First published on: October 12, 2019
On 10 October 2019 the Court of Justice of the European Union issued a preliminary ruling of importance for the application of the species protection provisions of the Habitats Directive – the principal piece of EU nature conservation law – in Case C-674/17. The underlying case involves the hunting of wolves (Canis lupus) in Finland, the legality of which had been contested by an NGO in the Finnish courts. (This is the EU Court’s second case on the hunting of wolves in Finland, following Case C-342/05, decided in 2007.) The Finnish judge asked the Court of Justice of the EU to clarify certain issues regarding the compatibility of the wolf hunt with the Habitats Directive.
The Finnish court’s questions concerned the scope and interpretation of Article 16(1), which provides the basis on which member state authorities may derogate from the prohibitions in Article 12, and in particular the interpretation of the mystifying derogation ground described in Article 16(1)(e). Wolves in the southern half of Finland, and in most other parts of the EU, have the status of strictly protected species. So do many other species, listed in Annex IV of the Habitats Directive. Article 12 of the Directive requires member states to prohibit the deliberate killing of animals belonging to these species, and various other harmful activities. According to Article 16(1), member state authorities may make or grant exceptions from the strict protection required by Article 12 when three conditions are met: (1) the action concerned (e.g, the hunting of a number of wolves) is for one of the purposes listed in Article 16(1); (2) there is no other satisfactory means of achieving the purpose involved; and (3) the action will not jeopardize the achievement or maintenance of a ‘favourable conservation status’ of the population concerned. The full text of Article 16(1) is as follows:
Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) and (b):
(a) in the interest of protecting wild fauna and flora and conserving natural habitats;
(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;
(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;
(d) for the purpose of research and education, of repopulating and re-introducing these species and for the breedings operations necessary for these purposes, including the artificial propagation of plants;
(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.
Of course, to appreciate the significance of the EU Court’s ruling for the application of the Habitats Directive to wolves and other strictly protected species it is best to read it carefully yourself. Below, however, I share some preliminary thoughts that occurred to me when reading it.
(1) The objective(s) of any Article 16(1)(e) derogation must be clearly identified
The Court now expressly affirms this position, which already seemed to follow from the text of Article 16(1) – after all, how could a member state demonstrate the absence of satisfactory alternatives (a condition applicable to all derogation grounds in Article 16) if it isn’t clear what purpose the derogation serves?
(2) Article 16(1)(e) is not a catch-all provision, but a last resort. Derogations can only be made for purposes not addressed in Article 16(1)(a)-(d)
This concerns a big interpretive question. According to a restrictive interpretation, which the Court now appears to affirm in its ruling, Article 16(1)(e) only covers purposes which are not yet covered by grounds (a)-(d). For instance, killing large carnivores to prevent damage to livestock, pets or other property would not be covered by ground (e) because it is already provided under (b). Furthermore, to claim that 16(1)(e) can be used to prevent minor livestock damage could be seen as inappropriately circumventing the limitation of 16(1)(b) to prevention of “serious” damage to livestock or other property. Following the Court’s restrictive interpretation, Article 16(1)(e) could thus only be used to allow derogations serving private interests other than damage prevention. This covers recreational hunting. (Incidentally, the Court’s case law on the Birds Directive’s equivalent derogation clause has so far precisely only condoned its use for recreational purposes!) According to an alternative, more liberal interpretation (which the Court now seems to say is incorrect), Article 16(1)(e) is a catch-all provision which can justify derogations for basically any objective which member states deem appropriate. (This is the approach taken in Bern Convention guidance on the Convention’s equivalent derogation clause.) According to this reading, preventing minor property damage through an Article 16(1)(e) derogation, to revisit this example, would not be viewed as an invalid circumvention of the requirements of 16(1)(b), for the reason that 16(1)(e) sets out a number of additional requirements or safeguards. In other words, if this second interpretation would have been correct, then in terms of the objectives that may be pursued by Article 16(1)(e) derogations, almost anything goes – thus including increasing tolerance, reducing poaching, protecting dogs from wolves, and so on. The AG Opinion opted for this second, liberal reading, but the Court takes a different view.
(3) ‘Tolerance hunting’ can in theory be based on Article 16(1)(e), but only under very strict conditions which will be hard to meet in practice
A central question in this case was to what degree Article 16(1)(e) can serve as a basis for wolf hunting the purpose of which is to increase tolerance amongst the local human population and therewith reduce illegal killing of wolves. The Court holds that such ‘tolerance hunting’ which has as a purpose the maintenance or improvement of the conservation status of the wolf population involved, can in theory be based on Article 16(1)(e). (One could argue that Article 16(1)(a) already provides a basis to do so, but the Court clearly takes a different position.) The ruling does confirm, however, that the conditions under which a derogation to allow such hunting can be based on Article 16(1)(e) are so strict that they will be difficult to meet in practice.
