X
Stenobothrus (Stenobothrodes) eurasius					X	X
ARACHNIDA
Araneae
Macrothele calpeiana						X
Pseudoscorpiones
Anthrenochernes stellae					X
COELENTERATA
Cnidaria
Corallium rubrum							X
MOLLUSCS
GASTROPODA
Anisus vorticulus					X	X
Caseolus calculus					X	X
Caseolus commixta					X	X
Caseolus sphaerula					X	X
Chilostoma banaticum					X	X
Discula leacockiana					X	X
Discula tabellata					X	X
Discula testudinalis						X
Discula turricula						X
Discus defloratus						X
Discus guerinianus					X	X
Elona quimperiana					X	X
Geomalacus maculosus					X	X
Geomitra moniziana					X	X
Gibbula nivosa					X	X
* Helicopsis striata austriaca					X
Helix pomatia							X
Hygromia kovacsi					X	X
Idiomela (Helix) subplicata					X	X
Lampedusa imitatrix					X	X
* Lampedusa melitensis					X	X
Leiostyla abbreviata					X	X
Leiostyla cassida					X	X
Leiostyla corneocostata					X	X
Leiostyla gibba					X	X
Leiostyla lamellosa					X	X
* Paladilhia hungarica					X	X
Patella feruginea						X
Sadleriana pannonica					X	X
Theodoxus prevostianus						X
Theodoxus transversalis					X	X
Vertigo angustior					X
Vertigo genesii					X
Vertigo geyeri					X
Vertigo moulinsiana					X
BIVALVIA
Anisomyaria
Lithophaga lithophaga						X
Pinna nobilis						X
Unionoida
Margaritifera auricularia						X
Margaritifera durrovensis (Margaritifera margaritifera)					X		X
Margaritifera margaritifera					X		X
Microcondylaea compressa							X
Unio crassus					X	X
Unio elongatulus							X
Dreissenidae
Congeria kusceri					X	X
ECHINODERMATA
Echinoidea
Centrostephanus longispinus						X

ANNEX III

Implementation of Article 12 of Habitats Directive:

The wolf example

1. Background - Introduction

The wolf belongs to European native fauna and is an integral part of our biodiversity and natural heritage. As a top predator, it plays an important ecological role, contributing to the health and functioning of ecosystems. In particular it helps to regulate the density of the species it preys on 167  (typically wild ungulates such as roe deer, red deer and wild boar, but also chamois and moose, depending on the area) and improving their health through selective predation. The wolf used to occur all over continental Europe, but it had been exterminated from most regions and countries by the first half of the 20th century.

The 2020 State of Nature report 168 , based on data reported by Member States, confirms that wolf populations are generally recovering (stable or increasing) in the EU and are recolonising parts of their historical range, although they have reached a favourable conservation status in some Member States only 169 . The return of the wolf is an major conservation success 170 , which has been made possible by legal protection, more favourable public attitudes, as well as the recovery of its prey species (e.g. deer and wild boar) and of forest cover (following rural land abandonment).

At the same time, the return of the wolf to regions where it had been absent for decades or more is a significant challenge for Member States as this species is often associated to several types of conflict and can provoke strong social protests and reactions among concerned rural communities.

Just like other large carnivores, wolves have very large area requirements, with individuals and packs using hundreds of thousands of km2 for their territories. As a result they occur at very low densities and their populations tend to spread over very large areas, typically across many administrative borders, both within and between countries. From a biological point of view, it is therefore recommended that conservation and management measures are as coordinated and consistent as possible. This highlights the need for cross-border cooperation, for example by applying consistent and coordinated approaches at the level of the wolf population. Further guidance is available in the Guidelines for population-level management plans of large carnivores in Europe, developed for the European Commission (Linnell et al, 2008) 171 .

The wolf is listed in Annex IV of the Habitats Directive for most Member States and regions and is therefore subject to the strict protection provisions of Article 12 of the Habitats Directive, including the prohibition of all forms of deliberate capture or killing of individuals in the wild.

For certain Member States and regions the wolf is listed under Annex V, as a species ‘whose taking in the wild and exploitation may be subject to management measures’. For most Member States and regions, the wolf is also included in Annex II, as a priority species, requiring the designation of special areas of conservation (SACs) and appropriate conservation measures. Table 1 shows which populations are included in which Annex of Habitat Directive.