Key messages from the European Commission’s revised European Protected Species law “bible” dated 12 October 2021
The European Commission published on 12 October 2021 a revised version of its “Guidance document on the strict protection of animal species of Community interest under the Habitats Directive” (the previous version was dated February 2007).
The new guidance document can be located here.
This document is a key reference source for anyone working with European Protected Species (EPS), whether ecologists (consultants or in local government), developers or regulators. In this article, we consider the new guidance in terms of aspects of it which might have relevance to interpreting the EPS criminal offences in regulation 43 Conservation of Habitats and Species Regulations 2017 and the associated licensing framework in regulation 55.
This guidance remains relevant to us in the UK (despite Brexit) because s6(2) EU (Withdrawal) Act 2018 (as amended) states that “A court or tribunal may have regard to anything done by the Court of Justice of the European Union or another EU entity or the EU so far as it is relevant to any matter before the court or tribunal”. This is relevant as this guidance has been “done” by the European Commission.
The criminal offence of “damage or destruction of a breeding site or resting place of an EPS”
One animal is enough to trigger this offence
The new guidance confirms, through Court of Justice cases C-473/19 and C-474/19 (and as we have been saying in Freeths’ EPS legal courses for many years), that the strict liability (“no fault”) offence of “damage or destruction of a breeding site or resting place of an EPS” applies regardless of the numbers of EPS animals present. Even if just one EPS animal uses a site / place for breeding or resting then it is legally protected under this offence. The new guidance goes on to say: “In other words, the fact that a species may have a strong presence within a given location and that its survival in the area is not threatened does not diminish the obligations of strict species protection. Such facts should be taken into account in the derogation process instead. The opposite scenario is also true, i.e. the fact that an area constitutes a breeding site or a resting place only for one or few individuals of a species listed in Annex IV(a) does not diminish the obligation to protect this area against actions that may deteriorate or destroy it” (pg 31).
This offence applies to certain key parts of the animals’ habitat, not to habitat generally
As before, the new guidance confirms that this offence is directed at “important elements of [the EPS animal’s] habitat” (pg 29). Elsewhere the guidance states: “Breeding sites and resting places must be strictly protected because they are crucial to the life cycle of animals and are vital elements of a species’ entire habitat” (pg 32); and “they are crucial to the life cycle of animals and are very important elements of a species’ entire habitat, needed to ensure its survival” (pg 33).
This element of the new guidance is confirmed to be correct by a very recent Court of Justice of the European Union (CJEU) European hamster judgment C-357/20 dated 28 October 2021 (released after the new guidance was published) (para 40).
This offence does not apply to proactive management measures
As before, the new guidance confirms that this offence does not infer any requirement for proactive management measures (pg 30): “There will be occasions when the deterioration of natural habitats takes place naturally (including through natural succession after cessation of a certain land use like agriculture) or is caused by unforeseeable events, so that the habitat is no longer a suitable breeding site or resting place for certain species. In this case, where no act has been committed to provoke the deterioration or destruction of breeding sites or resting places, but where this has arisen through natural causes, Article 12(1)(d) does not apply”. It is clear therefore that this offence is triggered by a positive act of damage or destruction.
The guidance retains the concept of maintaining “continued ecological functionality” so as to avoid this offence
Under the new guidance, the concept of “continued ecological functionality” (also discussed in the 2007 guidance) continues to apply to this offence. This concept means that if the ecological functionality of a breeding site or resting place is maintained (notwithstanding activities in relation to the site or place) then this offence is not triggered and so no licence would be required: “Article 12(1)(d) should therefore be understood as aiming to safeguard the continued ecological functionality of such sites and places, ensuring that they continue to provide all the elements needed by the animal to rest or to breed successfully” (pg 32). The new guidance also states “Measures that ensure the continued ecological functionality of a breeding site or resting place in the case of projects and activities with a possible impact on such sites or places must have the character of mitigation measures (i.e. measures minimising or even cancelling out the negative impact). They may also include measures that actively improve or manage a certain breeding site or resting place in such a way that it does not — at any time — suffer from a reduction or loss of ecological functionality. As long as this precondition is fulfilled and such processes are controlled and monitored by the competent authorities, there is no need for recourse to Article 16” (pg 38/39). It is notable that this description is slightly different to (and possibly slightly more precautionary than) the previous 2007 guidance because the following wording in the 2007 guidance is absent from the new guidance: “This could include e.g. enlarging the site or creating new habitats in, or in direct functional relation to, a breeding site or resting place, as a counterweight to the potential loss of parts or functions of the site” (pg 47/48).
