Canis Lupus in agro hominis
20 February 2020
If your domestic mutt makes friends with a wolf, and is prepared to eat and play with this visitor from the wild in your garden, does that deprive said wolf of the protection of the EU rules on the protection of listed species? AG Kokott at the European Court of Justice has just handed down her opinion on this tricky question of conservation referred to the Court.
Background law
The Habitats Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora calls for the introduction of a system of strict protection for species, such as the wolf (Canis lupus), which are listed in Annex IV(a) thereto. However, must that system of protection also be applied in the case where a wolf plays with dogs in a village? That is the question that has been put to the Court in these proceedings. As the AG continues
Even in its specific form, that question may be of greater practical importance than one might think. The answer to it will be decisive above all, however, in determining whether the substantively extensive protection of species provided for in the Habitats Directive is primarily relevant to natural and semi-natural areas, that is to say, in particular, to activities such as agriculture, forestry and hunting, or whether it is to be taken into account without restriction in all human activities, such as the operation of roads.
You only have to think about this for a few seconds before realising the far reaching implications of the latter interpretation.
The Directive sets out the obligations for member states in the interests of maintaining and not disturbing the favourable status of protected species. There are derogations that can be made in certain circumstances. These include the prevention of “serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property. And of course the usual derogations are allowed the interests of public health and public safety, or for other imperative reasons of overriding public interest (known in conservation circles as IROPI).
Factual background
A Roman society Observation and Protection of Animals together with veterinary surgeon UN, made their way to Șimon, a part of Romania where wolves are protected. Their intention was to capture and relocate a wolf which had for several days been present on the property of a local resident, where it had been playing and eating with the family’s dogs.
The wolf was anaesthetised with a projectile containing narcotic and psychotropic veterinary medicines and then tracked and picked up off the ground. It was carried by its tail and the scruff of its neck to a vehicle and placed, under sedation, in a cage for transporting dogs.
The Society then arranged for the wolf to be transported to the Libearty bear reserve, in the town of Zărnești in the province of Brașov, which has a fenced enclosure for housing wolves rescued from zoos keeping them in an environment inappropriate to the species. During that journey, however, the wolf managed to escape and disappear into the surrounding woods.
The Society was threatened with proceedings under Romanian law which criminalised the unauthorised capturing of animals protected under the Directive. The national court referred the following question to the CJEU: whether the deliberate capture of wild wolves without a derogation under Article 16 of the Habitats Directive is permissible in the case where the animal is found on the outskirts of a village or enters the territory of a local authority. Such a derogation would be necessary only if the protective provisions are in principle applicable in such cases.
At the core of this question is a proposition that the protection of species is to apply only in the case where protected species are present in their natural habitat.
This proposition, in the AG’s opinion, was erroneous. But the question turned on the precise meaning of Article 12 (1) of the Directive. In order to be able to provide the Romanian court with a useful answer, it had therefore be examined whether, for the purposes of Article 12(1) of the Habitats Directive, human settlements form part of the wolf’s natural range. It must also be considered, in the light of the situation in the main proceedings, whether the anaesthetisation of a wolf on a residential property and its transportation by cage is to be regarded as the capture of a specimen in the wild within the meaning of Article 12(1)(a).
Perhaps deliberately, the drafters of the Directive chose not to define the biological term ‘natural range’ used in Article 12 of the Habitats Directive (‘aire de répartition naturelle’ in the French version and ‘natürliches Verbreitungsgebiet’ in the German version). As AG Kokott observed,
some species protected by EU law, such as certain bats, the hermit beetle (Osmoderma eremita) and the lesser kestrel (Falco naumanni), unquestionably use habitats within human settlements. What is more, from a scientific point of view, there are indications that wolves too — rarely, it is true, but regularly nonetheless — appear in the vicinity of human settlements.
… it would be incompatible not only with the purpose of the provisions on the protection of species but also with the wording and scheme of those provisions to exclude human settlements from their scope.
A similar meaning follows from the definition of the Convention on the conservation of migratory species of wild animals. According to that definition, ‘range’ covers all the areas of land or water that a migratory species inhabits, stays in temporarily, crosses or overflies at any time on its normal migration route. It is not restricted to natural areas. On the contrary, the crossing of areas of any type is expressly included in the ‘range’ of the species. Nor are any of the prohibitions on the disturbance of wild birds in the Birds Directive geographically restricted in any sense.
