Judgment_paragraph 29 · Föreningen Skydda Skogen and Others v Länsstyrelsen i Västra Götalands län and Others (C-473/19, C-474/19)

29In those circumstances, the Vänersborgs tingsrätt, mark- och miljödomstolen (Vänersborg District Court, Land and Environment Court, Sweden) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling, those questions being worded identically in both Case C‑473/19 and Case C‑474/19:(1) Is Article 5 of the [Birds] Directive to be interpreted as precluding a national practice whereby the prohibition covers only those species which were listed in Annex I to that directive, or are at some level at risk, or are suffering a long-term decline in population?(2) Are the terms “deliberate killing/disturbance/destruction” in Article 5(a) to (d) of the Birds Directive and in Article 12(1)(a) to (c) of the Habitats Directive to be interpreted as precluding a national practice whereby, should the purpose of the measures be manifestly different from the killing or disturbance of species (for example, forestry measures or land development), there must be a risk of adverse effects on the conservation status of the species caused by the measures in order to apply the prohibitions?The first and second questions are posed in the light, inter alia, of:– the fact that Article 5 of the Birds Directive concerns the protection of all species of birds referred to in Article 1(1),– the manner in which Article 1(m) of the Habitats Directive defines “specimens”;– the fact that the question of the conservation status of the species is regarded as relevant mainly in the context of the derogation in Article 16 of the Habitats Directive (the derogation requires that there be no satisfactory alternative and that the derogation be not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range) or Article 9 of the Birds Directive (the derogation may not be incompatible with that directive which, in Article 2, requires Member States to take all requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements).(3) If the answer to any part of the second question is that harm at a level other than the individual level is to be assessed in order for the prohibition to apply, is the assessment therefore to be carried out on any of the following scales or at any of these levels:(a) a certain geographically restricted part of the population as defined under (a), for example within the boundaries of the region, the Member State or the European Union;(b) the local population concerned (biologically isolated from other populations of the species);(c) the meta-population concerned;(d) the whole population of the species within the relevant biogeographical regional section of the species’ range?(4) Is the expression “deterioration/destruction” as regards the animals’ breeding range in Article 12(1)(d) of the Habitats Directive to be interpreted as excluding a national practice which means that, in spite of precautionary measures, the continuous ecological functionality … of the habitat of the species concerned is lost in a single area, whether by harm, destruction or deterioration, directly or indirectly, individually or cumulatively, so that the prohibition is applied only if the conservation status of the species concerned, at one of the levels referred to in the third question, is likely to deteriorate?(5) If the answer to any part of the fourth question is negative, that is to say that harm of a level other than one leading to the habitat in the individual area being assessed in order for the prohibition to be applied, is the assessment thus to be made on any of the following scales or at any of these levels:(a) a certain geographically restricted part of the population as defined under (a), for example within the boundaries of the region, the Member State or the European Union;(b) the local population concerned (biologically isolated from other populations of the species);(c) the meta-population concerned;(d) the whole population of the species within the relevant biogeographical regional section of the species’ range?The second and fourth questions … include the question of whether the strict protection in the [Birds and Habitats] Directives ceases to be applicable to species for which the objective of the [Habitats] Directive (favourable conservation status) has been achieved.’

Föreningen Skydda Skogen and Others v Länsstyrelsen i Västra Götalands län and Others (C-473/19, C-474/19)

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