Provisional text

ENJUDGMENT OF THE COURT (Fifth Chamber)

1 August 2025 (*)

( Reference for a preliminary ruling – Environment – Directive 2009/147/EC – Conservation of wild birds – Article 5 – Prohibitions to ensure the protection of birds – Article 9 – Derogations – Articles 16 and 17 of the Charter of Fundamental Rights of the European Union – Prohibition on felling trees during the period of bird breeding and rearing )

In Case C‑784/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Riigikohus (Supreme Court, Estonia), made by decision of 19 December 2023, received at the Court on 19 December 2023, in the proceedings

OÜ Voore Mets,

Keskkonnaamet,

THE COURT (Fifth Chamber),

composed of M.L. Arastey Sahún, President of the Chamber, D. Gratsias, E. Regan, J. Passer (Rapporteur) and B. Smulders, Judges,

Advocate General: J. Kokott,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 11 December 2024,

after considering the observations submitted on behalf of:

–OÜ Voore Mets, by I. Veso, vandeadvokaat,

–AS Lemeks Põlva, by A. Hainsoo and M. Paloots,

–the Estonian Government, by M. Kriisa, acting as Agent,

–the Finnish Government, by H. Leppo and M. Pere, acting as Agents,

–the Swedish Government, by F.-L. Göransson and C. Meyer-Seitz, acting as Agents,

–the European Parliament, by M. Allik and W.D. Kuzmienko, acting as Agents,

–the Council of the European Union, by M. Alver and A. Maceroni, acting as Agents,

–the European Commission, by E. Randvere and N. Ruiz García, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 6 February 2025,

gives the following

1This request for a preliminary ruling concerns the interpretation of 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 2010 L 20, p. 7; ‘the Birds Directive’), and of Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2The request has been made in two sets of proceedings between, on the one hand, OÜ Voore Mets and AS Lemeks Põlva respectively, and, on the other hand, the Keskkonnaamet (Environmental Board, Estonia) concerning injunctions issued by the latter to suspend forest felling in order to protect bird breeding.

Legal context

European Union law

The Birds Directive

3Recitals 3, 5, 7, 8 and 10 of the Birds Directive state:

‘(3) A large number of species of wild birds naturally occurring in the European territory of the Member States are declining in number, very rapidly in some cases. This decline represents a serious threat to the conservation of the natural environment, particularly because of the biological balances threatened thereby.

…

(5) 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.

…

(7) Conservation is aimed at the long-term protection and management of natural resources as an integral part of the heritage of the peoples of Europe. It makes it possible to control natural resources and governs their use on the basis of the measures necessary for the maintenance and adjustment of the natural balances between species as far as is reasonably possible.

(8) The preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. Certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution. Such measures must also take account of migratory species and be coordinated with a view to setting up a coherent whole.

…

(10) Because of their high population level, geographical distribution and reproductive rate in the Community as a whole, certain species may be hunted, which constitutes acceptable exploitation where certain limits are established and respected, as such hunting must be compatible with maintenance of the population of these species at a satisfactory level.’

4Article 1(1) of that directive provides:

‘This Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation.’

5Article 2 of that directive provides:

‘Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.’

6Article 5 of the same directive provides:

‘Without prejudice to Articles 7 and 9, Member States shall take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular:

(a) deliberate killing or capture by any method;

(b) deliberate destruction of, or damage to, their nests and eggs or removal of their nests;

(c) taking their eggs in the wild and keeping these eggs even if empty;

(d) deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive;

(e) keeping birds of species the hunting and capture of which is prohibited.’

7Under Article 9(1) of the Birds Directive:

‘Member States may derogate from the provisions of Articles 5 to 8, where there is no other satisfactory solution, for the following reasons:

(a) – in the interests of public health and safety,

–in the interests of air safety,

–to prevent serious damage to crops, livestock, forests, fisheries and water,

–for the protection of flora and fauna;

(b) for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes;

(c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.’

The Habitats Directive

8Article 12 of 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’) provides:

‘1. Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.

…’

Estonian law

The MS

9Paragraph 28 of the metsaseadus (MS) (Law on forests) of 7 June 2006 (RT I 2006, 30, 232), in the version applicable to the disputes in the main proceedings (RT I, 04.01.2021, 10) (‘the MS’), provides, in subparagraph 7 thereof:

‘Maintenance cutting is carried out in order to:

…

2) increase the value of a forest, manage the density and composition of a forest, and enable the use of timber from trees likely to fall in the short term (shelterwood cutting);

…’

10Paragraph 29(1) of the MS provides:

‘In the case of clear-cutting, all trees on a plot of land shall be felled within one year, except for:

1) seed-bearing trees: 20–70 pine, birch, ash, oak, black alder, white elm and mountain elm trees per hectare, scattered or in clusters, as well as young trees which are viable for reforestation.

