Species Protection in the European Union: How Strict is Strict?

Abstract

European Union law to protect wild species of plants and animals is generally considered as ‘strict’. Opponents of nature conservation law often pick the species protection components of the EU Bird Directive and Habitat Directive as a prime example of an unnecessary strict regulatory scheme that results in limitations of economic developments. Based on case law of the Court of Justice of the European Union, this paper explores to what extent EU species protection rules are indeed as rigid as its opponents often depict them. The article starts with a presentation of some general considerations regarding the motivations underpinning species protection law (Section II). Based on a brief discussion of the various “human-nature-attitudes” as distinguished in environmental philosophy, the authors show that at the level of international nature conservation law, an interesting shift in human-nature relationships from mastery towards stewardship and even to the ecocentric attitudes can be recognized; however, despite this shift, many of the nature conservation goals have not been met. One of the common weaknesses of many of the international conventions is that the wording of obligations and prohibitions leaves much leeway for balancing interests, prioritizing short term economic benefits and - consequently - for mastery behaviour. This helps to understand that in the EU, with 80% of the important natural values in an unfavourable conservation status, species protection law is meant to be more concrete and strict (Section III). The discussion of the case law of the EU Court of Justice in this article shows that in the last two decades many attempts have been made by Member States to find the weak components of the system in order to find space for prioritizing economic interests; however, the analysis also shows that in all these situations the Court has closed the backdoor for mastery by enforcing the strict character of the regime (Section IV). The article concludes with the observation that this strict character of the system appears to be an important fundament for developing new innovative approaches (Section V): Governments and businesses start to understand that a willingness to take nature conservation law seriously and by conducting active initiatives to restore species in a favourable conservation status, there is less need and space for legal procedures and more space for economic developments.

Full text

Electronic copy available at: http://ssrn.com/abstract=2390383
This chapter has been published in : Born C-H., Cliquet A., Schoukens H., Misonne D.
& Van Hoorick G., (eds.), The Habitats Directive in its EU Environmental Law Context:
European Nature’s Best Hope?, Routledge, Abingdon, Oxford 2014
SPECIES PROTECTION IN THE EUROPEAN UNION:
HOW STRICT IS STRICT?
Hendrik Schoukens and Kees Bastmeijer
for there is no folly of the beast of the earth which is not infinitely outdone by the madness of
men (Herman Melville, Moby Dick)
Abstract
European Union law to protect wild species of plants and animals is generally
considered as ‘strict’. Opponents of nature conservation law often pick the species
protection components of the EU Bird Directive and Habitat Directive as a prime
example of an unnecessary strict regulatory scheme that results in limitations of
economic developments. Based on case law of the Court of Justice of the European
Union, this paper explores to what extent EU species protection rules are indeed as rigid
as its opponents often depict them. The article starts with a presentation of some general
considerations regarding the motivations underpinning species protection law (Section
II). Based on a brief discussion of the various “human-nature-attitudes” as distinguished
in environmental philosophy, the authors show that at the level of international nature
conservation law, an interesting shift in human-nature relationships from mastery
towards stewardship and even to the ecocentric attitudes can be recognized; however,
despite this shift, many of the nature conservation goals have not been met. One of the
common weaknesses of many of the international conventions is that the wording of
obligations and prohibitions leaves much leeway for balancing interests, prioritizing
short term economic benefits and – consequently - for mastery behaviour. This helps to
understand that in the EU, with 80% of the important natural values in an unfavourable
conservation status, species protection law is meant to be more concrete and strict
(Section III). The discussion of the case law of the EU Court of Justice in this article
shows that in the last two decades many attempts have been made by Member States to
find the weak components of the system in order to find space for prioritizing economic
interests; however, the analysis also shows that in all these situations the Court has
closed the backdoor for mastery by enforcing the strict character of the regime (Section
IV). The article concludes with the observation that this strict character of the system
appears to be an important fundament for developing new innovative approaches
(Section V): Governments and businesses start to understand that a willingness to take
nature conservation law seriously and by conducting active initiatives to restore species
in a favourable conservation status, there is less need and space for legal procedures and
more space for economic developments.
 Ghent University, Belgium
 Tilburg University, The Netherlands

Electronic copy available at: http://ssrn.com/abstract=2390383
2 Hendrik Schoukens and Kees Bastmeijer
I. Introduction: the European hamster, an unlikely contender…
When talking about species protection law, most people have the tendency to think of
large, elusive species, such as eagles, brown bears or wolves. Ironically, whilst not
being the most emblematic species, the European hamster has been at the centre of the
debates surrounding the application of European species protection law, especially in
the context of spatial development projects. Up until the middle of the past century,
there was no apparent need for additional protection measures for this species, which is
considerably bigger than the pet store variety. Wild hamsters used to be native to a large
global range, extending from western Europe, through central and eastern Europe,
Russia and Kazakhstan. Across its global range, it is still considered of “least concern”,
but in many individual European countries, such as France, Germany, the Netherlands
and Belgium, it is considered critically endangered. The European hamster, which is a
nocturnal or crepuscular species, lives singly but in a complex burrow system and eats
seeds, legumes, root vegetables, grasses and insects. Hence the rodent species is
particularly dependent on open agricultural terrains, such as meadows, grasslands and
farmlands. Urban sprawl, loss of habitats and mono-culture of corn are to be blamed for
the decline of the population of the European hamster during the past centuries.
On several occasions during the last decade, wild hamsters made it to the front page of
several European newspapers. In the Netherlands, the European hamster became the
nemesis of many project developers and authorities since its presence appeared to be
able to, at least temporarily, block the construction of an industrial estate. A couple of
years ago, France, on its turn, was summoned to appear before the European Court of
Justice of the European Union since its remaining population, basically limited to the
Alsace, dropped to as few as 200 just four years ago. Not surprisingly, the Court finally
condemned France for not having put into place sufficient protection measures aiming
at the conservation and restoration of its former habitat. In its judgment, the Court
obliged France to stop some of its urbanization plans in the region and to reinstitute old
agreements so that farmers grow more of the cereal crops that support the hamsters.1
The steadfast stringent application of the strict rules on species protection by the
European Court of Justice and, increasingly, by national courts, underlined the potential
restrictions that the presence of protected species might inflict upon spatial
developments and land use. To a certain extent, the increasing amount of controversy
surrounding the application of these rules in the context of land use planning,
constitutes a remarkable shift in emphasis within EU biodiversity law. Up until recently,
most attention was attributed to the “first pillar” of the 1992 Habitats Directive, which
aims to conserve natural habitats and the habitats of species through the establishment
of the Natura 2000 network. At present this ecological network is compromising almost
18% of the territory of the EU.2 During the past decade, both the European Commission
as well as the Member States considered the implementation of this network as one of
1 Case C-383/09 Commission v France [2011] ECR I-4869.
2 Directive (EEC) 92/43 on the conservation of natural habitats and of wild fauna and flora (Habitats
Directive) [1992] OJ L206/7.

Electronic copy available at: http://ssrn.com/abstract=2390383
Species Protection in the European Union: How Strict Is Strict? 3
their most cardinal duties in the realm of biodiversity policy. However, project
developers are facing increasing scrutiny when considering new projects in areas where
protected species, such as the unlikely wild hamsters, might be present. In conformity
with the Habitats Directive, these restrictions also have to be enforced outside areas
with a protected status under national law. Since the tight EU enforcement scheme also
applies in respect of the strict rules on species protection law, defiance or indifference
towards these rules is no longer an option for many project developers and public
authorities. In fact, the strict protection regime (the “second pillar” of the Habitats
Directive) is often perceived as more rigid than the protection rules applicable for the
Natura 2000 network. Since the species protection regulations deal with the direct
influence on individual specimens of protected species they leave even less room to
bargain.
Consequently, opponents of nature conservation law often pick species protection law
as a prime example of an unnecessary regulatory scheme by claiming that saving
species is akin to losing jobs. Put in an environmental philosophy context, it could be
stated that the strictness of EU species protection law seems to challenge the strong
“anthropocentric approach” of humankind towards nature. One of the main reasons why
the application of EU species protection law is so contentious is that it leaves little space
for commanding nature. The law does not longer allow “mastery”, characterized by
maximum use of nature without responsibilities towards future generations or nature
itself.
This paper will explore to what extent the European rules on species protection are
indeed as rigid as its opponents often depict them. How strict is European species
protection law and to what extent is this law indeed capable of stopping “mastery”
behaviour? Or are the masters capable of finding a “backdoor” that still leaves space to
let economic interests prioritize over nature conservation, e.g. in the context of spatial
planning developments?
Yet, before delving deeper into this topic, some general considerations will be presented
regarding the motivations underpinning species protection law (Section 2). Also the
various “human-nature-attitudes” as distinguished in environmental philosophy are
briefly discussed. Thereafter the focus will shift towards the specific features of the EU
species protection law (Section 3) and particularly how strict this law is. Here, both
procedural and substantive issues will be tackled. These discussions focus on the
Habitats Directive and the rich jurisprudence of the European Court of Justice of the
EU. Next, examples are provided of the many attempts by Member States and others to
weaken species protection law under the Habitats Directive, attempts that could be
characterized as “protest actions” to create “space for mastery” (Section 4). Also the
responses of the European Court of Justice to these attempts are discussed. Although
this discussion cannot be exhaustive, it complements the picture of the strict character
of European species protection law. This contribution concludes with some final
remarks on some more recent innovative approaches to find a balance between
economic ambitions and nature protection (Section 5).

