§5 ‘DAMAGE TO PROTECTED SPECIES AND NATURAL HABITATS’

85. The definition of ‘damage to protected species and natural habitats’ is closely linked to provisions of the Birds Directive and the Habitats Directive. These directives are collectively referred to in these Guidelines as the ‘Nature Directives’. In particular, the Environmental Liability Directive and the Nature Directives share several common concepts. As the fifth recital of the Environmental Liability Directive indicates, when a concept derives from other relevant Union legislation, the same definition should be used so that common criteria can be used and uniform application promoted. At the same time, account needs to be taken of a number of differences of coverage between the Nature Directives on the one hand and the Environmental Liability Directive on the other. 86. The Guidelines draw attention to the following in particular: — The material and geographical scope of the protected species and natural habitats concerned; — The reference concept for adverse effects, i.e. favourable conservation status; — The assessment of significance; — Exclusions. Material and geographical scope of protected species and natural habitats Box 5: Definition of ‘protected species and natural habitats’ Article 2(3) of the Environmental Liability Directive provides that ‘protected species and natural habitats’ means: ‘(a) the species mentioned in Article 4(2) of Directive 79/409/EEC or listed in Annex I thereto or listed in Annexes II and IV to Directive 92/43/EEC; (b) the habitats of species mentioned in Article 4(2) of Directive 79/409/EEC or listed in Annex I thereto or listed in Annex II to Directive 92/43/EEC, and the natural habitats listed in Annex I to Directive 92/43/EEC and the breeding sites or resting places of the species listed in Annex IV to Directive 92/43/EEC; and (c) where a Member State so determines, any habitat or species, not listed in those Annexes which the Member State designates for equivalent purposes as those laid down in these two Directives.’ 87. ‘Protected species’ cover, firstly, certain species protected under the Nature Directives, and, secondly, any additional species that a Member State decides to include for liability purposes. The second species’ category is at the discretion of Member States, based on the option in Article 2(3)(c) of the Environmental Liability Directive. More than half of the Member States have availed of this option (105). With regard to the first category of species, there is not a perfect overlap between species covered by the Nature Directives on the one hand and the Environmental Liability Directive on the other. 88. So far as bird species are concerned, the species covered by the definition presented in Box 5 above are those referred to in Article 4(2) or listed in Annex I of the Birds Directive. Article 4(2) of the Birds Directive refers to regularly occurring migratory species, and Annex I of the Birds Directive lists certain other bird species. Taken together, these represent a sub-set of the European avifauna (106). The ‘protected species’ definition does not apply to bird species which are absent from Annex I of the Birds Directive and which are not regularly occurring migratory species – unless they are added by a Member State. 89. With regard to non-bird species, the definition covers animal and plant species listed in Annexes II and IV of the Habitats Directive. It does not directly cover certain species which are only listed in Annex V of the Habitats Directive (107) – unless Member States specifically add them, or unless they represent typical species of a natural habitat listed in Annex I of the Habitats Directive (108). It should be noted, however, that Annex V includes fish species which may feature in ‘damage to water’ (see Section 6 below). 90. The habitats listed in Annex I of the Habitats Directive will, in particular, be found in Natura 2000 sites identified for these habitats. However, the Environmental Liability Directive is not limited in its application to Annex I habitats found in Natura 2000. Under Article 17 of the Habitats Directive, Member States report ‘distribution maps’ of Annex I habitats, which cover their entire territory (109). These should not, however, be treated as the only information on the presence of Annex I habitats. It is to be noted that natural habitats are comprised of different elements, including typical species, which are described in the Habitats Manual (110). 91. The habitats of regularly occurring migratory bird species and of bird species listed in Annex I of the Birds Directive will, in particular, include those found in special protection areas (SPAs) classified under Article 4 of the Birds Directive. However, while SPAs are likely to comprise the most important habitats, the wording of the Environmental Liability Directive does not restrict application of damage to habitats to bird species’ habitats within SPAs. Member States report to the Commission breeding distribution maps (10 km x 10 km) for all Annex I breeding species (including sedentary) and other migratory breeding species triggering SPA classification (111). 92. The habitats of species listed in Annex II to the Habitats Directive will, in particular, be found in Natura 2000 sites identified for these species. However, the Environmental Liability Directive is not limited in its application to natural habitats found in Natura 2000. Under Article 17 of the Habitats Directive, Member States report to the Commission ‘distribution maps’ of Annex II species, which cover their entire territory (112). 93. With regard to the breeding and resting places of species listed in Annex IV of the Habitats Directive, the Commission has developed guidance which can be of assistance in identifying these (113). However, there is no obligation under the Nature Directives for Member States to report to the Commission on their location (for species only listed in Annex IV). 94. As with species, Member States may include natural habitats designated for equivalent purposes at national level that are additional to those linked to the Nature Directives (114). 