Site or places are protected if there is a reasonably high probability of then being used again
The new guidance also states of this offence: “The protection applies all year round if these sites are used on a regular basis” (pg 32). It goes on to state: “Thus, it follows from Article 12(1)(d) that such breeding sites and resting places also need to be protected when they are used only occasionally or are even abandoned but where there is a reasonably high probability that the species concerned will return to these sites and places. If, for example, a certain cave is used every year by a number of bats for hibernation (because the species has the habit of returning to the same winter roost every year), the functionality of this cave as a hibernating site should be protected in summer as well so that the bats can reuse it in winter” (pg 33).
The new guidance also states that breeding sites and resting places “that are used regularly either within or between years, must be protected even when not occupied” (pg 33 and pg 35).
This element of the new guidance is confirmed to be correct by a very recent CJEU hamster judgment C-357/20 dated 28 October 2021 (released after the new guidance was published). The case also states that resting places and breeding sites are covered by the offence when they are no longer occupied by the animal species but where there is a “sufficiently high probability that the animal species will return” (paras 47 and 40).
It is notable that the wording of the new guidance is different from (and perhaps a little more precautionary than) the wording in the earlier guidance (2007). The 2007 guidance had added that “On the other hand, if a certain cave is used only occasionally for breeding or resting purposes, it is very likely that the site does not qualify as a breeding site or resting place” but this sentence has been removed from the new guidance.
Relevance of feeding grounds to this offence
The new guidance adds a further category of “breeding site” (item 7) which was not included in the previous 2007 guidance. The new guidance states: “The breeding site may thus include areas required for: …..7. wider habitats that make reproduction successful, including feeding grounds” (pg 33).
This has come about due to a 2009 CJEU case relating to the European hamster (case C-383/09). The guidance states of this case that “the Advocate General Kokott interpreted ‘breeding sites and resting places’ to extend not only to the hamster burrows but also to the surrounding habitats. The Court judged not only destruction of burrows, but also urbanisation and changes in crop structure in wider areas, as failing to fulfil obligations under Art 12(1)(d)” (pg 33). In reaching this conclusion, the Advocate General considered the fact that the European hamster has a small home range and that the surrounding habitat is necessary for the European hamster to survive and breed. Essentially, the Advocate General concluded that “it must be assumed that the continuing ecological functionality of European hamster burrows can be ensured only if the surrounding agricultural land is used in a way that is favourable to the European hamster” (para 63). In this case the surrounding habitat had therefore to be protected from damage or destruction.
An Advocate General’s opinion is not legally binding and there was no discussion of ecological functionality in the Court’s actual judgment in this C-383/09 case. But the Court did rule that the measures adopted by France were “not adequate to enable effective avoidance of deterioration or destruction of the breeding sites or resting places of the European hamster” (para 37). The measures that France adopted to remedy the decline in the European hamster population included both measures relating to agriculture (such as cultivating favourable crops in ‘priority action areas’) and urbanisation (such as prohibiting all new urbanisation in priority action areas). The Court concluded that “by failing to establish a programme of measures to ensure strict protection of the European hamster (Cricetus cricetus), the French Republic has failed to fulfil its obligations under Article 12(1)(d) of the Habitats Directive” (para 40).
The new guidance explains this further in that “for some species that have small home ranges, breeding sites and resting places can overlap. In such cases, it is important to protect a functionally viable and coherent area for the species that includes both its resting and breeding sites and other areas that are considered necessary to maintain the ecological functionality of the breeding and/or resting site” (pg 36). For wide-ranging species, however, the new guidance states that “it may be advisable to restrict the definition of breeding and resting sites to a locality that can be clearly delimited: e.g. the roosts for bats, the winter dens for bears or the holt of an otter, or other areas that can be clearly identified as being important for breeding or resting” (pg 36).
Since the new guidance was published the further very recent CJEU hamster case has been handed down (C-357/20). The states (para 33) that this offence could be triggered if human activities carried out in the vicinity of the breeding site (or presumably resting place) had the aim or effect of that animal species no longer frequenting the breeding site (or resting place) concerned. In that case the developer had removed all the habitat around the hamsters’ burrows so effectively sterilising the area, even though he had left the burrows themselves intact.
Therefore, it seems that for a loss of supporting land to amount to damage or destruction of a breeding site or resting place, there must be a very strong association between any supporting land and the breeding site or resting place, such that the supporting land is essential to maintain the ecological functionality of the breeding site or resting place. This is more likely to occur with species with small home ranges, as they are unable to travel for food. For a wider-ranging species (such as bats) the breeding or resting site may not extend to wider habitats as their survival is not based directly on the favourability of the immediately surrounding habitat.