…

3) retention trees: trees that are necessary to ensure biodiversity, or the preserved stumps of such trees, with a total trunk wood volume of at least 5 cubic metres per hectare or at least 10 cubic metres per hectare in the case of clear-cutting of more than five hectares.’

11Paragraph 40 of the MS provides:

‘…

(2) The Environmental Board may issue injunctions to prevent and contain forest damage on the basis of an expert forest protection report. In addition to the information set out in points 1 to 5 and 7 to 9 of Paragraph 25(9) of this Law, the operative part of the injunction shall include an order to cease any harmful activity, refrain from any activity that could cause damage, and eliminate the source of the threat and any resulting damage caused. The injunction shall be served on the addressee of the obligations specified therein in accordance with the conditions laid down in Paragraph 25(8) of this Law.

…

(10) In order to protect animals during their breeding season, the minister responsible for the area may issue a regulation to restrict felling in multi-stemmed and mixed stands during the period from 15 April to 15 June.

…’

12Paragraph 41 of the MS is worded as follows:

‘(1) The forest owner or his or her representative… shall submit a forestry notice to the Environmental Board:

1) regarding planned felling, with the exception of improvement felling;

…

(8) If the planned felling does not comply with the requirements of the legislation, the Environmental Board shall have the right to refuse registration, giving reasons for its refusal in writing and making recommendations to bring the activity into compliance with the legislation.

(8¹) If the planned felling complies with the requirements of the legislation, the Environmental Board shall record it in the forest register. …’

The LoKS

13In accordance with Paragraph 2 of the loomakaitseseadus (LoKS) (Law on the protection of animals) of 13 December 2000 (RT I 2001, 3, 4), in the version applicable to the disputes in the main proceedings (RT I, 30.12.2020, 12) (‘the LoKS’):

‘(1) For the purposes of this Law, … a bird … is an animal.

…’

14According to Paragraph 7 of the LoKS:

‘(1) In order to prevent the death of wild animals, the enforcement authorities shall be entitled:

…

3) to suspend forestry … work during the breeding period of wild animals.

…’

The LKS

15Paragraph 55 of the looduskaitseseadus (LKS) (Law on nature protection) of 21 April 2004 (RT I 2004, 38, 258), in the version applicable to the disputes in the main proceedings (RT I, 30.12.2020, 7) (‘the LKS’), provides:

‘(1) The deliberate killing of a specimen of a protected species shall be prohibited except for the purposes of euthanasia.

…

(3) The killing of specimens belonging to a protected category II or III species shall be authorised:

…

4) where necessary to prevent damage to … other important property.

…

(5) In the cases referred to in subparagraph 1 … and points 2 to 5 of subparagraph 3 of this paragraph, the killing of the animal in question shall require the approval of the Environmental Board.

(5¹) The approval referred to in subparagraph 5 and points 1 and 2 of subparagraph 6¹ of this paragraph may be granted where the situation cannot be resolved through measures that cause less harm to animals and birds. The permit must state:

1) the species and specimens for which approval is granted;

2) the means, devices or methods authorised for the activities;

3) under what circumstances of danger or risk, and at what time and where the activities may be carried out;

4) the addressee of the approval;

5) the means of monitoring or other means of tracking and reviewing the results.

…

(6¹) In the case of wild birds, the following shall be prohibited:

1) deliberate destruction of, or damage to, nests and eggs or removal of nests, except in the cases provided for in points 2 to 5 of subparagraph 3 of this paragraph with the approval of the Environmental Board;

2) deliberate disturbance, particularly during nesting and rearing, except … in the cases provided for in points 2 to 5 of subparagraph 3 of this paragraph with the approval of the Environmental Board …

…’

The Forest Management Code

22Paragraph 22 of the metsa majandamise eeskiri (Forest Management Code) (RTL 2007, 2, 16), in the version applicable to the disputes in the main proceedings (RT I, 06.04.2021, 8), provides:

‘…

(5)The initiative to conduct an expert forest protection report shall be taken by the Environmental Board on the basis of information obtained through a forestry notice or by other means:

1)with the aim of issuing an injunction to prevent and contain forest damage;

…

(6)In order to commission an expert forest protection report, the forest owner shall submit a forestry notice to the Environmental Board with a view to restoring a forest that has been destroyed as a result of a storm, flood, large-scale forest fire or other major damage caused by a natural phenomenon …, or which is in poor health due to natural factors. The same applies to restoring a forest stand with a deficient phenotype or low basal area and density due to reasons beyond the control of the forest owner. …’

The disputes in the main proceedings and the questions referred for a preliminary ruling

17In the spring of 2021, Voore Mets carried out forest felling on land in Pällo-Reino, located in the municipality of Jõgeva (Estonia), on the basis of registered forestry notices. The method was clear-cutting within the meaning of Paragraph 29(1) of the MS.

