‘And then they found some hamster’. The CJEU in IE v Magistrat der Stadt Wien on the interpretation of ia ‘deterioration’ and ‘destruction’ in the Habitat Directive, with a view to criminal prosecution.

A case of enforcement interest is Case C‑357/20 IE v Magistrat der Stadt Wien. IE, a natural person, was given an administrative fine to wrap up criminal proceedings, with the threat of a custodial sentence should the fine not be paid. As an employee of a property developer, IE had carried out a series of preparatory clearing works, partially with a view to nudge the European hamster (Cricetus cricetus), which had settled, to relocate.

In an earlier judgment in the same case, Case C-477/19 Magistrat der Stadt Wien (Grand hamster), the CJEU had ruled that the term ‘resting places’ also includes resting places which are no longer occupied by the European hamster (Cricetus cricetus) where there is a sufficiently high probability that that species will return to those resting places (a factual assessment which the  national courts need to make). The referring court however decided it needed further assistance, seeing as the ‘deterioration of a resting place’, the ‘destruction of a resting place’, the ‘deterioration of a breeding site’ and the ‘destruction of a breeding site’ constitute, under Austrian law, four separate offences which must be punished independently. Article 12(1)(d) of the Habitats Directive 92/43 provides that

‘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:… d) deterioration or destruction of breeding sites or resting places.’

The Austrian court requested a ruling on the meaning of the concept of ‘breeding site’ and the criteria for distinguishing between ‘deterioration’ and ‘destruction’ of a breeding site and/or a resting place’. In particular, the referring court seeks to ascertain whether the protection afforded by Article 12(1)(d) of the Habitats Directive extends only to the actual occupation of the burrows of the European hamster (Cricetus cricetus) or whether it also extends to the surroundings of those burrows. The referring court also requested a ruling on whether only the actual and specific period of occupation of the burrows by the European hamster (Cricetus cricetus) and of the development of the offspring of that animal species must be taken into account for the purposes of temporally defining a site as a breeding site or whether it is also necessary to take account of the period of pregnancy and rearing of that species.

Allow me to pause here to highlight the importance of the question. Undoubtedly, judgments such as these may be and are often used to ridicule environmental law. Many a reader will have heard someone say ‘they stopped this important infrastructure /residential /other project because they found some hamster’. The hamster though is the proverbial butterfly in the butterfly effect, and it and other species too also function as the equally proverbial canary in the biodiversity and Anthropocene coalmine. Wanton destruction of their habitats therefore can and must be punished with the range of tools the civil and the criminal law have at their disposal. Clearly in that respect the criminal law’s requirement that a rule must be clear before its infringement may lead to punishment, is of great importance, and taking that into account, the questions referred in this case seem a lot less trivial.

The Court answered the questions with reference to the ecological functionality of the sites, thereby expanding the notion to the surroundings of the site, to the degree these are necessary for the species to reproduce successfully, and also expanding the temporal element of the protection, meaning breeding sites which are no longer occupied nevertheless enjoy protection where there is a sufficiently high probability that that animal species will return to those sites. The concepts of ‘deterioration’ and ‘destruction’, referred to in that provision, must be interpreted as meaning, respectively, the progressive reduction of the ecological functionality of a breeding site or resting place of a protected animal species and the total loss of that functionality, irrespective of whether or not such harm is intentional.



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