4 Hendrik Schoukens and Kees Bastmeijer
II. Motivation for species protection: reflecting a shift of human-nature
attitudes3
During the past century the relationship between humans and nature has changed
significantly. Many would argue to the better. Hundred years ago, the mere possibility
of questioning spatial developments by referring to the possible presence of wild
hamsters, would have been greeted with a lot of dismay and disbelief. In environmental
philosophy literature, it has been observed that humans may have quite distinct
relationships to non-human nature. Following the initial, tripartite divisions developed
by John Passmore4 and Ian Barbour, various Dutch environmental philosophers in the
1980s and later (Achterberg, Zweers,5 De Groot, and Kockelkoren) made classifications
of types of human-nature relationships, also referred to as “basic attitudes”. Although
there are differences and a number of sub-categories, four characteristic basic attitudes
are identified by most authors: the master, the steward, the partner, and the participant.6
In the “master” relationship, nature is meant to serve mankind. Within this dominant
anthropocentric perspective, mankind may fully exploit nature without being
accountable to anyone. It starts from the firm believe that, even when confronted with
lack of natural resources, technology may solve our problems. “Stewardship” is still
firmly rooted in anthropocentrism. Nature is meant for human use, yet stewardship
places a responsibility on mankind to prevent over-exploitation. This responsibility may
exist towards God (Christian stewardship) and/or towards other people, in particular
future generations of humankind (secular stewardship).7
If one adopts the “partnership” relationship, then nature is not meant to serve mankind.
In that so-called “ecocentric” view, nature has an intrinsic value, which is not
necessarily outdone by human considerations. The partner places himself on one level
with nature (man and nature are on a par), and he may decide to cooperate with nature
for mutual benefit. The most ecocentric position is called the “participant” relationship,
and entails that humans have to respect the rules of nature. Seeing humans as part of
nature, there is no free choice of collaboration. The participant partakes in an event that
3 The comparison between philosophical human-nature attitudes and developments in nature conservation
law builds on K Bastmeijer, Ieder voor zich en de natuur voor ons allen. Over de relatie tussen mens en
natuur en de toekomst van het natuurbeschermingsrecht (inaugural speech) (The Hague, Boom
Juridische Uitgevers 2011).
4 J Passmore, Man’s Responsibility for Nature (London, Duckworth 1974).
5 See among others, W Zweers, ‘Grondhoudingen ten opzichte van de natuur’ [June 1989]
Heidemijtijdschrift 74; W Zweers, Participeren aan de natuur; ontwerp voor een ecologisering van het
wereldbeeld (Amsterdam, Jan van Arkel 1995) 27-28.
6 The description of the four attitudes is based on Zweers 1995, above fn 5. For more recent discussions
on the human-nature relationships see M de Groot, M Drenthen and WT de Groot, ‘Public Visions on the
Human/Nature Relationship and Their Implications for Environmental Ethics’ [2011] 33 Environmental
Ethics 25-44. See also RJG van den Born, Thinking Nature. Everyday philosophy of nature in the
Netherlands (dissertation) (Nijmegen, Radboud University Nijmegen 2007) (see: Chapter 4 and
particularly Table 1 on page 69), available at
<http://webdoc.ubn.ru.nl/mono/b/born_r_van_den/thinna.pdf> accessed 18 August 2013.
7 Zweers (1995), above fn 5, 39.

Species Protection in the European Union: How Strict Is Strict? 5
includes him, that transcends him, that is greater than he, something which will go on if
he were not there, although perhaps differently.8
Taking a closer look at the motivations for regulations relating to plant and animal
species in Western Europe over the last centuries, it becomes apparent that these reflect
a shift in human-nature attitudes, from mastery to the more ecocentric attitudes.
Obviously, the first rules that were enacted with respect to species, constitute a striking
illustration of mastery. The so-called Destruction of Crows Act, that was enacted under
the reign of King Henry VIII, is a salient example of this attitude. Another example is
the Dutch Act on the Protection of Animals useful for Agriculture and Forestry of
1880.9 Many of these acts were characterized by a strong anthropocentric approach:
destroying animals that are dangerous to humans or damaging human property and
protection of those useful to mankind (e.g., beneficial for agriculture, animals that are
popular hunting trophies).
A similar anthropocentric approach may be recognized in the Convention for the
Protection of Wild Animals, Birds and Fish in Africa,10 signed in 1900 by the colonial
authorities of Africa in London, and the Convention to Protect Birds Useful to
Agriculture of Paris, 1902.11 Although these conventions still take a strong
anthropocentric approach, they were based on the understanding that natural resources
could be depleted by over-exploitation and this would also affect interests of mankind.
This possibility that natural resources could be depleted has not always been
recognized. For instance, in 1851 Herman Melville, the author of Moby Dick, believed
that whales were simply too numerous, their human pursuers too few, and the vast
expanses of the oceans too great for extinction to be possible; however, reality proved to
be different.12 Over-exploitation caused the depletion of many whale stocks and, in turn,
prompted the international community to take action. This finally led to the adoption of
the International Convention for the Regulation of Whaling of 1946,13 which provides a
clear illustration of the emergence of the stewardship approach by “Recognizing the
interest of the nations of the world in safeguarding for future generations the great
natural resources represented by the whale stocks”.14
In the meantime, national parliaments had already passed some acts that clearly went a
step further than the stewardship approach. The most notable example is probably the
8 Zweers (1995), above fn 5, 52.
9 ‘Wet tot bescherming van diersoorten, nuttig voor landbouw en houtteelt’ [25 May 1880] Staatsblad 89.
10 Convention for the Protection of Wild Animals, Birds and Fish in Africa, London, 10 May 1900, 188
Parry’s Consolidated Treaty Series 418. See MJ Bowland, ‘The Protection of Animals under
International Law’ [1988-1989] 4 Connecticut Journal of International Law 487-499. See also P Sands,
Principles of International Environmental Law (Manchester, Manchester University Press 1995) 27.
11 Convention to Protect Birds Useful to Agriculture, Paris 19 March 1902, 191 Parry’s Consolidated
Treaty Series 91.
12 Herman Melville’s point of view can be tracked back in chapter 55 of his 1851 classic, Moby Dick.
Chapter 55 is entitled ‘Does the Whale’s Magnitude Diminish? – Will he Perish?’. See also on this topic:
MJ Bean, ‘Historical Background of the Endangered Species Act’ in DC Baur and WR Irvin (eds),
Endangered Species Act: Law, Policy, and Perspectives (2nd edn, Chicago, American Bar Association
2009) 8, 9.
13 Washington, 2 December 1946, in force 10 November 1948, 161 UNTS 72.
14 Preamble to the 1946 International Convention for the Regulation of Whaling.

