Opinion of Advocate General Kokott of September 18, 2025, C-131/24, Virus I
On September 18, 2025, Advocate General Kokott delivered her Opinion in a case concerning the construction of a national road in Lower Austria, C-131/24, Virus I. The case originated from a 2019 permit issued by the Lower Austrian provincial government for a road construction project in an area where, among other species, the strictly protected middle spotted woodpecker is found. In order to mitigate the impact of the road construction project, the permit provided for CEF measures such as construction time restrictions outside sensitive breeding seasons and the improvement of 6.6 hectares of old tree population as replacement habitat. Environmental organizations, including the VIRUS association, considered these measures to be insufficient. The Federal Administrative Court in Vienna finally referred questions to the ECJ that focused on the scope of bird protection: Is there already a prohibited disturbance if individual birds are affected – even if compensatory measures secure the overall population? And is an expert prognosis on the effectiveness of the measures sufficient, or must there be reliable scientific evidence?
ECJ of August 1, 2025, C‑784/23, Voore Mets
In its decision of August 1, 2025, C‑784/23, Voore Mets, the ECJ had to deal with the question of whether and under what conditions logging during the breeding and rearing season of wild birds is compatible with EU law. The case arose from proceedings in Estonia, where forestry companies carried out felling operations in which either all or only selected trees on a plot were removed. The Estonian Environmental Board prohibited these activities for the duration of the breeding season. The companies considered this to be a disproportionate restriction of their freedom of economic activity and their property rights, as their logging operations were not aimed at killing or disturbing birds.
Regarding the exemption under species protection law:
Birds Directive
Legally, both cases revolve around Article 5 of the Birds Directive. While its lit a and b (killing birds and destroying nests or eggs) contain absolute prohibitions, lit d of the Birds Directive is more nuanced. Intentional disturbance is only prohibited if it significantly impairs the objectives of the directive, i.e., endangers the population of a species. Disturbance is covered, but compensatory measures (CEF measures) must also be taken into account in the assessment if they are effective and closely related in terms of location. The decisive factor is not the fate of each individual, but the safeguarding of a sufficient population. Absolute scientific certainty is not required, but rather a well-founded expert assessment based on the best available data and research results. Killing and destroying nests or eggs is always prohibited, but in the case of disturbances to individual specimens, a population-related assessment is possible. Therefore, not every disturbance triggers a prohibition.
FFH Directive
However, the legal considerations regarding intentional disturbance under the Birds Directive cannot be applied 1:1 to the FFH Directive. Article 12 of the FFH Directive stipulates that any intentional disturbance of these species, particularly during the breeding, rearing, wintering, and migration periods, is prohibited. It cannot therefore be inferred from the case law of the ECJ that CEF measures prevent the triggering of the prohibited acts under Article 12 of the Habitats Directive.
However, the Austrian case law of the Administrative Court must be taken into account here. In its decision of 18.12.2012, 2011/07/0190, that if the ecological function of the breeding and resting places affected by the intervention continues to be fulfilled in a spatial context, the prohibited act cannot be realized. The Administrative Court confirmed this in its decision of October 15, 2020, Ro 2019/04/0021, Rz 512: If several such sites are available to an individual and remain available, the destruction of one of these sites does not destroy its function if the function is performed by other (already existing or to be created) sites. CEF measures therefore avoid the scope of Article 12 of the Habitats Directive if the interventions are compensated for by other replacement or compensation measures directly related to the project and the undesirable effect on the distribution and habitat of the species concerned does not occur. In this case, no species protection permit is required.
Opinion of Advocate General Kokott of September 18, 2025, C-131/24, Virus I