Opinion of the Advocate General — ECLI:EU:C:2024:83
Date: 2024-01-25
Language of the case: Spanish
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-436/22 – 1 
Case C-436/22 
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:  
1 July 2022 
Referring court:  
Tribunal Superior de Justicia de Castilla y León – Sala de lo 
Contencioso-administrativo de Valladolid – Sección Primera 
(Spain) 
Date of the decision to refer:  
30 June 2022 
Applicant:  
Asociación para la Conservación y Estudio del Lobo Ibérico 
(ASCEL) 
Defendant:  
Administración de la Comunidad Autónoma de Castilla y León 
  
Subject matter of the main proceedings 
Environment – Conservation of natural habitats and of wild fauna and flora – 
Directive 92/43/EEC – System of strict protection for animal species – Annex V – 
Canis lupus (wolf) – Regional plan for the exploitation of wolves in hunting 
areas – Assessment of the conservation status of populations of the species 
concerned 
Administrative action, brought before the Tribunal Superior de Justicia de Castilla 
y León (High Court of Justice of Castille and Leon, Spain), in which the 
Asociación para la Conservación y Estudio del Lobo Ibérico (ASCEL; 
Association for the Conservation and Study of the Iberian Wolf) (‘the applicant’) 
seeks the annulment of the decision of 9 October 2019 of the Dirección General 
del Patrimonio Natural y Política Forestal [de la Junta de Castilla y León] 
(Directorate General of Natural Heritage and Forestry Policy [of the Autonomous 
Government of Castille and Leon]) approving the Plan for the local exploitation of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-436/22 
 
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wolves in hunting grounds situated north of the Douro River in Castille and Leon 
for the 2019/2020, 2020/2021 and 2021/2022 seasons (‘the contested decision’ 
and ‘the hunting plan’ respectively); the defendant is the Administración de la 
Comunidad Autónoma de Castilla y León (Administration of the Autonomous 
Community of Castille and Leon) (‘the defendant’). 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Compatibility of national provisions with Directive 92/43/EEC 
Interpretation of Articles 2(2), 4, 11, 12, 14, 16 and 17 of Council Directive 
92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild 
fauna and flora (‘the Habitats Directive’) 
Questions referred for a preliminary ruling 
In view of the fact that any measure adopted by a Member State pursuant to the 
Directive must, in accordance with Article 2(2) thereof, pursue the aim of 
maintaining or restoring, at favourable conservation status, animal species of 
Community interest, such as the wolf (lupus canis) 
[1] Do the provisions of Articles 2(2), 4, 11, 12, 14, 16 and 17 of Council 
Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats 
and of wild fauna and flora preclude a regional Law (Ley 4/1996 de Caza de 
Castilla y León (Law 4/1996 on Hunting in Castille and Leon) of 12 July 
1996 and, subsequently, Ley 4/2021 de Caza y de Gestión Sostenible de los 
Recursos Cinegéticos de Castilla y León (Law 4/2021 on Hunting and the 
Sustainable Management of the Hunting Resources of Castille and Leon) of 
1 July 2021), pursuant to which the wolf is declared to be a species of game 
which may be hunted, and the consequent authorisation of the local 
exploitation of wolves in hunting areas during the 2019/2020, 2020/2021 
and 2021/2022 seasons, when the conservation status of the wolf is 
unfavourable-poor according to the report covering the six-year period 
2013-2018 which Spain sent to the European Commission in 2019, as a 
result of which the State (the Member State, Article 4 HD) included all 
Spanish wolf populations in the List of Wild Species under Special 
Protection and the Spanish Inventory of Endangered Species, thereby also 
affording strict protection to populations situated north of the Douro? 
