On 10 October 2019 the CJEU handed down a much anticipated judgment in case C-674/17 Luonnonsuojeluyhdistys Tapiola. This case was a preliminary reference from the Supreme Administrative Court of Finland on the interpretation of Article 16(1)(e) of the Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora).
Article 12 of the Habitats Directive 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.
Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain 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:
- in the interests of protecting wild flora and fauna and conserving natural habitats;
- to prevent serious damage to crops, livestock, forests, fisheries and water;
- in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
- for the purposes of research or education, for example for repopulation or reintroduction;
- 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 and narrowly (see e.g. C-6/04, para. 111 and C-508/04, para. 110).
In its judgement in C-674/17, the CJEU emphasised once again the strict limitations to the use of these derogations for the hunting of wolves and other large carnivores.
In essence, Finland had adopted a plan based on the assumption that the best way to avoid illegal poaching of wolves was to allow them to be hunted under derogation licences (described as “management hunting”). The Finnish authorities had issued two hunting permits, identifying particular packs, but not specific individual wolves
In May 2019, Advocate General Saugmansgaard Oe (AG) had issued a wide ranging opinion which included some worrying interpretations. Despite setting a relatively high standard of evidence, the AG Opinion had been embraced by the hunting lobby as a “green light” for hunting of large carnivores.
The final judgment, which stops short of many of the interpretations put forward by the AG, finds that Article 16(1)(e) cannot be used to grant a derogation for “management hunting” when (paragraph 80):
– the objective pursued by such derogations is not clearly and precisely substantiated and if, in the light of rigorous scientific data, the national authority cannot prove that such derogations are suitable for achieving that objective;
– it has not been established that the objective pursued by those derogations cannot be achieved by any other satisfactory solution. The mere existence of an illegal activity (in this case poaching) or the difficulties faced in the control of that illegal activity cannot be sufficient in this respect;
– there is no guarantee that derogations will not interfere with the maintenance, at a favourable conservation status, of populations of the species concerned in their natural range;
– the derogations have not been the subject of an assessment of the conservation status of the populations of the species concerned, and of the impact which the proposed derogation is likely to have on it, at local level, in the territory of that Member State or, where appropriate, at the level of the biogeographical region concerned where the borders of that Member State straddle several biogeographical regions, or where the natural range of the species so requires and, as far as possible, on a cross-border basis; and
– all conditions relating to the selective and limited measurement of catches of a limited and specified number of certain specimens of the species are not fulfilled under strictly monitored conditions, the respect of which must be established with regard, in particular, to the level of the population, its state of conservation and its biological characteristics.
Although the CJEU states that it is for the referring court to check whether these criteria are met in the main proceedings (paragraph 81), the analysis carried out in the judgment (paragraph 44, 46, 52, 53, 75 and 77) indicates that these requirements do not appear to be met in the present case.
The CJEU highlights that the objective of Article 16 (1)(e) ( i.e. 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) cannot be confused with the objectives of the other exceptions in Articles 16(1)(a) to (d) (for example to prevent serious damage to crops, or for the purposes of research), and Article 16(1)(e) can only be used when those other exceptions are not relevant. In paragraphs 34 to 38 of this judgment, the CJEU therefore closes the possibility of interpreting Article 16(1)(e) as giving Member States broad discretion to determine the objectives pursued by this exception (a spectre raised by the AG opinion).
Some groups have welcomed the decision as a “green light” for “management hunting”, but such a conclusion appears to underestimate the exceptionally high bar set for any derogation to be applied. The Court does say that the fight against poaching might be invoked as a method which contributes to the maintenance or restoration of a species to a favourable conservation status, and could therefore be an objective covered by Article 16(1)(e) (paragraph 43). However, given the strict conditions established by the Court, such a derogation would encounter serious difficulties to apply in practice.
- Firstly, it must be demonstrated with rigorous scientific data that the exception adopted on the basis of Article 16(1)(e) – in this case the hunting of a protected species – is suitable for achieving the objective of reducing illegal hunting and producing a net beneficial effect on the conservation status of the wolf population. The Finnish referring court itself indicates that in this case, there is no scientific evidence to support that conclusion (paragraphs 44 to 46).
- Secondly, even if this were proven, the CJEU reiterates that no derogation from Article 16(1) can be granted if the objective pursued can be achieved by another satisfactory alternative. This has to be proved by the national authority with the relevant technical, legal and scientific reports. It is not sufficient to invoke the existence of poaching and the difficulties of its control. The CJEU points out that priority should be given to strict and effective control of illegal activity, for example controlling poaching_(paragraphs 47 to 53).
- Thirdly, the derogation may not be detrimental to the maintenance, at a favourable conservation status of the populations of the species concerned, in their natural range. The conservation status of the species and the impact that the derogation may have on it at local, national or even, if the species’ range so requires, transboundary (within the EU) level must be assessed (paragraphs 58 to 61). Fourthly, Article 16(1)(e) of the Directive imposes additional requirements on the limited and specified number of wolves to be killed, the selective method of hunting them, and the strict controls to be carried out. The CJEU indicates that this number should be limited to such an extent that there is no risk of significant negative impact on the structure of the population concerned, even if this does not in itself prejudice the maintenance of the species at a favourable conservation status in its natural range (paragraph 72). The exception would refer not only to the species or packs, but also to individually identified wolves (paragraph 73). In the Finnish case, the exceptions only recommended avoiding certain individuals. This did not preclude the killing of reproductive wolves, which were very important for the conservation status of the species. Thus, 20 dominant males were hunted, which calls into question the selective character and the effectiveness of using hunting.
In conclusion, the judgment of the ECJ in case C-674/17 significantly limits the possibility that hunting can be used as a management tool for wolf conservation. The bar for evidence is a high one, and should be considered carefully, not only by Finland, but also by other EU member states who wish to see greater flexibility in derogating from the protections offered by Article 12.