Opinion of the Advocate General — ECLI:EU:C:2025:67
Date: 2025-02-06
Language of the case: Estonian
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary;Reference for a preliminary ruling - inadmissible
Origin: Estonia

Summary C-784/23 – 1 
Case C-784/23 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged: 
19 December 2023 
Referring court: 
Riigikohus (Estonia) 
Date of the decision to refer: 
19 December 2023 
Applicants and appellants: 
OÜ Voore Mets 
AS Lemeks Põlva 
Defendant and respondent: 
Keskkonnaamet (Environmental Board) 
  
Subject matter of the dispute in the main proceedings 
An action brought by OÜ Voore Mets seeking compensation for damage resulting 
from the fact that felling operations were suspended by order of the 
Keskkonnaamet and an action brought by AS Lemeks Põlva seeking a declaration 
that the Keskkonnaamet’s orders were unlawful. 
Subject matter and legal basis of the reference 
The request for a preliminary ruling under the third paragraph of Article 267 
TFEU seeks an interpretation of Article 2, Article 5(a), (b) and (d) and the third 
indent of Article 9(1)(a) of Directive 2009/147/EC of the European Parliament 
and of the Council of 30 November 2009 on the conservation of wild birds (OJ 
2014 L 20, p. 7). 
EN 
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Questions referred for a preliminary ruling 
1. Can Article 5(a), (b) and (d) of Directive 2009/147/EC of the European 
Parliament and of the Council of 30 November 2009 on the conservation of 
wild birds be interpreted as meaning that the prohibitions laid down in it 
apply only in so far as is necessary to maintain the population of the species 
concerned at a level which corresponds in particular to ecological, scientific 
and cultural requirements, while taking account of economic and 
recreational requirements, within the meaning of Article 2, provided that the 
killing or disturbance of birds or the destruction of, or damage to, their nests 
or eggs is not the aim of the action? 
2. Must Article 5(a), (b) and (d) of Directive 2009/147, read in conjunction 
with Article 2 of that directive, be interpreted as meaning that the actions 
prohibited under those provisions during the breeding season of birds are 
deliberate, inter alia, where it can be assumed, on the basis of scientific data 
and observation of individual birds, that approximately ten pairs of birds per 
hectare are nesting in a forest which is to be completely cleared (clear-
cutting) without it having been established that individuals of bird species 
which are in an unfavourable condition are nesting in the felling area? 
3. Must Article 5(a), (b) and (d) of Directive 2009/147, read in conjunction 
with Article 2 of that directive, be interpreted as meaning that the actions 
prohibited under those provisions during the breeding season of birds are 
deliberate, inter alia, where it can be assumed, on the basis of scientific data 
and observation of individual birds, that approximately ten pairs of birds per 
hectare are nesting in a forest where only some of the trees are to be felled 
(shelterwood cutting), without there being any reason to believe that 
individuals of bird species which are in an unfavourable condition are 
nesting in the felling area? 
4. Can the third indent of Article 9(1)(a) of Directive 2009/147, read in 
conjunction with Article 2 of that directive, be interpreted as meaning that a 
Member State’s legislation is compatible with it which permits derogations 
from the prohibitions governed by Article 5(a), (b) and (d) of that directive 
so that clear-cutting can be carried out during the breeding and rearing 
season of birds in order to prevent serious damage to forest as property? 
5. Can the third indent of Article 9(1)(a) of Directive 2009/147, read in 
conjunction with Article 2 of that directive, be interpreted as meaning that a 
Member State’s legislation is compatible with it which permits derogations 
from the prohibitions governed by Article 5(a), (b) and (d) of that directive 
so that shelterwood cutting can be carried out during the breeding and 
rearing season of birds in order to prevent serious damage to forest as 
property? 
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6. If Directive 2009/147 does not permit clear-cutting during the breeding and 
rearing season of birds which is intended to prevent serious damage to 
forests as property, is such a regime compatible with Articles 16 and 17 of 
the Charter of Fundamental Rights of the European Union and does it apply 
even if the felling does not cause harm to bird species which are in an 
unfavourable condition? 
7. If Directive 2009/147 does not permit shelterwood cutting during the 
breeding and rearing season of birds which is intended to prevent serious 
damage to forests as property, is such a regime compatible with Articles 16 
and 17 of the Charter of Fundamental Rights of the European Union and 
does it apply even if the felling does not cause harm to bird species which 
are in an unfavourable condition? 