6 Hendrik Schoukens and Kees Bastmeijer
so-called Lacey Act,15 which aimed to avert the extinction of the passenger pigeon, once
one of the most abundant birds in the United States. Although the act came too late to
avoid extinction, it must be denoted as an early recognition of the intrinsic value of
nature. The first purpose of the act was to authorize the Secretary of Agriculture (who
oversaw the Bureau of Biological Survey, the predecessor to today’s U.S. Fish and
Wildlife Service – FWS) “to utilize his Department for the reintroduction of birds that
have become locally extinct or are become so”. In general, the law made it a federal
offence to ship unlawfully acquired wildlife.
At the international level, the 1970s saw the adoption of a wide array of environmental
treaties. In most of these treaties the importance of nature conservation for the benefit of
mankind may still be recognized; however, many of the treaties also reflect the more
ecocentric attitude of “partner” and, to some extent, the “participant”. In this respect,
referral can be made to the 1979 Convention on the Conservation of European Wildlife
and Natural Habitats,16 which has served as an important source of inspiration for the
drafters of the Habitats Directive. In its preamble the intrinsic value of nature is
explicitly highlighted in the fourth recital, where it is noted that “that wild flora and
fauna constitute a natural heritage of aesthetic, scientific, cultural, recreational,
economic and intrinsic value that needs to be preserved and handed on to future
generations”.
This recognition of the aspects that are characteristic of the attitude of the steward and
the two more ecocentric attitudes are continued in declarations and treaties accepted in
the 1980s and 1990s. The World Charter for Nature of the United Nations, adopted in
198217 explicitly recognized the intrinsic value of all forms of live: “Every form of life
is unique, warranting respect regardless of its worth to man, and, to accord other
organisms such recognition, man must be guided by a moral code of action”.18 Also the
preamble to the 1992 Convention on Biological Diversity19 (CBD) begins by
underscoring nature’s intrinsic value, while also affirming that “the conservation of
biological diversity is a common concern of mankind”.
In the preamble of the CBD also a broad “spectrum of values” of nature was
acknowledged by referring to “the ecological, genetic, social, economic, scientific,
educational, cultural, recreational and aesthetic values of biological diversity and its
components”.20 By underlining the economic value of biodiversity, the Convention on
Biological Diversity gently opened the door for a more economically based approach to
nature conservation. Humankind benefits from a multitude of resources and processes
that are supplied by ecosystems. Collectively, these benefits are today known as
“ecosystem services” and include products like clean drinking water, flood protection
and processes such as the decomposition of wastes, pollination of crops by bees and the
abatement of air pollution. By referring to protected species as “producers” of
15 31 Stat. 187 (1900). See more extensively: Bean, ‘Historical Background of the Endangered Species
Act’, above fn 12, 8, 9-10.
16 Bern, 19 September 1979, in force 1 June 1982, UKTS No 56 (1982), Cmnd 8738.
17 UN General Assembly Resolution 37/7 and Annex: World Charter for Nature, 28 October 1982.
18 World Charter for Nature, Annex, Preamble, third paragraph.
19 Rio de Janeiro, 5 June 1992, in force 29 December 1993, 31 ILM 822.
20 Preamble to the Convention on Biological Diversity, first recital.

Species Protection in the European Union: How Strict Is Strict? 7
ecosystem services for mankind, it was hoped to further increase the support for nature
conservation. In these recent years, concepts like “habitat or conservation banking” and
“payment for ecosystem services (PES)” have deepened this economic approach to
nature protection and moved gradually to the forefront of recent policy responses. They
constitute now one of the leading discourses in environmental policy. These concepts,
as an alternative to government compensation programs, aim to create markets where
private landowners are rewarded for their conservation efforts. At the same time, these
markets could ease the mitigation burden resting on many developers. Private
landowners who conserve their lands can go and sell developments credits to
landowners subject to mitigation and/or compensation schemes.
Thus, an interesting shift in human-nature relationships from mastery towards
stewardship and even to the ecocentric attitudes may be recognized in the development
of nature conservation law. However, it should also be noted that many of the nature
conservation goals have not been met. While probably a complex of factors may explain
this, it is most likely that also the law itself still leaves much space for mastery. Indeed,
one of the common weaknesses of many of the international conventions is that the
wording of obligations and prohibitions leaves much leeway to the contracting parties.
Obviously, the wide use of vague terms like “wise use”, “if appropriate”, “responsible
care” and “sustainable” significantly weakens the impact of many of the obligations
which are enshrined in the aforementioned international agreements. For instance,
Article 8 of the CBD provides a compelling example of such ambivalent wording by
noting that “Each Contracting Party shall, as far as possible and as appropriate: (a)
Establish a system of protected areas or areas where special measures need to be taken
to conserve biological diversity; […]”. Thus parties are not required to protect the areas
which are most important for the conservation of biodiversity.21
Furthermore, the lack of unambiguous and well-defined legal norms does not stay
limited to the texts of the conventions themselves. In recent years, it became
increasingly difficult to get hard legally binding norms adopted at the level of the
Conferences of the Parties (COP) of many multilateral environmental agreements, even
when the results of mastery behaviour was the central issue of debate. The plight of the
Atlantic Bluefin Tuna is, sadly enough, symptomatic here. Whilst its stocks are being
depleted at a staggering rate, a proposal to list this endangered species in the context of
the 1971 Convention on International Trade in Endangered Species,22 which would
have the effect of banning the international trade in this species, had been rejected
during the COP in 2010.23
21 See more extensively: C MacKenzie, ‘A Comparison of the Habitats Directive with the 1992
Convention on Biological Diversity’ in G Jones QC (ed), The Habitats Directive: A Developer’s Obstacle
Course? (Oxford, Hart Publishing 2012) 25-41.
22 Washington, 3 March 1973, in force 1 July 1975, 993 UNTS 243.
23 Interestingly so, within the context of the CBD, there appears to be a tendency to agree upon concrete
quantified targets at COP-level. The Aichi Target 15 which calls for the restoration of 15% of degraded
lands, is perhaps the most notable example thereof. Still, it remains to be seen whether such COP-
decisions are really capable of reversing the aforementioned trend towards weakened international rules
on biodiversity conservation.

8 Hendrik Schoukens and Kees Bastmeijer
III. Strict rules on species protection in the EU’s Habitats Directive:
No room left for “mastery”
In light of the aforementioned analysis it may sound somewhat surprising that, within
the European Union (EU), the strict rules on species protection have sparked so many
controversies during these recent years. One might expect a broad understanding for
these strict rules in view of the shift towards more nature-friendly human-nature
attitudes (as reflected in nature conservation law) in combination with our
understanding that about 80% of the important natural values in Europe are in an
unfavourable conservation status. Nonetheless, there is a continuous protest, especially
amongst business groups and public authorities, that EU nature conservation law is “too
strict”. This brings us to the discussion of the main question of this contribution: How
strict is European species protection law and to what extent is this law necessary to stop
and prevent “mastery” behaviour?
To answer this question both the substantive rules under the Habitats Directive as well
as the more “procedural” issues, relating to the enforcement thereof, will be treated.
First, the specific characteristics of the stringent enforcement scheme which is present
within Union law will be looked at. This is especially relevant as recent case-law clearly
demonstrates that it is able to significantly hamper the Member States’ discretion when
implementing EU species protection law. Yet, at the same time, a deeper analysis of the
specific content of the rules on species protection is warranted. The growing body of
jurisprudence of the European Court of Justice on the application of the substantive
species protection rules, especially in a land use context, will be examined in a second
part of this Section.
1. The general scheme of EU environmental law enforcement:
the stick behind the door
Before exploring the substantive rules on species protection, it is important to briefly
touch upon the recent evolutions in general Union law, especially in the field of the
enforcement thereof. It is widely known that the specific features of EC law have
enabled it to move to supranationalism, thus moving away from the consensual nature
underpinning international law. Arguably, the nature of the general system of
enforcement of EU environmental law constitutes one of the cardinal reasons for the
sudden coming to age of EU species protection law. Indeed, in the context of
international law, non-compliance is often quoted as one of the most important
challenges to overcome in the near future.24 While it is true that several more recent
multilateral environmental agreements are complemented with non-compliance
procedures25 and specific conventions, such as the 1998 Aarhus Convention,26 strive for
24 See more extensively: U Beyerlin, P-T Stoll and R Wolfrum (eds), Ensuring Compliance with
Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia (The
Netherlands, Leiden, Martinus Nijhoff 2006).
25 In various multilateral environmental agreements non-compliance procedures are being provided. This
is, amongst others, the case in the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer
and the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change.
26 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in
Environmental Matters, done at Aarhus, Denmark, 25 July 1998 (“Aarhus Convention”).

