Information;Order — ECLI:EU:C:2025:1040
Date: 2025-12-17
Language of the case: Italian
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-28/24 – 1 
Case C-28/24 
Summary of request for a preliminary ruling pursuant to Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged: 
15 January 2024 
Referring court: 
Tribunale Regionale di Giustizia Amministrativa della Regione 
autonoma Trentino – Alto Adige/Südtirol (Italy) 
Date of the decision to refer: 
20 December 2023 
Appellant: 
LEAL Lega Antivivisezionista ODV 
Respondents: 
Provincia autonoma di Trento 
Istituto Superiore per la Protezione e la Ricerca Ambientale 
(ISPRA) 
  
Subject matter of the main proceedings 
The proceedings concern a series of appeals brought by an animal welfare 
association against certain measures pursuant to which, after a male brown bear 
had injured a person, the President of the Provincia autonoma di Trento 
(Autonomous Province of Trento, ‘the PAT’), authorised the bear’s disposal by 
killing. 
Subject matter and legal basis of the request 
By its reference for a preliminary ruling under Article 267 TFEU, the referring 
court asks, in essence, whether Article 16 of the Habitats Directive (Directive 
92/43), which allows an authority to derogate from the prohibition of the 
deliberate capture or killing of specimens of species protected in the wild, 
provides for an order of priority between, on the one hand, the permanent 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-28/24 
 
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captivity of the dangerous animal (that is to say, capturing it in order to place it in 
permanent captivity) and, on the other hand, its killing. 
Question referred for a preliminary ruling 
[1.] On the basis of the provisions of Article 16 of Directive 92/43/EEC, once it 
has been established that one of the situations expressly referred to in points (a) to 
(e) of Article 16(1) exists and that the condition that ‘the derogation is not 
detrimental to the maintenance of the populations of the species concerned at a 
favourable conservation status in their natural range’ has been satisfied, for the 
purpose of granting authorisation to derogate from the prohibition of ‘all forms of 
deliberate capture or killing of specimens of these species in the wild’, laid down 
in Article 12(a) of that directive, must the further condition that ‘there is no 
satisfactory alternative’ be interpreted as meaning that the competent authority 
must show that there is no satisfactory alternative that would prevent the animal 
from being removed from its natural range, from which follows the possibility of a 
reasoned choice concerning the measure to be taken in practice, consisting either 
in capturing the animal and keeping it in permanent captivity or in killing it, those 
measures being placed on an equal footing? 
or 
[2.] On the basis of the provisions of Article 16 of Directive 92/43/EEC, once it 
has been established that one of the situations expressly referred to in points (a) to 
(e) of Article 16(1) exists and that the condition that ‘the derogation is not 
detrimental to the maintenance of the populations of the species concerned at a 
favourable conservation status in their natural range’ has been satisfied, for the 
purpose of granting authorisation to derogate from the prohibition of ‘all forms of 
deliberate capture or killing of specimens of these species in the wild’, laid down 
in Article 12(a) of that directive, must the further condition, that ‘there is no 
satisfactory alternative’, be interpreted as imposing on the competent authority an 
obligation to choose, as the preferred option, capture for the purposes of keeping 
the animal in captivity (permanent captivity), and that only where that solution is 
objectively and not temporarily impossible does it permit the disposal of the 
animal by killing, so that there is a strict hierarchy between such measures? 