Provisions of international law relied on 
Convention on the Conservation of European Wildlife and Natural Habitats signed 
in Bern on 19 September 1979 (OJ 1982 L 38, p. 3), Article 6 and Article 9(1) 
Provisions of EU law relied on 
Directive 2009/147/EC of the European Parliament and of the Council of 
30 November 2009 on the conservation of wild birds (OJ 2014 L 20, p. 7; ‘the 
Birds Directive’), Article 2, Article 5(a), (b) and (d) and the third indent of 
Article 9(1)(a) 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural 
habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the Habitats 
Directive’), Article 12 
Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 16 
and 17 
EU case-law relied on 
Judgment of 4 March 2021, Föreningen Skydda Skogen (C-473/19 and C-474/19, 
EU:C:2021:166) 
Opinion of Advocate General Kokott in Joined Cases Föreningen Skydda Skogen 
and Others (C-473/19 and C-474/19, EU:C:2020:699) 
Judgment of 18 May 2006, Commission v Spain (C-221/04, EU:C:2006:329) 
Judgment of 2 March 2023, Commission v Poland (Forest management and good 
practice) (C-432/21, EU:C:2023:139) 
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Judgment of 26 January 2012, Commission v Poland (C-132/11, not published, 
EU:C:2012:44) 
Provisions of national law relied on 
Loomakaitseseadus (Law on animal protection; ‘the LoKS’), Paragraph 7(1)(3) 
Looduskaitseseadus (Law on nature conservation; ‘the LKS’), Paragraph 55(3)(4) 
and Paragraph 55(61) 
Keskkonnaseadustiku üldosa seadus (General Part of the Environmental Code; 
‘the KeÜS’), Paragraphs 4, 5 and 11(1) 
Korrakaitseseadus (Law on law enforcement; ‘the KorS’), Paragraph 5 
Succinct presentation of the facts and procedure 
1 In the first case in the main proceedings, OÜ Voore Mets (‘Voore Mets’) carried 
out felling operations in spring 2021 on a plot of land belonging to it in 
accordance with a registered forestry declaration. 
2 By order of 17 May 2021, the Keskkonnaamet, in accordance with 
Paragraph 7(1)(3) of the LoKS, ordered that the felling work on that plot of land 
be suspended until 21 May 2021 to protect the nesting of birds. The order states 
that it is scientifically proven that there is at least one pair of birds per hectare 
breeding in every forest, for which reason continuing the felling operation would 
entail a real danger of disturbing the nesting and rearing of birds and destroying or 
damaging nests. 
3 By order of 21 May 2021, the Keskkonnaamet ordered that felling on the plot of 
land concerned be suspended until 31 July 2021. It pointed out that, during a site 
inspection on 21 May 2021, birds had been observed on the plot of land which 
were highly likely to be nesting in the area, namely wood warbler, wren, 
blackbird, song thrush and chaffinch. In addition, two probable broods had been 
found: a nuthatch nest had been discovered in a woodpecker’s hole, and the 
activity of a pair of bullfinches had been observed. The Keskkonnaamet stated 
that the plot of land concerned contained numerous hollow trees in which birds 
could be nesting, although they were not observed to be doing so during the site 
inspection. The felling operation was suspended until 31 July in order to ensure 
the protection of late-breeding birds. 
4 Voore Mets brought an action before the Tallinna Halduskohus (Administrative 
Court, Tallinn) seeking compensation in the amount of EUR 2 403.52 for the 
damage resulting from the suspension of felling work on the Keskkonnaamet’s 
orders of 17 and 21 May 2021. It submitted that the damage consisted of the costs 
of transporting the forestry machinery and the loss of profit resulting from the 
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interruption of work. By judgment of 18 January 2022, the Tallinna Halduskohus 
dismissed the action. The judgment established that the order of 17 May 2021 was 
lawful and the order of 21 May 2021 was unlawful because of disproportionate 
restrictions. The court held that the applicant’s alleged loss of profit could have 
been incurred only as a result of the order of 17 May 2021. 