Species Protection in the European Union: How Strict Is Strict? 9
a wide access to environmental justice at the national level, ensuring full compliance
with international environmental agreements remains an important issue of concern.27
To a large extent, enforcement on the international plane still depends on the
willingness of states to bring international claims to enforce environmental rights and
obligations. However, as widely observed, there is a clear lack of willingness to bring
such claims. This is, amongst others, painfully illustrated by the International Court of
Justice’s 2006 decision to cease the usual practice of holding annual elections for the
1993 Chamber for Environmental Disputes’ membership. Interestingly so, the number
of environmental cases that end up before the International Court of Justice28, has
slightly risen, as illustrated by the Court’s recent decision in the Pulp Mills case.29
Recently, the Court was asked to shed its view on the legality of Japan’s so-called
“scientific” whaling practices. However, it remains to be seen whether this constitutes a
lasting trend. In the meantime, enforcement issues will end up before national courts. It
can be feared that the vague wording of many of the provisions included in the nature
conservation conventions, in combination with the often limited access to courts for
NGOs, will often stand in the way of effective national compliance proceedings.
In contrast to these developments, within the European Union a robust enforcement
framework is present. In general, the treaties provide for a three-dimensional
enforcement mechanism, which ensures that Member States comply with the whole
body of Union rules regarding the environment, including the strict rules on species
protection.30 Recently, the importance of this enforcement scheme for species protection
law has been underscored by the Court of Justice in several landmark decisions.
A. The European Commission’s role as “Guardian of EU Species Protection Law”
The first pillar of this enforcement scheme is being overviewed by the European
Commission, which is as “Guardian of the Treaties” entrusted with making sure that the
now 28 Member States comply with the Treaties and secondary EU legislation. It is the
Commission’s responsibility under Article 17(1) of the Treaty on European Union
(TEU) to ensure that this treaty and the Treaty on the Functioning of the European
Union (TFEU), as well as measures adopted pursuant to these treaties, are correctly
implemented. Whenever a Member State does not comply with EU species protection
law, the European Commission may initiate an infringement procedure before the Court
of Justice in accordance with Article 258 of the TFEU. As witnessed by the relatively
high number of court cases where the Habitats Directive is invoked by the European
Commission, infringement proceedings have played a crucial role in ensuring the
27 See more in detail: J Brunnée, ‘Climate change and compliance and enforcement processes’ in R
Rayfuse and SV Scott (eds), International Law in the Era of Climate Change (Edward Elgar 2012) 290,
294-300.
28 See for more information on the pending cases of the International Court of Justice: <http://www.icj-
cij.org/docket/index.php?p1=3&p2=1> accessed 20 August 2013.
29 Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Jugdment) [2010] ICJ
Reports.
30 See, for more on this subject: K Lenaerts and JA Gutiérrez-Fons, ‘The General System of EU
Environmental Law Enforcement’ [2011] 30 Yearbook of European Law 3-41.

10 Hendrik Schoukens and Kees Bastmeijer
effective implementation of the Habitats Directive.31 For instance, by holding France
liable for not having sufficiently protected and conserved its decreasing hamster-
population in Alsace, the Court of Justice, at least implicitly made it clear to other
Member States that it would, if necessary, scrutinize their efforts towards species
protection, also outside the protected Natura 2000 sites. Furthermore, the Court of
Justice has also the power to impose fines for non-compliance with its judgments,
which it did for the first time in an environmental case in 2000.32 Up until now, such
second round infringement proceedings have not been effectively initiated in relation to
Member States’ infractions of the Habitats and Birds Directives. On the downside, it
must also be stressed that the excessive length of infringement proceeding also may
jeopardize the so-called “effet utile”, especially in environmental cases where time is
often ticking to the detriment of biodiversity and project developers may opt for a so-
called fait accompli-approach.33 Furthermore, it should be noted that not all complaints
will effectively result in a court case at EU level.
B. The increasing role of the national courts in the enforcement of EU species
protection law
As indicated above, the EU enforcement scheme is not confined to the infringement
proceedings which are brought before the European Court of Justice by the European
Commission. National courts also have an important role to play, allowing enforcement
of EU environmental law, including species protection law, by private individuals and
environmental NGOs. In doing so, they constitute the crucial “second pillar” of the
European enforcement scheme. The increasingly important role of the national courts in
the overall enforcement scheme, is mainly due to the so-called “direct effect-doctrine”.
In the literature it is explained that natural persons and environmental NGOs may before
a national court invoke a provision of an environmental Directive against a defaulting
Member State if this provision is sufficiently precise and unconditional to be enforced
by national courts.34 In several rulings, the Court has stated that individuals and/or
environmental NGOs should not be barred from invoking a provision of EU
environmental law because of the repercussions this could have for third parties, such
as, for instance the holder of a permit.35
Faced with the burden of an increasing amount of legal challenges, especially in the
context of large infrastructure projects, many Member States became increasingly keen
31 See also the Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions on implementing European
Community Environmental Law, COM (2008) 0773 final.
32 Case C-387/97 Commission v Greece [2000] ECR I-5047.
33 See more extensively, also on the innovations which have been introduced by the Treaty of Lisbon to
solve these shortcomings: Lenaerts and Gutiérrez-Fons, above fn 30, 4-6. See also on this topic: P
Wennerås, The Enforcement of EC Environmental Law (Oxford Studies in European Law 2007).
34 L Krämer, Casebook on EU Environmental law (Hart Publishing 2003) 69. Some authors make a clear
distinction between the issue of private enforcement of EU environmental law, on the one hand, and the
recognition of subjective rights, on the other hand. See, for example: N de Sadeleer, ‘Enforcing EUCHR
Principles and Fundamental Rights in Environmental Cases’ [2012] 81 Nordic Journal of Environmental
Law 39, 57.
35 Case C-201/02 Wells [2004] ECR I-723, paras 57-58; Case C-244/12 Salzburger Flughafen GmbH v
Umweltsenat [2013] not yet published, paras 46-47.

Species Protection in the European Union: How Strict Is Strict? 11
on limiting the access to justice in environmental cases. This was mostly done by
denying access for citizens without a personal and direct interest and by retaining
stringent national procedural standards on locus standi for environmental NGOs.
However, in recent case-law the Court of Justice repeatedly decided that national
procedural rules cannot be applied in such a way that they block effective judicial
protection for individuals and NGOs in environmental cases. In this regard, the Court’s
decision in the so-called Slovakian Brown Bear case is certainly worth recalling. Here, a
Slovakian environmental NGO had been denied access to the Slovakian proceedings
concerning a proposed derogation from the legal protection of brown bears that was
being sought by pro-hunting groups. The NGO was of the opinion that such derogations
would not comply with the requirements for exemptions laid down by Article 16 of the
Habitats Directive. The European Court of Justice held that, although the Slovakian
environmental NGO could not rely directly on Article 9(3) of the Aarhus Convention36
to have access to the aforementioned proceedings, Member State courts must interpret
national laws and procedurals rules in such a way that is consistent with the objectives
laid down by Article 9(3) of the Aarhus Convention.37 This is especially the case when
the case revolves around rules of EU nature conservation law. The fact that Member
State courts must do so, stresses the importance of having effective remedies at the
national level for NGOs and individuals to enforce EU nature conservation law. Thus,
despite the absence of access to justice provisions in the Habitats Directive, Member
State courts are bound to facilitate access by environmental associations.
In yet another case, the Court tackled the so-called Schutznorm theory, by which
German courts severely limited the access to courts in public interest litigation.
Basically, a Schutznorm must be seen as a procedural requirement limiting standing to
those whose interests are protected by the legal rule in question. In a case revolving
around the construction of a power plant nearby a German Natura 2000 site, the Court
of Justice rejected this additional standing requirement, by holding that it would
contravene the rules on access to justice included in the 1985 Environmental Impact
Assessment (EIA) Directive. Henceforth national courts cannot bar NGOs from
enforcing EU species protection law by maintaining that they need to demonstrate an
impairment, as they fulfil the EIA Directive's requirement of promoting environmental
protection.38
C. The duty of sincere co-operation: also relevant for EU species protection law?
Finally, it must be recalled that also national authorities are obliged to cooperate in
ensuring the full effectiveness of EU species protection law. This principle of sincere
co-operation is contained in Article 4(3) of the TEU, and requires that the EU and its
Member States co-operate sincerely towards the implementation of EU law. This,
amongst others, entails that Member States must actively cooperate with the EU
36 Article 9(3) of the Aarhus Convention states that “[…] each party shall ensure that, where they meet the
criteria, if any, laid down in its national law, members of the public have access to administrative or
judicial procedures to challenge acts and omissions by private persons and public authorities which
contravene provisions of its national law relating to the environment”.
37 Case C-240/09 Lesoochranárske zoskupenie [2011] ECR I-1255, paras 47-51.
38 Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein
‑
Westfalen
[2011] ECR I-3673, paras 46 and 47.