18Lemeks Põlva, for its part, purchased the right to harvest timber from the owner of the land in Järveääre, situated in the municipality of Põlva (Estonia). Its forestry notices of 4 May 2021 stipulated that felling was to be carried out on one plot of land using shelterwood cutting, within the meaning of Paragraph 28(7) of the MS, and clear-cutting was to be carried out on four other plots of that land.

19By injunctions of 17 and 21 May 2021, the Environmental Board suspended the forest felling carried out by Voore Mets on the land in Pällo-Reino, initially until 21 May 2021 and then until 31 July 2021. By injunctions of 21 and 26 May 2021, the Environmental Board also suspended the forest felling carried out by Lemeks Põlva on the land in Järveääre, initially until 26 May 2021 and then until 15 July 2021.

20Those injunctions were issued on the basis of point 3 of paragraph 7(1) of the LoKS and paragraph 55(6¹) of the LKS. The first injunctions, namely the one addressed to Voore Mets on 17 May 2021 and the one addressed to Lemeks Põlva on 21 May 2021, are based on the finding that it has been scientifically proven that there is at least one pair of breeding birds per hectare in each forest, and that continued felling would pose a real risk of disturbing the birds during the breeding and rearing season and of destroying or damaging nests. The second injunctions, namely the one addressed to Voore Mets on 21 May 2021 and the one addressed to Lemeks Põlva on 26 May 2021, also show that visits to the land in question revealed that in both situations there were confirmed, probable or possible nesting sites for 10 different bird species on the land in question.

21More specifically, first, according to the injunction of 21 May 2021, addressed to Voore Mets, birdsong had been heard on the land in Pällo-Reino during a visit to the premises on the same day and the following birds, which can reasonably be assumed to nest in the same sector, had been identified by their singing or appearance: wood warbler (Phylloscopus sibilatrix), wren (Troglodytes troglodytes), blackbird (Turdus merula), song thrush (Turdus philomelos) and chaffinch (Fringilla coelebs). Probable nesting of the nuthatch (Sitta europaea) and the bullfinch (Pyrrhula pyrrhula) was also reported. In addition, it was noted in that injunction that it was highly probable that the chiffchaff (Phylloscopus collybita), the willow warbler (Phylloscopus trochilus) and the red-breasted flycatcher (Ficedula parva) were also nesting on the land concerned. In that context, the injunction stipulates that the suspension of felling until 31 July would ensure the protection of late breeding sites, such as those of the wood warbler.

22On the other hand, according to the injunction of 26 May 2021 addressed to Lemeks Põlva, the Järveääre site visit made it possible to identify a confirmed nesting of the great spotted woodpecker (Dendrocopos major) and the chaffinch, a probable nesting of the great tit (Parus major) and the jay (Garrulus glandarius), as well as a possible nesting of the chiffchaff, wood warbler, garden warbler (Sylvia borin), wren, dunnock (Prunella modularis) and robin (Erithacus rubecula).

23The action, by which Voore Mets seeks compensation for the damage resulting from the immobilisation and subsequent removal of its forest material, which was allegedly caused to it by the Environmental Board as a result of two injunctions issued against it, was dismissed by the Tallinna Halduskohus (Administrative Court, Tallinn, Estonia). That decision was upheld by the Tallinna Ringkonnakohus (Court of Appeal, Tallinn, Estonia).

24The Tartu Halduskohus (Administrative Court, Tartu, Estonia) partially upheld the actions brought by Lemeks Põlva for a declaration that the injunctions issued against it were unlawful and held that the injunction of 26 May 2021 was unlawful, on the ground, inter alia, that it did not address the question of the proportionality of a total ban on forest felling for approximately one and a half months in the light of the number of birds nesting on the land, the nesting periods of those birds and the interests of that applicant in the main proceedings, and on the ground that the applicant had not been heard. However, the Tartu Ringkonnakohus (Court of Appeal, Tartu, Estonia) annulled that decision in so far as it had upheld those actions.

