Judgment;Summary — ECLI:EU:C:2020:517
Date: 2020-07-02
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Austria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
21 June 2019 
Referring court: 
Verwaltungsgericht Wien (Austria) 
Date of the decision to refer: 
12 June 2019 
Applicant: 
IE 
Defendant: 
Magistrat der Stadt Wien (City Council of Vienna, Austria) 
  
Subject matter of the case in the main proceedings 
Construction project — Nature conservation — Breeding sites and resting 
places — Interference, deterioration or destruction 
Subject matter and legal basis of the reference 
Interpretation of Directive 92/43/EEC (‘the Habitats Directive’), Article 267 
TFEU 
Questions referred 
1. Is the term ‘resting place’ within the meaning of Article [12(1)(d)] of the 
Habitats Directive to be interpreted as also including former resting places 
that have since been abandoned?  
If the answer to that question is in the affirmative: 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-477/19 
 
2  
Is every former resting place that has since been abandoned a ‘resting place’ 
within the meaning of Article [12(1)(d)] of the Habitats Directive?  
If the answer to that question is in the negative: 
Which factors determine whether a former resting place that has since been 
abandoned is a ‘resting place’ within the meaning of Article [12(1)(d)] of the 
Habitats Directive?  
2. Which factors determine whether a particular act or omission constitutes 
interference with a ‘resting place’ within the meaning of Article [12(1)(d)] 
of the Habitats Directive?  
3. Which factors determine whether a particular act or omission constitutes 
such serious interference with a ‘resting place’, within the meaning of 
Article [12(1)(d)] of the Habitats Directive, that ‘deterioration’, within the 
meaning of that provision, of that ‘resting place’ is to be assumed?  
4. Which factors determine whether a particular act or omission constitutes 
such serious interference with a ‘resting place’, within the meaning of 
Article [12(1)(d)] of the Habitats Directive, that ‘destruction’, within the 
meaning of that provision, of that ‘resting place’ is to be assumed?  
5. Is the term ‘breeding site’, within the meaning of Article [12(1)(d)] of the 
Habitats Directive, to be interpreted as covering, first, only the precise 
identifiable location where regular mating in the strict sense or limited acts 
directly connected with reproduction (such as spawning) take place, and, 
second, in addition, all precisely identifiable locations essential for the 
development of young, such as nesting sites or certain parts of plants 
necessary for the larval or pupal stages? 
If the answer to that question is in the negative: 
How should the term ‘breeding site’ within the meaning of Article [12(1)(d)] 
of the Habitats Directive be understood, and how is a ‘breeding site’ to be 
differentiated spatially from other locations? 
6. Which factors determine whether a particular act or omission constitutes 
interference with a ‘breeding site’ within the meaning of Article [12(1)(d)] 
of the Habitats Directive?  
7. Which factors determine whether a particular act or omission constitutes 
such serious interference with a ‘breeding site’, within the meaning of 
Article [12(1)(d)] of the Habitats Directive, that ‘deterioration’, within the 
meaning of that provision, of that ‘breeding site’ is to be assumed?  
8. Which factors determine whether a particular act or omission constitutes 
such serious interference with a ‘breeding site’, within the meaning of 
MAGISTRAT DER STADT WIEN  
 