5 Voore Mets lodged an appeal seeking to have the judgment of the Halduskohus 
set aside and the action upheld. By judgment of 11 May 2022, the Tallinna 
Ringkonnakohus (Court of Appeal, Tallinn) dismissed the appeal and upheld the 
judgment of the Halduskohus. 
6 In the second case in the main proceedings, AS Lemeks Põlva (‘Lemeks Põlva’) 
purchased from the owner of a plot of woodland the right to fell the forest 
growing there. The Keskkonnaamet confirmed the forestry declarations of 4 May 
2021, authorising clear-cutting in zone 1 and shelterwood cutting in zones 2, 4, 5 
and 6 on that plot of land. 
7 By order of 21 May 2021, the Keskkonnaamet ordered that the felling of trees on 
the plot of land concerned be temporarily suspended until 26 May 2021 in order to 
protect the nesting of birds. The order states that there is at least one pair of birds 
per hectare breeding in every forest. It indicates that continuing the felling would 
entail a real danger of disturbing the breeding and rearing of birds and destroying 
or damaging nests. 
8 By order of 26 May 2021, the Keskkonnaamet ordered that no timber be felled on 
the plot of land concerned until 15 July 2021. The order states that an observation 
session established the certain presence of great spotted woodpeckers and 
chaffinches breeding, the probable presence of great tits and jays breeding and the 
possible presence of chiffchaffs, wood warblers, garden warblers, wrens, 
dunnocks and robins breeding. 
9 Lemeks Põlva brought actions before the Tartu Halduskohus (Administrative 
Court, Tartu) seeking a declaration that the Keskkonnaamet’s orders of 21 and 
26 May 2021 were unlawful. By judgment of 18 May 2022, the Tartu 
Halduskohus upheld the actions in part and found the Keskkonnaamet’s order of 
27 May 2021 to be unlawful. 
10 By its appeal, the Keskkonnaamet sought to have the judgment of the 
Halduskohus set aside in so far as the actions had been upheld. By its appeal, 
Lemeks Põlva sought to have the judgment of the Halduskohus set aside in so far 
as the actions had been dismissed. By judgment of 23 March 2023, the Tartu 
Ringkonnakohus (Court of Appeal, Tartu) dismissed the appeal lodged by Lemeks 
Põlva, upheld the appeal lodged by the Keskkonnaamet and set aside the judgment 
of the Halduskohus in so far as the action had been upheld. 
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The essential arguments of the parties in the main proceedings 
11 By its appeal on a point of law, Voore Mets seeks to have the judgment of the 
Ringkonnakohus set aside, the action upheld and the respondent ordered to pay it 
compensation in the amount of EUR 2 403.52 or, in the alternative, an amount 
fixed by the court. 
12 It submits that the forestry declaration confers the right to fell timber within a 
period of 12 months but the order to suspend felling infringed that right. It claims 
to have carried out the felling in the knowledge that doing so would not cause 
disproportionate harm to birds. Previous practice, it submits, has given rise to the 
legitimate expectation that felling during the breeding season would not be 
regarded as deliberate disturbance or destruction of nests. 
13 It argues that the purpose of Paragraph 55(61) of the LKS is not to establish a 
general and comprehensive prohibition against felling during the entire breeding 
season of birds. In order for Paragraph 7(1)(3) of the LoKS to apply, it submits, an 
objectively demonstrable danger would have to be identified. Voore Mets posits 
that there being at least one pair of birds per hectare was not a real and immediate 
danger. It argues that the Habitats and Birds Directives have different levels of 
protection: the Habitats Directive protects habitats and species which are at risk, 
whereas the Birds Directive protects all birds. Voore Mets submits that the Court 
of Justice of the European Union has not yet interpreted [the concept of] 
‘deliberateness’ within the meaning of the Birds Directive. 
14 It argues that the order was disproportionate because the felling affects only 0.2% 
of broods. It cites the owner’s obligation to reforest the woodland within 5 years. 
As a result of that obligation, it argues, the birds always have suitable forest 
available for nesting if forest has been felled in their old nesting site in the 
previous year. It submits that the Keskkonnaamet did not take account of 
economic and social aspects (Article 2 of the Birds Directive). 
15 In its appeal on a point of law, Lemeks Põlva seeks to have the judgment of the 
Tartu Ringkonnakohus set aside in its entirety, the judgment of the Tartu 
Halduskohus set aside in part and the actions upheld in their entirety or the case 
referred back to the Ringkonnakohus for re-examination. 
