27/03/2026
by Dr Raphael Weyland, EU nature expert and lawyer
On 26 February, the Court of Justice of the European Union delivered its ruling in an Austrian case that focuses on how the EU’s Birds Directive protects species in practice.
The judgment reveals the Directive’s built-in flexibility, showing that it can respond to challenges without undermining its core conservation goals. At a time when legislative revisions are being considered through the Omnibus process, this ruling sends a clear signal: the existing framework is fit for purpose and does not require adjusting.
It is therefore a good example of just how flexible EU environmental law already is today, contrary to what is often claimed by business and conservative politics. And that, for this very reason, there is no need whatsoever for the EU institutions to deregulate EU environmental law. That the sheer ‘Omnibus mania’ currently has the opposite effect to legal and planning certainty and thus does not contribute to speeding up administrative procedures either.
A few details about the case and EU’s species protection regime
The strict species protection regime is one of the two core pillars of the EU’s Birds and the Habitats Directives (aka “the Nature Directives”). For species listed in the corresponding Annexes of the Directives as strictly protected, the regime prohibits (e.g. in Art. 5 Birds Directive and Art. 12 Habitats Directive) different actions. Whilst the prohibition on the deliberate killing and capture of these animals is clear, the guidelines also stipulate that disturbing protected species is prohibited.
As this ban can come into effect more quickly in everyday practice, its interpretation is important. This is precisely where the Court’s ruling comes in. The judges make it clear that there is no deliberate disturbance where mitigation measures (of the project) make it possible to prevent any significant effect contrary to the directive’s objectives of maintaining or restoring the protected species to a sufficient population level.
In doing so, the Court a) departs from the strict specimen focus of the prohibition on killing (solely in relation to the prohibition on causing harm), already at the level of offence (and not only at derogation level). It b) furthermore acknowledges that measures may be considered if effective to mitigate the impact.
The Commission proposal for a Regulation on speeding up Environmental Assessments
What’s the link now between the ruling and the proposed Regulation from the Environmental Omnibus?
The answer is quite obvious: Art. 8 paragraph 1 of the proposed Regulation reads as follows: When […] the construction, operation or decommissioning of projects result in the occasional killing or disturbance of birds protected under Directive 2009/147/EC or other species protected under Directive 92/43/EEC, such killing or disturbance of protected species shall not be considered to be deliberate within the meaning of Article 5 […], provided that the plan or project has adopted appropriate and proportionate mitigation measures and considering the best available technologies to avoid such killing and to prevent disturbance.
The Court’s interpretation of the given legislative text of the EU’s Birds Directive closely resembles that of the proposed Omnibus Regulation, at least as regards the prohibition on disturbance. Not every conservationist at first glance might like this flexible interpretation of the Court. However, it seems to me that this interpretation – provided that the population status and the effectiveness of the protective measures are safeguarded in practice – serves as proof that the Directives are not outdated but fit for purpose.
The EU’s nature legislation offers flexibility and is urgently needed
But it’s not only the species protection regime that offers certain flexibility. Also, the second main pillar of the Nature Directives, the Natura 2000 site protection regime, already “de lege lata” provides for wide-ranging exemptions for projects that are in the overriding public interest. In the context of assessing such derogations, courts have, for example, given greater weight to Airbus’s economic interests in extending a runway and accepted the destruction of the valuable “Mühleberger Loch” nature reserve near Hamburg.
Similar derogations can be granted under the protection regime of the EU’s Water Framework Directive, provided that the overarching objective of the Directive is not at risk. I also want to stress more generally that just because EU legislation is a little older does not mean that its objectives are outdated; even though often overlooked in the current frenzy of deregulation, they remain valid. This is understandably the case, for example, with the EU’s Nitrates Directive.
I furthermore want to highlight another point often ignored by today’s governing politicians: Whilst the legislative changes that have now been announced and have already come into effect do indeed abolish many substantial standards, they often fail to speed up the process. Naturally, following these changes, there is a lack of legal certainty and corresponding clarification from the courts; regulatory regimes overlap, and planners and public officials are left feeling uncertain.
Final plea
I therefore urge the European Commission and the European co-legislators not to focus solely on competitiveness at the expense of the environment in future. The EU is much more than that, as set out in its treaties: citizens are entitled to protection of their natural resources, and the economy cannot function without a resilient environment!