ECJ Clarifies Bird Protection in Road Construction

May 28, 2026 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has specified the requirements that a road project must satisfy to guarantee comprehensive protection of avian species.

Multiple environmental organisations formally contested the authorisation of a two-lane road project in southern St. Poelten before the Austrian Federal Administrative Court (Bundesverwaltungsgerichtshof, hereinafter BVwG).

Construction of new roads leads to increased noise pollution, which affects bird species

Environmental organisations claim that the project violates the Birds Directive, which aims to protect all wild bird species native to European Union Member States.

Specifically, the designated area contains breeding habitats for protected species, and it is anticipated that future road traffic will contribute to significant noise pollution.

Extent of the prohibition outlined in the Directive

The ECJ has clarified that the EU law prohibition on significant disturbance extends beyond activities intentionally aimed at harming birds. It also encompasses actions where such harm is knowingly accepted as a potential outcome.

Essentially, this implies that a road construction project could also be subject to the prohibition.

However, the prohibition on disturbance pertains to significant effects on wild bird species populations as a whole, rather than individual birds. An alternative evaluation may be warranted only if a species‘ population has declined to a degree where even the disturbance of single birds may threaten its conservation.

Significance of protective and supportive measures                                              

According to the ECJ, a ‘deliberate disturbance’ does not occur if suitable accompanying measures are implemented to prevent significant negative impacts on the conservation of the relevant species. Consequently, these measures must be considered when determining whether a project violates the prohibition against disturbance.

ECJ C-131/24 (26 February 2026)