12 Hendrik Schoukens and Kees Bastmeijer
institutions by, for instance, providing the necessary information to the European
Commission.39 In the field of species protection law, this duty is of particular
importance given the lack of an instrument for the European Commission to open an
investigation in situ, which makes it harder for the European Commission to verify
whether a Member State complies with its substantial obligations under, for instance,
the Habitats Directive.
D. Interim conclusions: “mastery under enforcement threat”?
The aforementioned analysis starkly demonstrates the strict scrutiny that Member States
are facing when implementing the EU rules on strict species protection. Hence the
decreasing margin for “mastery”. The fact that the Court of Justice has urged the
Member States on several occasions to provide NGOs and individuals with effective
remedies before national courts in order to enforce species protection law, constitutes a
major step in abandoning the old laissez faire approach. Although in many instances the
enforcement of EU species protection law still lags behind, mostly due to insufficient
resources in governments and lack of priority, the recent case-law of the European
Court of Justice at least enables the NGOs to fill in the possible gaps to certain extent by
exerting their function as “watchdog”.
2. Article 12 and 13 of the Habitats Directive: safeguarding EU’s common
heritage without much room for “mastery”
A. Nature intrinsic value reasserted: one step beyond the Bern Convention?
Similar to the more recent international agreements on nature conservation, such as the
Bern Convention, the Habitats Directive clearly deviates away from the old “master”
relationship towards nature. This becomes apparent when taking a closer look at its
preamble. In the fourth recital in the preamble it is already highlighted that “[…] the
preservation, protection and improvement of the quality of the environment, including
the conservation of natural habitats and of wild fauna and flora, are an essential
objective of general interest pursued by the Community”. The Court of Justice based
itself on the latter provision to conclude that threatened habitats and species form part of
the European Union’s natural heritage.40 Thus, the adoption of conservation measures,
as required by the Habitats Directive, is a common responsibility of all Member
States.41 As a result, the faithful transposition of the requirements of the Habitats
Directive becomes particularly important where management of the common heritage is
entrusted to the Member States. This has brought the Court of Justice to hold that
Member States are under a particular duty to ensure that their legislation intended to
transpose that directive is clear and precise.42 For instance, the Court already decided
that Germany, by listing the situations in which the use of pesticides is forbidden, does
not express in a clear, specific and strict manner the measures laid down in Article 12
and 13 of the Habitats Directive, which prohibit protected species from being adversely
39 Lenaerts and Gutiérrez-Fons, above fn 30, 36.
40 Case C-6/04 Commission v United Kingdom [2005] ECR I-9017, para 25.
41 Ibid.
42 Case C-98/03 Commission v Germany [2006] ECR I-53, paras 59 and 60.

Species Protection in the European Union: How Strict Is Strict? 13
affected.43 Articles 12 and 13 of the Habitats Directive are, to a large extent, akin to the
provisions on species protection which are included in the Bern Convention, especially
Article 6. This is not at all surprising, since the latter, at the time, significantly
influenced the drafters of the Habitats Directive. Yet the strict protection rules in the
Habitats Directive are undeniable more detailed and hence also more easily enforceable.
This helps to explain why the Court of Justice already held that a law approving the
Bern Convention is, as such, not sufficient to ensure complete transposition of the strict
protection rules which apply to Annex IV (a) species.44 At the other hand, it must be
noted that the Bern Convention still has a greater species coverage, seeing that its
Appendix II contains a larger number of species than Annex IV to the Habitats
Directive.
B. Effectiveness not only in the books, but also on the ground
Since the fuss surrounding the strict rules on species protection mainly deals with the
more mobile animal species listed in the aforementioned Annex IV (a), the analysis
below will more in particular focus on the detailed species protection rules, laid down
by Article 12 of the Habitats Directive. Article 12(1) of the Habitats Directive aims to
encompass the most common direct threats for the animal species listed in Annex IV
(a). In a similar way to section 9 of the U.S. Endangered Species Act,45 Article 12(1) of
the Habitats Directive prohibits a wide myriad of harmful activities in relation to the
protected species listed in Annex IV (a) to the Habitats Directive. The prohibited
activities more specifically encompass all forms of deliberate capture or killing of
specimens of these species in the wild, as well as the deliberate disturbance, particularly
during the period of breeding, rearing, hibernation and migration. Article 12(1) (d) of
the Habitats Directive prohibits the deterioration or destruction the breeding sites or
resting places of the species.
Before further exploring the potential spatial implications of the aforementioned
restrictions, it is important to take a more detailed look at the general tendencies which
can be deduced from the recent case-law of the Court of Justice. As denoted above, the
Court is particularly determined to safeguard the so-called “effet utile” of the strict
protection regime. It does so at two levels. First, the Court has showed itself
increasingly strict when reviewing the Member States’ implementing regulations. In its
2005 decision, the Court did not hesitate to point out that by limiting only the deliberate
damaging or destruction of the protected species, the UK had transgressed the discretion
which it had been allocated by the Habitats Directive.46
The Court, however, does not limit itself to checking whether the strict rules ensure a
full, clear and precise transposition of Article 12(1) of the Habitats Directive. It also
investigates whether the Member States provide for the application of concrete,
coherent and coordinated species protection measures to protect these species on the
ground effectively. This second level of enforcement was strikingly illustrated by the
43 Ibid, para 67.
44 Case C-75/01 Commission v Luxemburg [2003] ECR I-1585, paras 55-58.
45 7 U.S.C. § 136, 16 U.S.C. § 1531 et seq.
46 Commission v United Kingdom, see above fn 40, para 79.

14 Hendrik Schoukens and Kees Bastmeijer
Court’s notable decision in the Caretta caretta case.47 This case, which concerned the
lack of effective protection measures for the loggerhead sea turtle on the beaches of the
Greek island of Zakynthos, is often been regarded as the first landmark-ruling of the
Court of Justice on EU species protection law. Greece was not only condemned for not
having established the necessary legal framework for the protection of the sea turtles but
also for not having taken any concrete, effective measures in order to protect the
beaches from disturbing recreational activities and illegal damaging constructions.48 Or,
differently stated, the Court of Justice does not stop its analysis of a Member States’
implementation regime by simply looking at the domestic laws, but proceeds to
checking whether these rules are effectively enforced in practice.
This importance of the effective application and enforcement of the EU species
protection rules on the ground was also emphasized in 2006 when Greece was again
convicted by the Court of Justice, this time for not having provided for sufficient
protection measures on the island of Milos for the Cyclades blunt-nosed viper, a
threatened snake species.49 Whilst the Court demonstrated a bit more leniency in its
2006 assessment of the alleged illegal Spanish hunting practices entailing stopped
snares,50 the Court illustrated its strict stance on species protection again in its more
recent case-law. In 2007 Finland was condemned for authorizing wolf hunting on a
preventive basis,51 while, as mentioned earlier, France was convicted by the Court in
2011 for not having taken sufficient measures to conserve and restore its declining
population wild hamster in Alsace.52 Ironically, Spain was yet again an exception to the
rule, as it managed to avoid a condemnation for having allowed a project for upgrading
a country road, that allegedly would cut the already reduced habitat of the endangered
Iberian lynx into two parts. In that last case, the European Commission, which is
carrying the burden of proof in infringement proceedings, apparently failed to convince
the Court of the fact that an upgraded country road had actually a real impact on the
Iberian lynx through habitat fragmentation or traffic kills.53 The fact that the most
important habitat of the Iberian lynx had indeed been fully fenced of, played probably a
crucial role in the outcome of the latter case. In 2012, Cyprus was found liable for not
having taken sufficient action to avoid disturbance by recreational activities of the
Cypriot grass snake.54
The reduced leeway for the Member States in implementing the strict rules on species
protection is starkly illustrated by the Court’s reluctance to take into account some
“classic” defensive arguments raised by the Member States in the aforementioned
jurisprudence. For instance, in the Caretta caretta case, the Greek government tried to
justify the apparent absence of a sufficient regulatory framework by stating that it had
not been established that the number of nest of the sea turtles had decreased over the last
47 Case C-103/00 Commission v Greece [2002] ECR I-1147.
48 Ibid, para 40.
49 Case C-518/04 Commission v Greece [2006] ECR I-42, paras 20-21.
50 Case C-221/04 Commission v Spain [2006] ECR I-4515, paras 61-63.
51 Case C-342/05 Commission v Finland [2007] ECR I-4713, paras 40-44.
52 Case C-383/09 Commission v France [2011] ECR I-4869.
53 Case C-308/08 Commission v Spain [2010] ECR I-4281, para 52.
54 Case C-340/10 Commission v Cyprus [2012] not yet published.

