Ref. Ares(2021)3391016 - 21/05/2021 Judgment of the Court of Justice of the European Union in Case C 418/04 Commission v Ireland “The Birds Case” A Programme of measures by Ireland to ensure full compliance with the Judgment of the Court of Justice of the European Union Update – June 2019

CONTENTS Summary  Background – The Birds Directive  The case against Ireland – what is it about  Ireland’s response to the Judgement Sections Response to the specific findings against Ireland 1. Inadequate Number and size of areas classified as SPAs, contrary to Article 4 (1) and (2) of the Birds Directive 2. Failure to apply the first sentence of Article 4(4) of the Birds Directive to the areas that should have been classified as SPAs 3. Failure to transpose and apply the second sentence of Article 4(4) of the Birds Directive 4. Inadequate transposition and application of Article 6(2)-(4) of the Habitats Directive 5. Failure to transpose Article 10 of the Birds Directive. Obligation on Minister to encourage research Appendices   Appendix 1 – List of Ireland’s Classified SPAs   Appendix 2 – List of Ireland’s Designated SPAs   Appendix 3 - Ringabella Estuary, Co Cork and its potential inclusion into the SPA Network   Appendix 4 – Action Plan on outstanding issues   Appendix 5 - Management of Fisheries and Aquaculture Activities in Natura 2000 sites in Ireland - Progress update, December 2013   Appendix 6 - Fisheries Programme of Measures: Additional Information July 2015 2

SUMMARY Background – The Birds Directive Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (this is the codified version of Directive 79/409/EC as amended) is the EU’s oldest piece of nature legislation and one of the most important, creating a comprehensive scheme of protection for all wild bird species naturally occurring in the Union. It was adopted unanimously by the Members States in 1979 as a response to increasing concern about the declines in Europe's wild bird populations resulting from pollution, loss of habitats as well as unsustainable use. It was also in recognition that wild birds, many of which are migratory, are a shared heritage of the Member States and that their effective conservation required international co-operation. The directive recognises that habitat loss and degradation are the most serious threats to the conservation of wild birds. It therefore places great emphasis on the protection of habitats for endangered as well as migratory species (listed in Annex I), especially through the establishment of a coherent network of Special Protection Areas (SPAs) comprising all the most suitable territories for these species. Since 1994 all SPAs form an integral part of the NATURA 2000 ecological network. The Birds Directive bans activities that directly threaten birds, such as the deliberate killing or capture of birds, the destruction of their nests and taking of their eggs, and associated activities such as trading in live or dead birds, with a few exceptions (listed in Annex III - III/1 allows taking in all Member States; III/2 allows taking in Member States in agreement with European Commission). The Directive recognises hunting as a legitimate activity and provides a comprehensive system for the management of hunting (limited to species listed in Annex II - II/1 allows hunting in all Member States; II/2 allows hunting in listed Member States) to ensure that this practice is sustainable. This includes a requirement to ensure that birds are not hunted during the periods of their greatest vulnerability, such as the return migration to the nesting areas, reproduction and the raising of chicks. It requires Member States to outlaw all forms of non-selective and large scale killing of birds, (especially the methods listed in Annex IV). It promotes research to underpin the protection, management and use of all species of birds covered by the Directive (Annex V). The case against Ireland – what it is all about 1 In December 2007, the Court of Justice of the European Union , arising from a case brought by the European Commission, delivered judgment on Ireland's 1 Previously referred to as the European Court of Justice 3

