European Birds Directive: deviation schemes with varying success

The Belgian and French Councils of State recently pronounced two judgments on the application of Article 9 of the Birds Directive. This article allows for a scheme that deviates from the prohibition to hunt, catch, or kill protected bird species, whether or not by certain means or methods, but such scheme must fulfill several strict conditions.

Belgium: judgment of 10 January 2019

Simplified notification procedure?

The Flemish Government’s Decree of 15 May 2009 on species protection and species management (“the Species Decree”) aims to protect certain species in the Flemish Region. It transposes both Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”) and Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds (“the Birds Directive”).  Similar to the Birds Directive, the Species Decree contains several prohibitions (Articles 10 through 18) also allows for the possibility to deviate from these provisions. Article 20 of the Species Decree transposes the deviation scheme provided for in Article 9 of the Birds Directive.

With the Flemish Government’s Decree of 17 June 2016 amending various provisions of the Species Decree of 15 May 2009 (“the Decree of 17 June 2016”), an important amendment was made to the Species Decree: this decision simplified the application procedure for obtaining a deviation from the prohibitions referred to in Articles 10, 12 and 16 of the Species Decree. The non-profit organisation Vogelbescherming Vlaanderen (Bird Protection Flanders) lodged an appeal against this decision with the Council of State.

Annulment

In the judgment of 10 January 2019 (no. 243.364), the Council of State granted the appeal brought by Vogelbescherming Vlaanderen and annulled the Decree of 17 June 2016. The Council ruled that the adapted notification procedure is contrary to both Article 7, first paragraph, of the Decree of 21 October 1997 on nature conservation and the natural environment (“Nature Conservation Decree”) and Article 9 of the Birds Directive.

In the Council's view, any exception should be interpreted restrictively. Interventions affecting protected species can only be permitted on the basis of a decision that is substantiated by a precise and accurate justification that refers to the reasons, conditions, and requirements listed in Article 9(1) and (2) of the Birds Directive.

The Council concluded that the simplified notification procedure did not meet this requirement.

Consequences of the Belgian judgment

Consequent to the annulment, there are two possibilities at first sight.

The Flemish government can either rectify the Species Decree by describing the annulled notification procedure for deviations more precisely and more accurately, or not rectify it at all and let the previously applicable notification procedure apply again. Without a simpler way of notification, deviations in the Flemish Region will undoubtedly be harder to obtain.

France: judgment of 28 December 2018

“Glue hunt”

Traditional hunting by using glue sticks is still permitted in several provinces in France.

This traditional way of hunting consists in catching birds by using sticks that are covered with glue and that are strapped to trees or bushes. The caught birds, which are glued to the sticks, are then removed alive and used as decoy birds for rifle-hunting.

On 28 December 2018, the French Council of State rejected the application by the Ligue pour la Protection des Oiseaux (“LPO”), which was seeking annulment of the Decision of 17 August 1989 on the use of glue sticks to catch thrushes and blackbirds intended as decoy birds in the provinces of Alpes-de-Haute-Provence, Alpes-Maritimes, Bouches-du-Rhône, Var, and Vaucluse (“Decision of 17 August 1989”).

The Decision of 17 August 1989 is based on Article L. 424-4 of the French Environmental Codex, which allows the Minister who oversees hunting to authorise the use of certain traditional hunting methods and means under certain conditions.

The LPO's request was based on an alleged breach of the selection criteria laid down in Article 9 of the Birds Directive. This deviation provision allows the hunting (and capture or killing) of birds by means of using glue sticks “where there is no other satisfactory solution” and in order “to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.”

However, the deviations need to contain a number of mandatory elements:

1. the species that are subject to the deviations;
2. the means, arrangements, or methods authorised for capture or killing;
3. the conditions of risk and the circumstances of time and place under which such deviations may be granted;
4. the authority that is empowered to declare that the required conditions are met and to decide what means, arrangements, or methods may be used, within what limits, and by whom; and
5. the checks and verification methods that will be carried out.

The French Council of State examined the Decision of 17 August 1989 and considered that it does contain these mandatory elements. Furthermore, the documents pertaining to the case do not show that there would be any other satisfactory solution for the capture of the abovementioned bird species. Moreover, the use of glue sticks within the limits of the Decision of 17 August 1989 would not lead to a breach of the criteria of, on the one hand, the selectivity of catches and, on the other hand, the small numbers of birds caught.

Consequences of the French judgment

The French Council of State held that this traditional hunting method, which is developed in France, is not contrary to the European Birds Directive and is therefore legal.

However, the LPO has announced that it has lodged a complaint against France with the European Commission.

It is thus possibly to be continued.