Information;Order — ECLI:EU:C:2025:1031
Date: 2025-12-17
Language of the case: Italian
Court formation: Fourth Chamber
Procedure: Reference for a preliminary ruling - decision unnecessary
Origin: Italy

Summary C-24/24 – 1 
Case C-24/24 
Summary of the 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 
Appellants: 
Lega Anti Vivisezione (LAV) 
Lega per l’Abolizione della Caccia (LAC) 
Ente Nazionale Protezione Animali (ENPA) 
Organizzazione Internazionale Protezione Animali (OIPA) Italia 
ODV 
Lega Italiana Difesa Animali e Ambiente (LEIDAA) ETS 
LNDC Animal Protection 
Respondents: 
Provincia autonoma di Trento 
Istituto Superiore per la Protezione e la Ricerca Ambientale 
(ISPRA) 
Ministero dell’ambiente e della sicurezza energetica 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-24/24 
 
2  
Subject matter of the main proceedings 
The proceedings concern a series of appeals brought by various 
environmental/animal welfare associations against certain measures pursuant to 
which, after a female brown bear had killed 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 
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 
LAV AND OTHERS 
 
3 
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 
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. 10 del 27 aprile 
2023 (Decree No 10 of 27 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 April 2023, in the municipality of Caldes (province of Trento), a 26-year-old 
man was found dead in a forest, with injuries later attributed to a brown bear 
specimen, named JJ4. On 8 and 13 April 2023 the President of the PAT issued 
two urgent orders, for the purpose of protecting public safety, for the killing of the 
specimen, orders that he subsequently declared null and void after the animal had 
been captured. The bear is currently being kept in a protected location (the 
Casteller centre). On 27 April 2023 the President of the PAT issued Decree No 10 
(‘the contested decree’) authorising the disposal of the animal by killing, pursuant 
to Provincial Law No 9/2018 (transposing Article 16 of the directive). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-24/24 
 
4  
2 Some animal welfare associations challenged the decree, arguing, inter alia, that, 
in the case of a bear that attacks with physical contact and without being 
provoked, alternatives to killing are provided for, including capture followed by 
permanent captivity, and that the preconditions for killing the animal had not been 
satisfied, because the factual context of the assault had not been reconstructed and 
the bear had had cubs with her. In the view of the associations, an absence of 
alternatives providing justification for the possible killing of the animal should be 
determined by an objective situation, and not the Province’s decision not to 
introduce measures banning people from the area in question. 
3 By Order No 36/2023, 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 and autopsy performed, 
which clearly demonstrated that bear JJ4 was responsible for the attack; (II) the 
fact that the bear had had cubs with her could not automatically lead to a 
conclusion that the attack was the result of her instinct to protect them. 
Furthermore, in the opinion of the Istituto Superiore per la Protezione e la Ricerca 
Ambientale (Italian Institute for Environmental Protection and Research; 
‘ISPRA’), the bear’s behaviour, according to the Interregional Action Plan for the 
Conservation of the Brown Bear in the Central and Eastern Alps (‘PACOBACE’), 
corresponded to the highest level of danger and the bear fell into the ‘high risk’ 
category, for which immediate removal is recommended; (III) 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 Casteller centre, 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 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. In addition, the Casteller centre 
has three sectors, one of which is already occupied by another bear, which needs 
as much space as possible, and one by JJ4, while space needs to be left free for the 
placement of other specimens, in emergencies; (IV) the associations have failed to 
rebut the section of the contested decree that states that: (a) the possible transfer of 
the bear to a site outside the PAT is unreasonable in view of ISPRA’s warnings, 
based on scientific arguments, concerning the risks of the animal’s escape, given 
its very aggressive behaviour; (b) the PAT has no specific alternative for 
LAV AND OTHERS 
 
5 
transferring bear JJ4 to an external site, including abroad, that would provide high 
safety standards for its visitors, operators and persons carrying out transfer 
operations. The willingness to accommodate the bear expressed by other entities, 
such as Zoo Safari Fasano (Apulia) and facilities in Jordan and Germany, are 
general statements that do not set out specific implementation arrangements, and 
in particular do not set out how the safety and security of persons will be ensured, 
or the costs; (V) the associations’ argument that the absence of alternatives to 
killing should be determined by an objective situation, and not the PAT’s decision 
not to introduce measures banning people from the area, is irrelevant, since the 
purpose of the proceedings in question was to examine the legality of the 
contested decree and not to assess whether or not the measures provided for by 
PACOBACE were appropriate for preventing incidents such as that at issue. 
4 The abovementioned Order No 36/2023 was not appealed. However, the 
Consiglio di Stato (Council of State), by the protective orders of 14 July 2023 (all 
issued following applications for interim measures lodged by other associations in 
proceedings concerning the contested decree), amending in part other orders of the 
referring court, suspended the order for the killing of specimen JJ4, 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. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-24/24 
 
6  
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 2915, 2918 and 2920/2023, cited in 
paragraph 4 above, issued in proceedings other than the present proceedings) took 
a different view, stating that, 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. 
LAV AND OTHERS 
 
7 
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. 
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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-24/24 
 
8  
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 
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 2915, 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. 
LAV AND OTHERS 
 
9 
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 
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. On the contrary, even in the case of 
a derogation provided for in Article 16(1)(e) [(‘to allow, under strictly supervised 
conditions, on a selective basis and to a limited extent, the taking or keeping of 
certain specimens (…)] where only capture or keeping is intended, 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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-24/24 
 
10  
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.