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Article [12(1)(d)] of the Habitats Directive, that ‘destruction’, within the 
meaning of that provision, of that ‘breeding site’ is to be assumed?  
Provisions of EU law cited 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural 
habitats and of wild fauna and flora (‘the Habitats Directive’), Articles 2, 12, 16 
and 23 and Annex IV 
National legislation cited 
Wiener Naturschutzgesetz (Vienna Law on Nature Conservation), Paragraphs 4, 5, 
7, 9, 10 and 49 and Annex 
Brief summary of the facts and procedure 
1 The Verwaltungsgericht Wien (Administrative Court, Vienna, Austria) is hearing 
an appeal against a financial penalty imposed by an administrative penal authority. 
2 The applicant is an employee of a property developer, that is to say, of a company 
tasked with planning and organising construction work through third party 
companies. Due to his particularly senior position in the company, the applicant is 
to be held criminally liable for any infringements by that company of the 
provisions of the Vienna Law on Nature Conservation if he is unable to 
demonstrate satisfactorily that he did everything in his capacity to prevent the 
infringements. 
3 The applicant is accused of the destruction or deterioration of a resting place 
and/or breeding site of field hamsters, contrary to Paragraph 10(3).4 of the Vienna 
Law on Nature Conservation. That provision transposes Article 12(1)(d) of the 
Habitats Directive. The terms ‘resting place’, ‘breeding site’, ‘deterioration’ and 
‘destruction’ in the Vienna Law on Nature Conservation therefore have the same 
meaning as the corresponding terms in the Habitats Directive. The interpretation 
of those terms of Article 12(1)(d) of the Habitats Directive will therefore 
predetermine the outcome of the main proceedings. 
Principal arguments of the parties in the main proceedings 
4 The applicant is accused of being responsible for the property developer having 
appointed a construction company to carry out works that caused destruction or 
deterioration of a resting place and/or breeding site of field hamsters, thereby 
infringing the prohibition provision set out in Paragraph 10(3).4 of the Vienna 
Law on Nature Conservation. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-477/19 
 
4  
5 The applicant disputes that a resting place and/or breeding site of field hamsters 
has been destroyed or deteriorated.  
Brief summary of the basis for the reference 
6 Clarification is sought on how to interpret in particular the terms ‘resting place’, 
‘breeding site’, ‘deterioration’ and ‘destruction’ in Article 12(1)(d) of the Habitats 
Directive. 
Resting place 
7 The resting place in the present case is the hamster burrow. The issue is whether it 
is necessary that the resting place is actively being used as such at the time of the 
destruction or deterioration, or whether it is sufficient that it is an abandoned 
resting place with a high likelihood of being reinhabited.  
8 The referring court considers that the term resting place should be interpreted 
broadly so that any abandoned resting place (independently of the likelihood of it 
being reinhabited) is also to be classified as a resting place within the meaning of 
Article [12(1)(d)] of the Habitats Directive. This is to ensure that the competent 
authority is alerted before the destruction of such a resting place.  
Breeding site 
9 The issue is whether this term covers only the location of the actual reproductive 
activity or whether — in accordance with the European Commission’s 
understanding — it includes the place of mating and birth as well as unused 
breeding sites. As regards the place of mating, it is then unclear as to whether that 
is also understood to cover the area of courtship.  
10 The referring court rejects the Commission’s broad interpretation of the term, as it 
would give rise to a restriction on activity that is too wide. Accordingly, a 
breeding site is understood to mean only a spatially delimited area that is either 
associated only with reproductive activity in the strict sense, or, in addition, also 
includes sites that are directly necessary for the development of young. 
Deterioration 
11 One of the issues which arises is the distinction between interference and 
deterioration. It is necessary to determine at what point interference becomes so 
serious as to constitute deterioration. However, it is also necessary to clarify 
whether a failure to act can fulfil the criteria for deterioration or destruction. 
12 Having regard to the objective of Article 2 of the Habitats Directive, the referring 
court considers that deterioration of a resting place or breeding site is to be 
assumed if the aim of ‘maintenance and restoration’ of the strictly protected 
MAGISTRAT DER STADT WIEN  
 
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animal species — thus, in the present case, the maintenance of the animals which 
(may potentially) use that resting place or breeding site — is undermined to a 
significant extent by the particular act or omission.  
13 It follows that any act or omission which seriously endangers the survival of an 
animal belonging to a protected species or significantly shortens its lifespan must 
be classified as deterioration of a resting place.  
14 Accordingly, any act or omission which reduces the reproductive success of an 
animal belonging to a protected species to a demonstrably significant extent must 
be classified as deterioration of a breeding site.  
Destruction 
15 In particular, it is necessary to clarify the distinction between deterioration and 
destruction.  
16 The referring court considers that destruction of a resting place or breeding site is 
to be assumed if the result of an act or omission is that the resting place or 
breeding site will in the future no longer be used as such (or cannot be used as 
such).