implementation of the Birds Directive. The Judgment refers to six separate complaints and gives a ruling in respect of each one. The Court found in favour of Ireland in respect of one complaint. In broad terms the Court found that Ireland:     had not correctly transposed the Directive in a number of areas, including in relation to assessment of land use plans,     had not designated a sufficient number of Special Protection Areas in respect of particular species, e.g. corncrake, kingfisher,     had not designated SPAs in accordance with the required standard of protection,     did not meet the required standard regarding the level of protection being achieved in SPAs or in areas that should be designated as SPAs, as set out in Article 4 of the Birds Directive or Article 6 of the Habitats Directive, in particular by failing to take all reasonable measures, including targeted action to prevent their deterioration, and by not requiring appropriate assessment for certain types of activities including aquaculture, and     required protective measures outside SPAs have not been put in place. The Timeline of the Birds Case Judgment Case               Document                     Date             Name of the parties C-418/04 Application (OJ)                     08/01/2005      Commission v Ireland See: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ%3AC%3A2005%3A006%3A0022%3A0022%3Aen%3APDF C-418/04 Order                              17/03/2005      Commission v Ireland See: http://curia.europa.eu/juris/document/document.jsf?text=&docid=59931&pageIndex=0&doclang=en& mode=req&dir=&occ=first&part=1&cid=3100578 C-418/04 Opinion                             14/09/2006      Commission v Ireland See: http://curia.europa.eu/juris/showPdf.jsf?text=&docid=64070&pageIndex=0&doclang=en&mode=req& dir=&occ=first&part=1&cid=3100578 C-418/04 Judgment                            13/12/2007      Commission v Ireland See: http://curia.europa.eu/juris/showPdf.jsf?text=&docid=71717&pageIndex=0&doclang=en&mode=req&di r=&occ=first&part=1&cid=3101025 4

C-418/04 Judgment (OJ)                       23/02/2008     Commission v Ireland See: http://curia.europa.eu/juris/showPdf.jsf?text=&docid=72029&pageIndex=0&doclang=en&mode=req&d ir=&occ=first&part=1&cid=3101367 Purpose of this Document The Programme of Measures sets out the actions taken to date by Ireland in response to the Judgment of the Court together with commitments for further action to ensure that remaining issues have been dealt with. It is updated at 6- monthly intervals. Copies of all correspondence on the case and any general queries may be directed or obtained from Alan Moore who is co-ordinating the case for Ireland at the address below: Alan Moore Assistant Principal Officer, National Parks & Wildlife Service, Department of Arts, Heritage and the Gaeltacht, 7, Ely Place, Dublin 2. Tel. +35318883206 Email: Alan.Moore@chg.gov.ie 5

Response to the specific findings against Ireland New/amended items are highlighted in yellow in this section First Complaint 1.   The Court found that Ireland had failed to classify all the most suitable sites - in number and size - as SPAs, contrary to Article 4 (1) and (2) of the Birds Directive The judgment refers to 42 sites and these are indicated in the tables in the Appendices 1 and 2 with colour coding for the species protected at each site. (There is an explanatory key to the coding at the end of each Appendix.) First part of the first complaint Classification The classification process requires the statutory authority (i.e. Department of Arts, Heritage and the Gaeltacht) to notify owners and occupiers of land within or in the vicinity of the site, informing them of the extent and boundaries of the SPA, explaining the legal regime in force from the date of notification, identifying the special conservation interests and species that are protected on the site and prescribing a list of Activities Requiring Consent (ARCs – formerly called “notifiable actions”). All relevant consent authorities are also notified to ensure that from the date of notification they enforce all the protective measures required by the Birds and Habitats Directives in the exercise of their consent functions. A total of 154 sites have now been classified in a manner consistent with the requirements of the Birds Directive (See Appendix 1). http://www.npws.ie/protectedsites/ Confirmation of Classification through Statutory Instrument (S.I) A total of 143 sites (93% of the SPA network of sites) have been designated by Statutory Instrument and Statutory Instruments for 3 are with the Minister for signature. 3 sites are currently being drafted for S.I. The boundary of one site (Blacksod Bay/Broad haven SPA 4037) is being extended, prior to S.I., to include an additional marine area. The remaining 3 SPAs are within the appeals process and will be designated by S.I. as soon as the boundaries are finalised. Details of these sites are set out in a table at Appendix 2. The Statutory Instrument for Cork Harbour SPA 4030 will be revised to include the Ringabella Estuary extension. http://www.npws.ie/protectedsites/ Species Selection 6