25In the appeals brought by Voore Mets and Lemeks Põlva before the Riigikohus (Supreme Court, Estonia), which is the referring court, the question arises, in the first place, as to whether the concept of ‘deliberateness’, within the meaning of Article 5 of the Birds Directive, is to be understood in the same way as in the case of Article 12 of the Habitats Directive, that is to say, in particular, that the condition as to ‘deliberate’ action in Article 12 of the Habitats Directive must be deemed to be met not only where it is established that the author of the act intended the killing or disturbance of a bird specimen, or the destruction of, or damage to, their nests and eggs, but also where it is established that the author of the act at the very least accepted the possibility of such killing, disturbance, destroying or damaging.

26If that is the case, the referring court wishes to know, in the second place, which circumstances are sufficient to establish the existence of such acceptance. In that regard, it submits that the presence of one pair of birds per hectare, identified in the first injunctions on the basis of scientific data, does not necessarily exceed the threshold above which the timber harvester must be deemed to have accepted the possibility that birds may be killed or disturbed, or that their nests or eggs will be destroyed or damaged. On the other hand, the referring court is a priori of the opinion that, once the additional circumstances identified in the second injunctions materialise, it is necessarily accepted that the clear-cut felling carried out during the nesting period may cause the death of the birds and the destruction of their nests and eggs. However, the question could arise as to whether the activity of felling can be regarded as deliberate killing, disturbance, destruction or damage, within the meaning of Article 5 of the Birds Directive, if there is nothing to suggest that endangered birds are nesting in the felling area and if the purpose of the activity concerned is not to kill or disturb the birds or to destroy or damage nests. The fact that all bird species must fall within a protection regime does not necessarily mean that all birds must be protected in the same way. According to the referring court, Article 5 of the Birds Directive should be given a teleological interpretation; that is to say, account should be taken of the objective referred to in Article 2 of that directive.

27In the third place, if the felling at issue in the main proceedings were to constitute deliberate killing or disturbance of birds, or destruction or damage to their nests or eggs, it is necessary, according to the referring court, to determine whether Article 9 of the Birds Directive allows derogation from the prohibitions laid down in Article 5(a), (b) and (d) thereof.

28Lastly, in the fourth place, the referring court considers that the fact that a derogation cannot be granted or is subject to excessively strict conditions may, on account of its disproportionate nature, be contrary to the freedom to conduct a business and the fundamental right to property enshrined in Articles 16 and 17 of the Charter, with the result that the question arises as to whether the Birds Directive complies with the Treaties and whether it is valid.

29In those circumstances, the Riigikohus (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Can Article 5(a), (b) and (d) of [the Birds Directive] 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 [the Birds Directive], 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 [10] 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 [have an unfavourable conservation status] are nesting in the felling area?

(3)Must Article 5(a), (b) and (d) of [the Birds Directive], 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 [10] 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 [have an unfavourable conservation status] are nesting in the felling area?

(4)Can the third indent of Article 9(1)(a) of [the Birds Directive], 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 [the Birds Directive], 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?

(6)If [the Birds Directive] 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] and does it apply even if the felling does not cause harm to bird species which [have an unfavourable conservation status]?

(7)If [the Birds Directive] 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] and does it apply even if the felling does not cause harm to bird species which [have an unfavourable conservation status]?’

Admissibility of the request for a preliminary ruling

30Voore Mets and Lemeks Põlva submit that the request for a preliminary ruling is inadmissible. In their view, all the questions referred have, in essence, already been answered in the Opinion of Advocate General Kokott in Joined Cases Föreningen Skydda Skogen (C‑473/19 and C‑474/19, EU:C:2020:699) and it is in no way apparent from the judgment of 4 March 2021, Föreningen Skydda Skogen (C‑473/19 and C‑474/19, EU:C:2021:166), that the concept of ‘deliberateness’ referred to in Article 5 of the Birds Directive must be interpreted in the same way as that in Article 12 of the Habitats Directive. Furthermore, it is evident that there are no legal issues requiring interpretation by the Court in that no Member State other than the Republic of Estonia has suspended spring and summer felling operations in unprotected forests designated for forestry in order to protect birds on the basis of provisions implementing the Birds Directive. Voore Mets adds that if the Court were to examine the case, it would lead to excessive delays in resolving the disputes in the main proceedings.

