Latest ECJ decision is no help for the expansion of renewables

The European Union is committed to the fight against climate change ("European Green Deal"). One of the pillars in this fight is the expansion of renewable energy sources. According to the current goals, the share of renewable energy sources within the Union should increase to 32 % by 2030¹. In practice, however, the expansion of renewable energy is increasingly being slowed down by the interpretation of EU nature conservation regulations by the European Court of Justice ("ECJ"). Also, the latest decision of the ECJ is no "boost" for renewables. 

EU nature protection regulations

The most important European nature conservation regulations are the Birds Directive²  ("BD") and the Flora Fauna Habitats Directive³ ("HD"). Essentially, both Directives are dedicated to habitats and species protection worthy of protection. In detail, however, the two directives differ considerably. Both directives shape a network of core breeding and resting sites for rare and threatened species, and some rare natural habitat types which are protected under different regulations ("Natura 2000"). 
The ECJ's decisions in recent years on both directives are extensive and exemptions were interpreted in an extremely restrictive way. These decisions were mostly in line with the interpretations of the European Advocates General. In practice, this can result in even a single specimen of a protected species delaying or even preventing a renewable project such as wind farms. In this context, project developers hopefully were listening to Advocate General KOKOTT in her Opinion on cases C-473/19 and C-474/19, in which she proposed to the ECJ a less strict interpretation of the nature conservation provisions.

Opinion of Advocate General KOKOTT

The initial cases concern logging projects in a Swedish forest, where several species protected under the BD and HD may be affected. Environmental organisations appealed the local authority's approval of the logging. The Swedish court then turned to the European Court of Justice with numerous questions concerning the European species protection provisions. 
In her Opinion⁴, Advocate General KOKOTT predominantly follows the previous case law of the ECJ in the field of nature conservation. However, she would like to depart from this line of jurisprudence on two points, and with good reason:

• In cases where the interference to birds is not intended but only accepted as a possibility, the prohibitions on killing and destruction⁵ under the BD apply only to the extent necessary to maintain the population of those species at a level, or to adapt it to a level, corresponding to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements.
• The prohibition on disturbance under the HD must be restricted to acts that are particularly likely to be detrimental to the conservation status of the protected species, especially in places of particular importance to those species or where they would be adversely affected in terms of their breeding, rearing, hibernation and migration.

This interpretation would have facilitated permit practice, because the application of the above-mentioned prohibitions would have brought into focus the conservation status of the respective species and not just a single specimen. Especially in the case of less endangered "common species" (according to the BD, all European birds are protected) this demand is understandable. Human uses, e.g. wind farms, would therefore be possible on a larger scale without jeopardising the conservation of protected species. 

ECJ decision

The ECJ did not adopt the recommendations of the Advocate General in her Opinion. According to the ECJ⁶, the application of the prohibitions under Art. 12 HD – prohibitions on killing, destruction and interference – do not depend on the conservation status of the species in question. The Court justifies this with the exceptions provided for in the HD under Art. 16. According to the ECJ, the exceptional nature of this provision could be bypassed if restrictions were already imposed at the level of the prohibitions. 

Outlook

From the perspective of achieving climate targets, the decision does not provide the hoped-for relief for renewable projects. Due to the specifics of Swedish law, the Court at least did not have to deal with the relief proposed by the Advocate General for the BD. However, based on previous case law and the present decision, it must be expected that the ECJ will continue to remain true to its strict interpretations of European nature conservation regulations. 
The next conflicts between climate protection and species protection are pre-programmed. From today's perspective, achieving these two Union goals without friction seems a long way off.
 

¹ Directive 2018/2001/EU of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources. 
² Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds. 
³ Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. 
⁴ Opinion Advocate General Juliane KOKOTT from 10 September 2020, C-473/19 and C-474/19, Föreningen Skydda Skogen a.o. vs Länsstryrelsen i Västra Götalands Iän. 
⁵ See Article 5(a) and (b) of Directive 2009/147/EU. 
⁶ ECJ decision from 4 March 2021, C-473/19 and C-474/19, Föreningen Skydda Skogen a.o. vs Länsstryrelsen i Västra Götalands Iän a.o.