Species Protection in the European Union: How Strict Is Strict? 15
15 years.55 This argumentation was rejected by the Court. In doing so, the Court firmly
reasserted the preventive nature of the strict protection regime included in Article 12(1)
of the Habitats Directive.
C. Active measures for improving the conservation status
Until recently, it remained unclear to what extent Member States are obliged to take
restoration measures when faced with a protected species which actually finds itself on
the brink of extinction in its territory; however, in the French hamster case, the Court
had to assess, for the first time, such an argumentation. Whilst the Court of Justice did
not explicitly hold that Article 12(1) of the Habitats Directive entails a specific
obligation of result, since the level of population of protected species can also vary due
to natural causes, it clearly underlined the Member States’ general duty to provide for
effective conservation measures, which enable the restoration of the species concerned
to a favourable conservation status. Although changes in population figures might
perhaps not provide direct proof of an infringement, they did certainly lead the Court in
reviewing the effectiveness of the adopted measures.56 Accordingly, the Court
scrutinized the French recovery plan adopted to safeguard the survival of the species in
Alsace and came to the conclusion that the proposed measures, which included a wide
array of agro-environmental measures and specific planning restrictions, were largely
insufficient to attain that goal.
In its 2007 Guidance document on strict protection of animal species the European
Commission urged Member States to adopt so-called “species actions plans”.57 If such
plans are correctly established and applied, they might enable a more tailored approach
to species protection.58 Ideally, such plans could provide important information on
species and their habitats, breeding sites and resting places, and set out specific
recommendations aimed at ensuring the successful conservation of the species in
question, including measures aiming at actively improving the conservation status. In its
2007 ruling on the Irish implementation regime, the Court held Ireland liable for not
having adopted such plans for the larger part of the Annex IV a) species that are present
on its territory.59 Although it would be probably too farfetched to deduce from that
ruling a general duty to establish species action plans, it still becomes apparent that such
instruments are highly valued by the European Commission in reviewing the Member
States’ compliance with Article 12(1) of the Habitats Directive. This is particularly true
in the situations where a Member State would like to allow exceptions to the
prohibitions of Article 12(1) of the Habitats Directive for species that are in an
unfavourable conservation status. In the above-mentioned Finnish wolves ruling, the
Court makes clear that in such a situation an exception to the prohibitions “remains
possible by way of exception where it is duly established that they are not such as to
worsen the unfavourable conservation status of those populations or to prevent their
55 Case C-103/00 Commission v Greece [2002] ECR I-1147, para 31.
56 Commission v France, above fn 1, para 24; Opinion AG Kokott, Case C-383/09 Commission v France,
above fn 1, para 54.
57 European Commission, Guidance document on the strict protection of animal species of Community
interest under the Habitats Directive 92/43/EEC (Brussels 2007) 29.
58 See also, in this respect: Opinion AG Léger, Case C-383/09 Commission v France, above fn 1, para 39.
59 Case C-183/05 Commission v Ireland [2007[ ECR I-137, paras 14-15.

16 Hendrik Schoukens and Kees Bastmeijer
restoration at a favourable conservation status”.60 A Member State may only be able to
take this hurdle if for the particular species an action plan has been established that
convincingly shows that this condition is fulfilled.61
The above discussion shows the importance of effective monitoring of the populations
of protected species. Obviously, a meaningful application of species conservation
measures under the Habitats Directive presupposes sufficient information and
knowledge on the distribution of these species, their status of conservation of
populations and on trends and possible threats. Already in 2006, the Court observed that
“the surveillance obligation is fundamental to the effectiveness of the Habitats Directive
and it must be transposed in a detailed, clear and precise manner”.62 The Court of
Justice seems to presuppose that Member States provide for clear-cut statutory duties
requiring surveillance to take place systematically and on a permanent basis.63
D. Interim conclusion
It is seductive to deduce from the above-examined case-law that EU species protection
law has become the ultimate tool for blocking infrastructure projects. Many deemed it
to pose an insurmountable burden for many infrastructure projects. Admittedly, the
strict jurisprudence indicates that the presence of a protected species becomes a
prevailing material consideration whenever planning authorities are considering a
development proposal that, if carried out, would be likely to result in harm to the
species or its habitat. In doing so, the national courts in fact reassert the procedural
consequences that are attached to the substantive rules on species protection. This could
encompass, amongst others, the carrying out of surveys before applying for a planning
permission. The process of licensing and modification of a project may indeed be seen
as a pain for a developer, but, in many cases, it is not likely to prevent the development
going ahead if he can show that he sufficiently takes into account the welfare of the
protected species throughout. It is, as such, a misapprehension that if some protected
species are found on some land, this will always prevent it from being built on. In some
cases, this might merely entail a slight rescheduling of the activities, taking into account
the breeding season of the present species. However, in other cases, the strictness
imputed to EU species protection law could lead, in the end, to the partial or total
abandonment of some projects or activities. Moreover, the project developer will also
have to bear the costs of the additional surveys and assessment which might be deemed
necessary in order to check the impact of a development on the possible presence of
protected species. All in all, the increasingly tight application of the strict rules on
species protection clearly marks a further blow to the “mastery” approach towards
nature.
60 Commission v Finland, above fn 51, paras 28-29.
61 For a more comprehensive discussion on the importance of species action plans within the framework
of European nature conservation law (with a focus on carnivores), see A Trouwborst, ‘Managing the
Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and
Bear to Western Europe’ [2010] 22-3 Journal of Environmental Law 347-372.
62 Commission v United Kingdom, above fn 40, paras 26 and 65.
63 Ibid, para 68.

Species Protection in the European Union: How Strict Is Strict? 17
IV. Protest from the master: Attempts to create space for economic
ambitions
From the foregoing it seems clear that the system of strict species protection can bring
about serious implications for those that plan to conduct spatially relevant activities. Not
only ongoing activities, such as forestry and agriculture, fall under the scope of the strict
protection scheme, but also new developments can be seriously hindered by it. Not
surprisingly, there have been attempts to limit the spatial implications of the specific
prohibitions contained in Article 12(1) of the Habitats Directive. As many of these
attempts are aiming at excluding the application of the strict species protection laws
without much concern for the protected species, these attempts could be characterized
as “protest actions” against the strict regulations to create “space for mastery”. Several
categories of such protest actions are briefly discussed below and illustrated by some
examples.
1. Limiting the scope of the prohibitions of Article 12(1)
Many attempts have been made to limit the scope of the prohibitions in Article 12(1) of
the Habitats Directive through interpretation of the terms and formulations in this
provision. Some of them have been already briefly touched upon above. One of the
“finest” examples relates to the inclusion of the word “deliberate” in some of the
specific prohibitions included in Article 12(1) of the Habitats Directive. For instance,
the prohibition included in Article 12(1)(a) of the Habitats Directive is explicitly
confined to all forms of “deliberate” capture or killing of these species in the wild.
According to Article 12(1)(b) the “deliberate” disturbance of Annex IV species,
especially during periods of breeding, hibernation and migration, is prohibited. In an
attempt to limit the scope of this provision, certain actors have advocated that these
prohibitions merely concerned acts where the perpetrator fully intends to disturb a
protected species. If that interpretation were to prevail, many activities would fall
outside of the scope of the strict system of protection, as in enforcement procedures it
would be hard to proof such explicit intent. Hence the eagerness at Member States’
level to apply the aforementioned prohibition in the most pragmatic way possible,
thereby not causing unnecessary restrictions for spatial developments and land use.
The Court of Justice, however, did not allow such reasoning to prevail since obviously
it would directly affect the “effet utile” of the strict rules on species protection. The
Court’s reluctance became already apparent in its 2002 ruling in the Caretta caretta
case. Here, the Court explicitly came to the conclusion that the use of mopeds on the
sand beach and the presence of pedalos and small boats in the water, in clear defiance of
the applicable protection measures, clearly constituted a “deliberate disturbance” of the
sea turtles during its breeding period for the purposes of Article 12(1)(b) of the Habitats
Directive.64 In a 2007 ruling in a case concerning Spanish hunting practices, which,
according to the European Commission, were capable of impairing the otters present in
certain areas of Spain, the Court had an opportunity to elaborate on the latter. It stated
that “[f]or 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 the killing of a
64 Commission v Greece, above fn 47, para 36.

