Opinion of the Advocate General — ECLI:EU:C:2020:93
Date: 2020-02-13
Language of the case: Romanian
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Romania

Anonymised version 
Translation C-88/19 — 1 
Case C-88/19 
Request for a preliminary ruling 
Date lodged: 
7 February 2019 
Referring court: 
Judecătoria Zărneşti (Romania) 
Date of the decision to refer: 
15 November 2018 
Applicant: 
Asociaţia ‘Alianţa pentru combaterea abuzurilor’ 
Defendants: 
TM 
UN 
Asociaţia DMPA 
  
[...] 
JUDECĂTORIA ZĂRNEŞTI (Court of First Instance, Zărneşti) 
[...] 
TO THE COURT OF JUSTICE OF THE EUROPEAN UNION 
REQUEST FOR A PRELIMINARY RULING 
At the request of the applicant, the association ‘Alianţa pentru combaterea 
abuzurilor’ (hereinafter: ‘the Asociaţia’), the Judecătoria Zărneşti (Court of First 
Instance of Zărneşti) requests  
EN 
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THE COURT OF JUSTICE OF THE EUROPEAN UNION, 
pursuant to Article 267 of the Treaty on the Functioning of the European Union, 
to answer the following question referred for a preliminary ruling on the 
interpretation of Article 16 of Directive 92/43/EEC [...]: 
1. [...] Must Article 16 of Directive 92/43/EEC be interpreted as requiring the 
Member States to lay down derogations from Articles 12, 13, 14 and 15(a) and (b) 
also in cases where the animals belonging to threatened species leave their natural 
habit and are in its immediate vicinity or completely outside it?  
Subject matter of the dispute. Relevant facts  
[...] 
[Or. 2] 
1. The facts considered by the examining magistrate: 
2. On 9 May 2017, the Asociaţia brought an action against:  
- the defendant TM, of the association Direcţia pentru Monitorizarea şi 
Protecţia Animalelor (Directorate for the monitoring and protection of animals; 
hereinafter: the ‘DMPA’); 
- the defendant UN, a veterinary surgeon of S.C. Creative Vet Zone S.R.L.; 
and 
- the legal person DMPA and other of its employees, for crimes under 
Article 52(d) of Ordonanţa de urgenţă nr. 57/2007 privind regimul ariilor naturale 
protejate, conservarea habitatelor naturale, a florei și faunei sălbatice 
(Government Emergency Order No 57/2007 on the system of nature protection 
areas and the conservation of natural habitats and wild flora and fauna; 
hereinafter: ‘OUG. No 57/2007’), in conjunction with Article 33(1)(e) and (f) 
thereof, for the capture and transport in inappropriate conditions of a wild animal 
of the species canis lupus, which appears in Annex No 4 A to OUG No 57/2007.  
3. At around 19.00 on 6 November 2016, employees of the DMPA, together with the 
veterinary surgeon UN, an employee of SC Creative Vet Zone S.R.L., under the 
coordination of [the defendant] TM, went to the village of Șimon, in the 
municipality of Bran, situate in the province of Brașov, with the intention of 
capturing and relocating a specimen of wolf (canis lupus) which for several days 
had been loitering around the property of a local inhabitant, playing and eating 
with his family’s dogs. The wolf was struck by a projectile containing narcotic 
and psychotropic veterinary medicines and was then chased and collected from 
the ground in a manner contrary to the rules on the protection of animals laid 
down in Annex I, Chapter III, point 1.8, paragraph (d), to [Regulation (EC) 
No 1/2005]. 
ALIANȚA PENTRU COMBATEREA ABUZURILOR 
 