16 It submits that prohibiting felling for the sole reason that birds might be disturbed 
during the breeding season is not proportionate and is not in line with the 
objective of the Birds Directive. The Birds and Habitats Directives, it argues, have 
different objectives and levels of protection. It posits that the suspension of felling 
can only be ordered after broods of birds have been found. Lemeks Põlva submits 
that the respondent had found no broods of birds at all on the plot of land prior to 
the order of 21 May 2021. 
17 It argues that the Keskkonnaamet was regulating the prevention of disturbance of 
birds more strictly than or as strictly as for bird species in protection category 
I. The bird species identified, it submits, are neither particularly susceptible to 
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disturbance nor protected. Lemeks Põlva argues that the certain or probable 
identification of a bird’s nest does not authorise the respondent to impose 
restrictions on any scale it chooses. It submits that felling in early summer has not 
been scientifically proven to be the main and essential cause of the decline in the 
population of certain bird species. 
18 Voore Mets and Lemeks Põlva asked the Riigikohus (Supreme Court, Estonia) not 
to make a request to the Court of Justice for a preliminary ruling. In their view, the 
Opinion of the Advocate General in the Skydda Skogen case should be applied in 
the present case. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
19 The Administrative Chamber of the Riigikohus considers that resolving the 
present joined cases requires a request to be made for a preliminary ruling on the 
interpretation and review of the validity of the Birds Directive. 
20 Voore Mets intended to carry out clear-cutting in accordance with forestry 
declarations, that is to say, felling in which, in principle, all the trees on the forest 
plot are felled in the course of the year, with the exception of seed trees and 
reserve trees necessary to ensure diversity of flora and fauna. Lemeks Põlva also 
intended to carry out mainly clear-cutting, as well as shelterwood cutting in one 
zone. Shelterwood cutting is carried out to raise the value of the forest, regulate its 
density and composition, and enable the wood of trees which will fall in the near 
future to be used. Only some of the trees are felled, in a proportion corresponding 
to the quantity set by ordinance by the competent minister. 
21 Under Paragraph 7(1)(3) of the LoKS, the law enforcement authority has the right 
to halt forestry work for the reproduction period of wild animals. Under 
Paragraph 7(1)(3) of the LoKS, the suspension of felling operations can be 
ordered, inter alia, to uphold the prohibitions provided for in Paragraph 55(61) of 
the LKS, if the specific danger arises that the prohibitions will be violated. Under 
Paragraph 55(61)(1) of the LKS, deliberately destroying or damaging nests and 
eggs and removing nests are prohibited; under point (2) of the same subparagraph, 
deliberately disturbing birds is prohibited in particular during the breeding and 
rearing season. Paragraph 55(3)(4) and Paragraph 55(61) of the LKS permit the 
killing of individuals of species in protection categories II or III, including birds, 
as well as the disturbance of birds and, as an exception, damage to nests and eggs 
if that is necessary to avert damage to important agricultural crops, livestock, fish 
farms or other important assets. 
22 Paragraph 7(1)(3) of the LoKS and Paragraph 55(61) of the LKS incorporate, inter 
alia, Article 5(a), (b) and (d) of the Birds Directive. The dispute between the 
parties before the Riigikohus primarily concerns what circumstances must be 
identified for clear-cutting and shelterwood cutting to be covered by the 
prohibition laid down in Paragraph 55(61) of the LKS and the actions specified in 
that provision to be regarded as deliberate. There is also dispute as to what 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-784/23 
 
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evidence has to be provided of the birds nesting in the forest to be felled, how the 
danger to the birds and their nests and eggs is to be assessed and on what 
geographical and temporal scale restrictions are necessary to avert that danger. 
23 The Court of Justice has already ruled in respect of the Birds Directive that 
– the prohibitions provided for in Article 5 cover all wild bird species within the 
geographical scope of the Directive (Skydda Skogen, paragraph 33 et seq.); 
– the criteria on the basis of which the Member States can make exceptions to the 
prohibitions laid down by that directive must be set out in sufficiently clear and 
precise provisions of national law (Case C-192/11, Commission v Poland, 
paragraph 56); 
– all derogations from Article 5 made by the Member States must satisfy the 
conditions set out in Article 9, including the general condition that there must 
be no other satisfactory solution, as well as corresponding to the exceptions 
listed in Article 9(a) to (c) (C-432/21, paragraph 80 et seq.). 
