The current rate of biodiversity loss has been gaining more attention over recent years, with some scientists now claiming that a so-called sixth mass extinction event is currently under way. Despite its progressive image as a world leader in environmental governance, the EU’s biodiversity is not doing any better. The plight of the wild or common hamster (Cricetus cricetus), which was recently added by the International Union for the Conservation of Nature (IUCN) to its list of critically endangered species, is one of the starkest illustrations of the apparent deficiencies of the existing conservation approaches in Europe.
In this blog post, the legal protection offered by Union law to this much larger relative of Syrian or dwarf hamsters that are kept widely as pets will be placed at the forefront. I will use the recent decision of the Court of Justice of the European Union (CJEU) in Case C-477/19 Magistrat der Stadt Wien on the protection of common hamsters in the Austrian capital of Vienna as a benchmark to analyse our current understanding of the EU Habitats Directive (Directive 92/43/EEC). This case might ring a bell with some readers, for these unexpected city dwellers received their five minutes of fame when they featured in an episode of David Attenborough’s Seven Worlds series in 2019. The rapid expansion of the city into the countryside forced them to adapt or perish. However, while safe for now, they face new challenges, which are tied to the inherent tension between strict protection duties and economic aspirations in city environments.
The European dodo
Let us start with some bad news. Despite being listed as a strictly protected species by the EU Habitats Directive since 1994, common hamster numbers have dropped by up to 75% across the French region of Alsace, in Germany and across Eastern Europe. Whereas the species was ubiquitous in farmland regions and was even considered a pest in some regions during the first half of the 20th century, the species now faces imminent extinction. The main drivers for the potential extinction of wild hamsters are the increasing landscape fragmentation, the intensification of agricultural practices, as well as the growing impact of a changing climate on reproduction rates. Nevertheless, the endangered species has had remarkable success in turning urbanization in some areas to its advantage by actively populating urban areas and establishing robust populations in several European cities.
One of the largest populations of common hamsters is currently situated in Vienna, which is putting in a lot of effort to ensure its preservation. But since common hamsters are a strictly protected species under EU law, this means that their presence might constitute a serious legal obstacle to urban project development. In summer 2020, the CJEU had the opportunity to clarify how the habitat protection requirements of the common hamster are to be interpreted in the context of an urban environment. This was the second time the common hamster featured in the case-law of the CJEU, after its 2011 judgment that France had failed to halt adequately the plummeting of the hamster populations in the Alsace region (Case C-383/09 Commission v France). France narrowly escaped a fine amounting to the equivalent of EUR 20 million for not doing enough to protect the common hamster. Ecological restoration is the key word when species are on the brink of extinction. And it is slowly turning into a legal duty under EU law.
Urban nature on the rise
Before delving into the facts of the Austrian hamster case, it is interesting to devote some wider considerations to the increasing importance of urban nature, not only from a human perspective but also in terms of biodiversity benefits. Until recently, the return of wildlife to urban environments had remained somewhat off the charts. For many conservationists and also the wider public, the urban takeover by endangered species has come as a surprise. As such, this recolonization of cities by nature seems to clash with the traditional understanding of nature protection, focused on faraway ecosystems. It is easily assumed that urban environments are a poor surrogate for ‘pristine’ nature. The prevailing narrative used to be that nature is to be equated with biodiversity that is largely untouched by human interventions. However, urban nature does not appear to fit this bill.
The persisting lack of attention could be linked to the so-called shifting baseline syndrome. Due to the lack of information or experience with historical conditions, members of each new generation accept the situation in which they were raised as normal. Hence, the absence of wildlife in urban and industrial sites was considered the norm rather than the exception. However, as a result of the rapid urbanization during the past decades and rising environmental awareness, wildlife is now increasingly reconquering urban areas and thereby challenging our views about wildlife.
In addition to the case of the common hamster in Europe, there is also a rising number of foraging wild boars in the city of Berlin, the increased presence of wolves on the outskirts of cities like Rome and the remarkable recolonization of the EU capital of Brussels by wild foxes. Ironically, the urban populations of these species are sometimes higher than the remaining populations in the countryside. In some instances, as is the case with the common hamster, the very survival of a species increasingly even hinges on the preservation of its urban environment. However, I should also mention the surprising flexibility of certain species, such as gray wolves or wild foxes, which appear to adapt to a human-dominated landscape whenever overhunting practices are banned.
Law in the books
Evidently, the protection of endangered species listed in Annex IV to the EU Habitats Directive in the context of highly dynamic urban areas is prone to give rise to conflicts. The system of strict protection of certain animal species provided for in Article 12(1) of the EU Habitats Directive does not differentiate between species located inside and outside of protected sites. The habitats of strictly protected species within urban environments therefore seemed to fall squarely within the scope of Article 12(1) of the EU Habitats Directive.