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4. The animal of the species canis lupus thus captured was lifted by its tail and the 
scruff of its neck, transported to a vehicle which was not in the immediate 
vicinity, and placed in a cage for transporting dogs, in breach of the provisions 
contained in Annex I, Chapter I, point 2, paragraph (a), to Regulation (EC) 
No 1/2005 on the protection of animals during transport and related operations 
and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) 
No 1255/97.  
5. Having placed the wolf, sedated, in the cage, the employees of the DMPA 
coordinated the transport thereof to the Libearty bear reserve in the town of 
Zărnești in the province of Brașov, which also has a fenced area for wild wolves 
rescued from non-compliant zoos. However, during the journey the wolf managed 
to break the cage in which it had been placed and, taking advantage of the 
inappropriate conditions in which it was being transported, that is to say an open 
vehicle, escaped by hiding in the woods in the area. 
6. It is clear from the application that, since the species wolf is included in Annex 
No 4 A to OUG No 57/2007, the capture and transport thereof can take place only 
after obtaining the opinion of the central public authority for protection of the 
environment — the Ministrul Mediului (the Romanian Minister for the 
Environment), through the Direcția Biodiversitate (Romanian Directorate for 
Biodiversity) — in cases where the derogating conditions set out in 
Article 38(1)(a) to (e) of OUG No 57/2007, Articles 21, 22 and 23 of OUG 
No 57/2007 and Ordinul ministrului mediului nr. 203/14 din 05.03.2009 privind 
procedura de stabilire a derogărilor de la măsurile de protecție a speciilor de floră 
și faună sălbatică (Decree of the Minister for the Environment No 203/14 of 
5.03.2009 on the procedure for laying down derogations from measures to protect 
wild flora and fauna) are met. However, no such opinion was obtained.  
Provisions of EU law applicable/relevant in the present case 
Relevant parts of Council Regulation (EC) No 1/2005 of 22 December 2004 on 
the protection of animals during transport and related operations and amending 
Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 
[Or. 3] 
7. Article 1(5) of the regulation provides: 
‘This Regulation shall not apply to the transport of animals which does not take 
place in connection with an economic activity and to the transport of animals 
directly to or from veterinary practices or clinics, under the advice of a 
veterinarian’.  
8. Points 1, 2 and 5 of Chapter I of Annex I - Technical rules, to the regulation 
provide: 
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‘Fitness for transport 
1. No animal shall be transported unless it is fit for the intended journey, and 
all animals shall be transported in conditions guaranteed not to cause them injury 
or unnecessary suffering. 
2. Animals that are injured or that present physiological weaknesses or 
pathological processes shall not be considered fit for transport and in particular if: 
(a) they are unable to move independently without pain or to walk unassisted; 
… 
5. Sedatives shall not be used on animals to be transported unless strictly 
necessary to ensure the welfare of the animals and shall only be used under 
veterinary supervision’. 
Relevant parts of Council Directive 92/43/EEC of 21 May 1992 on the 
conservation of natural habitats and of wild fauna and flora 
9. Article 1 of the directive provides: 
‘For the purpose of this Directive: 
(a) conservation means a series of measures required to maintain or restore the 
natural habitats and the populations of species of wild fauna and flora at a 
favourable status as defined in (e) and (i); 
(b) natural habitats means terrestrial or aquatic areas distinguished by 
geographic, abiotic and biotic features, whether entirely natural or semi-
natural’. 
10. Article 2 of the directive provides: 
‘1. The aim of this Directive shall be to contribute towards ensuring bio-
diversity through the conservation of natural habitats and of wild fauna and flora 
in the European territory of the Member States to which the Treaty applies. 
2. Measures taken pursuant to this Directive shall be designed to maintain or 
restore, at favourable conservation status, natural habitats and species of wild 
fauna and flora of Community interest’. 
11. Article 12 of the directive provides 
‘1. Member States shall take the requisite measures to establish a system of 
strict protection for the animal species listed in Annex IV (a) in their natural 
range, prohibiting: 
ALIANȚA PENTRU COMBATEREA ABUZURILOR 
 