(4) Evidence is required that the derogation is a suitable means for achieving the objective(s)
Once a suitable objective is identified, the member state planning to issue an Article 16(1)(e) derogation must base this derogation on evidence that the proposed action (e.g. killing a number of wolves) is a suitable means for achieving the objective in the first place. Applied to the present case, according to the Court, the competent member state authority needs to support, on the basis of rigorous scientific data, the hypothesis that the hunting for population management purposes would reduce illegal hunting to such an extent that it would have a net positive effect on the conservation of the wolf population. (Applied to the present underlying Finnish dispute, the Court observes that apparently in that case, hunting for management purposes led to the killing of 13 or 14 more wolves than would have been killed as a result of poaching, and drily concludes that these data appear to suggest that the derogation permits in question are not capable of achieving their objective of combating poaching in the interests of protecting the species – but it is ultimately up to the national judge to determine this.)
(5) Evidence is required that there is no other suitable means of achieving the objective(s)
This is, of course, a well-established condition appearing in Article 16(1) itself, the importance of which has been stressed by the Court on various occasions, and which indeed appears a key legal bottleneck with regard to authorizing wolf hunting on the basis of Article 16(1). The Court highlights the need for convincing evidence, based on scientific information, showing why the sole means of achieving the objectives relied upon in support of the derogation permits was to allow the hunting of a particular number of wolves. All other possible options must have been envisaged and rejected, and the reasons why clearly stated. This is fully consistent with earlier Court jurisprudence. The Court also stresses that the mere existence of illegal hunting and problems encountered in curbing such illegal hunting cannot release a member state of the obligation which it has in the first place of controlling activities that are illegal under the Habitats Directive.
(6) Strict interpretation of Article 16(1)(e)’s specific requirements
The requirements that are specific to Article 16(1)(e) are to be interpreted restrictively, again in accordance with broader Court jurisprudence. We are talking here about the string of conditions from “strictly supervised conditions” through “selective basis” to “limited numbers”.
(7) FCS at various levels. There is scope for approaches at transboundary population level amongst EU member states, but unclear under what conditions
The Court also addresses the big question at what level(s) conservation status is to be assessed and a FCS achieved. Although it does so in a manner that leaves some questions unanswered, it does provide further clarity and, in particular, clarifies that there is scope, in principle, to look at conservation status at the level of transboundary populations shared by various EU member states. And most wolf populations in Europe are shared between two or more countries. According to the Court, in principle, conservation status and the impact of derogations thereon must be assessed (1) on the scale of the territory of the member state involved, or, (2) in member states straddling more than one biogeographical region, the scale of the biogeographical region in question within the member state, or, (3) when the natural range of the species requires it and as far as possible, on a transboundary level. According to the ruling, there is no scope for focusing on the transboundary population insofar as that population extends into non-EU member states (Finland-Russia, Sweden-Norway). What the conditions are precisely for focusing on the transboundary population level is left unclear in the ruling. In this regard, the Opinion of the AG expressly also did “not prejudge whether or not a Member State can establish that the population in question is at a favourable conservation status, where its natural range straddles the territory of several Member States, by proving that it is at that status at the level of the transboundary area concerned,” with a footnote stating that the 2008 LCIE carnivore guidelines (endorsed by the European Commission) “advocate such an approach and highlight the importance of cooperation between States for the purpose of managing populations of large carnivores.” In addition to the preceding considerations, the ruling asserts that it is generally necessary, when applying Article 16(1), to assess a derogation’s impact also at the level of the local population of the species involved – inter alia in light of the cumulative effect of various derogations on the conservation status at national or transboundary level. The Court also asserts that attention must be paid to the dynamics and social stability of the population involved.
(8) A role for management plans
In connection with the requirement that derogations may not adversely affect conservation status, the Court highlights the role that can be played in this regard by management plans and by the determination of maximum numbers of animals that can be killed without adversely affecting conservation status.
(9) Precautionary principle
In cases of uncertainty, the precautionary principle must be applied. In particular, when, after assessing the best available scientific information, uncertainty remains regarding the question whether a prospective derogation would or would not be harmful to the maintenance or recovery of a population of a threatened species in a favourable conservation status, the member state involved must refrain from issuing the derogation.
(10) Derogations when conservation status is unfavourable
The Court reiterates its ruling in the first Finnish wolf case, in that a derogation may exceptionally be permissible when conservation status is not (yet) favourable, if the derogation’s effect is neutral in terms of the species’ conservation status. The ruling stresses the exceptional nature of such derogations, and that the precautionary principle must be applied in case of uncertainty.
The Court expressly confirms that the hunting of wolves (including ‘tolerance hunting’) can in principle be based on Article 16(1)(e), but makes clear at the same time that the conditions to be met are very restrictive. This is also of relevance for other large carnivores and other strictly protected species listed in Annex IV of the Habitats Directive.
There is scope, in principle, for assessing the impact of a prospective derogation on conservation status at the level of a transboundary population as far as EU member states are involved, although the conditions under which this may be done remain unclear. The assessment must also consider the impact on the population at a local level.
Regarding the controversial Finnish wolf hunting that led to this ruling by the EU Court, whereas it is formally up to the national judge in the underlying Finnish case to determine this, the EU Court leaves little doubt that the wolf hunting under scrutiny falls severely short of meeting the various conditions.
The text of the judgment is available here.
A more elaborate analysis of the legality of wolf hunting under European law is forthcoming in the following article:
A. Trouwborst & F.M. Fleurke, ‘Killing wolves legally – exploring the scope for lethal wolf management under European nature conservation law’, Journal of International Wildlife Law and Policy (in press)