The Court further referenced certain bird species as being of particular concern either because of declining numbers or insufficient protection measures afforded to ensure their continued survival. In response, Ireland has identified and classified all suitable locations on the basis of available scientific information within the suite of 154 SPAs for the following species: Red Throated Diver, Hen Harrier, Merlin, Peregrine, Golden Plover, Chough, Kingfisher and Corncrake. The Short-eared Owl, also mentioned in the judgment, bred sporadically in the south-west in the 1960s and 1970s, and is occasionally recorded as possibly breeding. It is envisaged that habitat conservation measures in place for Hen Harrier, that is, extensive grazing of rough grassland, no afforestation of heath/bog will provide adequate measures for Short-eared Owl conservation. Second part of the first complaint Site Area 2 Ireland’s SPAs were reviewed in 2008 and Ireland has extended some selected SPAs to ensure that all the important ornithological areas of a site are included within its boundaries. It is considered that all SPA boundaries have the appropriate scientific justification. These sites are indicated with a double asterisk in the tables at Appendix 1 and 2 and all exceed in area their equivalent IBA site. Outstanding Issues under the first complaint Confirmation of Classification through Statutory Instrument A large number of appeals against designation have been or are being processed. All appeals have passed through internal consideration by NPWS and reached the Appeals Board. The status of live appeals as of April 2019 is summarised below. Corncrake SPA Appeals Code      SPA                                               With Appeals          Change Board            since Oct 2016 4083      Inishbofin, Inishdooey & Inishbeg                        20                 0 4149      Falcarragh to Meenlaragh                                  8                -12 4230      West Donegal Islands                                      6                 0 Totals                                                   34                -12 Dunlin 2 A review of the SPA network of sites in the Republic of Ireland. Unpublished report, NPWS, 2008 7

An extension to the Blacksod Bay SPA to include areas for breeding dunlin (Calidris alpina schinzii) was classified in June 2013 and an additional site for this species – Doogort Machair SPA, was also classified in July 2013. Contact: Linda Bradley +3531 888 3260 Email: linda.bradley@ahg.gov.ie Corncrake 151 calling males were confirmed in Ireland during the 2018 breeding season and this is the first recorded increase since 2014. This figure represents an 8% increase on the 140 individuals confirmed in 2017. Donegal remains the national stronghold, with 90 confirmed calling males (60% of the national total). West Connacht, which comprises the western seaboards of counties Mayo and Galway, held 59 males (39% of the total). Two calling males were recorded in Templeboy, Co. Sligo. No corncrakes were recorded in the Shannon Callows. Offshore islands held 53% of the national population. At a regional scale, islands accounted for 66% of the population in Donegal population and 33% of that in West Connacht. The Corncrake Special Protection Area (SPA) network held 48% of the national population, accounting for 66% and 22% of numbers in Donegal and West Connacht respectively. Compared to 2017, there was an overall 14% increase in numbers recorded within the network. All SPAs, except for the Mullet SPA, saw an increase in numbers. Conservation measures in 2018 again included habitat management and the administration of grant schemes. Over 640 ha of land were entered in one of four NPWS and DAFM schemes in 2018. A total of 125 participants entered the Corncrake Grant Scheme (CGS), covering an area 353 ha nationally. Ten NPWS Corncrake Farm Plans (6 in Donegal and 4 in West Connacht) had a combined plan area of 64 hectares, 64 GLAS plans covered 209 ha in the country and land management agreements extended over 15 ha. Looking at the total land area eligible for the CGS within 250m of all Corncrakes nationally, 69% of this was entered in the CGS, the Farm Plan Scheme or the Corncrake measure in GLAS. No conservation measures were implemented on the remaining 31% of eligible land area; the vast majority of this area was outside of SPAs. The Predator control programme was carried out again this year in Donegal, West Connaught and the Shannon Callows. A Corncrake Framework Strategy (A Framework for Corncrake Conservation to 2022) has been prepared and can be found on the Department’s website. The main actions listed in the framework strategy are to:  monitor the core Corncrake populations in Ireland on an annual basis;  complete the SPA designation process for Corncrake;  maintain the traditional Corncrake Grant Scheme as a conservation tool for the protection of nesting birds both within the SPA network and in the wider countryside; 8