95. As regards geographical scope, some protected species, for example cetaceans, and some natural habitats, for example reefs, are found off-shore. The Environmental Liability Directive applies to these in respect of the following: internal waters and the territorial sea; the exclusive economic zone (EEZ) and/or to other areas where Member States are exercising equivalent sovereign rights; and, for species and habitats on or depending on the sea-bed, for example sea-turtles, the continental shelf (115). Reference concept for adverse effects 96. The reference concept for adverse effects on protected species and natural habitats, ‘favourable conservation status’, is expressly defined in both the Environmental Liability Directive and the Habitats Directive (116) and the definitions are similar. Box 6: Definition of ‘favourable conservation status’ in the Environmental Liability Directive Article 2(4) of the Environmental Liability Directive provides that ‘conservation status’ means: ‘(a) in respect of a natural habitat, the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species within, as the case may be, the European territory of the Member States to which the Treaty applies or the territory of a Member State or the natural range of that habitat; The conservation status of a natural habitat will be taken as ‘favourable’ when: — its natural range and areas it covers within that range are stable or increasing, — the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and — the conservation status of its typical species is favourable, as defined in (b); (b) in respect of a species, the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within, as the case may be, the European territory of the Member States to which the Treaty applies or the territory of a Member State or the natural range of that species; The conservation status of a species will be taken as ‘favourable’ when: — population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, — the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and — there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.’ 97. The reference to the ‘sum’ of influences in the definition presented in Box 6 indicates that different individual influences contribute to the overall conservation-status outcomes mentioned. Influences may be positive or negative, and create their effects directly or indirectly. The damaging occurrences that cause environmental damage will count amongst but not represent the entire sum of influences. 98. The definition of ‘conservation status’ refers to a number of parameters when describing the conservation-status outcomes of the sum of influences. In the case of natural habitats, these parameters comprise the long-term natural distribution, structure and functions as well as the long-term survival of the typical species of the habitat within, as the case may be, the European territory of the Member States to which the Treaty applies or the territory of a Member State or the natural range of that habitat. In the case of a species, the parameters consist of the long-term distribution and abundance of its populations within, as the case may be, the European territory of the Member States to which the Treaty applies or the territory of a Member State or the natural range of that species. The geographical references to different scales are considered further in paragraph 118 below in relation to the assessment of significance. 99. The above-mentioned parameters are further qualified in the precise descriptions of what constitutes ‘favourable’ conservation status. For example, in relation to natural habitats, the qualification corresponding to the parameter of long-term natural distribution reads as follows: ‘its natural range and areas it covers within that range are stable or increasing’. 100. Individual influences – such as damaging occurrences that cause environmental damage – may relate to one or more of these parameters and qualifications. An individual influence does not necessarily need to affect all the different parameters and qualifications at the same time. Although a damaging occurrence may represent an individual influence, however, it cannot be excluded that some of the adverse effects it creates will arise in combination with other influences. For example, a damaging occurrence may consist of the poisoning of individuals belonging to a population of a protected species in a context where the population already suffers from other negative influences that then act in combination with the adverse effects of the poison. 101. In the context of the nature directives, the Commission services have produced documentation clarifying concepts such as ‘natural range’ (117). The assessment of significant adverse effects Circumstances 102. As is clear from paragraph 14 above, a wider range of operators and a wider range of occupational activities are relevant for purposes of damage to protected species and natural habitats than for purposes of water damage and land damage. The assessment of significance of adverse effects therefore relates to a potentially wider range of causes, liable persons and damage factors. Context 103. As can be seen from the text in Box 3, the concept of significance is expressed in terms of damage having ‘significant adverse effects on reaching or maintaining the favourable conservation status’ of protected species and natural habitats. 104. As can be inferred from paragraphs 98 to 101 above, adverse effects may be significant where a damaging occurrence influences only one or some of the parameters and qualifications mentioned in the definition of ‘favourable conservation status’. For example, the killing of a rare bird of prey through illegal use of poison in a land management activity may adversely affect the bird’s population dynamics and range without reducing the available habitat (although the presence of poisons will, of course, impair the natural resource services that the habitat provides for the bird). 