Unpopular birds species must be protected too, Europe rules
Species seen as pests cannot be left out of legislation designed to protect birds, the European Court of Justice has ruled in a test case where Austrian regions has failed to provide protection for birds such as the starling, crow and house sparrow.Commission v Austria
The European Court of Justice has held that Austria has failed to transpose completely and correctly Article 1(1) and (2), 5, 6(1), 7(1) and (4), 8, 9 and 11 of the Birds Directive.
In relation to Article 1, the Court found that in Burgenland all wild birds were protected apart from the starling, and that in High Austria magpies, the carrion crow, the hooded crow and the geai of the oaks were expressly excluded from protection.
In relation to Article 5, the Court found that in Burgenland there was insufficient protection for the starling.
Austria stated that this was so that it could be controlled to prevent considerable damage to wine crops, and the Court stated in response that this might justify an exemption from Article 5, but that such exemption could not go so far as to exclude the starling completely from the scope of protection.
In Carinthie, the carrion crow, hooded crow, geai of the oaks, jackdaw, magpie and house sparrow were excluded from protection. The law on hunting in the Länder also failed to transpose the parts of Article 5 in relation to intentional killing, capture or holding of protected bird species. In High Austria, the magpie, geai of the oaks, carrion crow, and hooded crow were excluded from protection.
In relation to Article 6(1), prohibiting that trade in wild birds, the Court found that in High Austria the provision had not been transposed in relation to the magpie, geai of the oaks, carrion crow, and hooded crow.
In relation to Article 7(1) on permitted culling, the Court found that in Corinthie and High Austria there were seasons of hunting set out for the magpie, geai of the oaks, carrion crow, and hooded crow, despite the fact that they are not species for which culling is permitted under the Directive.
In relation to Article 7(4), it was found that in all Länder the periods of protection for wild birds deviated from those set out in the Directive for certain species. Periods of hunting were encroaching on periods of protection without justification in terms of Article 9(1).
Austria disputed the fact that the capercaillie, black grouse, hybrid grouse and woodcock were regarded as protected during their courting periods, and added that in any event hunting during this period could be justified under Article 9. The Court discussed the linguistic divergences in the Directive as between different language versions, before concluding that the courting ritual was part of the process of reproduction, and hence was a protected period for the birds.
The Court noted that in relation to Burgenland, the woodcock, wood pigeon and Turkish turtle dove were protected for too short a period of time. In Carinthie, the capercaillie, black grouse, folque macroule, woodcock, Turkish turtle dove and wood pigeon had their periods of reproduction and dependence encroached upon by hunting periods.
In Low Austria, High Austria, the Land of Salzburg, Tyrol, the Land of Vienna and the Land of Vorarlberg various species were also suffering from similar encroachment.
The text of the Opinion is available in French at the following link.