Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 11 December 2025 – TG
(Case C-805/25, Steiermärkische Landesregierung)
Language of the case: German
Referring court
Landesverwaltungsgericht Steiermark
Parties to the main proceedings
Applicant: TG
Other parties to the proceedings: Steiermärkische Landesregierung und Umweltanwalt
Questions referred
Must the third indent of Article 9(1)(a) of Directive 2009/147/EC 1 (Birds Directive) be interpreted as meaning that the granting of a derogation from the prohibition on disturbance in Article 5(d) of the Directive depends on the conservation status of the species concerned?
If question 1 is answered in the affirmative, this gives rise to questions 1(a) to 1(c):
1(a) Must Article 5(d) and the third indent of Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that the conservation status must be assessed according to the same criteria when examining the conditions for the application of the prohibition on disturbance (Article 5(d)) and when examining a derogation (the third indent of Article 9(1)(a)), or are the requirements at the level of the derogation separate and, in particular, stricter or more lenient? In the case of an unfavourable conservation status, should the positive development in the population of the species concerned in recent years be taken into account when assessing whether there is a significant disturbance for the purposes of Article 5(d) and when examining the conservation status in the context of a derogation under the third indent of Article 9(1)(a)?
1(b) Must the third indent of Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that a derogation from the prohibition on disturbance in Article 5(d) of the Birds Directive is also permissible if the bird species concerned is in an unfavourable conservation status, provided that it is demonstrated that the proposed measure will not worsen that status or hinder the restoration of a favourable conservation status, for example because the populations of the species concerned have shown a strong positive trend in previous years?
1(c) In the light of the case-law on Article 16(1) of Directive 92/43/EEC (Habitats Directive), must the third indent of Article 9(1)(a) of Directive 2009/147/EC 1 (Birds Directive) be interpreted as meaning that a favourable conservation status is an essential prerequisite for the granting of a derogation from the prohibition on disturbance in Article 5(d) of the Directive and that a derogation is only permissible if it does not impede the restoration of a favourable conservation status, or can a derogation also be granted if, despite the unfavourable conservation status, the measure has an adverse effect on the species concerned, but the necessity of the measure is proportionate to the adverse effects on the conservation of the species?
Must Article 5(d) and the third indent of Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that, provided that the conditions for the application of the prohibition on disturbance are met, the conservation status of the bird species concerned does not have to be taken into account again when assessing the derogation?
2(a) If question 2 is answered in the affirmative: is the assessment of the derogation under the third indent of Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) restricted to the absence of other satisfactory solutions and the existence of significant damage, or is it necessary to carry out an additional assessment of proportionality, according to which the objective pursued must be proportionate to the adverse effects on the conservation of the species?
2(b) If the answer to question 2 is no: must the third indent of Article 9(1)(a) of Directive 2009/147/EC be interpreted as meaning that a derogation from the prohibition on disturbance in Article 5(d) is generally excluded because the conservation status must already be taken into account when assessing the conditions for the application of the prohibition on disturbance and the prohibition on disturbance only applies if the measure results in the population of the bird species concerned not remaining at a satisfactory level or in its restoration being adversely affected?
Must Article 5(d) and/or Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that the conservation status of the bird species concerned – when assessing the prohibition on disturbance and/or when assessing a derogation – must be assessed according to the same geographical reference point as under Article 16(1) of Directive 92/43/EEC (Habitats Directive), in that the local level is to be considered in the first instance, followed by the national level, and not the entire biogeographical region in the first instance, or must a different geographical reference point be used for the Birds Directive?
3(a) To what extent must the fact be taken into account that there is currently no comprehensive study to determine a specific number for a favourable conservation status of the bird species concerned in the Member State?
Must the third indent of Article9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that a derogation from the prohibition on disturbance in Article 5(d) is only permissible if the significant damage claimed is caused by the bird species that is significantly disturbed by the proposed measure within the meaning of Article 5(d) of the Birds Directive, even if the proposed measure is expressly aimed at acoustically deterring the species of bird causing the damage and the disturbance of the other species of bird within the meaning of Article 5(d) of the Birds Directive is merely accepted?
Must the third indent of Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that the significance of the damage claimed must be assessed on the basis of the economic impact on the individual farm concerned, or does the concept of significant damage require an assessment that goes beyond the specific company level?
Must the third indent of Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that the assumption of significant damage to fisheries and water is permissible even if the operator concerned cannot provide specific records of losses already incurred and the probability of damage occurring is instead based on empirical values known to the authorities regarding cormorant predation in the region concerned and on information provided by the applicant?
Must the third indent of Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that, provided that all the other conditions for a derogation under that provision are met, the absence of another satisfactory solution can be justified by a mere assessment of plausibility based on the information provided by the applicant and general practical considerations?
Must the third indent of Article 9(1)(a) of Directive 2009/147/EC (Birds Directive) be interpreted as meaning that the removal of the harmful bird species can be considered an ‘other satisfactory solution’ within the meaning of that provision if (i) the acoustic deterrent measures applied for would disturb other bird species not causing harm within the meaning of Article 5(d), (ii) the conditions for removal under Article 9(1)(a) are met, and (iii) removal could minimise the disturbance of other protected species?
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1 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7).
1 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).