105. The conservation status of protected species and natural habitats is a matter of fact and is not fixed and immutable. The Nature Directives aim to either maintain favourable conservation status where this is already attained, or to reach favourable conservation status where the current status is unfavourable. By referring to reaching or maintaining favourable conservation status, the text of the definition takes account of both possibilities. Thus, where the conservation status is already favourable, adverse effects might compromise the maintenance of a positive status quo; and, where the conservation status is unfavourable, the adverse effects might further deteriorate or jeopardise the needed improvement of a current negative status quo. This means that adverse effects on a protected species or natural habitat in unfavourable status cannot be treated as lying outside the scope of damage to a protected species or natural habitat on the sole ground that the species or habitat is already in a poor condition. Instead, the capacity of the species or habitat to reach favourable conservation status – and any set-back to that capacity – must be addressed. As noted at paragraph 118 below, assessment of the significance of adverse effects must be meaningful at the local level. 106. In practice, many of the protected species and natural habitats falling within the scope of the Environmental Liability Directive and the Nature Directives are in unfavourable conservation status (118). 107. Where a species or habitat listed in the Nature Directives has unfavourable conservation status, the Nature Directives require measures to restore it to favourable conservation status (119). In this context, adverse effects on restoration measures in place with a view to reaching favourable conservation status need to be taken into account. Such measures can take the form of habitat restoration measures or species reintroduction programmes, for instance. An example would be taking into account, in respect of a damaging occurrence involving fish mortality, any site-specific active conservation measures aimed at improving the conservation status of a fish species affected. This will relate to the aspect of population dynamics. Adverse effects on restoration potential should also be considered. For example, an affected site may host a species in a condition which is not favourable, but with a restoration potential reflecting its current presence. Adverse effects which have a negative impact on the species’ presence may also reduce the restoration potential. The carrying out of the assessment 108. The definition requires that significance is assessed ‘with reference to the baseline condition, taking account of the criteria set out in Annex I’. Box 7: Text of the criteria set out in Annex I of the Directive ‘The significance of any damage that has adverse effects on reaching or maintaining the favourable conservation status of habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services provided by the amenities they produce and their capacity for natural regeneration. Significant adverse changes to the baseline condition should be determined by means of measurable data such as: — the number of individuals, their density or the area covered, — the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat (assessed at local, regional and higher level including at Community level), — the species’ capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat’s capacity for natural regeneration (according to the dynamics specific to its characteristic species or to their populations), — the species’ or habitat’s capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition. Damage with a proven effect on human health must be classified as significant damage. The following does not have to be classified as significant damage: — negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in question, — negative variations due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators, — damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.’ 109. The baseline condition relates to the specific area or the specific species population or populations concerned by the adverse effects. The best information available should be used to address these. 110. Allowing for the area-specific or population-specific nature of the assessment exercise, the baseline condition should relate to the parameters and qualifications mentioned above. For natural habitats listed in Annex I of the Habitats Directive, for instance, this would involve looking at the habitats present on a particular site, the way they are structured and function, and their typical species. There may, for instance, be a mosaic of different natural habitats present – or a habitat may function in relationship to a water body (as where a salt-marsh functions according to the tidal movements in a coastal water). For Natura 2000 sites, the standard data form is likely to be an important source of information (120). 111. In determining these specificities, a number of possible practical challenges may arise: determining the best information available in the circumstances, and ensuring the reliability of the information. 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. 113. Also relevant is Case C-157/89, Commission v Italy, the Court considered the concept of best information available in the context of the Birds Directive, confirming the role of authoritative scientific literature of a general character in a context where more specific literature is unavailable (122). 114. Even where a site has been seriously damaged, it may be possible to obtain information on the baseline condition using existing earth observation data. Furthermore, where information is limited, it may be appropriate to establish the baseline condition by using data from similar sites unaffected by a damaging occurrence (i.e. ‘reference sites’) or by using models. (123) 115. The Commission has published an Excel table entitled Biodiversity baseline condition (124). This refers to a very extensive range of information sources at Union level and at the level of all Member States, including site-specific information such as ‘Standard Data Forms’ of all Natura 2000 sites, and also provides methodological approaches at Union level and national levels to help determine the baseline condition of protected species and natural habitats (125). 116. The concept of best information available also covers the quality of the information used to establish the baseline condition, and the inferences drawn from the information used. Care needs to be taken with the reliability and validity of information as well as the inferences drawn from it, in particular if an operator denies that adverse effects have arisen or will arise. In this context, reference may be made to Case C-209/02, Commission v Austria, in which the Court found that the competent authorities had not drawn the correct inferences from a scientific appraisal of the likely effects of a project in a Natura 2000 site (126). 