[2] Is it compatible with that aim for different protection to be afforded to the 
wolf depending on whether it is found north or south of the Douro River, 
bearing in mind (i) that, scientifically, that distinction is currently considered 
to be inappropriate; (ii) that the assessment of the conservation status of the 
wolf in the three regions where it is found in Spain (Alpine, Atlantic and 
Mediterranean) in the period 2013-2018 was unfavourable; (iii) that the wolf 
ASCEL 
 
3 
is a strictly protected species in almost every Member State and, in 
particular, because of a shared region, in Portugal; and (iv) the case-law of 
the Court of Justice of the European Union on the natural range and the 
territorial scope to be taken into account in order to assess the wolf’s 
conservation status, it being more consistent with that directive, including 
with Article 2(3) thereof, that the wolf should be included, without 
differentiating between north and south of the Douro, in Annexes II and IV, 
such that the capture and killing of wolves would be possible only if there is 
no satisfactory alternative pursuant to and subject to the requirements laid 
down in Article 16? 
If that distinction is considered to be justified, 
[3] Does the term ‘exploitation’ in Article 14 of the Directive include the 
cynegetic exploitation, that is the hunting, of wolves, in view of the special 
importance that this species has (it is a priority species in the other territorial 
areas), bearing in mind that, up to now, the hunting of wolves has been 
permitted and its status in the period 2013-2018 was determined to be 
unfavourable? 
[4] Does Article 14 of the Directive preclude the declaration, by Law, that 
wolves north of the Douro are a species of game and may be hunted 
(Article 7 and Annex I of Law 4 of 12 July 1996 on Hunting in Castille and 
Leon and Article 6 and Annex I of Law 4 of 1 July 2001 on Hunting and the 
Sustainable Management of the Hunting Resources of Castille and Leon) 
and the approval of a plan for the local exploitation of wolves in hunting 
grounds situated north of the Douro River for the 2019/2020, 2020/2021 and 
2021/2022 seasons, without any data being available on which to base an 
assessment of whether the surveillance provided for in Article 11 of the 
Directive was carried out, without any census since 2012-2013 and without 
sufficient, objective, scientific and up-to-date information on the status of 
the wolf being held in the file which was the basis for the local exploitation 
plan, when, during the period 2013-2018, in the three regions where wolves 
are found in Spain (Alpine, Atlantic and Mediterranean), the assessment of 
the wolf’s conservations status was unfavourable? 
[5] Pursuant to Articles 4, 11 and 17 of the HD, are the reports which must be 
taken into consideration in order to determine the conservation status of the 
wolf (current real population levels, current geographical distribution, 
reproductive rate, and so on) those which are drawn up by the Member State 
every six years or, if necessary, within a shorter period, by means of a 
scientific committee like that created by Real Decreto (Royal Decree) 
139/2011, taking account of the fact that wolf populations come within the 
remit of different Autonomous Communities and of the need to conduct an 
assessment of the measures concerning a local population ‘on a larger scale’, 
in accordance with the judgment of 10 October 2019, 
[Luonnonsuojeluyhdistys Tapiola,] C-674/17, [EU:C:2019:851]? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-436/22 
 
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Provisions of European Union law relied on 
Habitats Directive: Articles 1(a), (b), (f), (g)(i), (ii), (iii) and (iv), (h), (i), (j) and 
(k), 2, 4(1), 11, 12, 14, 16(1) and 17 and Annexes II, IV and V 
Judgments of 10 October 2019, Luonnonsuojeluyhdistys Tapiola, C-674/17, 
EU:C:2019:851, and of 11 June 2020, Alianța pentru combaterea abuzurilor, 
C-88/19, EU:C:2020:458 
Provisions of national law relied on 
State legislation 
Article 56 of Ley 42/2007 del Patrimonio Natural y de la Biodiversidad (Law 
42/2007 on Natural Heritage and Biodiversity) of 13 December 2007 created the 
List of Wild Species under Special Protection, which is to include any species, 
subspecies and populations that deserve particular attention and protection on the 
basis of their scientific, ecological or cultural value, their uniqueness, their rarity 
or the degree to which they are endangered, and those species, subspecies and 
populations that are protected in the annexes to the directives and the international 
treaties ratified by Spain. Article 65(1) of that Law provides that only such species 
as may be determined by the Autonomous Communities may be hunted and fished 
in continental waters, a declaration which may, under no circumstances, affect the 
species included in the List of Species under Special Protection. 
