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European protected species

Introduction

The Habitats Regulations 1994 (as amended in Scotland) very largely provide the protection afforded to European protected species (EPS) of animals and plants (those species listed on Annex IV of the Habitats Directive whose natural range includes Great Britain).  A small overlap with the Wildlife and Countryside Act 1981 may be removed following successful passage through the Scottish Parliament of the Wildlife and Natural Environment Bill. external site  

EPS are listed on Schedules 2 (animals)  PDF document  and 4 (plants)  PDF document  of the Habitats Regulations 1994 (as amended in 2004, external site  2007 external site , 2008(a) external site   2008(b) external site ).  Only some of the species listed on the Schedules are found in Scotland.   Please go to our protected species table  PDF document to identify which.  The Scottish Government has produced explanatory guidance external site on the 2007 amendments.

The following notes give some guidance on the current protection given to EPS. This summary is not a legal document.  If legal detail is what you require, you should check the actual text of the Habitats Regulations 1994 (as amended in Scotland).

For animals:

It is an offence to deliberately or recklessly:

  • capture, injure or kill such an animal;
  • harass an animal or group of animals;
  • disturb an animal while it is occupying a structure or place used for shelter or protection;
  • disturb an animal while it is rearing or otherwise caring for its young;
  • obstruct access to a breeding site or resting place, or otherwise deny the animal use of the breeding site or resting place;
  • disturb an animal in a manner that is, or in circumstances which are, likely to significantly affect the local distribution or abundance of the species to which it belongs;
  • disturb an animal in a manner that is, or in circumstances which are, likely to impair its ability to survive, breed or reproduce, or rear or otherwise care for its young;
  • disturb an animal while it is migrating or hibernating;
  • deliberately or recklessly take or destroy its eggs (in Scotland this would be only relevant to great crested newt and natterjack toad);
  • disturb any dolphin, porpoise or whale (cetacean).

It is an offence of strict liability to:

  • damage or destroy a breeding site or resting place of such an animal.  No motive is required for this offence.  Also, these sites and places are protected even if the animal is not there (thus, for example, great crested newt ponds are protected even when there are no newts present, provided that it can be demonstrated that the newts use them some of the time).

All of the above offences apply to all stages of the animals life to which they apply.

For plants:

It is an offence to deliberately or recklessly pick, collect, cut, uproot or destroy any such plant.

This applies to all stages of their biological cycle.

For both plants and animals:

Generally, the possession, control, transport, selling, exchange, etc. of all animal or plant specimens listed on Annex IV to the Habitats Directive (i.e. including European protected species) is illegal.  This applies to live or dead specimens or their derivatives. These offences may not apply if:

  • it can be proven that they were taken 'lawfully' from the wild (i.e. taken legally from an EC Member State before 10 June 1994 (or the accession date of the EC country concerned), or taken legally from another country outside the EC); 
  • it is a species listed on Schedule 2A or other particular population listed in Regulation 39(9).

Importantly, the legislation means that individuals, museums or schools for example, which keep specimens of European protected species acquired since 10 June 1994 will now need a licence to do so.

Licences

In common with other law, it is possible to carry out certain actions which would otherwise be illegal under licence.  For EPS, Scottish Natural Heritage or Scottish Government issue the licence, depending on why it is required.  However, a licence can only be issued under very strict conditions:

1. the reason for the licence must relate to one of several specified purposes listed in Regulation 44(2);

2.  there must be no satisfactory alternative;

3.  the proposed action must not be detrimental to the maintenance of the species at 'favourable conservation status'.