But what does that mean specifically? In its steadfast case-law, which started with the landmark ruling in the 2002 Caretta caretta case (Case C-103/00), the CJEU has consistently reiterated that Article 12(1)(a) of the EU Habitats Directive requires Member States to take the necessary measures to establish an effective system of strict protection of protected animal species, prohibiting all forms of deliberate capture or killing. Likewise, Member States also need to ban all types of activities leading to either the deterioration or destruction of the resting places and breeding sites of the protected species pursuant to Article 12(1)(d) of the EU Habitats Directive. The CJEU has repeatedly underlined the wide scope of these protection schemes, highlighting that ongoing recreational activities, forestry practices, as well as agricultural activities also fall within the scope (see e.g. Case C-504/14 Commission v Greece; Case C-441/17 Commission v Poland). In relation to Article 12(1)(d) of the EU Habitats Directive, the CJEU underlined, in cases such as C-98/03 Commission v Germany, that the latter provision equally prohibits all acts resulting in the destruction of breeding sites of protected species, irrespective of the deliberate nature of the activity or not. As a result, lawful building activities that interfere with places where protected species like hamsters are present are in principle also forbidden.
Only under restrictive circumstances can a derogation be issued and the strict prohibitions be bypassed. This is possible only if no satisfactory alternative is available and provided that the derogation does not impact the conservation status of the species concerned. In addition, the activity needs to fall within the scope of one of the reasons under Article 16(1) (a) to (e) of the EU Habitats Directive. Many of these reasons relate to damage to crops, research purposes, or the interest of other threatened species. For spatial developments, only imperative reasons of overriding public interest can be invoked. Private projects that are entirely in the interest of companies would generally not be eligible for a permissible derogation.
Dura lex, sed lex
Returning now to the Austrian hamster case, it quickly became evident that urban development can stand at odds with the rigid nature of the strict protection schemes for endangered species that inhabit urban dwellings. As such, the application of protection duties in urban environments is no longer a point of contention. In a remarkable preceding ruling in Case C-88/19 Alianța pentru combaterea abuzurilor on the presence of a wolf in a Romanian village, the CJEU highlighted that protected species also remain protected when they stray into human settlements.
The Vienna proceedings in Case C-477/19 Magistrat der Stadt Wien revolved around the construction of a building on land where the common hamster had settled. Prior to the construction of the site, the property developer had the topsoil removed, the construction site cleared and a pathway to the construction site built in the immediate vicinity of the entrance to the hamster burrows. The aim of some of these actions was to discourage the common hamsters from remaining present in the area and to push them to relocate to areas which had been especially preserved for them. In itself, this appeared to be a viable strategy to avoid further complications. However, since no prior derogation had been sought before the harmful works had commenced, the City Council of Vienna imposed a fine for violation of the applicable species protection regulations on an employee of the project developer.
In the context of the subsequent legal challenges, an in-depth interpretation of terms like ‘resting places’ and ‘breeding sites’ under Article 12(1)(d) of the EU Habitats Directive rose to the forefront. Ultimately, the Administrative Court of Vienna sought a preliminary ruling from the CJEU on this topic. At the centre of the debate was the question whether Article 12(1)(d) of the EU Habitats Directive is to be interpreted as meaning that the term ‘resting place’ also includes resting places which are no longer occupied by the common hamster. This was relevant for the outcome of the national proceedings since the experts of the project developers had drawn up a map of the entrances to the common hamster burrows, in which it was also determined whether the burrows were effectively inhabited. The purported works destroyed several of the entrances of burrows where, at the time, no common hamsters were deemed present.
In the CJEU’s landmark ruling of 2 July 2020 – the first decision in which it dwelled on the application of strict species protection in an urban context – the Court clearly opted for a more progressive understanding of Article 12(1)(d) of the Habitats Directive. It concluded that abandoned resting places of common hamsters also require protection, at least where there is a sufficiently high probability that the common hamsters will return to them (para. 30). In this respect, the CJEU referred to the rationale of the EU Habitats Directive, i.e. the conservation and, where needed, restoration of the EU’s most endangered species to a so-called favourable conservation status (para. 18). This entails that the long-term survival of endangered species is the bottom line. In addition, the EU judges underlined that the most significant parts of the habitats of endangered species are to be preserved, so that those species can enjoy the conditions essential for, inter alia, resting in those habitats (para. 29). Interference with the essential parts of the natural habitats of endangered species, such as the common hamster, is to be prohibited (para. 31-33). In other words, even works aimed at relocating protected species to other, more safe zones in light of proposed project developments, are in principle forbidden if they lead to interference with or impairments of the resting places of endangered species.