24 In respect of the Habitats Directive, the main aims of which include the protection 
of endangered species, including bird species, and their habitats (sixth recital), the 
European Court of Justice has ruled that 
– the prohibitions listed in Article 12[(1)](a) to (c) can, in principle, apply to an 
activity, such as forestry work, the purpose of which is manifestly different 
from the capture or killing, disturbance of individuals of an animal species or 
the deliberate destruction or taking of eggs; 
– the implementation of the protection system laid down in those provisions is 
not subject to the condition that a given activity causes a risk of an adverse 
effect on the conservation status of the animal species concerned; 
– the condition as to ‘deliberateness’ is satisfied even if the author of the act only 
accepted the possibility of the consequences specified in the provisions (Skydda 
Skogen, paragraph 50 et seq.; C-221/04, Commission v Spain, paragraph 71). 
25 Given that the present case does not concern species listed in Annex IV(a) to the 
Habitats Directive, it is in accordance with the Birds Directive that the dispute 
must be resolved. Notwithstanding those rulings by the Court of Justice, questions 
have arisen in the present case to which the Birds Directive and the case-law of 
the Court of Justice do not provide clear answers. Although the wording of the 
prohibitions in the two directives transposes Article 6 of the Convention on the 
Conservation of European Wildlife and Natural Habitats signed in Bern on 
19 September 1979, the Riigikohus does not have sufficient certainty as to 
– whether ‘deliberateness’ within the meaning of Article 5 of the Birds Directive 
is to be interpreted in the same way as in Article 12 of the Habitats Directive; 
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– if ‘deliberateness’ within the meaning of Article 5 of the Birds Directive 
includes accepting the possibility of killing or disturbing birds or destroying or 
damaging their nests or eggs, what circumstances are sufficient to conclude that 
such acceptance has occurred; 
– whether the phrase ‘to prevent serious damage to forests’ in the third indent of 
Article 9(1)(a) of the Birds Directive permits derogations from the prohibitions 
in Article 5 to prevent serious damage within the forestry sector and whether 
such damage may consist in the loss or excessive reduction of revenue from 
felling. 
26 The lack of clarity on those questions in Articles 5 and 9 of the Birds Directive is 
indicated, inter alia, by the Opinion of the Advocate General in the Skydda Skogen 
case, which the Court did not expressly follow but which it also did not refute. 
The Advocate General indicates that the scope of the Birds Directive is broad, 
because it protects all wild birds including those which are not endangered. The 
purpose of the Birds Directive is not, she writes, to ensure strict protection – that 
is to say, protection of every individual. She points out that, under Article 2 of the 
Birds Directive, the population of bird species is to be maintained at a level, or 
adapted to a level, which corresponds in particular to ecological, scientific and 
cultural requirements, while taking account of economic and recreational 
requirements. At the same time, she finds, the conditions for derogations set out in 
Article 9 of the Birds Directive are formulated even more narrowly than in 
Article 12 of the Habitats Directive. Where the detriment to birds is not intended 
but only accepted as a possibility, the prohibitions under Article 5(a), (b) and (d) 
of the Birds Directive, for those reasons, in the view of the Advocate General, 
essentially apply only to the extent necessary to maintain the population of those 
species at a level which corresponds to the meaning of Article 2 (Opinion of the 
Advocate General, point 70 et seq.). 
27 Other Member States have provided for various exceptions to the prohibition 
against detriment to birds for the forestry sector – Poland being one example (see 
C-432/21), Germany being another (see Gesetz über Naturschutz und 
Landschaftspflege, Law on nature conservation and landscape management, 
Paragraph 45(7)). The Court of Justice has not taken a position on whether it 
accepts the Commission’s argument that the statements in the Skydda Skogen case 
on deliberateness apply to Article 5(b) and (d) of the Birds Directive (C-432/21, 
paragraph 33). 