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[Or. 4] 
(a) all forms of deliberate capture or killing of specimens of these species in the 
wild; 
(b) deliberate disturbance of these species, particularly during the period of 
breeding, rearing, hibernation and migration; 
(c)  deliberate destruction or taking of eggs from the wild; 
(d) deterioration or destruction of breeding sites or resting places. 
2. For these species, Member States shall prohibit the keeping, transport and 
sale or exchange, and offering for sale or exchange, of specimens taken from the 
wild, except for those taken legally before this Directive is implemented. 
3. The prohibition referred to in paragraph 1 (a) and (b) and paragraph 2 shall 
apply to all stages of life of the animals to which this Article applies. 
4. Member States shall establish a system to monitor the incidental capture and 
killing of the animal species listed in Annex IV (a). In the light of the information 
gathered, Member States shall take further research or conservation measures as 
required to ensure that incidental capture and killing does not have a significant 
negative impact on the species concerned.’ 
12. Article 16 of the directive provides: 
‘1. Provided that there is no satisfactory alternative and the derogation is not 
detrimental to the maintenance of the populations of the species concerned at a 
favourable conservation status in their natural range, Member States may derogate 
from the provisions of Articles 12, 13, 14 and 15 (a) and (b): 
(a) in the interest of protecting wild fauna and flora and conserving natural 
habitats; 
(b)  to prevent serious damage, in particular to crops, livestock, forests, fisheries 
and water and other types of property; 
(c) 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 and beneficial consequences of primary importance for the 
environment’. 
Relevant parts of the Treaty on the Functioning of the European Union 
13. Article 13 thereof provides: 
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‘In formulating and implementing the Union’s agriculture, fisheries, transport, 
internal market, research and technological development and space policies, the 
Union and the Member States shall, since animals are sentient beings, pay full 
regard to the welfare requirements of animals, while respecting the legislative or 
administrative provisions and customs of the Member States relating in particular 
to religious rites, cultural traditions and regional heritage’. 
Provisions of national law applicable in the present case. Relevant/pertinent 
national case-law 
Relevant parts of OUG No 57/2007 
14. Article 4(14) thereof provides: 
[Or. 5] 
‘the natural environment * — the entirety of the natural, physical/geographical, 
biological and biocenotic structures and processes, both terrestrial and aquatic, 
which is the custodian of life and the generator of its necessary resources’. 
15. Article 33 thereof provides: 
‘Article 33 
(1) The following shall be prohibited in relation to the terrestrial, aquatic and 
subterranean plants and animals listed in Annexes No 4 A and No 4B, with the 
exception of species of birds which live both inside and outside nature protection 
areas: 
(a) all forms of gathering, capture, killing, destruction or injury of specimens 
which are in their natural environment, at any stage of their life cycle;  
(b) the intentional disturbance during the breeding, growing, hibernation and 
migration period; 
(c) the intentional damaging, destruction and/or taking of nests and/or eggs in 
the wild; 
(d) the damaging or destruction of breeding sites and resting places; 
(e) the gathering of flowers and fruit, the gathering, cutting, uprooting or 
intentional destruction of such plants in their natural habitat, at any stage of their 
biological life cycle; 
 
*  Translator’s note: this is the term used to translate ‘the wild’ in Directive 92/43/EEC. 
ALIANȚA PENTRU COMBATEREA ABUZURILOR 
 
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(f) the keeping, transport, sale or exchange for any purpose and the offering for 
sale or exchange of specimens taken from the wild, at any stage of their biological 
life cycle’. 
[...] 
[Or. 6] 
[...] [provisions on birds] 
16. Article 38 thereof provides: 
‘(1) Notwithstanding the provisions of Article 33(1) to (4) and Article 37(1), the 
central public authority for protection of the environment shall lay down 
derogations annually and when necessary, provided that there is no acceptable 
alternative and the derogating measures are not detrimental to the maintenance of 
the populations of the species concerned at a favourable conservation status, and 
only in the following cases: 
(a) to protect wild flora and fauna and conserve natural habitats; 
(b) for the prevention of significant damage, in particular to agricultural crops, 
domestic animals, forests, fisheries and water and for species of animals 
other than birds, and for the prevention of serious damage to other types of 
property; 
(c) in the interests of public health and public safety and, for species of animals 
other than birds, also for other reasons of public interest, including those of a 
social or economic nature, and for the consequent benefits of primary 
importance for the environment; 
(d) for the purpose of research and education, of repopulating and re-
introducing these species and for the breeding operations necessary for these 
purposes, including the artificial propagation of plants; 
(e) to allow, under strictly supervised conditions, on a selective basis and to a 
limited extent, the taking or keeping of a limited and specified number of 
specimens of certain species of birds or species listed in Annexes 4 A and B;  
(f) in the interests of air safety, for all species of birds, including migratory 
species; 
(2) The derogations shall be laid down by decision of the head of the central 
public authority for protection of the environment and forests, after obtaining the 
opinion of the Academia Română (Romanian Academy). 
(21) By way of derogation from paragraph 2, the assent of the central public 
authority for protection of the environment and forests shall also be required to lay 
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down exceptions relating to all species of birds and the species of mammals listed 
in Annexes 4 A and B. 
(22) The procedure for laying down the derogations shall be approved by order of 
the central public authority for protection of the environment and forests. 
(23) the exceptions referred to in paragraph 21 must specify the following: 
(a) the species to which the derogations apply; 
(b) the means, systems and methods authorised for capture or killing; 
(c) the conditions of risk and the circumstances of time and place under which 
such derogations may be granted; 
(d) the authority empowered to declare that the conditions laid down obtain and 
to decide what means, systems or methods may be used, within what limits 
and by whom; 
(e) the controls which are to be carried out. 
(3) The authority competent for protection of the environment shall send the 
European Commission reports on the derogations granted, as follows: 
(a) annually, in relation to derogations applied to species of wild birds; 
(b) every two years, in relation to the derogations applied to the wild species 
listed in Annex 4 A. 
(4) The reports referred to in paragraph 3 shall contain information on: 
(a) the species to which the derogations apply and the reasons therefor, 
including the nature of the risk, and, where appropriate, a statement of the 
alternative solutions which were rejected and the underlying scientific data;  
(b) the means and the arrangements or methods authorised for the capture or 
killing of the species of animal and the reasons for their use; 
[Or. 7] 
(c) the circumstances of time and place under which such derogations are 
granted; 
(d) the authority empowered to declare and verify that the required conditions 
obtain and to decide what means, arrangements or methods may be used, 
within what limits and by which institutions/services or persons;  
(e) the controls carried out and the results obtained’. 
ALIANȚA PENTRU COMBATEREA ABUZURILOR 
 