Provisions of European Union law and case-law relied on 
Council Directive 92/43/EEC on the conservation of natural habitats and of wild 
fauna and flora, Articles 2, 12 and 16 (‘the directive’); 
Judgments of 20 October 2005, Commission v United Kingdom, C-6/04; of 
10 May 2007, Commission v Austria, C-508/04; of 14 June 2007, Commission v 
Finland, C-342/05, (paragraphs 31 and 45); of 17 April 2018, Commission v 
Poland, C-441/17; of 10 October 2019, Luonnonsuojeluyhdistys Tapiola, 
C-674/17, (paragraphs 27, 28, 29, 32, 38, 41, 49, 51, 59, 66 and 68); of 11 June 
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2020, Asociaţia ‘Alianța pentru combaterea abuzurilor’, Case C-88/19, 
(paragraphs 25, 44 and 49); and of 2 March 2023, Commission v Republic of 
Poland, C-432/21  
Provisions of national law relied on 
Decreto del Presidente della Provincia Autonoma di Trento n. 9 del 19 aprile 2023 
(Decree No 9 of 19 April 2023 of the President of the Autonomous Province of 
Trento); 
Legge provinciale 11 luglio 2018, n. 9 – Attuazione dell’articolo 16 della direttiva 
92/43/CEE del Consiglio, del 21 maggio 1992, relativa alla conservazione degli 
habitat naturali e seminaturali e della flora e della fauna selvatiche: tutela del 
sistema alpicolturale (“L. prov. n. 9/2018”) (Provincial Law No 9 of 11 July 
2018 – Implementation of Article 16 of Council Directive 92/43/EEC of 21 May 
1992 on the conservation of natural habitats and of wild fauna and flora: 
protection of the alpine farming system; ‘Provincial Law No 9/2018’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 5 March 2023, in the municipality of Malè (province of Trento), a man was 
attacked by a bear while walking his dog on a marked path. At the hospital where 
he was treated, injuries were found on his arm and head attributable to bear attack; 
those injuries were then attributed to a brown bear specimen, named MJ5. On 
19 April 2023 the President of the PAT issued Decree No 9 (‘the contested 
decree’) authorising the disposal of the animal by killing, pursuant to Provincial 
Law No 9/2018 (transposing Article 16 of the directive). 
2 In its application, the Associazione LEAL Antivivisezionista ODV (‘the 
association’) challenged the decree, seeking its annulment for infringement of 
Articles 12 and 16 of the directive. It complains that: (1) the facts were distorted, 
with the result that the bear’s behaviour was wrongly classified at danger level 18 
(‘bear that attacks without being provoked’) under the Interregional Action Plan 
for the Conservation of the Brown Bear in the Central and Eastern Alps 
PACOBACE (‘PACOBACE’), whereas it should have been classified at 
PACOBACE level 15 (‘bear that attacks when provoked’), in respect of which 
provision is made, first, for the intensification of monitoring and then, if 
appropriate, for ‘capture and release for the purpose of relocation and/or radio-
tagging’ and, if that is not effective, ‘capture and keeping the animal in permanent 
captivity’ and, as a last resort, ‘killing’; (2) the contested decree is the latest in a 
series of measures under which the President of the PAT has intervened to remove 
specimens deemed to be harmful or dangerous, that is to say, for alleged reasons 
of necessity, urgency and protection of public safety, whereas such measures were 
adopted on the basis of facts that were ascertained only summarily, and in breach 
of PACOBACE; (3) the limits of the power exercised by the President of the PAT 
in the present case are inadequate, because if the presence of an abstract danger to 
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public safety were sufficient to outweigh any other constitutionally relevant 
interest, many activities, including human ones, would have to be banned (e.g. 
hunting); (4) the bear in question is not mentioned among the problem bears in the 
2021 ISPRA report and its killing was ordered after just one incident; (5) the 
episode which led to the adoption of the contested decree shows mismanagement 
of the animal species in question by the President of the PAT. With a subsequent 
appeal ‘on additional grounds’, the association then challenged the provincial 
Guidelines on the grounds that they were adopted in breach of EU and national 
principles for the authorisation of derogations, and in so far as they confer on the 
President of the PAT the power to authorise the taking, capture and killing of 
bears, ‘departing from the principles of an order of priority among the measures 
that may be adopted, and their proportionality, which are apparent from the 
directive’. The association also disputes the attribution of the attack to bear MJ5, 
as there is a lack of conclusive evidence. 