117. With regard to the situation after the damaging occurrence, the first sentence of the first paragraph of Annex I helps to put the baseline condition in context, referring to conservation status, services provided by amenities, and capacity for natural regeneration. These represent general contextual criteria, i.e. what is generally known about the protected species or natural habitats exposed to adverse effects from the damaging occurrence (the above-mentioned Excel table entitled Biodiversity baseline condition is intended to help). The references in the definition of ‘conservation status’ to the European territory of the Member States to which the Treaty applies, the territory of a Member State and natural range allow for this context to be established at different levels. A rare endemic and geographically confined habitat, for instance, will present a different picture to a habitat that is widely distributed both within and across Member States. 118. The second sentence of the first paragraph of Annex I refers to the determination of adverse changes by reference to measurable data, providing examples. This sentence serves to underline that adverse effects concern measurable adverse changes and impairments. The data relates to both the specific areas and populations affected and the species and habitat types concerned more generally. This implies a role for both site-specific and population-specific information and information of a more general character (such as that found in scientific literature, for instance): — The first indent refers to ‘the number of individuals, their density or the area covered’. For protected species, this can encompass both the number of specimens killed or the number of specimens that have suffered harm or other detriment. For habitats, the area covered can encompass the habitats of protected species, breeding sites and resting places, and habitats listed in Annex I to the Habitats Directive, and can relate to habitat loss, habitat deterioration and impairment of the services these habitats provide; — The second indent has a comparative purpose and aims at relating the specimens and area affected with the wider conservation of the species and habitats concerned. The reference to assessment at local, regional and higher level resonates with the reference to European and Member State territories and natural range in the definition of ‘conservation status’. Assessment and determination of significance need to be meaningful at the local level. References to the national and European levels provide an additional orientation to enable specimens and habitats to be placed in different geographical contexts. It does not mean that adverse effects have to be demonstrated at the national and European levels; — The third indent focuses on the capacity for recovery of the species and habitats affected. Clearly, these may vary. Some habitats have abiotic features which cannot regenerate. An example is the limestone pavement which featured in Case C-258/11, Sweetman (127) and which was identified as threatened with permanent destruction in the context of an assessment process under the Habitats Directive. Such a situation of permanent loss could conceivably arise with regard to the Environmental Liability Directive; — The fourth indent focuses on a time factor, and is closely related to the third indent. The references to a ‘short time’ and to an absence of intervention allows for the possibility that a species or habitat may recover quickly of its own accord. It is to be stressed, however, that this is in relation to the baseline condition. The specifics of the area and population affected must therefore be taken into account. It cannot be excluded, for instance, that local factors may result in recovery taking longer than might be the case elsewhere. What constitutes a ‘short time’ is not defined, but the expression implies that the species or habitat must at least have the capacity for rapid recovery. Species with long reproduction cycles and habitats that are slow to form will not have such a capacity. 119. As previously noted, the assessment process is not an end in itself, but for the purposes of identifying a need for preventive measures, immediate management of damage factors and remedial measures, as the case may be. The time-critical nature of the first and second purposes needs to be reflected in the assessment process. The text of the definition of ‘damage to protected species and natural habitats’ refers to assessment ‘taking account’ of the criteria of Annex I. This should allow a focus on those aspects of Annex I that are necessary for a rapid determination of the need for preventive measures or immediate management of damage factors. For purposes of remedial measures, a more in-depth assessment is likely to be appropriate. The determination of significance 120. For purposes of preventive measures and measures to immediately manage damage factors, a determination of significance should be made if the assessment results – or ought to result – in a reasonable belief that, without such measures, adverse changes and impairments of the kind mentioned at paragraphs 121 and 122 below will result. 121. Subject to the criteria on non-significance mentioned at paragraph 124 and 125 below, for purposes of remedial measures in respect of natural habitats, adverse changes will be significant and impairments will arise if, in respect of the area of natural habitat affected, they result in one or more of the following: — A measurable permanent or interim loss of the area covered by the habitat; — A measurable deterioration in respect of the structure or functioning of the habitat; — A measurable permanent or interim reduction of the range of the habitat; — A measurable permanent or interim loss of typical species, or a reduction in their range or available habitats; — A measurable permanent or interim impairment of natural services linked to the area, structure, and functions of the natural habitat and its typical species; — A measurable gap between the time when the adverse effects occur and the time when, for the area, structure, functions and typical species concerned, the baseline condition is restored. 