In 2021, the Ministry for Ecological Transition and Demographic Challenge 
adopted Order TED/980/2021 of 20 September 2021 amending the Annex to 
Royal Decree 139/2011 for the implementation of the List of Wild Species under 
Special Protection and the Spanish Inventory of Endangered Species (Real 
Decreto 139/2011 para el desarrollo del Listado de Especies Silvestres en 
Régimen de Protección Especial y del Catálogo Español de Especies 
Amenazadas) of 4 February 2011. Under the Order, all Spanish wolf populations 
were included in the List. The Order contains a first additional provision on 
compatibility with the measures in force until then, which provides, in 
paragraph 2, that measures may be implemented for the killing and capture of 
specimens covered by an administrative permit granted by the competent authority 
of the Autonomous Community, provided that criteria relating to the following are 
satisfied: (a) it has been shown that no other satisfactory solution exists for the 
protection of livestock; (b) it is demonstrated using the best available knowledge 
that the measure for the killing and capture of specimens does not have a negative 
impact on the favourable conservation status of the species; and (c) evidence is 
provided of the existence of significant harm to livestock on the farms affected, 
having regard to the recurrent and substantial nature of that harm. Article 9 of the 
Order lays down provisions on periodic assessment and specific monitoring by the 
Autonomous Communities of the species included in the list. 
ASCEL 
 
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Regional legislation of Castille and Leon 
Law 4/1996 of 12 July 1996 on Hunting in Castille and Leon, which has now been 
repealed but was in force when the hunting plan was approved, provided in 
Article 7 that the species defined as such in Annex I to that Law had the status of 
game species. Annex I includes wolves north of the Douro River. 
Now in force is Law 4/2021 of 1 July 2021 on Hunting and the Sustainable 
Management of Hunting Resources in Castille and Leon, Article 6 of which 
provides that only species of game may be hunted and that the species having that 
condition are those included in Annex I. The ‘Wolf (Canis lupus): north of the 
River Douro’ is included in Annex 1 as a large game species. That Law also 
contains provisions on the exclusion from Annex I of species covered by any type 
of protection under basic State legislation that means that hunting of those species 
is prohibited or where such exclusion is considered to be necessary in order to 
properly ensure the conservation of such species. Also under that Law, any of the 
species declared as game may be temporarily excluded from hunting where that is 
necessary in order to properly ensure their conservation. For its part, Article 38 of 
that Law provides that any method of hunting wolves requires authorisation from 
the autonomous government ministry with responsibility for hunting, which is the 
highest competent authority in the territory of Castille and Leon, and that a wolf 
(Canis lupus) which is game is valued at EUR 6 000. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Douro River flows longitudinally through the Autonomous Community of 
Castille and Leon for 572 kilometres before entering Portugal and flowing into the 
sea in Oporto. 
2 The wolf is a species of Community interest within the meaning of Article 1(g)(i) 
of the Habitats Directive and it is therefore a priority species throughout virtually 
the whole territorial scope of the Directive, being listed in Annex II (as a species 
of Community interest whose conservation requires the designation of special 
areas of protection) and in Annex IV (as a species of Community interest in need 
of strict protection), although in Spain, Spanish populations situated north of the 
Douro are excluded; those populations are included in Annex V (as an animal 
species of community interest whose taking in the wild and exploitation may be 
subject to management measures). 
3 Following the prescribed administrative appeal, the applicant brought an action 
against the contested decision before the referring court on 17 February 2020, 
seeking the annulment of that decision and damages for the harm caused to the 
wild fauna during each season concerned. 
