Wolves and the Habitats Directive, a misread opinion in C-674/17?

By Anna Heslop

On 8 May the CJEU issued an Advocate General’s Opinion in case C-674/17 Luonnonsuojeluyhdistys Tapiola, on the hunting of Wolves in Finland.  With the final decision of the court due in the coming weeks it is useful to analyse whether the nuance of that opinion is being lost in the public reaction by interested groups, who have taken it as a green light for hunting protected species.

The Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora) requires member states to establish a system of strict protection for animal and plant species listed in Annex IV of that Directive, including Canis Lupus – Wolves[1].  Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain stringent tests are met.  There must be no satisfactory alternative, the derogation must not be detrimental to the maintenance of the population at favourable conservation status in their natural range and derogations may only be applied for specific reasons, in summary:

  1. in the interests of protecting wild flora and fauna and conserving natural habitats;
  2. to prevent serious damage to crops, livestock, forests, fisheries and water;
  3. in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
  4. for the purposes of research or education, for example for repopulation or reintroduction;
  5. to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens in limited numbers specified by the competent national authorities.

These derogations have been the subject of a number of legal cases over the years, and the case law of the CJEU makes it clear that any derogations should be interpreted strictly (see e.g. C-6/04, para. 111 and C-508/04, para. 110).

Case C-674/17 concerns a preliminary reference from the Supreme Administrative Court of Finland for guidance on the interpretation of Article 16(1)(e) of the Habitats Directive in relation to derogations for the hunting of wolves.  A final decision in the case is awaited in the coming weeks.

In essence, Finland adopted a plan based on the assumption that the best way to avoid illegal poaching of wolves was to allow them to be killed lawfully, under derogation licences. The Finnish Government’s Plan was to allow the capture or killing of specifically selected individual wolves, under strictly supervised conditions. The referring court notes that wolves are seriously endangered in Finland and that there is no scientific evidence that such an approach would reduce poaching so as to have an overall favourable impact on the conservation status of wolves.

In December 2015 the Finnish authorities issued two hunting permits for the killing of 7 wolves in total, identifying particular packs, but not specific individuals. The basis for the decision was that wolves belonging to those packs had caused damage or nuisance by injuring hunting dogs and because parents living in the area were fearful for the safety of their children (despite those fears not being borne out by evidence of any actual risk).

In an opinion delivered on 8 May 2019, Advocate General Saugmansgaard Oe (AG) found that the objective of improving the general feeling of security of people living near areas occupied by wolves could be a legitimate aim to support a derogation under Article 16(1)(e) (paragraphs 48-49).

The AG also concluded that because Article 16(1)(e) includes additional requirements not found in Articles 16(1)(a) to (d), Member States should be given a wide discretion to define the aims pursued by the derogation, including aims to “protect opposing interests” (paragraph 51). Rather worryingly, he also found that Member States could rely on Article 16(1)(e) in circumstances where the thresholds required by Articles 16(1)(a) to (d) are not met, for example to prevent damage to crops or livestock which does not meet the threshold of being “serious” (Paragraph 52 and footnote 14). The AG also espouses a view that the objective of species conservation (i.e. in this case hunting wolves with the stated aim of reducing poaching) could be pursued by a derogation under Article 16(1)(e) where the beneficial effect expected from that derogation is not sufficiently established under Article 16(1)(a) to (d) (Paragraph 52 and footnote 14).  Even in the light of the additional requirements of Article 16(1)(e) (strictly supervised, selective basis etc.) this interpretation would tend to indicate a significant loosening of the strict protection envisaged by Article 12.

The AG does go on to set relatively high standards for the evidence required to justify a derogation of this kind (for example paragraph 76).  The Opinion makes it clear that much of the evidence required to meet the strict tests set out in Article 16(1)(e) does not appear to have been provided in this particular case (for example Paragraph 57) and it seems a high bar for any future decisions.  However, this nuance seems to have been lost in the initial reaction to the AG opinion.  It is clear that hunting groups have taken the opinion as a “green light” for more hunting of large carnivores.  In a statement following the AG Opinion the President of the hunting lobby group FACE said of the Opinion “Member States have leeway in order to take account of economic, social and cultural requirements and regional and local characteristics when managing wolves and large carnivore species.”  In the weeks following the AG opinion moves were also made in Germany to relax hunting rules in order to make a similar use of Article 16(1)(e).

These developments show a clear risk that Article 16(1)(e) could be used to by-pass the strict protections envisaged by the Directive and the previous body of case law of the court, based perhaps on an over-simplistic reading of the AGs opinion. Such an interpretation could be a grave threat not only to wolves, but too many protected species across the EU, at a time when biodiversity is under increasing pressure.

The Court, in making its final decision, would be very wise to consider the wider impacts of allowing derogations under Article 16(1)(e) in cases where the strict criteria in Article 16(1)(a) to (d) are not met.  At the very least, it should be crystal clear to those seeking to rely on this Opinion that such derogations could only be used in truly exceptional circumstances, which do not appear to exist in this case.

[1] Certain populations are subject to exceptions where management measures under Article 14 apply in place of strict protection