3 By Order No 38/2023, the referring court held that the associations’ claims were 
unfounded on the ground that: (I) the factual framework had in fact been 
adequately reconstructed in the light of the analyses of blood traces found on the 
clothes and in the location of the attack; and through bear remains also discovered 
in the attack location; (II) the bear responsible was correctly identified; the 
investigation was carried out in a sufficient and reasonably thorough manner; it 
follows from the investigation that the bear was not defending prey or cubs, since 
it was a male; the conclusions of the investigation were validated by the Istituto 
Superiore per la Protezione e la Ricerca Ambientale (Italian Institute for 
Environmental Protection and Research; ‘ISPRA’) in its opinion of 12 April 2023; 
(III) according to that opinion, the level of danger posed by the bear corresponded 
to the ‘high risk’ category, for which immediate removal is recommended; (IV) 
the provincial regulations do not define an order of priority between captivity and 
killing for dangerous bears; (V) in the light of the precautionary principle, the 
danger posed by a ‘high-risk’ bear precludes leaving the bear at large in the wild, 
opting for the measure of simple monitoring, using a radio-collar; (VI) it is 
apparent from the contested decree that alternatives to killing were properly 
considered, but that the President of the PAT, following the relevant provincial 
Guidelines, did not consider such measures to be appropriate to address the 
dangerousness of the bear, since capturing it and fitting a radio-collar would not 
protect human safety. The Guidelines specify that the PAT has temporary or 
permanent captivity facilities, such as the enclosed ‘Casteller centre’ facility, 
which, however, can accommodate a maximum of three specimens and is the only 
facility in the Alpine area authorised to keep problem bears. The Guidelines state 
that in European States where bears are present, dangerous animals should usually 
be killed, rather than kept in captivity for life, because: (a) bears born in the wild 
and accustomed to ranging over areas of hundreds of square kilometres cannot 
enjoy the same conditions in a restricted area; (b) bears can live much longer in 
captivity than in the wild and keeping them entails significant demands in view of 
the potential number of specimens to be kept and the associated work involved in 
the construction and management of facilities; (c) the management of wild bears 
in confined spaces may lead to problems of interaction between them, such as 
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attacks, injury and killing; (d) specimens in captivity cannot be released back into 
the wild, given the degree to which they have become habituated to humans; (e) in 
the next few years, killing could become a necessary measure, should the other 
prevention and deterrence actions provided for by PACOBACE prove ineffective, 
in order to manage the proliferation of particularly problematic specimens. 
4 The association appealed against Order No 36/2023. In its interim order of 14 July 
2023, the Consiglio di Stato (Council of State) amended in part Order No 38/2023 
of the referring court and suspended the order for the killing of specimen MJ5, 
thereby keeping the bear alive, in captivity, to protect public safety. 
Legal background 
5 The brown bear is protected internationally by the Bern Convention of 
19 September 1979. 
6 At EU level, Articles 12 and 16 of the directive concern prohibitions of the 
capture or killing of specimens of protected species in the wild and possible 
derogations from those prohibitions. Article 16 was transposed into the PAT’s 
legal order by Article 1 of Provincial Law No 9/2018. The text in force at the time 
the contested decree was adopted provided that, in order to preserve the alpine 
farming system of the province’s mountain territory, and in particular to conserve 
natural habitats, ensure the interest of public health and safety or for other 
imperative reasons of public interest, the President of the PAT was empowered to 
authorise the taking, capture or killing of bears and wolves, provided that there 
was no satisfactory alternative and that the taking was not detrimental to the 
maintenance of the population of the species concerned at a favourable 
conservation status in its natural range. That article was amended by Provincial 
Law No 59 of 8 August 2023, which exempts the President of the PAT from the 
obligation to seek the opinion of ISPRA in certain circumstances, and provides 
that the President must always order the killing of the specimen under certain 
conditions, such as when the specimen attacks using physical contact, deliberately 
follows people or tries to enter homes. The referring court considers that change to 
be irrelevant, since it is not retroactive. 
The essential arguments of the parties in the main proceedings 
7 According to the referring court’s case-law, Provincial Law No 9/2018 and 
PACOBACE do not define an order of priority between permanent captivity and 
killing for dangerous bears, and the measures of taking, capture and killing are 
equivalent in the sense that they produce the same effect of having an impact on 
the conservation of natural habitats by excluding the dangerous specimen from its 
habitat. 
8 The Council of State (in Orders Nos 2917, 2918 and 2920/2023, issued in 
proceedings other than the present proceedings) took a different view, stating that, 
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according to the Court of Justice, the directive requires Member States not only to 
adopt a comprehensive legislative framework but also to implement concrete and 
specific protection measures, including preventive measures, that enable the actual 
avoidance of the deliberate capture or killing in the wild of protected specimens 
(judgment in Case C-441/17). Although Article 16 of the directive authorises the 
Member States to derogate, that derogation is subject to the condition that there is 
no satisfactory alternative and that the derogation is not detrimental to the 
maintenance of the species concerned at a favourable conservation status in its 
natural range (judgment in Case C-674/17). Article 16(1) must be interpreted 
restrictively (judgment in Case C-508/04). 
9 According to the Council of State, the matter is governed by the principle of 
proportionality. A derogation is only possible according to a rationale that sets out 
an order of priority and complies with that principle. In order to be proportionate, 
it is not sufficient for the measure to be appropriate for the purpose, but it must be 
the only one possible, so as not to represent an excessive sacrifice of the benefit 
that is deemed to be lesser when the opposing interests are weighed against each 
other. Contrary to the submission by the referring court, the Council of State 
affirms that the measures that the authority may take must be adopted in line with 
an order of priority, with the result that recourse may be had to the most serious 
measure only where it is established that it would be impossible to adopt the less 
cruel measure. 
