Farm activities such as “mowing and ploughing” could be restricted in some locations during the breeding and nesting season following a controversial European Court of Justice (ECJ) interpretation of the Birds Directive, the National Parks and Wildlife Service (NPWS) has warned.

The clear-felling of forestry during birds' nesting season will also be in the firing line as a result of the ECJ judgement.

Indeed, the court's findings threaten to make a wide range of routine land-use and outdoor activities – even driving a car – potentially incompatible with EU law, the NPWS maintained.

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The ECJ ruling relates to injunctions issued on behalf of the Estonian Environment Board against local forestry firms OÜ Voore Mets and AS Lemeks Põlva.

The injunctions sought the suspension of forest felling operations at two sites in order to protect bird breeding.

The injunctions were appealed to the Estonian Supreme Court, before being heard by the ECJ.

In its judgement last autumn, the ECJ delivered a strict interpretation of the notion of deliberateness in the context of Article 5 of the Birds Directive.

Article 5 of the Birds Directive states that: “The conservation of the species of wild birds naturally occurring in the European territory of the Member States is necessary in order to attain the [European] Community’s objectives regarding the improvement of living conditions and sustainable development.”

In order to comply with Article 5, the directive prohibits activities which result in the capture, killing or disturbance of birds, or damage to their nests.

However, the ECJ’s ruling on the Estonian case, means that any activities, such as forestry clear-felling, which do not directly aim to capture, kill or disturb birds, may face tighter restrictions during the nesting and rearing season because it is accepted that harm is likely to result from the carrying out of that activity.

The ECJ judgement contends that Article 5 of the Birds Directive must be interpreted as meaning that any disturbances, particularly during the period of breeding and rearing, must be “prohibited in so far as they would have a significant effect on the objective of maintaining populations of bird species at a satisfactory level or adapting them to that level”.

State agencies are now scrambling to assess the legal implications of the ECJ ruling.

In its submission on the judgement, the NPWS noted that: “It is recognised that this ruling provides a strict interpretation of the notion of deliberateness in the context of Article 5 of the Birds Directive, and that this now includes not just those activities which have as their purpose the capture, killing and disturbance of birds or the destruction of or damage to their nests, but also those activities which do not have this as their express purpose.”

The NPWS claimed that a commission guidance document on the ruling provided a range of examples of activities that can now fall within the scope of Article 5.

This included “regular farming activities such as mowing and ploughing, vehicles colliding with birds, renewable energy development and the disturbance of non-huntable birds when hunting”.

“The interpretation of the court appears to make a wide range of routine land-use and outdoor activities – such as driving a car, mowing, forestry, or wildlife management activities – potentially incompatible with EU law, even where there is no intention to harm bird species,” the NPWS maintained.