She therefore concluded that the natural range of the wolf, and thus the territorial scope of Article 12 of the Habitats Directive in relation to that species, “can include human settlements”.
Of course large carnivores such as wolves present a danger to people and domestic animals so one would not have to accept “in every case that strictly protected species visit and stay in residential areas.” On the contrary, in the case in particular of species of animal which are inherently dangerous or are associated with certain risks, Article 16(1) of the Habitats Directive provides for some discretion to avert danger.
Thus, Article 16(1)(b) and (c) of the Habitats Directive permits measures to prevent serious damage, in particular to crops and livestock (point (b)), or 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.
In this particular case, the wolf is said to have spent a number of days on a local resident’s property, playing and eating with the family’s dogs there, and therefore the presence of such a risk in the main proceedings could not be ruled out. But taking into account that no derogation had been filed, that the wolf escaped anyway, this risk could not remove the animal from the protection provided by the Directive and the implementing legislation.
The Charter of Fundamental Rights And Freedoms would prevent the imposition of a strict penalty for an infraction such as this. However, it is also true in this regard that the examination of those circumstances and the consideration of all relevant factors was a matter for the national court.
The AG therefore proposed that
The Court’s answer to the request for a preliminary ruling should be as follows:
(1) The natural range of the wolf (Canis lupus) and, therefore, the territorial application of Article 12 of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in relation to that species, may include human settlements.
(2) The reference to nature (the wild) in Article 12(1)(a) of Directive 92/43 is to be interpreted as meaning that its protection does not just apply in certain places but also extends to all specimens of protected species which live ‘in nature’ or in the wild and thus have a function in natural ecosystems.
Comment
The question of where an animal, plant or organism under the protection of international conservation laws is found, or originates, may seem to be something of a nit-pick in determining whether the interference with it is an offence under any law implementing these international instruments. But the AG has given it careful consideration in this opinion and it is to be hoped that the Court will follow her lead.
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Because wild animals do not know national boundaries and consistency matters. It helps everyone. NB it is not a cross-frontier law. It is a minimum standard agreed internationally which each sovereign country then makes laws to meet or exceed. We have similar obligations with other international bodies. For example the UN declaration on rights of children.
*”…specimens of protected species which live ‘in nature’ or in the wild and thus have a function in natural ecosystems.”*
I hope this clumsy wording is taken to mean that a specimen found in a garden is awarded protection because it is a member of a species normally found in undomesticated places. Otherwise, I could interpret it to mean specimens are *only* protected in undomesticated places; which is surely, the opposite of what was intended. :/
I do hope the protection *is* awarded to specimens that turn up in ‘gardens’, because ‘gardens’ could mean anything from a streetside front lawn, to the many acres of Kew Gardens–where many rarities are ‘found’ simply because they were planted there when they weren’t so rare, and because they deliberately try to save rare plants there by tissue culture; and also in the case of fungi that turn up there, where it is fortunate that scientists are on hand with the necessary skills to identify them, which are, themselves rare elsewhere! ‘Gardens’ could also extend to the country parks and golf courses of the ‘landed gentry’, where rarities have escaped the extirpation that usually occurs when land is developed.
Another point to remember is that, in the past, the last members of a species–eg. Thylacine; Passenger Pigeon–died in zoos without any particular effort to save them from extinction. There is no excuse for this nowadays, when it is so much easier to communicate the status of the species to all.
I might also offer the observation, that, where it might be feared that allowing wild wolves to cohabit with domesticated dogs, could result in a ‘contamination’ of the wild gene pool, it should be remembered that the ‘domestic’ versions of genes came from the wild pool in the first place, so allowing some back into what may be in itself a rather impoverished wild pool through inbreeding due to small numbers as a result of human persecution, and, thus, actually a *good* thing for the preservation and fitness of the wild species.
Long may they play!
I was a Bremainer; I am a Bregretter; I hope to be a Brejoiner. But I cannot see how this needs to be or ever should have been the subject for cross-frontier laws.