4 According to its heading ‘Background’, the hunting plan is based on a regional 
census of wolves dating back to 2012 and 2013, on a national census carried out 
between 2012 and 2014, and on annual monitoring reports which involve less 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-436/22 
 
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effort in terms of surveying and monitoring than that used in the preparation of a 
census. Under the heading ‘Methodology’, the plan states that, based on the 
available data and applying a number of different factors, the estimated number of 
wolves north of the Douro River in Castille and Leon before hunting was 1 051. It 
divides the territory of Castille and Leon north of the Douro River where wolves 
are present into 28 wolf ranges and calculates the density of wolves in each one, 
classifying them according to whether the density of wolves is high, low or 
medium and assigning them a level of hunting as a percentage based on that 
density. The plan concludes that if an annual mortality rate of 35% were 
exceeded, this would amount to a decline in the species population. 
Essential arguments of the parties in the main proceedings 
5 The applicant submits that the conservation status of the wolf population in 
Castille and Leon (and throughout Spain) is unfavourable and poor in the two 
biogeographical bioregions (Atlantic and Mediterranean) which affect Castille and 
Leon, according to the most recent report of the European Environment Agency 
(EEA) for the six-year period 2013-2018. The applicant adds that the hunting plan 
was approved without the inclusion of any evidence at all in the approval file and 
that no population increase is apparent from the only valid censuses. The applicant 
complains that the plan distorts the three factors which (numerically) make it 
possible to arrive at the figure for wolves to be killed: the number of groups, the 
number of individual wolves per group, and the percentage of the population 
which can be structurally destroyed without creating long-term survival problems. 
6 In support of its submissions, the applicant refers to the Opinion of the Scientific 
Committee of the Ministry for Ecological Transition of 25 February 2020, an 
advisory body at State level, which recommends unequivocally and unanimously 
the inclusion of the entire Spanish wolf population (including that of Castille and 
Leon north of the Douro) in the List of Wild Species under Special Protection. 
7 Lastly, the applicant submits that the hunting plan infringes, on the one hand, the 
Convention on the Conservation of European Wildlife and Natural Habitats, 
signed in Bern on 19 September 1979, and, on the other, the Habitats Directive, 
since the taking and exploitation of individual wolves of the species Canis lupus 
situated north of the Douro are conditional on this being deemed ‘necessary’, on a 
favourable conservation status being guaranteed (Article 14), on surveillance of 
the conservation status having been undertaken as referred to in Article 11 of that 
directive, and provided that there is no satisfactory alternative and the derogation 
is not detrimental to the maintenance of the populations of the species at a 
favourable conservation status (Article 16), conditions which, in the applicant’s 
view, the plan does not satisfy. 
8 The Administración de la Comunidad Autónoma de Castilla y León, the 
defendant, maintains that the hunting plan was drawn up under the basic State 
legislation, citing in that respect Law 42/2007 on Natural Heritage and 
ASCEL 
 
7 
Biodiversity, and under the regional legislation (Law 4/1996 of 12 July 1996 on 
Hunting in Castille and Leon), which treats wolves north of the Douro River as a 
species of game which may be hunted. 
9 The defendant states that the mere absence of scientific studies or reports, as 
asserted by the applicant, cannot be regarded as a ground of nullity of the hunting 
plan. The defendant relies in that regard on a number of judgments of the Tribunal 
Supremo (Supreme Court, Spain). In addition, the defendant mentions that that 
plan was based on the best and most up-to-date scientific and technical 
information on the status of the species in Castille and Leon and that it does not 
infringe the Bern convention or the Habitats Directive because wolves north of the 
Douro River have the status of species of Community interest whose taking in the 
wild and exploitation may be subject to management measures, including hunting, 
and, therefore, this species may be declared to be a game species. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The referring court states that it is seised of a dispute the outcome of which 
depends on the assessment of the disparity between the legislation of the 
Community of Castille and Leon and EU law. Specifically, that assessment 
concerns whether the provisions of the Habitats Directive preclude the declaration 
in the successive Laws on Hunting of the Autonomous Community of Castille and 
Leon that the wolf is a species of game that may be hunted, and the consequent 
authorisation of the local exploitation of the wolf in hunting grounds during the 
2019/2020, 2020/2021 and 2021/2022 seasons; and this when, according to the 
report for the six-year period 2013-2018, which Spain forwarded to the European 
Commission in 2019, the conservation status of the wolf is unfavourable-poor in 
the Mediterranean, Atlantic and Alpine regions, the first two of which cover the 
territory of Castille and Leon. 
