On 31 March, the EU Commission published the “Guidance on the protection of bird species under the Birds Directive” clarifying the implementation of Articles 5 and 9 of the Birds Directive.

The document is available here: https://environment.ec.europa.eu/publications/guidance-protection-bird-species-under-birds-directive_en

The guidelines document clarifies in particular the notion of “deliberate character”, which no longer covers only intentional acts, but also situations where an operator “accepts the possibility of causing harm” to birds. This interpretation, stemming from the case law of the Court of Justice of the European Union, means that an activity may be considered “deliberate”, and therefore prohibited, “even if it was not [the operator’s] intention to cause damage.”

With regard to preventive measures, the Commission adopts a more pragmatic approach: if a project incorporates, from the design stage, effective measures to avoid harm (such as adapting the timing of works to avoid breeding periods), the residual impacts may be considered non-deliberate.

The guidelines also specify that the complete and effective protection of wild birds requires comprehensive protection in terms of geographic scope. This means that Article 5 applies across the entire geographical scope of the Birds Directive, regardless of where birds may rest or pass through, and irrespective of whether the area lies in or outside the Natura 2000 network.

In addition, the Commission document, which is non-binding, further frames the conditions for derogations, based on three requirements: the absence of a satisfactory alternative, the existence of a valid justification, and compliance with technical requirements (in particular, the assessment of impacts on populations).