31In that regard, it must be recalled that, according to consistent case-law, national courts have the widest discretion in referring questions to the Court involving interpretation of relevant provisions of EU law. It is for the national court hearing the proceedings only, which alone is familiar with its national law and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions put by national courts concern the interpretation or the validity of a provision of EU law, the Court is, in principle, bound to give a ruling. It follows that questions referred by national courts enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the question submitted to it (judgment of 9 September 2021, GE Auto Service Leasing, C‑294/20, EU:C:2021:723, paragraph 40 and the case-law cited).

32It follows that the fact that the answer to the questions referred for a preliminary ruling may be inferred from the Opinion of Advocate General Kokott in Joined Cases Föreningen Skydda Skogen (C‑473/19 and C‑474/19, EU:C:2020:699) and from the judgment of 4 March 2021, Föreningen Skydda Skogen (C‑473/19 and C‑474/19, EU:C:2021:166) and does not pose any legal difficulty, even if it were established, is not such as to render the request for a preliminary ruling inadmissible.

33First, even when there is case-law of the Court resolving the point of law at issue, national courts and tribunals retain the broadest power to bring a matter before the Court if they consider it appropriate to do so, and the fact that the provisions concerned have already been interpreted by the Court does not deprive the Court of jurisdiction to give a further ruling (see, to that effect, judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi, C‑561/19, EU:C:2021:799, paragraph 37 and the case-law cited) and, second, a national court is in no way prevented from referring questions to the Court of Justice for a preliminary ruling, the answer to which, in the submission of one of the parties to the main proceedings, leaves no scope for reasonable doubt (see, to that effect, judgment of 24 February 2022, Viva Telecom Bulgaria, C‑257/20, EU:C:2022:125, paragraph 42 and the case-law cited).

34It also follows from the case-law referred to in paragraph 31 above that the duration of the dispute before the national courts is not relevant to the assessment of the admissibility of a request for a preliminary ruling made by one of those courts or tribunals under Article 267 TFEU.

35That assessment is not called into question by the fact that both the referring court and the Court of Justice are required to comply with the general principle of law that everyone is entitled to a fair and public hearing within a reasonable time, which is set out in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and in Article 47 of the Charter.

36The interpretation given by the European Court of Human Rights to the rights guaranteed by Article 6(1) of the ECHR constitutes a minimum threshold of protection which the Court must take into account in its interpretation of the corresponding rights set out in Article 47 of the Charter, having regard to Article 52(3) thereof (see, to that effect, judgment of 26 September 2024, Ordre des avocats du Barreau de Luxembourg, C‑432/23, EU:C:2024:791, paragraph 48 and the case-law cited).

37It is apparent from the case-law of the European Court of Human Rights that, in order to determine whether the duration of proceedings before a national court has infringed the right enshrined in Article 6(1) of the ECHR, the procedure under Article 267 TFEU must not be taken into account. According to the European Court of Human Rights, to take that into account would undermine the system established in Article 267 and the objective pursued, in essence, by Article 267 (ECtHR, 26 February 1998, Pafitis and Others v. Greece, CE:ECHR:1998:0226JUD002032392, § 95, and ECtHR, 30 September 2003, Koua Poirrez v. France

, CE:ECHR:2003:0930JUD004089298, § 61).

Consideration of the questions referred

The first question

The second and third questions

The fourth to seventh questions

Costs

On those grounds, the Court (Fifth Chamber) hereby rules:

1.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

must be interpreted as meaning that only the prohibition laid down in Article 5(d) applies in so far as it is necessary to prevent disturbances which would have a significant effect on the objective, referred to in Article 2 of that directive, of maintaining populations of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaties apply at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or of adapting the population of these species to that level. By contrast, the application of the prohibitions laid down in Article 5(a) and (b) of that directive is not subject to such a condition, even where the purpose of the human activity concerned is different from the capture or killing of birds or the destruction of, or damage to, their nests and eggs.

2.Article 5(a), (b) and (d) of Directive 2009/147

must be interpreted as meaning that, where it can be assumed, on the basis of scientific data and observation of the various birds, that approximately 10 pairs of birds per hectare are nesting in a forest which is to be completely cleared (clear-cutting) or where only some of the trees are to be felled (shelterwood cutting), without it having been established that individuals of bird species which have an unfavourable conservation status are nesting in the felling area, the carrying out of such felling during the period of bird breeding and rearing is covered by the prohibitions set out in Article 5(a) and (b) of that directive and, in so far as the disturbance which they entail would have a significant effect on the objective of maintaining populations of the bird species concerned at a satisfactory level or adapting them to that level, by the prohibition laid down in Article 5(d) of that directive.

[Signatures]

—

Language of the case: Estonian.