18 Hendrik Schoukens and Kees Bastmeijer
specimen belonging to a protected animal species or, at the very least, accepted the
possibility of such capture or killing”..65 On the basis of this case-law, the European
Commission presented the following, useful definition of “deliberate”:
‘Deliberate’ actions are to be understood as actions by a person who knows, in light of the
relevant legislation that applies to the species involved, and the general information
delivered to the public, that his action will most likely lead to an offence against a species,
but intends this offence or, if not, consciously accepts the foreseeable results of his
actions.66
As noted by the European Commission, good information and guidance by the
competent authorities are the key to success in implementing these prohibitions.67
Another example refers to the prohibition relating to the deterioration and destruction of
breeding sites or resting places, as contained in Article 12(1) (d) of the Habitats
Directive. Here, discussions in relation to “intent” are precluded since it is not explicitly
mentioned in the provision. As noted by the European Commission in its 2007
Guidance document, this introduces a special quality to article 12(1) (d) of the Habitats
Directive, since it seems to implicate that all deterioration of breeding sites or resting
places is to be avoided. However, some Member States, such as Germany, rejected such
a reading, maintaining that this would place a disproportionate burden on many land use
activities, such as agriculture and forestry. Again, the Court of Justice kept the door
closed. In its 2006 ruling regarding the German implementation rules, in which the
prohibition effectively had been limited to deliberate acts, the Court stated that:
[b]y 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.68
Thus, the proportionality appeared not to have been violated by upholding the
aforementioned interpretation. As correctly noted by the European Commission, the
lack of the word “deliberate” entails additional measures from the Member States, such
as information campaigns, which should ensure that those likely to commit an offence
(intentionally or not) are aware of the prohibition in force and act accordingly.69
These examples illustrate the limited space for Member States when interpreting the
prohibitions of Article 12. It is interesting to note here that, according to the European
Court’s Advocate General Kokott, the prohibitions must be interpreted particularly strict
in respect of species that are in an unfavourable status of conservation:
65 Commission v Spain, above fn 50, para 71.
66 European Commission, above fn 57, 36. Emphasis original.
67 European Commission, above fn 57, 37.
68 Commission v Germany, above fn 42, para 55.
69 European Commission, above fn 57, 40.

Species Protection in the European Union: How Strict Is Strict? 19
An unfavourable conservation status gives rise to more far-reaching obligations for the
Member States […] because the system of protection is intended to help to restore a favourable
conservation status. The protection of breeding sites and resting places of a species with a very
unfavourable conservation status […] therefore requires a generous delimitation of territory in
order to prevent the species from disappearing, and thus the functionality of the sites from
being lost.70
Or, stated differently, the less efforts Member States’ put into place effective protection
schemes for the protected species, the more difficult it will become to justify the issuing
of all too broad derogations.
2. Maximum use of derogations by creative interpretation of the criteria
Article 16 of the Habitats Directive includes some space for allowing the system of
strict species protection to be bypassed if an activity complies with a strict set of
derogation conditions. According to this provision, Member States may derogate from
the prohibitions of Article 12 if three cumulative conditions are satisfied:
 there is no satisfactory alternative;
 the derogation is not detrimental to the maintenance of the populations of the
species concerned at a favourable conservation status in their natural range, and
 the derogation is necessary to serve one or more of the interests exhaustively
listed in the first paragraph of Article 16.
Not unsurprisingly, many Member States have focused their attempts to weaken the
species protection regime to this flexibility clause. Often, the broad interpretation and
application of the derogation system by Member States ended up before the Court of
Justice. In turn, the Court showed little openness towards national legislation that went
beyond the strict conditions of Article 16 of the Habitats Directive in order to create
more space for economic interests. For instance, the United Kingdom had adopted
legislation that made clear that the Article 12 prohibitions and the derogation criteria of
Article 16 of the Habitats Directive would not be applicable where the act in question
was the result of a lawful operation.71 The Court concluded that Article 16 must be
interpreted restrictively and 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 16.72
The Court concluded on this basis that “[…] a derogation, founded on the legality of the
act, is contrary both to the spirit and purpose of the Habitats Directive and to the
wording of Article 16 thereof”.73. Also the German implementing rules, according to
which the sole condition for granting a derogation consisted in ensuring that the
protected animal species and their habitats are not subject to “deliberate harm”,
70 Opinion AG Kokott, Case C-383/09 Commission v France, above fn 56, para 37.
71 Commission v United Kingdom, above fn 40, para 109.
72 Ibid, para 112.
73 Ibid, para 113.

20 Hendrik Schoukens and Kees Bastmeijer
contravenes the strict conditions set out by Article 16(1) of the Habitats Directive in the
Court’s view.74 Thus jurisprudence unequivocally underscored the importance of
providing national implementing rules that guarantee full application of the derogation
regime provided by Article 16 of the Habitats Directive. Clearly, the Member States’
attempts to create space for “mastery” by opening the backdoor through flexible
transposition of Articles 12 and 16 were not allowed by the Court. As will be portrayed
below, the derogation clauses themselves were also subjected to quite some creativity of
Member States.
A. Reasons of overriding public interest?
Article 16(1) of the Habitats Directive lists five interests, which could be invoked in
order to exempt an activity from the application of the strict protection rules:
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 breedings 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.
For the context of conducting spatial planning activities, the interests under c) are most
relevant. Although the concept of “imperative reasons of overriding public interest” is
not defined as such, the wording of Article 16(1)(c) of the Habitats Directive already
gives some important hints as to the confines of this concept. The paragraph mentions
public interests reasons as public health, public safety, reasons of social or economic
nature and reasons with beneficial consequences for the environment. As noted by the
European Commission in its 2007 Guidance document, the paragraph also encompasses
other reasons not explicitly mentioned, since the list is not exhaustive.75 In the same
document the European Commission also stated that only public interests, promoted
either by public or private bodies, can be balanced against the conservation aims of the
Habitats Directive.76
Still many business groups are advocating expanding the scope of this derogation clause
to cover also projects that are entirely in the interest of companies. The European
Commission, however, always pleaded for a restrained use of the aforementioned
derogation clause, excluding such practices. A 2012 ruling in the Solvay case, which
concerned a discussion on derogation under Article 6(4) of the Habitats Directive
(Natura 2000), basically reasserted the latter view. It held that in general it cannot be
ruled out that a project, although of a private character, in fact by its very nature and by
74 Commission v Germany, above fn 42, paras 57-62.
75 European Commission, above fn 57, 55.
76 Ibid.

