Who’s afraid of the big bad wolf?

22 August 2019 by Rosalind English

The Finns are, or so it appears from a recent referral to the European Court of Justice: Case C‑674/17.

Man up, Finns! That is the AG’s advice. The Habitats Directive allows of no derogation from the protection of species obligation that does not come up with a satisfactory alternative. Furthermore it must be shown that any derogation does not worsen the conservation status of that species.

Whatever the CJEU decides, the opinion of AG Saugmandsgaard Øe makes for fascinating reading, going to the heart of the conservation problem. As human populations spread, how to secure the preservation of wild species, particularly carnivores?

The Finnish court referred a number of contested decisions allowing the deliberate killing of a limited number of wolves by the Finnish Wildlife Agency. The national law, which transposes the Habitats Directive, prohibits the deliberate killing of wolves, but it also incorporates Article 16(1)(e) of the Directive. This provision lays out certain strict conditions for derogations from the protection of wildlife. The Agency had authorised hunting for population management purposes within the limit of 46 individuals set by the national rules for the 2015-2016 hunting year.

The conservation group Tapiola, supported by the Commission, asserted that this ceiling was too high given the size of the wolf population and its conservation status. Tapiola submitted evidence that the wolf population had fallen drastically even before these aforementioned derogation permits had been implemented.

They also argued that hunting for population management purposes, contrary to the recommendations in the management plan and the derogation permits granted under it, targeted a significant number of breeding specimens.

Legal background

The Habitats Directive establishes a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting, inter alia, “all forms of deliberate capture or killing of specimens of these species in the wild”.

Any derogation from that obligation must comply with two general requirements. First, the absence of a satisfactory alternative is a precondition for granting the derogation. Secondly, the derogation must not be detrimental to maintenance of the populations of the species concerned at a favourable conservation status in their natural range.

Background facts

In their management plan, the Wildlife Agency identified as an obstacle to the success of the wolf protection policy the fact that the rural populations established near the areas where wolves lived had not given it their support. The policy’s lack of legitimacy in the eyes of those populations appeared to have given rise to widespread poaching. The management plan was a trial designed to assess whether legalising the hunting of a predetermined number of wolves would reduce poaching and, ultimately, improve the conservation status of the wolf population.

As part of their claim that this plan infringed the Habitats Directive, Tapioca argued that hunting was liable to have an adverse effect on the conservation status of wolves, which are already seriously endangered in Finland. Nor had it been shown that wolf hunting is capable of achieving the objectives that the management plan attributed to it. Tapiola added that the Agency issued each derogation permit on the basis of an assessment relating only to the territory to which the permit related, without taking into account the cumulative effect on wolves’ conservation status of all the permits for the various territories.

Questions referred to the CJEU

The Finnish Supreme Court acknowledged that the species Canis lupus is seriously endangered in Finland. The number of wolves in the country has fluctuated considerably over the years and it has been assumed that those variations are linked to poaching. The small size of the wolf population furthermore makes it vulnerable to the influence of chance.

That court wished to know

• whether the fact that a derogation permit setting an annual maximum number of animals that could be captured or killed for the whole territory of the Member State concerned affected whether or not that derogation complied with Article 16(1)(e) of the Habitats Directive.
• whether under that Article hunting for population management purposes could target a local population whose conservation status is favourable, without any assessment of the conservation status of the wolf population at the level of the national territory.
• whether a derogation permit could be granted, even where the conservation status of that population is not favourable, provided that the derogation permit does not further worsen that status.

The referring court was uncertain whether the contested decisions complied with the requirement that there be no satisfactory alternative, set out in the introductory part of Article 16(1) of the Habitats Directive. That court noted that it is not scientifically proven that hunting for population management purposes reduces poaching to such an extent that it has an overall favourable impact on the conservation status of wolves. They asked, inter alia, whether account be taken of other factors, such as the objective of preventing harm to dogs and increasing the general feeling of security.

The AG’s conclusions

In its case law under the Birds Directive, the CJEU has always held that any derogation must be based on scientific – geographic, climatic, environmental and biological- factors. In the AG’s view, that principle applied in equal force to the derogation provision in the Habitats Directive.

Was granting a derogation permit to hunt wolves a proportionate response to a legitimate objective, that is, the objective of combating poaching? Related objectives were preventing wolves from injuring dogs and reassuring local populations. These objectives, argued the Agency, would help increase ‘social tolerance’ of wolves among the local human populations and, as a result, reduce illegal hunting.

As the AG observed:

The purpose of derogation permits lay […] at the confluence of the objective of conserving wolf populations and the opposing human interests.

