Project “Spange Wörth”: species protection with pragmatism and common sense

Author: Mario Laimgruber

Issues relating to species protection law regularly pose the greatest challenges to the successful implementation of projects, both from a technical and a legal perspective. Projects stand or fall with them. Any gain in clarity regarding this issue is therefore to be welcomed. The fact that, when assessing relevant scenarios, interpretations of legal provisions do not have to be overstretched in the sense of a general obstructive approach, while still ensuring the required level of protection, was recently and encouragingly confirmed by the ECJ in case C-131/24 in its judgment of February 26th, 2026, in connection with the road construction project “Spange Wörth.”

One of the key statements of the decision can be highlighted as a pragmatic guiding principle: The aim is not to engage in the most far-reaching theoretical considerations at various technical and legal levels, but rather to carry out a comprehensive assessment of the actual impacts of a project. The ECJ formulates this in paragraph 45 of the judgment, with reference to the objective of the Birds Directive – namely the maintenance or restoration of sufficient populations of all wild bird species native to the European territory of the member states (whereby these populations must in particular correspond to ecological, scientific, and cultural requirements, thereby taking into account economic and recreational needs) – as follows:

It is not necessary “that the disturbing effects of a project on wild bird species be assessed independently of the accompanying measures proposed for the project to prevent or reduce those effects. After all, the disturbances which will actually be suffered by the wild bird species as a result of the implementation of the project, as accompanied by those measures, are alone relevant in the light of those objectives.”

This clarifies that protective and mitigation measures (CEF measures) must already be taken into account when examining the prohibitive elements under species protection law. With regard to the specific provision at issue in the case, the ECJ states the following in paragraph 47 of the judgment:

“It follows from the foregoing that Article 5(d) of the Birds Directive must be interpreted as meaning that there is no deliberate disturbance, within the meaning of that provision, where measures, implemented as part of a project, make it possible to prevent any significant effect contrary to that directive’s objectives of maintaining or restoring to a sufficient level the population of all species of naturally occurring birds in the wild state in the European territory of the Member States, taking into account, in particular, ecological, scientific and cultural requirements, as well as economic and recreational requirements.”

Fulfilling these requirements ensures that the objectives inherent in the directive are considered to be safeguarded. The crucial question in this regard is obvious: How must the effectiveness of the measures be demonstrated? The ECJ is also clear on this point.

The judgment (see para. 51 et seq.) states that the principles of equivalence and effectiveness under European law are upheld, the principle of good administration is safeguarded, and the precautionary principle is observed when “the effectiveness of measures to avoid any disturbance that significantly affects wild bird species within the meaning of Article 5(d) of the Birds Directive can be demonstrated through the reasoned assessment of a court-appointed expert, provided that this assessment is based on the most reliable scientific data available and the latest results of international research (see para. 58, emphasis added by the author).” By contrast, the approach that the effectiveness of measures must be demonstrated through scientific documentation of their successful practical application is rejected – an approach that aligns with the common sense that is indispensable for the successful implementation of projects: On the one hand, such a requirement could deprive stakeholders of potentially viable innovative approaches (new projects may, in some cases, only subsequently provide the basis for scientific documentation). On the other hand, results that have not yet been scientifically documented (e.g., not yet published in academic journals) can, of course, still be individually assessed by experts as sufficiently effective. Given that the required level of protection is thereby ensured, there is no reason to keep important projects on hold.

Overall, the implementation of such projects always concerns the compatibility of ecology and economy, along with the associated protection aspects. There is no reason to believe that unjustified compromises must be accepted in this regard – neither in the interest of ecology nor of the economy; proportionate and at the same time well-founded interpretations of the relevant legal framework, such as in the ECJ ruling on the Spange Wörth, are to be fully endorsed in the interest of achieving a sound balance.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.