28 In the view of the Riigikohus, there can be no reasonable doubt that clear-cutting 
which takes place during the breeding season of birds is more or less certain to 
cause the destruction of nests and eggs, the death of hatchlings and the disturbance 
of birds if there is reason to believe that birds are nesting in significant numbers 
on a forest plot. If a nesting tree is felled – unknowingly or knowingly – during 
clear-cutting, that inevitably leads to the destruction of the nest. Even if the 
nesting tree is preserved, the nesting birds are endangered not only by the 
disturbing noise but also by the loss of their previous habitat. In shelterwood 
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cutting, there is less danger of bird’s nests being destroyed and juvenile birds 
dying, because only some of the trees are selectively removed from the forest. 
29 Assessing the danger of detriment to birds is a prospective decision (see judgment 
of the Chamber No 3-17-1545/81, paragraphs 26 to 27), and that inevitably means 
that the probability of adverse consequences occurring has to be assessed. To 
implement the prohibitions set out in Paragraph 55(61) of the LKS, read in 
conjunction with the provisions in Paragraph 7(1)(3) of the LoKS, there is no need 
for absolute or almost absolute certainty. It is sufficient that there be a concrete 
danger – that is to say, a situation in which, on the basis of an objective 
assessment of the established circumstances, it can be considered sufficiently 
probable that the object of legal protection will be harmed in the near future (see 
Paragraph 5 of the KeÜS and Paragraph 5(2) of the KorS). To establish the 
danger, it is not necessary separately to prove the situation of bird’s nests by 
means of direct evidence. In accordance with the precautionary principle, 
conclusions may also be drawn indirectly in respect of broods, using general 
ornithological data and methods generally recognised in science. It is not 
unreasonable to conclude, on the basis of the type of forest and observation of 
some individuals, that broods are being reared during the breeding season of the 
birds, even if the forester did not notice birds at a given time during observation. 
30 In the statements of reasons for the first short-term orders (of 17 and 21 May 
2021), the Keskkonnaamet stated, on the basis of scientific data, that there was at 
least one pair of birds per hectare breeding in the forests of Estonia. Possible 
detriment to small numbers of birds which are not rare is an environmental risk 
which must be reduced by means of suitable preventive measures (Paragraphs 4 
and 11(1) of the KeÜS). In the Chamber’s preliminary assessment, one pair of 
birds per hectare does not exceed the threshold at which the person carrying out 
felling operations accepts the possibility of killing or disturbing birds or 
destroying or damaging their nests or eggs. If it becomes known in such a forest, 
before or during felling, that there is a nesting tree within the zone, under 
Paragraph 55(61) of the LKS, that tree must not be felled. Felling the rest of the 
forest means, at worst, the destruction of the odd nest with eggs or juvenile birds 
which has gone unnoticed. It is not the aim of the Birds Directive to preserve 
every single bird and every single nest. 
31 In the judicial proceedings, the Keskkonnaamet argued that, as a result of the type 
and age of the forest, the probable number of birds on the forest plot belonging to 
the appellants during the breeding season had been considerably higher than the 
minimum, at up to 8 to 10 pairs per hectare – that is to say, a total of 74 to 93 pairs 
on the plots at issue. That assumption, it submitted, was confirmed by the fact 
that, for example, probable bullfinch and nuthatch broods had been found in the 
Voore Mets felling area during the observation session of 21 May 2021. It 
submitted that the discovery of a pair of bullfinches and a nuthatch nest did not 
mean that there were no other birds nesting there. That was also indicated, it 
argued, by observation of birds on the same plot, though outside the felling area. 
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Certain or probable broods of several bird species were also discovered in the 
Lemeks Põlva forest. 
32 In the initial assessment of the Chamber, where those additional circumstances are 
in place, the possibility is accepted that birds will be killed and their nests and 
eggs destroyed as a result of clear-cutting during the breeding season. The 
Chamber does not share the view of Voore Mets that the prohibitions laid down in 
Article 5 of the Birds Directive can be enforced only if the Member State has first 
established that the species concerned are in a satisfactory condition in the light of 
Article 2 of that directive. The Court of Justice has ruled (Skydda Skogen, 
paragraph 36) that the application of the prohibitions referred to in Article 5 of the 
Birds Directive is in no way restricted to the species which are listed in Annex I to 
that directive, or which are at some level at risk or are suffering a long-term 
decline in population. Nevertheless, there is some uncertainty as to whether a 
felling operation can be considered deliberate killing, disturbance, destruction or 
damage within the meaning of Article 5 of the Birds Directive if there is no reason 
to believe that endangered birds are nesting in the felling area and it is not the 
purpose of the activity to kill or disturb birds or to destroy or damage their nests. 