10 The Council of State concluded that an animal may only be killed in the extreme 
and rare case that it is objectively, rather than temporarily and subjectively, 
impossible to have recourse to less cruel actions. It held that the contested decree 
exceeded those limits, in so far as it ordered the animal to be killed without having 
adequately assessed the effectiveness of intermediate measures capable of 
safeguarding public safety without sacrificing the animal’s life, and that the 
contested measure is logically flawed. The absence of adequate facilities for 
accommodating the bear cannot, in the view of the Council of State, justify a 
measure that infringes the principle of proportionality and risks authorising 
indiscriminate use of the extreme measure of killing. The public alarm prompted 
by recent tragic episodes should not affect assessments made by the 
administration, which must continue to be strictly guided by legal criteria. 
Precisely by virtue of the structural deficiencies and the emergency situation, the 
administration had a duty to assess every intermediate measure between releasing 
the animal and killing it, and, therefore, it should also have assessed the possibility 
of transferring it to a facility other than those belonging to the PAT, possibly 
outside the national territory. 
11 The Council of State thus took the view, in the orders mentioned above, that the 
contested decree, in so far as it ordered the killing of the animal, was 
disproportionate and inconsistent with supranational and national legislation 
requiring the appropriate assessment of intermediate measures. 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The referring court limits the scope of the question referred for a preliminary 
ruling by observing that, in the present case, contrary to the submissions of the 
applicant associations, it is not relevant to assess the manner in which the 
competent administration ensures the protection, in advance, of the animal species 
subject to protection: the present case concerns an individual measure ordering the 
removal of an animal that posed a danger to public safety. Accordingly, the 
question referred for a preliminary ruling seeks only to ascertain the correct 
interpretation of the EU law applicable to the contested measure authorising a 
derogation from the prohibition of killing. In particular, the referring court 
considers that, for the purposes of assessing the lawfulness of the contested 
decree, it is not necessary to ascertain whether or not the PAT had put in place 
appropriate measures to prevent events such as that which led to the adoption of 
the decree. 
13 The referring court observes that, when interpreting a provision of EU law, 
account must also be taken of its context and of the objectives pursued by the 
legislation of which it forms part. The aim pursued by the directive, namely the 
protection of biodiversity through the conservation of wild fauna of Community 
interest and their natural habitats, is therefore of decisive importance. 
14 The referring court explains that, in its judgment in Case C-88/19, the Court of 
Justice clarified the purpose of the directive, making it clear that the terms ‘natural 
range’ and ‘the wild’ extend to areas outside specifically protected sites and also 
include areas of human settlement. The Court of Justice also clarified that ‘the 
protection … applies not only in specific places, but covers all specimens of the 
protected animal species living in the wild or as wild animals and thus performing 
a function within natural ecosystems, without necessarily applying to those 
specimens which are being lawfully held in captivity’ (paragraph 44), and that ‘an 
interpretation to the effect that the “natural range” … also includes areas located 
outside protected sites and that the resulting protection is therefore not restricted 
to those sites is such as to allow the objective of prohibiting the killing or capture 
of specimens of protected animal species to be achieved. The aim is to protect 
such species not only in certain restrictively defined places but also the specimens 
of those species living in the wild or as wild animals and thus performing a 
function within the natural ecosystems’ (paragraph 49). It may thus be concluded, 
in line with the objective of protection pursued by the directive, that the wording 
of Article 12 aims to achieve such protection, and not merely to protect the life of 
an individual specimen belonging to a protected species, irrespective of all 
circumstances. 
15 The referring court points out that the Court of Justice has held: that the burden of 
proving the existence of the conditions for derogation pursuant to Article 16 rests 
on the authority adopting the relevant decision (judgment in Case C-6/04); that the 
national authorities must establish that the three conditions laid down in that 
article are present (judgment in Case C-342/05); that the Member States must 
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ensure that the cumulative effects of the derogations do not produce impacts 
contrary to the objectives of Article 12 or of the directive as a whole, and must 
adopt the precautionary principle if the scientific data leave uncertainty as to 
whether or not a derogation will be detrimental to the maintenance of an 
endangered species at a favourable conservation status; that the fulfilment of those 
conditions must be duly substantiated by reference to specific and concrete 
situations (judgment in Case C-674/17). 