122. Subject to the criteria on non-significance mentioned at paragraphs 124 and 125 below, for purposes of remedial measures in respect of a protected species, adverse changes will be significant and impairments will arise if, in respect of the population affected, they result in one or more of the following: — A measurable permanent or interim population loss (including the loss of a specimen or specimens) or deterioration in the health of a population which affects population dynamics in the area where the adverse effects occur. Population loss may arise through mortalities causally linked to the damaging occurrence. A deterioration in the health of a population might involve, for example, forms of harm such as the bioaccumulation of toxins or deleterious genetic modifications following cross-fertilisation with genetically modified individuals that are deliberately released into the environment (128); — A measurable permanent or interim reduction in the range of the species concerned; — A measurable permanent or interim reduction in habitats available to the species concerned for its long-term maintenance; — A measurable permanent or interim impairment of natural services linked to the population loss, range reduction or reduction in available habitats; — A measurable gap between the time when the adverse effects occur and the time when, for the population, extent of range, and availability of habitats, the baseline condition is restored. 123. The second paragraph of Annex I provides that damage with a proven effect on human health must be classified as significant damage. It is possible that an adverse change in a protected species or a natural habitat could include effects which, because of the damage factors involved, have a parallel relevance for human health. For example, the contamination of a natural habitat by toxic substances might, at the same time, expose human beings to adverse health effects. 124. The final paragraph of Annex I indicates what need not be considered as significant. In Case C-297/19, Naturschutzbund Deutschland — Landesverband Schleswig-Holstein eV, the Court stated that: ‘It is apparent from the use of the words ‘does not have to’ that it is open to the Member States when transposing the directive to regard such damage as significant or as not significant for the purposes of Annex I thereto.’ (129) The Court also found that the provisions of this paragraph must be interpreted strictly (130). 125. As regards the content of the final paragraph of Annex I: — The first indent refers to negative variations that are smaller than normal natural fluctuations. This relates to the possible non-static nature of the baseline condition mentioned at paragraph 65 above. There is a focus on the size of the negative variations relative to natural variations. — The second indent refers to negative variations due to natural causes or normal site management. The Court considered this indent in detail in Case C-297/19, Naturschutzbund Deutschland — Landesverband Schleswig Holstein e. V. The case concerned regular drainage of a Natura 2000 wetland carried out by a public body in order to serve agriculture. The drainage caused water levels to fall, with adverse effects on a protected bird species, the Black Tern, Chlidonias niger. The Court ruled that the term ‘normal management’ relates to both habitats records and target documents (which concern those management measures directed by competent authorities) as well as previous management by owners or operators (131). It found that ‘in order not to negate the effectiveness of the word ‘normal’ in the context of environmental protection, it should be added that management can be regarded as normal only if it is consistent with good practices such as, inter alia, good agricultural practices.’ (132) The Court also found that the management of a site covered by the Habitats and the Birds Directive can cover agricultural activities, including irrigation, but can be regarded as normal only if it complies with the objectives and obligations laid down in those directives (133). This ruling applies to all sites covered by the Nature Directives, not just Natura 2000 sites (134). So far as Natura 2000 sites are concerned, the importance of appropriate site conservation objectives deserves mention. — The third indent refers to short natural recovery times for habitats or species to a condition equivalent or superior to the baseline condition. Exclusions 126. The definition of ‘damage to protected species and natural habitats’ provides for exclusions by reference to Articles 6(3) and (4) and 16 of the Habitats Directive and Article 9 of the Birds Directive. In Case C-297/19, Naturschutzbund Deutschland — Landesverband Schleswig-Holstein, the Court held that these exclusions must be interpreted strictly (135). 127. A number of inferences can be drawn from the references to these provisions of the nature directives. 128. Firstly, the mere existence of an authorisation under one of the afore-mentioned provisions does not result in the blanket exclusion of adverse effects from the scope of damage to protected species and natural habitats. For the adverse effects to be excluded: — They must have been previously identified; — The causal act must have been expressly authorised. If an operator exceeds the conditions set in an authorisation (by, for example, encroaching more on a habitat than an authorisation allows), liability may arise for adverse effects related to the non-compliance (136). 129. Secondly, the wording of the exclusions indicate that liability under the Environmental Liability Directive may arise in respect of situations where there is no authorisation whatsoever, but the requirements of Articles 6(3) and 4 and 16 of the Habitats Directive and Article 9 of the Birds Directive are applicable. This will be the case, for example, where an operator ought to have obtained a derogation under Article 16 of the Habitats Directive in order to lawfully carry out an occupational activity but did not obtain one (137).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07