Habitats Directive

Commission v Austria

The European Court of Justice has held that Austria has failed in a number of its obligations under the Habitats Directive. The case essentially concerned the transposition of the Directive into national law in Austria and the efficacy of that transposition.

Austria did not contest a number of the breaches. It was uncontested that Article 12 of the Directive was breached in the Provinces of Styria and Tyrol since not all of the protected species were included in the national law purporting to transpose that Article.

It was also uncontested that Article 13 was breached in the Provinces of Carinthia, Styria and Tyrol due to lack of inadequate protection for all of the plant species listed in the Directive, and a complete lack of transposition in Styria.

In Styria and Tyrol there was also accepted to be a breach of Article 16(1) since the law on hunting in Styria didn’t take account of the fact that derogations from the system of protection in the Directive were only permitted if the populations of the protected species were maintained at a ‘favourable conservation status’. In Tyrol the national legislation failed to take account of this concept in respect of plant and animal species and priority natural habitat types.

In terms of contested breaches, Article 1 was alleged to have been breached in Salzburg due to the failure to transpose certain of the definitions in that Article, including that of ‘conservation status of a natural habitat’, ‘species of Community interest’ and ‘conservation status of a species’. The Court held that these three definitions were inadequately transposed into national law.

However, another definition, that of ‘European area of special conservation’, was found to be in accordance with the Directive. While the term ‘special area of conservation’ was not used, as detailed in the Directive, the definition of ‘European area of special conservation’ included the sites on the list of sites of Community importance, as well as the sites proposed by the Province of Salzburg for inclusion on that list.

The relevant sites were therefore sufficiently well identified as to amount to an adequate transposition of the terms of the Directive.

Article 6(1) was alleged to have been breached in Lower Austria since the national law only set an obligation to take appropriate maintenance, development and conservation measures ‘if need be’, whereas such measures should be adopted in all cases. On this basis the transposition was held inadequate.

The same Article was alleged to have been breached in Upper Austria as well, since national law only provided for the possibility of countryside management plans being drawn up, whereas the Directive affords Member States no discretion in this regard.

A further issue was the fact that legislation provided for the Provincial Government to draw up countryside management plans including measures that were ‘necessary in the public interest and which do not significantly hamper the authorised economic use of the affected land’.

The Court held that this reference to authorised economic use constituted a restriction on the obligation to draw up countryside management plans, and due to the lack of definition of the scope of ‘authorised economic use’ it was possible that the clause could prevent necessary conservation measures being taken. On this basis it was incompatible with the Directive.

Article 6(2) was alleged by the Commission to have been breached in Tyrol due to national law containing no prohibition to prevent the deterioration of special areas of conservation. There was also no transposition of the obligation to take steps to avoid the disturbance of species for which the special areas of conservation had been designated.

A further alleged breach was of Article 16(1) in Lower Austria and Salzburg, where national law did not refer to the criterion of ‘maintenance at a favourable conservation status’, and the criteria to be met in order to derogate from the system of protection offered by the Directive were not listed exhaustively, as they were in the Directive.

The Court held that this Article was to be interpreted restrictively, and that any national measure derogating from the prohibitions in the Directive must be conditional on there being no satisfactory alternative. The Court upheld the Commission’s complaint on the basis that the wording of the national law did not preclude that derogations may be authorised on grounds other than those exhaustively listed in the Directive and that there was no cognisance of the requirement in the Directive to ensure that derogation was under strictly supervised conditions and of a selective and limited nature.

Further issues were that there was no provision for a ground of derogation in favour of a commercial operation of an agricultural or silvicultural nature, nor was there any provision for the exhaustive list of permitted grounds of derogations in relation to hunting. Rather, the legislation merely prohibited a number of hunting methods for certain animal species.

In relation to Salzburg, the Court held that the criterion of ‘maintenance of a favourable conservation status’ was not adequately reproduced in the legislation.

Finally, Article 22(b) was held to be breached in Lower Austria since the grant of an authorisation to introduce a non-native species was dependent on a criterion not envisaged in the Directive – namely that any harm must not be ‘lasting’.

The provisions also did not prohibit all prejudice to natural habitats within their natural range, and to wild native flora and fauna resulting from the deliberate introduction of non-native species.

The text of the case is available at the following link:-


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