16 The referring court states that it is familiar with the case-law of the Council of 
State contained in the abovementioned interim Orders Nos 2917, 2918 and 
2920/23 concerning the scope of the principle of proportionality, but criticises the 
Council of State for failing, in those orders, to adopt a position on the precise 
reasons set out on that point by the referring court, which repeatedly reaffirmed 
the principle that the measures of taking, capture and killing are equivalent 
measures, in the sense that they produce the same effect of having an impact on 
the conservation of natural habitats inhabited by bears, by excluding the 
dangerous specimen from its natural habitat. 
17 Ultimately, the referring court takes the view that Article 16 of the directive – 
which permits derogation from the prohibition of the deliberate capture or killing 
of protected specimens under strict conditions, including the need to protect public 
safety – does not state that keeping an animal in permanent captivity is to be 
preferred to killing it. Therefore, where such a need has been established, as well 
as the condition that the removal is not detrimental to the maintenance of the 
species concerned at a favourable conservation status in its natural range, the 
remaining condition, namely that ‘there is no satisfactory alternative’, must be 
interpreted in the light of the directive’s overall objective, which is the 
conservation of biodiversity. It is true that the Court of Justice requires ‘a clear 
and sufficient statement of reasons as to the absence of a satisfactory alternative’ 
capable of achieving the objectives relied on in order to justify the derogation in 
question (judgment in Case C-342/05, paragraph 31), but it does not require a 
specific statement of reasons as to the order of priority between capture and 
killing. 
18 The referring court considers that ascertaining that there is no satisfactory 
alternative refers to ascertaining that there is no alternative solution that would 
enable the animal to be kept in the wild, and would avoid its removal. But if that 
is the purpose of the directive, then capture and killing are entirely equivalent 
measures, because both produce the same effect, which is to remove the animal 
from the wild and stop it from living as a wild animal. Thus, the competent 
authority’s assessment does not concern the choice between killing the animal or 
keeping it in permanent captivity, but rather whether or not to remove the animal 
from the wild and stop it from living as a wild animal, with a view to the 
protection of the protected species which is the purpose of the directive. 
19 The referring court notes that the absence of any order of priority between keeping 
in captivity and killing is confirmed by the placement of the prohibition of capture 
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or killing, which is to be found in Article 12 of the directive and not in Article 16, 
which concerns the conditions for derogation. Nowhere does the text of Article 12 
state that capture is to be preferred to killing. The Court of Justice itself has held 
that killing is equivalent to capture for the purposes of Article 16, stating that ‘the 
concept of “taking” within the meaning of Article 16(1) (…) must be understood 
as including both the capture and killing of specimens (…) so that that provision 
can (…) serve as basis for granting derogations’ (judgment in Case C-674/17, 
paragraph 32). The argument that the principle of proportionality provides for an 
order of priority between the two measures is thus disproved. 
20 The referring court considers that its reasoning is consistent with the other 
condition set out in Article 16, under which the derogation must not be 
detrimental to the maintenance of the populations of the species concerned at a 
favourable conservation status. In the referring court’s view, capture and killing 
are entirely equivalent measures, as both remove the specimen from its natural 
range. Merely keeping the specimen alive, but within a facility, does not 
demonstrate that there is no detriment to the species. 
21 The referring court considers that the interpretation given by the Council of State 
is unreasonable because it excludes the possibility for the competent authority to 
justify the choice of killing an animal that poses a danger to public safety (instead 
of keeping it in captivity). If permanent captivity were to take priority over killing, 
the authority would have to demonstrate the rare circumstance that it is 
objectively, rather than temporarily and subjectively, impossible to keep the 
animal in permanent captivity (not only in facilities under its own responsibility, 
but also in other States). That would, however, constitute a probatio diabolica, 
which eliminates the relevance of other justifications relating to the individual 
case, in the context of the balancing of interests, concerning the welfare of the 
animal, which is used to living in the wild, the possible absence of any place 
where it might be accommodated, the costs and the safety of the operators, and so 
forth. 
22 The referring court therefore reiterates that the rules laid down by Provincial Law 
No 9/2018 comply with Article 16 of the directive, but nevertheless considers it 
necessary, in order to clarify the interpretation of the applicable EU law, to stay 
the proceedings and transmit the documents to the Court of Justice.