Species Protection in the European Union: How Strict Is Strict? 21
its economic and social context presents an overriding public interest;77 however, the
Court emphasized that the interest should be both overriding and public:
An interest capable of justifying, within the meaning of Article 6(4) of the Habitats Directive,
the implementation of a plan or project must be both ‘public’ and ‘overriding’, which means
that it must be of such an importance that it can be weighed up against that directive’s
objective of the conservation of natural habitats and wild fauna and flora.78
According to the Court, the creation of infrastructure intended to accommodate a
management centre cannot be regarded as an imperative reason of overriding public
interest. Hence no permit could have been granted for the project justifying the negative
impairment of the Natura 2000 site concerned.79 Obviously, a similar strict reading must
be upheld within the context of Article 16(1) of the Habitats Directive, which, in turn,
clearly restricts the possible application of the aforementioned clause for spatial
development projects.
Also in relation to the other interests, the Court’s general approach of restrictive
interpretation of Article 16 may be noted. For instance, in its 2007 ruling on the Finnish
wolf hunting practices, the Court considered the causal link between the hunting of a
number of wolves of a pack and the prevention of serious damage to livestock too weak
to justify the derogation (the hunting permits were not targeted at the specific specimens
that caused serious damage).80
B. No satisfactory alternative solutions
It is sometimes submitted that the observance of this criterion, taking into account the
subsidiarity principle, leaves some more discretionary power to the Member States’
competent authorities. Yet, the previous case-law of the Court of Justice in relation to
Article 9(1) of the Birds Directive, which contains a similar requirement, shows the
stringent interpretation of this condition. Most notable is the Court’s ruling in the so-
called Ligue Royale case, which concerned the derogations granted by a Belgian
authority to capture certain protected species of birds in order to supply bird fanciers
with wild specimens to enable more successful captive breeding to be carried out. In
that case, the Court of Justice, when confronted with the argument of the Belgian State
that captive breeding might not present a satisfactory alternative since there was a
significant risk of lack of genetic diversity, did not refrain from scrutinizing the absence
of satisfactory solution-requirement. In doing so, it hold that the mere fact that the
breeding and reproduction in captivity of the species concerned are not yet feasible on a
large scale by reason of the installations and the inveterate habits of bird fanciers, is not
in itself capable to cast doubt on the satisfactory nature of the alternative solution to
capturing birds in the wild.81 In light of this case-law, it becomes obvious that another
solution cannot be deemed unsatisfactory merely because it would cause greater
77 Case C-182/10 Marie-Noëlle Solvay and Others v Région wallonne [2012] not yet published, para 77.
78 Ibid, para 75.
79 Ibid, para 79.
80 Commission v Finland, above fn 51, paras 40-44.
81 Case C-10/96 Ligue royale belge pour la protection des oiseaux and Société d’études ornithologiques
AVES v Région wallonne [1996] ECR I-6775, paras 20-21.

22 Hendrik Schoukens and Kees Bastmeijer
inconvenience to or compel a change in behaviour by the beneficiaries of a derogation.82
In its more recent jurisprudence, the Court reasserted the limited discretionary powers
given to the Member States83. Article 16 derogations must clearly be considered as a
last resort that may not always result in space for Member States for allowing the
planned human activity.84
C. No impairment to the maintenance of the population of the species concerned at a
favourable conservation status in their range
In order to maintain the general objectives of the Habitats Directive when issuing
derogations, Article 16(1) of the Habitats Directive sets forwards that derogations must
not be “detrimental to the maintenance of the populations of the species concerned at a
favourable conservation status in their natural range”. According to the European
Commission, as explained in the 2007 Guidance Document, applying this test entails a
two-tier determination. First, the conservation status of the species needs to be
determined. This appears a logical first step, but has nevertheless been emphasized by
the Court in the Finnish wolves case. The Court explains that the Finnish authorities had
permitted the hunting of a fixed number of wolves in a well defined geographical area, but
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. Such
decisions […] are contrary to Article 16(1) of the Habitats Directive.85
As a second step, the impacts of the derogation on the status of conservation, both at the
level of “natural range” and “population” 86 are to be assessed:
if a derogation is likely to have a significantly negative effect on the population concerned (or
the prospects of this population) or at biogeographical level within a Member State, the
competent authority should not allow it. The net result of a derogation should be neutral or
positive for a species.87
The Court of Justice had already issued a ruling, where it underlined that the favourable
conservation status of the population of the species concerned in their natural range is a
necessary precondition for the derogations for which it provides to be granted.88 This
does not mean that derogations in respect of species that are in an unfavourable
conservation status are never possible. As explained above, the Court made clear in the
Finnish wolves case, that in such situations a derogation “remains possible by way of
exception 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
82 European Commission, Guidance document on Hunting under the Birds Directive (Brussels 2008) 47.
83 See, for instance: Case C-182/02 Ligue pour la protection des oiseaux and Others v Premier ministre
and Ministre de l’Aménagement du territoire et de l’Environnement [2003] ECR I-12105, para 16; Case
C-344/03 Commission v Finland [2005] ECR I-11033, paras 18-46.
84 European Commission, above fn 57, 55.
85 Commission v Finland, above fn 51, paras 30-31.
86 European Commission, above fn 57, 60.
87 Ibid, 62.
88 Case C-508/04 Commission v Austria [2007] ECR I-3787, para 115.

Species Protection in the European Union: How Strict Is Strict? 23
favourable conservation status”.89 For Member States, such as the Netherlands and
Belgium, where the majority of the present protected Annex IV a) species are in an
unfavourable conservation status, this jurisprudence is very relevant, particularly in
view of the fact that the prohibitions of Article 12 relate to individual specimen of the
relevant protected species. This explains that an increasing number of project
developers and public authorities have been adopting approaches to offset the
detrimental effects of the proposed project development.
3. Interim conclusions: No obvious backdoors for mastery
The above discussion is certainly not complete, but it illustrates that the European
species protection regime is robust and has no obvious backdoors for mastery, at least
not in respect of the species included in Annex IV of the Habitats Directive. It is clear
that the regime is strict and that many attempts have been made to find the weak
components of the system in order to find space for prioritizing economic interests
above ecological conservation and restoration. Although the regime leaves some space
for derogations, the case-law of the Court of Justice unequivocally shows that the
issuing of derogations should always remain a last resort-solution, basically confined to
situations where compelling and overriding reasons of public interests might necessitate
nature conservation to come at the second place. But even in such situations, the
required examination of satisfactory alternatives and the duty to maintain the
conservation status of the protected species concerned, aim to ensure that human
ambitions are not blocking the achievement of the objectives of the Habitats Directive.
In light of this analysis, it becomes clear that project initiators and public authorities are,
to a certain extent, creating their own legal problems if they continue their search for
backdoors in the regime. Without a willingness to take nature conservation law
seriously and by postponing attempts to restore species in a favourable conservation
status, there is much space for legal procedures, with large chances of success for
environmental pressure groups and concerned citizens before the courts.
V. Final Remarks: Strict regulation stimulates innovation and restoration
For nature conservation the above described strict character of European species
protection is good news. History shows that nature conservation is a difficult aim within
legal regimes (e.g., spatial planning regimes) that leave much space for interpretation
and for balancing all interests, simply because short term interests, such as economic
interests, are often considered more important. But what will the future bring? Will
business people and politicians simply accept this message? Humankind is complex, but
one thing is quite clear: as a species we are not good at “taking no for an answer”,
which implies that the above analysis is not the end of the story. Developers and public
authorities will continue their search for new approaches to ensure that human
ambitions can be satisfied. This is not necessarily a bad thing though. As has been the
case in other policy fields, strict regulations often prove to be a valuable fundament for
innovation and this also applies to the field of nature conservation policy. During the
last decade new approaches have been developed in several Member States in trying to
reconcile strict species protection with spatial developments. Such initiatives include
89 Commission v Finland, see above fn 51, paras 28-29.

24 Hendrik Schoukens and Kees Bastmeijer
mitigation at the project level (the so-called “nature inclusive design”), approaches to
actively invest in populations of species (e.g., through species conservation plans) and,
more recently, ideas about “species banking”. Discussing the pros and cons of these
approaches in more detail falls outside the scope of this contribution. In a certain way,
such innovative approaches could be welcomed as the ultimate proof that the strict rules
of species protection law effectively lead to a better integration of biodiversity concerns
into spatial planning. As emphasized above, the strict protection regime of the EU will
only be successful if – parallel to strict protection – also active measures are being taken
to ensure restoration of species, habitat types and ecosystems.
In short, it can be concluded that we are witnessing a shift from creating loopholes
towards approaches that take both objectives, the economic ambition as well as the
nature protection seriously. In terms of human-nature attitudes, one might characterize
this approach as “partnership”, resulting in a win-win situation for economy and
ecology. However, it still remains unsure whether the emerging new economic
approaches towards biodiversity, such as species conservation banking, will not, in the
end, risk of downgrading nature into a mere commodity. If that were the case, such
innovations risk of turning into a fundamental mismatch, that allows short-termish
green economy beliefs take precedence over the communal approach to biodiversity, as
a common heritage.90 Be that as it may, it appears that strict law is helpful or even
needed in stimulating this shift. This means that one should acknowledge that these new
approaches cannot result in a weakening of the species protection law. In fact, the strict
law constitutes the fundament for innovation and a continuing guarantee to prevent
mastery; however, by adopting new approaches and investing in nature, less negative
consequences of the law (e.g. legal debates) might be experienced, for instance because
the relevant prohibitions are not violated or because there is more space for derogations.
90 See, amongst others: CT Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to Nature
Conservation Law in the UK’ [2011] Journal of Environmental Law 1-29.