Going beyond the contradiction?
The ruling of the CJEU appears to be completely in line with its earlier case-law, where it underlines that degraded natural areas with ample recovery options also merit protection (Case C-281/16), even if the site does not harbour pristine habitats (yet). A similar rationale was present in the CJEU’s condemnation of France over its failure to halt the decline of common hamsters in Alsace. The CJEU held, inter alia, that France had not succeeded in designating a sufficient number of restoration and repopulation zones (Case C-383/09). In view of future restoration options, the preservation of even temporarily abandoned sites appears crucial. One could read into the Austrian hamster ruling another illustration of the precautionary principle, giving the benefit of the doubt to imperilled nature, such as common hamsters. While the wording of the CJEU was relatively straightforward, the ruling still raises some important, possibly still unresolved questions.
I will outline two outstanding issues here.
First, the CJEU leaves the more practical question of how to assess the ‘high probability’ of a species returning to an abandoned resting place up to the national courts. It is not difficult to believe that this rationale might affect legal certainty in some cases. Who should determine this likelihood? In light of the other recent case-law of the CJEU, such as the one on the legality of wolf management hunting in Finland in Case C-674/17 Luonnonsuojeluyhdistys Tapiola, the answer is: look to the best available science regarding that topic. In practice, it will therefore be up to the ecologists to determine the likelihood of endangered species returning to their apparently abandoned resting places. Only if sound science rules out such a scenario, will the protection rules no longer apply.
Second, there is the question of how to combine smoothly species protection with the inherent dynamics in urban sites. The limited options the CJEU leaves for reconciling economic development with the conservation of endangered species in urban environments might indirectly undermine the legitimacy of the EU Habitats Directive. Critics might argue that rigid protection duties for highly adaptive species that are thriving in urban or port areas are nonsensical; the species will adapt anyway. To some extent, there appears to be a certain discrepancy here, which could ironically lead to perverse incentives. The rigidity of the EU Habitats Directive could indeed prompt project developers to opt for the ‘shoot, shovel and shut up’ approach. Would it not be easier simply not to disclose the presence of endangered species on certain properties and avoid litigation? As alluded to above, granting a project-linked derogation for private-led urban development appears to be facing an insurmountable regulatory hurdle.
Yet, there seems to be a silver lining. A more population-based recovery program might grant more flexibility. It could be framed into the derogation ground provided for by Article 16(1)(e) of the EU Habitats Directive. This provision allows the ‘taking’ of endangered species, albeit under certain supervised conditions. Pursuant to the CJEU’s decision in Finnish wolf hunting case (C-674/17), the concept of ‘taking’ might even include killing individual specimens of a threatened species. This leaves ample room for the transfer of species to more suitable habitats, which are to be preserved in the long run. As recently highlighted by the CJEU in the Finnish wolf hunting case (C-674/17), such derogations need to be science-based and may not lead to indiscriminate takings of endangered species. They cannot put into jeopardy the recovery goals for threatened species. This derogation leaves ample room for balancing for species that are present in urban environments. And, interestingly, Advocate General Kokott’s recent opinion in Föreningen Skydda Skogen and Others (C‑473/19 and C‑474/19), where questions arose as to the interpretation of the rules on species protection of both the EU Habitats Directive as well as the EU Wild Birds Directive (Directive 2009/147), hints at more leeway. In particular, more discretion would be available for planning authorities when it comes to the prohibition on killing and destruction of, or damage to, nests and eggs of wild birds, that is included in the latter directive. Kokott clarifies that when the detriment to the birds is not intended but only accepted as a possibility, the prohibitions merely apply when the activities compromise the wider populations at stake rather than individual specimens. The main premise is that abundant bird species do not require strict protection but more comprehensive measures aimed at general habitat conservation.
More broadly, the outcome of the Austrian hamster case serves as a welcome reminder of the CJEU’s willingness to preserve the effectiveness of the EU Habitats Directive protection duties for endangered species, even in urban sites. For a species like the common hamster, which can rightly be dubbed the ‘European dodo’, this is a relief since it appears to be doing better in the city than in the countryside. Yet, the CJEU’s ardent resolve to reassert the EU Habitats Directive’s protection regime in the context of urban wildlife also aptly ties in with the recent societal trend to revalue and galvanize small-scale nature in the city. Ironically, COVID-19 and the many lockdowns to which this pandemic has led, has pushed many people to rediscover nature closer to home. The CJEU’s recent ruling has underlined that it is not unwilling to let go of urban nature, especially when it harbours critically endangered species, such as the common hamster.