On Thursday 26 February, the Court of Justice of the EU clarified the conditions with which a road project must comply in order to ensure the protection of wild birds (Case C-131/24).
Environmental associations challenged, before the Austrian Federal Administrative Court, the authorisation to build a 1.69-kilometre dual carriageway, deeming that the project contravenes the Birds Directive, which aims to protect wild species.
The Austrian Federal Administrative Court asked the CJEU to clarify the scope of the Directive’s prohibition on intentionally causing significant disturbance to birds.
According to the CJEU, while a road project may fall within the scope of this prohibition, it only covers disturbance that has a significant effect on the estimated sufficient level of bird populations, and not on individual birds, unless the population of a given species is so small that disturbance of individual birds may jeopardise the conservation of the species.
In addition, there is no intentional disturbance when accompanying measures prevent any significant effect contrary to the objectives of maintaining or restoring the population of the species concerned to a sufficient level. The measures planned as part of the project in question must therefore be taken into account when assessing whether the prohibition in question is an obstacle to it.
According to the CJEU, the effectiveness of the measures can be proven by a reasoned assessment by a judicial expert, based on the most reliable scientific data available and the most recent results of international research, but scientific documentation attesting to the successful implementation of these measures cannot be required. (Original version in French by Camille-Cerise Gessant)