The fact that all bird species must be covered by the protection system does not 
necessarily mean that all birds must be protected in the same way. Article 5 of the 
Birds Directive must be interpreted in accordance with its purpose – that is to say, 
on the basis of Article 2. Only the Court of Justice can resolve that problem in a 
binding manner. The concept of ‘deliberateness’ within the meaning of Article 5 
of the Birds Directive is autonomous. Its content is not determined by national 
law. 
33 If the felling operations at issue are regarded as deliberately killing, disturbing or 
causing detriment to the birds or damaging or destroying their nests, it must be 
determined in the present case whether Article 9 of the Birds Directive permits 
derogation from the prohibitions laid down in Article 5(a), (b) and (d). In the view 
of the Chamber, there are significant arguments for considering that, in the present 
case, an exception under the third indent of Article 9(1)(a) can be considered 
which would permit derogation from the above-mentioned prohibitions for the 
purposes of preventing serious damage within the forestry sector and that such 
damage may consist in the loss of revenue from a felling operation. 
34 If prohibitions against felling timber during the breeding season were to make it 
impossible for a long time to harvest timber either at all or in an economically 
viable manner, the situation could be one of serious damage to forests as an 
economic resource. To affirm the unlawfulness of the orders, the appellants 
argued, in essence, that they could incur such damage if it were not possible, for 
several successive years, to fell timber in the time the company required. In 
particular, they submitted, the value of the harvest-ready forest and the loss of 
revenue from its sale – including investments not yielding returns and the added 
economic value which results from shelterwood cutting – should be considered 
potential damage of that kind. Although the appellants are not claiming 
compensation for the value of the forest (Voore Mets is claiming compensation 
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only for the damage caused by the temporary suspension of the work), the 
possibility of such damage occurring is not irrelevant to the present case, as it 
illustrates the intensity of the interference in the appellants’ fundamental right to 
property and freedom to conduct a business and, depending on the interpretation 
of the third indent of Article 9(1)(a), may justify a derogation and, in summary, 
highlight the unlawfulness of the orders issued by the respondent. 
35 It can be assumed that the third indent of Article 9(1)(a) of the Birds Directive 
also refers to forest as an economic resource and the damage which occurs if it 
remains unutilised. That provision is based on the second indent of Article 9(1) of 
the Bern Convention, under which each Contracting Party to the convention may 
make exceptions from the prohibitions against causing detriment to species to 
prevent serious damage to ‘forests, […] and other forms of property’ (German: 
‘Wäldern, … und anderem Eigentum’; French: ‘aux forets, …et aux autres formes 
de propriété’). That rather indicates that damage to forest as property is also, in 
principle, considered as a reason for derogation in the directive. That approach 
also aligns with the endeavour, referred to in Article 2 of the directive, to balance 
the conflicting interests. The possibility of derogating for the protection of flora 
and fauna as natural assets is provided for in the fourth indent of Article 9(1)(a) of 
the Birds Directive. 
36 In light of the foregoing, if the third indent of Article 9(1)(a) of the Birds 
Directive is invoked, the foreseeable damage to the forester which justifies a 
derogation must be all the more severe the more endangered the bird species at 
issue, the higher the probability of the consequences for them and the greater the 
severity of those consequences. Under Article 9(1) of the Birds Directive, any 
derogation is subject to the condition that there be no other satisfactory solution. 
The satisfactory solution must not be purely theoretical. In view of the fact that 
economic requirements are mentioned in Article 2 of the Birds Directive, it can be 
assumed that the alternative solution must also be satisfactory in economic terms. 
Damage to forests as property must be borne by the forester if the felling 
operation must be prohibited to protect endangered bird species or the felling 
operation would jeopardise the aims of the directive for another reason. In 
contrast, if a felling operation does not jeopardise the aims of the directive, a 
derogation must rather be permitted if the alternatives do not make it possible to 
fell the forest in an economically viable manner. 