In his view, these objectives were legitimate aims that could be relied upon to support a derogation based on Article 16. The details of the derogation permits would be for the Finnish court to assess, but he suggested that

the objective of improving the general feeling of security of the inhabitants of the areas covered by the derogations was … probably worded in terms too general for it to be possible to examine whether those derogations were proportionate to pursuit of that objective.

Whilst the AG’s opinion went broadly against Tapiola on the poaching issue, he was with them on the geographical point. He did not accept the Agency’s argument that it was sufficient to establish that the derogation permit satisfied the Habitats Directive because it did not jeopardise maintenance of the wolf population at a favourable conservation status in its natural range defined at transboundary level. He took a poor view of the lack of specification of the natural range of the wolf population in question, and acknowledged the information provided by Tapiola that this population covered certain parts of the territories of Russia as well as Finland.

In this respect, he found that

no derogation permit can be granted under Article 16(1) of the Habitats Directive unless the conservation status of the populations of the species concerned, and the impact that the envisaged derogation permit is capable of having on that status, have been assessed, at the level of the territory of the Member State as a whole or of the biogeographical region within that State in which the derogation permit is intended to be implemented.

Wildlife has no more respect for national borders than pollution, which is why environmental and conservation measures have to be set at international levels, or regional at best. The problem is that even the European Union has a border. The Habitats Directive does not concern non-EU countries, and therefore a Member State cannot verify or predict the number and type of individuals of those species whose killing a third country may authorise or tolerate. 

The favourable conservation status of those populations is a precondition for granting a derogation permit. Since the impact of a derogation permit on the conservation status of a population depends on the cumulative effect of the various causes of mortality attributable to humans, that impact cannot be assessed at the level of a territory that crosses the borders of a third country.

The CJEU may well disregard this conclusion. It rejected such an interpretation in its judgment of 14 June 2007, Commission v Finland (C‑342/05, EU:C:2007:341, paragraph 29.) In that judgment it held that the requirements for derogating from the Habitats Directive are satisfied, even where the populations concerned are not at a favourable conservation status, provided “it is duly established that the derogation is not such as to worsen their unfavourable conservation status or to prevent their restoration at a favourable conservation status.” It is therefore sufficient, said the Court of Justice, for the derogation to be, at least, neutral in terms of the species’ conservation status.

Comment

Both the referring court and the AG accepted that poaching represented a considerable challenge to the success of the wolf conservation policy. But the underlying question was whether the granting of hunting permits actually reduces poaching. To be fair, the Agency’s trial had been instituted to assess whether hunting for population management purposes was effective in combating poaching in such a way as to improve the conservation status of the wolf population. But the trial was inconclusive, and had anyway been discontinued.

As the Commission observed, it was not apparent that the Agency carried out any detailed analysis of the practical difficulties in monitoring poaching that may have led it to conclude that a policy of stricter monitoring and penalisation, together with other preventive measures, was not a satisfactory option.Why would shooting wolves illegally become more risky when deliberate killing of wolves is authorised (albeit to limited parties)? There is evidence on poaching figures from other countries where limited hunting is permitted. Illegal hunting is still hunting without paperwork, and it is hard to envisage a practice that has been in place for some years vanishing or even diminishing because some individuals are prepared to clear the bureaucratic hurdles.

To put it bluntly, humans, like all other predatory species, like to hunt.

Anyone interested in this question should read one of the articles relied on by Tapiola and the Commission: Epstein, Y., ‘Killing Wolves to Save Them? Legal Responses to “Tolerance Hunting” in the European Union and United States’, Review of European Community & International Environmental Law, vol. 26, no 1, 2017, pp. 19-29. The full article is behind a paywall but here is a link to the abstract.

In essence, this paper shows that in the US the argument that public hunting of wolves would in fact benefit the species by improving social tolerance for wolves has been “repeatedly struck down” by US courts. The article contrasts these legal responses to social ‘tolerance hunting’ and argues that the Habitats Directive should not be interpreted to allow tolerance hunting of strictly protected species.

Whichever way the CJEU decides this issue, the AG’s observations ring true in the context of rapidly spreading human habitations and shrinking habitats for wild animals:

the provisions of the Habitats Directive must be interpreted in the light of the precautionary principle enshrined in Article 191(2) TFEU, (47) referred to by Tapiola and the Commission. That principle means that if after examining the best scientific data available significant doubt remains as to whether or not a derogation will be detrimental to the maintenance or restoration of populations of the species concerned at a favourable conservation status, the Member State must refrain from granting or implementing that derogation.