   set targets to achieve population growth in the SPAs and to underpin these targets with complementary targets for habitat management in these areas;    continue to refine and promote relevant multi-annual agri-environment schemes; and to    continue to enter into management agreements with landholders in important areas in order that land can be exclusively managed as Corncrake habitat. Complementing the actions set out in the Corncrake strategy, the Department of Agriculture, Food and the Marine has had a series of corncrake measures in its agri- environment Schemes. Ireland’s current Rural Development Programme includes a specific spatially targeted action for the conservation of the Corncrake within the new Agri-Environment scheme (GLAS). This action promotes traditional management practices which are favourable for the conservation of the corncrake, for example the adoption of specific grazing management practices, restrictions on field operations and the adherence to strict cutting practices within the designated areas. Also included is a mandatory requirement for scheme participants to create early cover for the species upon arrival in late Spring/early Summer. Similar to actions under previous schemes, it is targeted at priority Corncrake SPAs, but now excluding the Shannon Callows. In addition, it now affords priority 1 entry to the scheme and as such is available to all farmers in these areas. This action will be complementary to other actions within the Corncrake framework strategy. This action is now mandatory for any farmers applying to GLAS who have land in corncrake SPAs, whereby scheme participants must enter at least 30% of their land into the Corncrake measure. In 2018, a total of 64 farmers had GLAS contracts in corncrake SPAs, managing 209 ha of habitat, a very slight decrease on 2017. Some of the targets in the Corncrake Strategy have been reached well ahead of the deadline. It is recognised that ultimately, the success of the Strategy depends on positive engagement by farmers and non-farming landowners. To that end, NPWS provided training sessions in Q3 2015 to farm planners and agricultural advisors on the ecological requirements of Corncrake including practical demonstrations on the maintenance, creation, enhancement of habitat. The planners present represented the majority of planners that are designing GLAS plans. There continues to be regular liaison between farmers and DCHG. It is envisaged that some piloting of a results- based scoring of the quality of habitat delivered in agri-environmental plans for Corncrake will prove useful towards ensuring higher quality habitat is incentivised and lower quality habitat is dissuaded in future AES. 9

Locally-Led Project (European Innovation Partnership) The European Innovation Partnership by the name of Cúlra Créafóige was approved in 2018, to deliver various outputs, including habitat for Corncrake and benefits for the wider community (including increased farm viability, opportunities for the local youth population, tourism and micro-business prospects). The financial returns to farm families and individuals, including peripheral benefits outside the cultivation itself, will be a key focus of the EIP activities. It is intended that the investment in this project will stimulate worthwhile engagement and personal advancement of up to 300 individuals. The project’s primary goal is to explore alternative cultivation options for the rough pasture, rush pasture and scrub area within the local area. The combined total of these 3 habitats or land management types is 134.7 hectares or 44% of the Falcarragh to Meenlaragh SPA area in which the project is based. It is envisaged that the project will at Peak cultivation, in Year 5, deliver 24.3 hectares of crops within the local area. Other In addition to the possible avenues/grants for biodiversity/conservation projects, other proactive community projects can be supported. In January 2019, National Parks & Wildlife Service, along with associated beneficiaries, submitted a detailed and costed application to the European Commission for LIFE funding, to deliver further necessary action for Corncrakes. Compensatory Habitat - Dublin Bay The Court found that Ireland should have designated the inner part of the Tolka estuary, and that an area of 2.2 ha had been lost due to the Dublin Port Tunnel development. The Commission indicated that Ireland must provide compensatory habitat to cover the loss of this area to redshank, curlew and oystercatcher. The Irish authorities were committed to compensating for this habitat loss. All suitable areas within Dublin Bay were already designated and included relevant habitats or species of interest (sites 800004006, North Bull Island, SI 212/2010, and 800004024, South Dublin Bay and River Tolka Estuary, SI 211/2010). The possibility of converting Spartina-infested saltmarsh to mudflat at sites such as Baldoyle and Rogerstown was also considered, but rejected on the grounds of potential damage to habitats which are qualifying interests for the SAC designation of these sites. All sites with the potential for compensatory designation on the east and south east coasts were considered. The sites reviewed (given here with the last 4-digit site code) include Carlingford Lough (4078), Dundalk Bay (4026), Boyne Estuary (4080), , Nanny estuary (4158), Wexford harbour (4076), Bannow (4033) and Tramore 4027) Bays, Ballyteigue (4020), 10