37 On the one hand, the appellants in the joined case have put forward no convincing 
arguments asserting the absence of alternatives. Voore Mets does not claim that it 
is not technically possible to fell timber on the plot at issue at a time other than the 
breeding season of the birds; it claims that it favours felling during the breeding 
season so that it can make optimum use of its means of production and its 
workforce. It has stated that, within the group to which it belongs, only 10 to 15% 
of annual felling operations take place in spring. On the other hand, since there is 
no probable danger in either of the two joined cases to bird species which are in an 
unfavourable condition or to the required population level of the birds found on 
VOORE METS JA LEMEKS PÕLVA 
 
13 
the plot, it cannot be maintained that such considerations manifestly cannot justify 
a derogation. 
38 Without anticipating the position of the Court of Justice on fundamental questions 
of interpretation of the Birds Directive, the Chamber does not consider it possible 
to assess the specific circumstances with regard, inter alia, to whether the 
Halduskohus and the Ringkonnakohus have sufficiently investigated the facts, 
including the possible damage caused to the appellants in the event of their 
having, as an alternative solution, to fell timber on the plots at issue at another 
time. 
39 The appellants assert, in essence, that if a felling operation does not jeopardise 
[the aim of] getting the bird populations into the requisite condition, the lack of an 
option to permit the derogation described above is unlikely to be proportionate to 
the pursuit of the aim of the directive, in respect of which the EU legislature itself 
considered it important to take account of economic requirements (Article 2). In 
the view of the Chamber, the lack of an option to derogate or excessively strict 
conditions for such derogation would also infringe, in terms of proportionality, on 
the fundamental right to property and freedom to conduct a business, which are 
enshrined in Articles 16 and 17 of the Charter. For that reason, the Riigikohus also 
considers it necessary to request a preliminary ruling on the compatibility of the 
Birds Directive with the Treaties and on its validity in so far as it precludes the 
possibility of permitting a derogation in order to prevent the damage caused by 
forest not being felled, if the answers to the above questions establish that such a 
restriction exists. 
40 It must be noted, however, that neither Paragraph 55(3)(4) and Paragraph 55(61) 
of the LKS nor any other Estonian legislative provisions specify the precise 
conditions under which derogations may be made from Paragraph 55(61) of the 
LKS and from Article 5(a), (b) and (d), which are transposed in that provision, in 
order to avoid serious damage to forest – including loss of revenue from a felling 
operation (see C-432/21, paragraph 73). For the Riigikohus, however, the absence 
of such a provision in no way alters the need to obtain clarity on the interpretation 
and full validity of the directive. If it were to emerge from the preliminary ruling 
that the Member States have been left sufficient leeway to permit derogations for 
the forestry sector, the lack of provisions establishing more precise exceptions 
could prove unconstitutional or preclude the issuing of orders in the present case 
and in similar circumstances. 
41 The Chamber agrees with the view of the courts that the valid forestry declaration 
and the fact that the declaration was not made subject to conditions do not 
preclude the issuing of orders to enforce the prohibitions arising from 
Paragraph 55(61) of the LKS. A felling authorisation does not confer an 
unconditional right to fell forest. Paragraph 55(61) of the LKS must be upheld 
even during the period of validity of a forestry declaration. The argument that this 
imposes an obligation on foresters to conduct ornithological research is 
misguided. The forester must prevent detriment to birds in so far as he or she can 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-784/23 
 
14  
reasonably be expected to foresee it. Even if the Keskkonnaamet erred in failing to 
make the felling authorisation subject to the conditions necessary to comply with 
Paragraph 55(61) of the LKS (see judgment of the Chamber No 3-21-979/44, 
paragraph 26), that does not exempt the forester from having to comply with legal 
requirements. 
42 The Keskkonnaamet has not infringed the appellants’ legitimate expectations by 
changing its administrative practice. Administrative practice cannot give rise to an 
absolutely legitimate expectation that the administrative authority will act in a 
similar way in the future, in particular if it subsequently transpires that the practice 
was unlawful. In the present case, the change in the Keskkonnaamet’s practice 
cannot be considered arbitrary. The main reason for it was the judgment of the 
Court of Justice in the Skydda Skogen case. Whether the positions set out in the 
judgment cited also extend to the Birds Directive and whether it follows from EU 
law that the change in practice was ultimately necessary can be clarified after the 
preliminary ruling procedure.