In our view this guidance does not affect the comments made by the Court of Appeal in Morge v Hampshire CC  on this offence. The Court held there that this offence would not be triggered by indirect deterioration of a bat roosting site through possible bat collision with vehicles on a bat commuting route. The Court concluded that “what is material is only direct or indirect deterioration or destruction of actual breeding sites or resting places” (para 76).
The offence of deliberate disturbance relates to disturbance of the species
On this offence, the new guidance is very similar to the 2007 guidance.
The new guidance summarises the position as follows by stating that: “Any deliberate disturbance that may affect the chances of survival, the breeding success or the reproductive ability of a protected species, or that leads to a reduction in the occupied area or to relocation or displacement of the species, should be regarded as a ‘disturbance’ in line with the terms of Article 12” (pg 26).
The new guidance also says that “any activity that deliberately disturbs a species to the extent that it may affect its chances of survival, breeding success or reproductive ability, or leads to a reduction in the occupied area or the relocation or displacement of the species, should be regarded as a ‘disturbance’ under the terms of Article 12” (pg 26).
This offence remains one which is directed at disturbance of “the species” but (as we have been saying in the Freeths EPS law courses for many years) the new guidance makes the point that in some limited circumstances disturbance of a single individual could potentially amount to this: “For example, this would be the case if disturbing a pregnant female or separating a mother from calf of large, long-living and highly mobile animals with low fecundity, such as marine mammals” (pg 27).
The new guidance confirms the meaning of deliberate which appears in the reg 43 offences of deliberate capture, killing and injury and deliberate disturbance.
This states: “the term ‘deliberate’ is interpreted by the CJEU as going beyond ‘direct intention’. ‘Deliberate’ actions are to be understood as actions by a person or body who knows that their action will most likely lead to an offence against a species, but intends this offence or, at least, consciously accepts the foreseeable results of his action” (pg 24). The new guidance refers to case C-221/04 para 71 where the Court said “for the condition as to “deliberate” action in Article 12(1)(a) of the Directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing” (pg 24). The new guidance concludes “In other words, the provision applies not only to a person who fully intends to capture or kill a specimen of a protected species but also to a person who is sufficiently informed and aware of the consequences his or her action will most likely have and nevertheless still performs the action, which leads to the capturing or killing of specimens (e.g. as an unwanted but accepted side-effect) (conditional intent)” (pg 25).
Derogations (i.e. the 3 EPS licensing tests)
The new guidance confirms (as before) that Article 16 must be interpreted restrictively and that “derogations must be a last resort” (pg 46); the new guidance also embodies (as before) the proportionality principle i.e. “as a general rule the severity of any of the conditions or tests will increase with the severity of the potential impact of a derogation on a species or population” (pg 47).
Test 1 – the statutory purpose “need” test under Article 16(1)(a) – (d) or (e)
The new guidance on this test is in general similar to the previous 2007 guidance.
One new section of the guidance however advises on streamlining the assessment of a plan or project which requires a HRA under Article 6(3) / (4) and also derogations for EPS (i.e. a licence) under Article 16. The new guidance states that species derogations for overriding public interests may be needed for plans or projects that affect Natura 2000 sites under Article 6, and that “preventive, mitigation and compensation measures envisaged under Article 6 should therefore also take into account species concerned by the derogations” (pg 54). It goes on to state that “it is advisable to also streamline, where relevant, verification of the derogation conditions (lack of satisfactory alternative solutions and of detrimental effects on the species) in the context of the appropriate assessment” (pg 54).
Test 2 – no satisfactory alternative test
The new guidance in general looks similar to the old guidance.
There is one interesting new element which would appear to be applicable to GCN district licensing (which permits killing of GCN). In particular it is applicable to and potentially problematic for NE’s district licensing scheme which in general does not require delivery of any on-site mitigation measures under the licence. The new guidance states: “Only when it is sufficiently demonstrated that potential alternatives are not satisfactory, either because they are not able to solve the specific problem or are technically unfeasible, and when the other conditions are also met, can the use of the derogation be justified. However, if a measure is partially satisfactory even if it does not sufficiently address the problem, but it can still reduce or mitigate the problem, it should be implemented first. Derogations for lethal intervention may only be justified for the residual problem, if no other methods are possible, but must be proportional to the problem remaining after non-lethal measures are taken” (pg 62).
