On 4 March 2021, the Court of Justice of the European Union handed down judgments in joint cases C-473/19 and C-474/19, requesting a preliminary ruling from the Land and Environmental Court in Vänersborg. The cases are also referred to under the collective name “Skydda skogen”.
The background to the cases concerned the County Administrative Board of Västra Götaland’s decision not to take supervisory measures in a case regarding an area of forest in the municipality of Härryda where a notification for final felling (wherein nearly all trees in an area are removed) was submitted. As a result of the notification of final felling, the Swedish Forest Agency provided specific guidance regarding the necessary precautionary measures that must be taken. The Swedish Forest Agency was of the opinion that, provided that the guidance was followed, the measures outlined in the application for final felling did not contravene any of the prohibitions in the Swedish Species Protection Ordinance.
The request for a preliminary ruling from the Court of Justice of the European Union concerned the interpretation of Article 12(1) of the Habitats Directive and Article 5 of the Birds Directive, both of which were implemented into Swedish law by Section 4, Paragraph 1 of the Swedish Species Protection Ordinance (2007:845).
Section 4, With respect to wild birds and in relation to wild animal species that have been marked with an N or n in Annex 1 of this ordinance, it is prohibited to:
1. deliberately capture or kill animals;
2. deliberately disturb animals, in particular during the breeding, rearing, hibernation and migration periods of the animals;
3. deliberately destroy or take eggs from the wild; and
4. damage or destroy breeding sites or resting places.
Sweden’s implementation of the Habitats Directive and the Birds Directive in the Species Protection Ordinance has faced criticism due in part to Sweden’s choice not to differentiate between what is prohibited under the Habitats Directive and what is prohibited under the Birds Directive. This lack of differentiation has in part resulted in the Species Protection Ordinance offering greater protection for birds than the Birds Directive.
The request for a preliminary ruling, received by the Court of Justice of the European Union on 18 June 2019, has led to the Land and Environmental Court of Appeal clarifying certain points in case no. M 7168-19 of 26 February 2021 (Nordkalk). In its decision regarding Nordkalk’s operations the Land and Environmental Court of Appeal raised doubts as to whether the Swedish case law is compatible with Sweden’s obligations according to EU law. The Land and Environmental Court of Appeal stated that it may almost be considered a certainty that that there is reason to question whether the application of law in the Land and Environmental Court of Appeals ruling MÖD 2016:1 is in agreement with the Habitats Directive. The Land and Environmental Court of Appeal considered that this level of uncertainty spoke in favour of postponing the Nordkalk case pending the preliminary ruling from the Court of Justice of the European Union. However, as according to MÖD 2016:1, the activities in question in the Nordkalk case were already considered to be in conflict with the prohibitions set forth in Section 4 of the Species Protection Ordinance, there was no reason to wait for a preliminary ruling regarding the interpretation of the Habitats Directive or to postpone the proceedings.
In its current preliminary ruling, the Court of Justice of the European Union rejects the practice that has emerged in Sweden (see the Land and Environmental Court of Appeal MÖD 2016:1). In MÖD 2016:1 the Land and Environmental Court of Appeal states that where it is clearly the case that the purpose of an activity is not to kill or otherwise disturb an animal species that it is reasonable that the risk of impact on the conservation status of a protected species in an area is required in order to trigger the prohibitions set out in Section 4 of the Species Protection Ordinance.
According to the Court of Justice of the European Union, the need to make an assessment at an individual level is already apparent from the wording of Article 12(1) of the Habitats Directive, in which Member States are obliged to prohibit certain acts that may damage a species of animal’s “specimens” or “eggs” . However, the Court of Justice of the European Union states that the term “conservation status of a species” in the Directive refers to “the population of the species” and not to the specific situation of an individual or specimen of a species. This in turn means that conservation status is determined and evaluated, in part, taking into consideration the populations of the species concerned. Furthermore, it is stated that the provision contains a prohibition against deliberately disturbing these species, especially during, for example, breeding periods, stating that the prohibition is therefore of even greater importance during periods when specimens are particularly vulnerable. Any violation of the prohibition during such a period is particularly likely to negatively affect conservation status, it is however important to note that activities or measures that do not have an impact on conservation status are also covered by the prohibition.
The Court of Justice of the European Union states that the prohibitions in the Habitats Directive do not presuppose that a certain measure or activity risks adversely affecting the conservation status of the species concerned, that is, that the prohibitions are also relevant at an individual level. Therefore, according to the Court of Justice of the European Union any other arrangement would lead to a circumvention of the assessment regarding the impact of a measure or activity on the conservation status of a species, an assessment which is relevant to the application of the derogations that may be made according to Article 16 of the Directive.
The Court of Justice of the European Union also clarifies that the prohibitions apply to all bird species that occur naturally within the European territory of the Member States, not only to those bird species that are particularly endangered and included in Annex 1 of the Species Protection Ordinance.
In conclusion, the Court of Justice of the European Union states that the prohibitions in the Habitats Directive continue to apply to those species for which favourable conservation status has already been achieved. According to the Court of Justice of the European Union, it follows that the main purpose of the Directive is to promote the maintenance of biological diversity and that measures taken in accordance with the Directive are aimed at maintaining or restoring favourable conservation status. Since the Directive also aims at maintaining a favourable conservation status, the species which have attained such a status must be protected against any deterioration of that status.
The Court of Justice of the European Union has supported that an overall assessment must be made in each individual case. This is done by recommending an assessment as to whether the forestry measures in the cases in question are based on a preventive strategy that takes into account the need to preserve the species concerned. Another important factor being whether the measures are planned and will be carried out in a way that does not infringe Article 12(1) of the Habitats Directive, taking into account economic, social and cultural needs and regional and local characteristics.
As a result of the criticism aimed at Sweden’s implementation of the Habitats Directive and the Birds Directive, the Swedish Government has appointed an inquiry (M 2020:03) to review the Species Protection Ordinance. The purpose of the inquiry is as follows; to review the level of protection in the provisions and to therefore ensure that they contribute to an effective, well-functioning and legally sound species protection, to review and ensure that the provisions are compatible with Sweden’s legal obligations within the EU and to analyse and clarify how far-reaching the protection required in accordance to EU law should be. Significant focus will be placed on developing proposals for the provision of compensation. These provisions are completely lacking in the current Species Protection Ordinance, which has resulted in a number of court proceedings wherein the right to fell trees has been refused. The inquiry’s report must be submitted to the Government by 14 May 2021.
It remains to be seen what impact the Court of Justice of the European Union’s preliminary ruling will have on the cases pending before the Land and Environmental Court in Vänersborg. It is, however, quite clear that greater consideration of the Species Protection Ordinance will be required in future environmental assessments concerning, for example, housing construction, infrastructure, mining or wind power where activities have the potential to risk affecting individuals or populations of bird or animal species. Greater consideration will also be required if continuous ecological functionality in the habitats of the species concerned is affected, regardless of whether this in itself has an impact on the species’ conservation status, or if the species are considered worthy of protection and included in Annex 1 of the Directive and regardless of whether the species has already achieved favourable conservation status.
It is important to note that the current ruling applies to forestry measures, although the Court of Justice of the European Union has also made general statements regarding the interpretation of the Habitats Directive. It should also be pointed out that, in relation to impact at an individual level, the Court of Justice of the European Union has only ruled on the interpretation of the Habitats Directive and not the Birds Directive, even though the current wording of the Species Protection Ordinance results in the Court’s interpretation also needing to be taken into account with respect to birds in Sweden.
