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| 112. | Where damage has already occurred, the damage itself may be an impediment to estimating the baseline condition. Where a habitat has been damaged or destroyed, or species displaced from it, it may be very difficult to ascertain the baseline condition by means of information collected ex post. This may be especially evident in the sorts of circumstances illustrated by Cases C-529/15, Folk, and C-297/19, Naturschutzbund Deutschland — Landesverband Schleswig-Holstein eV, i.e. an occupational activity may have been creating adverse effects cumulatively over a much extended period of time, suppressing the manner in which a habitat would otherwise naturally function or suppressing the presence of a protected species. Exact quantification of what has been suppressed or lost is not, however, required, since the definition refers to ‘estimated’. Reference can also be made to Case C-374/98, Commission v France (121) in which the Court indicated that an advantage should not be derived from non-fulfilment of the requirements of the Birds Directive. In the context of the Directive, an operator who, through an unlawful act or omission, destroys or damages the basis on which data might be collected (by, for example, filling in a protected wetland for economic gain) should not derive a benefit from this as compared to an operator who acts lawfully.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.