In addition, the new guidance states that “The process to ascertain whether another alternative is unsatisfactory should be based on a well-documented assessment of all possible available options, including in terms of their effectiveness, based on the best available facts and data. The assessment of alternatives must be balanced in light of the overall objective of maintaining or restoring the favourable conservation status of the species of Community interest concerned (it must therefore take into account the conservation status, the impact of additional incidental or illegal removal of specimens and prospects of the population concerned). The assessment may also take into account proportionality in terms of cost. However, economic cost cannot be the sole determining factor when analysing alternative solutions. In particular, satisfactory alternative solutions cannot be rejected from the outset on the grounds that they would cost too much” (pg 62).
Furthermore, the new guidance states that “The Advocate General in Case C-342/05 clarified the proportionality principle, according to which a ‘measure may not be implemented if its objective can be attained by less drastic means, that is to say by means of a satisfactory alternative within the meaning of Article 16(1) of the Habitats Directive’. ‘An alternative is satisfactory not only if it would attain the objectives of the derogation equally well, but also if the disadvantages caused by the derogation would be disproportionate to the aims pursued and the alternative would ensure proportionality’” (pg 63).
Test 3 – the favourable conservation status test
The new guidance makes a couple of new notable points in relation to this test.
First, for a development proposal that requires an EIA or a HRA appropriate assessment, it encourages an integrated approach where EPS considerations (impacts on EPS and the need for a derogation (licence) and how the derogation tests are to be met) are described in the ES or the AA.
Secondly, the new guidance contains a new section to cover activities (such as minerals or other development activities) which are likely, by their very nature, to create temporary suitable habitat for EPS which was not previously present and thereby attract EPS into the site (pg 71). It explains the problems that this can give rise to for developers “as these temporary habitats may need to be removed for development work to continue”. The guidance makes the obvious point that the normal legal protection would apply to EPS animals and their breeding sites and resting places in these scenarios and that derogations (licences) are still needed if the Article 12 prohibitions protecting the animals will be triggered. It explains that this situation may result in some landowners and developers preventing protected species from colonising temporary habitats which “could present a lost opportunity” for the EPS (pg 71).
In response, the new guidance suggests that “developers can apply for a derogation under Article 16 at an early stage of the planning process, when protected species have not yet colonised the site but where such colonisation can be expected with some certainty (this may be the case for instance when the species is already present in the surrounding areas). This form of prior derogation would allow the subsequent removal of temporary nature features in line with the project development needs” (pg 71).
Freeths LLP’s view is that this is, in practice, unlikely to add very much to the situation / system in England.
The species for which this is most applicable is GCN. If land to be developed is within 500m of a GCN breeding pond then a professional ecologist will always consider, prior to development activities starting, whether GCN are likely to be present in the area. In certain circumstances (and this applies to the whole of the UK), when a check has been made against all the relevant GCN offences and it can be concluded that no offence will be triggered (this is certainly sometimes possible), it will be lawful to erect GCN fencing around the site (without a licence) prior to the works starting so that the areas within the fencing cannot become colonised. (Note however that removal of that fencing at a later date might however require a licence).
Alternatively, in England we have had since December 2016, EPS licensing policy 3 in place which allows a GCN licence to be granted to a developer / mineral operator for exactly this sort of purpose i.e. to allow them to continue to work in an area which attracts in GCN, when there is confidence that, by the time the works are completed, suitable and generous habitat provision is made for the GCN population. In addition there is the further option of entering a GCN district licensing scheme. NE’s advice has always been that an EPS licence is needed if there is a “reasonable likelihood of an offence” being triggered and this seems to equate to the new guidance’s wording where it talks about a licence being granted “where such colonisation can be expected with some certainty” (pg 71).
In summary therefore, this does not appear likely to change the systems that we already operate in England. Wales and Scotland (if they haven’t already) may wish however to consider adopting this “policy 3” approach and the existence of this new guidance may put pressure on them to do so. Equally this may prompt Wales to consider introducing a district licensing scheme (GCN are not as common in Scotland and so this is unlikely to occur there).
Interestingly the guidance here states that it would be possible to base such a derogation on the reasons set out in Article 16(1)(a) (in the interests of protecting wild fauna and flora and conserving natural habitats) or (c) (for imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment), stating that the wording of these provisions “can be interpreted to also allow for a derogation from the strict protection regime for a protected species for its own benefit” (pg 72). This is a little novel. In general the regulators in the UK have expected GCN licence applications, which ultimately have as their aim the delivery of development, to be made on the basis of the IROPI need test, not on the basis of the conservation need test.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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