# C_2019288EN.01003401.xml

| 26.8.2019 | EN | Official Journal of the European Union | C 288/34 |
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26.8.2019

EN

Official Journal of the European Union

C 288/34

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Request for a preliminary ruling from the Vänersborgs tingsrätt, mark- och miljödomstolen (Sweden) lodged on 18 June 2019 — Naturskyddsföreningen i Härryda, Göteborgs Ornitologiska Förening

(Case C-474/19)

(2019/C 288/41)

Language of the case: Swedish

Referring court

Vänersborgs tingsrätt, mark- och miljödomstolen

Parties to the main proceedings

Applicant: Naturskyddsföreningen i Härryda, Göteborgs Ornitologiska Förening

Defendants: Länsstyrelsen i Västra Götalands län, U.T.B.

Questions referred

| 1. | Is Article 5 of Directive 2009/147/EC (1) of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds to be interpreted as precluding a national practice whereby the prohibition covers only those species which were listed in Annex 1 to Directive 2009/147, or are at some level at risk, or are suffering a long-term decline in population? |
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1.

Is Article 5 of Directive 2009/147/EC (1) of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds to be interpreted as precluding a national practice whereby the prohibition covers only those species which were listed in Annex 1 to Directive 2009/147, or are at some level at risk, or are suffering a long-term decline in population?

| 2. | Are the terms ‘intentional killing/disruption/destruction’ in Article 5(a)-(d) of Directive 2009/147 and of Article 12(a)-(c) of Council Directive 92/43/EEC (2) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora to be interpreted as precluding a national practice whereby, should the purpose of the measures be manifestly different from the killing or disturbance of species (for example, forestry measures or land development), there must be a risk of adverse effects on the conservation status of the species caused by the measures to apply the prohibitions? |
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2.

Are the terms ‘intentional killing/disruption/destruction’ in Article 5(a)-(d) of Directive 2009/147 and of Article 12(a)-(c) of Council Directive 92/43/EEC (2) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora to be interpreted as precluding a national practice whereby, should the purpose of the measures be manifestly different from the killing or disturbance of species (for example, forestry measures or land development), there must be a risk of adverse effects on the conservation status of the species caused by the measures to apply the prohibitions?

| 3. | If the answer to any part of the second question is that harm at a level other than the individual level is to be assessed in order for the prohibition to apply, is the assessment therefore to be carried out on any of the following scales or at any of these levels:






  a. | a certain geographically restricted part of the population as defined under (a), for example within the boundaries of the region, the Member State or the European Union; |
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3.

If the answer to any part of the second question is that harm at a level other than the individual level is to be assessed in order for the prohibition to apply, is the assessment therefore to be carried out on any of the following scales or at any of these levels:

a.

a certain geographically restricted part of the population as defined under (a), for example within the boundaries of the region, the Member State or the European Union;

| b. | the local population concerned (biologically isolated from other populations of the species); |
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b.

the local population concerned (biologically isolated from other populations of the species);

| c. | the meta-population concerned; |
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c.

the meta-population concerned;

| d. | the whole population of the species within the relevant biogeographical regional section of the species’ range? |
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d.

the whole population of the species within the relevant biogeographical regional section of the species’ range?

| 4. | Is the expression ‘deterioration or destruction’ as regards the animals’ breeding range in Article 12(d) of Directive 92/43 to be interpreted as excluding a national practice which means that, in spite of precautionary measures, the continuous ecological functionality (CEF) of the habitat of the species concerned is lost, whether by harm, destruction or deterioration, directly or indirectly, individually or cumulatively, so that the prohibition is applied only if the conservation status of the species concerned, at one of the levels referred to in question 3, is likely to deteriorate? |
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4.

Is the expression ‘deterioration or destruction’ as regards the animals’ breeding range in Article 12(d) of Directive 92/43 to be interpreted as excluding a national practice which means that, in spite of precautionary measures, the continuous ecological functionality (CEF) of the habitat of the species concerned is lost, whether by harm, destruction or deterioration, directly or indirectly, individually or cumulatively, so that the prohibition is applied only if the conservation status of the species concerned, at one of the levels referred to in question 3, is likely to deteriorate?

| 5. | If the answer to the fourth question is negative, that is to say that harm of a level other than one leading to the habitat in the individual area being assessed in order for the prohibition to be applied, is the assessment thus to be made on any of the following scales or at any of these levels:






  a. | a certain geographically restricted part of the population as defined under (a), for example within the boundaries of the region, the Member State or the European Union; |
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5.

If the answer to the fourth question is negative, that is to say that harm of a level other than one leading to the habitat in the individual area being assessed in order for the prohibition to be applied, is the assessment thus to be made on any of the following scales or at any of these levels:

a.

a certain geographically restricted part of the population as defined under (a), for example within the boundaries of the region, the Member State or the European Union;

| b. | the local population concerned (biologically isolated from other populations of the species); |
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b.

the local population concerned (biologically isolated from other populations of the species);

| c. | the meta-population concerned; |
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c.

the meta-population concerned;

| d. | the whole population of the species within the relevant biogeographical regional section of the species’ range?
  Questions 2 and 4 posed by the mark- och miljödomstolen (Land and Environment Court, Sweden) include the question of whether the strict protection in the directives ceases to be applicable to species for which the directive’s objective (favourable conservation status) has been achieved. |
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d.

the whole population of the species within the relevant biogeographical regional section of the species’ range?

Questions 2 and 4 posed by the mark- och miljödomstolen (Land and Environment Court, Sweden) include the question of whether the strict protection in the directives ceases to be applicable to species for which the directive’s objective (favourable conservation status) has been achieved.

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(1)  OJ 2010, L 20, p. 7.

(2)  OJ 1992, L 206, p. 7.

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