11 The referring court notes that, in accordance with Article 2(2) of the Habitats 
Directive, any measure adopted by a Member State pursuant to the Directive is to 
be designed to maintain or restore, at favourable conservation status, animal 
species of Community interest, such as the wolf. 
12 The referring court cites recent case-law of the Court of Justice of the European 
Union on the wolf. In its judgment in Case C-674/17, the Court held that, for the 
purpose of assessing whether the conservation status of a species is favourable, it 
is necessary to conduct an assessment of the measures applicable to a local 
population ‘on a larger scale’, taking into account the impact that any measures 
adopted are liable to have not only locally but also throughout the territory of the 
Member State concerned. The referring court considers that ruling to be relevant 
to the present case, since wolf populations north of the Douro share a 
biogeographical region with Portugal, where that species is protected throughout 
Portuguese territory. 
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13 The referring court also cites the judgment in Case C-88/19, concerning the 
concept of ‘natural range’ referred to in Article 12 of the Habitats Directive, 
which is one of the criteria to be taken into account in order to determine whether 
the conservation status of a species is favourable and which is broader than the 
geographical area that presents the physical or biological factors essential to their 
life and reproduction; accordingly, the obligation to provide strict protection for 
the protected animal species, in accordance with Article 12 et seq. of the Habitats 
Directive, applies to the entire ‘natural range’ of those species, whether those 
species are in their natural habitat, in protected areas, or, conversely, in the 
vicinity of human developments.  
14 In that respect, the referring court also refers to the report of the Scientific 
Committee responding to consultation CC-48/2020 to the Ministry of Agriculture, 
Food and Environment, which stated that, at the moment, it seems inappropriate to 
refer to individual wolves situated south of the Douro as a different population 
from that north of the Douro; such a distinction might have made sense in the past 
but not now because populations south of the Douro are the result of an expansion 
southwards of the northernmost populations and the existence of gene flow 
between individual wolves south and north of the Douro is likely. 
15 Lastly, the referring court notes that, in recent years, it has heard a number of 
actions against various provisions of delegated legislation relating to the 
declaration of the wolf as game which may be hunted. The referring court adds 
that those provisions were annulled by the judgments concerned on the ground 
that the scientific studies confirming that the conditions had been met which 
would justify the merits of the declaration of the species as game without 
compromising its conservation status in its range had not been placed on the 
administrative file. However, those judgments were the subject of appeals to the 
Tribunal Supremo (Supreme Court), which upheld the appeals, ruling that the 
need to make compliance with the requirements relating to the population levels, 
geographical distribution and reproductive rate of the species the subject of prior, 
detailed – ad hoc – checks each year or each season, in relation to each area of 
competence and each territory and in respect of each species which is deemed to 
be huntable, has no basis in the legal provisions, essentially in EU law, or in the 
case-law interpreting those provisions. 
16 The referring court asks the Court of Justice whether it is possible to apply to the 
case the expedited procedure provided for in Article 105 of the Rules of 
Procedure, in view of the fact that the conservation status of the wolf in Spain is 
unfavourable and that, on the fourth Sunday of September 2022, the hunting 
period for the species will begin in the various designated wolf ranges north of the 
Douro.