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17. Article 52 of the OUG provides: 
‘Commission of the following acts shall constitute a crime and shall be punishable 
by a term of imprisonment of between three months and one year or by a fine: 
(d) infringement of the provisions of Article 33(1) and (2)’. 
The grounds for the request for a preliminary ruling 
18. The question referred seeks in particular [to clarify] whether the deliberate capture 
or killing of specimens of wild animals belonging to the wolf species can take 
place also in the absence of the derogation referred to in Article 16 of Directive 
92/43/EEC of 21 May 1992, where the animals are found on the outskirts of a 
locality or when they enter the territory of a territorial administrative unit or 
[whether] the derogation is necessary for any wild specimen which is in captivity, 
regardless of the fact that it comes within a territorial administrative unit[.] 
19. Since the court has been asked to rule on an action brought against a request by 
the public prosecutor for discontinuation of the case, which concerns a possible 
infringement committed in relation to the capture of an animal belonging to a 
threatened species, whose protection constitutes a priority [...] in EU law, and to 
render the primacy thereof effective, it is necessary to ascertain the Court of 
Justice of the European Union’s interpretation of Directive 92/43/EEC of 21 May 
1992.  
20. No judgments of the national courts on these aspects have been identified. 
21. The court considers that the principal question which arises in the present 
reference for a preliminary ruling is that of the conformity of certain provisions of 
national law for the purposes of Directive 92/43/EEC of 21 May 1992, and not the 
nature of the reported crime. Furthermore, the entire legal situation is based on an 
action brought pursuant to the law implementing Directive 92/43/EEC. Therefore, 
Directive [92/43]/EEC is relevant in the present case and the contravention of the 
law concerns the implementation of that directive. 
22. The court observes that the directive concerns the protection of threatened species 
in their natural habitat. The entire legal regime for protection of those species 
produces its effects only in so far as a specimen of an animal belonging to a 
species of Community interest does not leave the natural habitat in which it lives. 
In this regard, any form of deliberate capture or killing of specimens of that 
species in the wild is prohibited [Article 12(1)(a) of the directive]. 
[Or. 8] 
23. However, the legal question which forms the subject matter of the dispute is based 
on a case where the specimen belonging to a protected species left its natural 
habitat, thereby endangering public safety.  
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24. The court considers that there are a number of factors which can cause certain 
animals belonging to threatened species to leave their natural habitat to look for 
other, more favourable environments. These factors include climate change and a 
reduction in habitat area as a result of mass deforestation, which can have a 
negative impact on the conservation status of a natural habitat.  
25. When they leave their natural habitat, animals belonging to threatened species 
may enter areas not covered by the notion of natural habitat and which by 
implication do not enjoy the protection afforded by the directive. 
26. The court notes that Directive 92/43/EEC provides that certain derogations from 
the rules on the protection of threatened species may be granted and leaves the 
choice of the national measures for implementing them to the Member States. 
Both the interpretation of the provisions of the directive and the interpretation of 
the provisions of the national implementing law lead to the conclusion that the 
derogations from the rules ensuring the protection of threatened species can be 
granted only as long as the situation under consideration at the time of their 
adoption exists, that is to say, only if the specimen belonging to that species is in 
its natural habitat. Therefore, the question posed by the applicant is relevant only 
in so far as it concerns the existence of additional obligations on the State, similar 
to those which existed in the case under consideration when the directive was 
adopted, where the specimen belonging to a threatened species leaves its natural 
habitat and is in its immediate vicinity or completely outside it. 
27. Amongst the cases in which derogations may be laid down, Article 16(1)(c) of the 
directive identifies: in the interests of public health and public safety, or for other 
imperative reasons of overriding public interest. However, the notion of public 
safety is closely connected with situations where animals belonging to threatened 
species are outside their natural habitat.  
28. The court considers that the Member States and their authorities are obliged to 
interpret national law in accordance with the directive. Furthermore, the main aim 
set out in the directive, that is to say, to promote the maintenance of biodiversity, 
taking account of economic, social, cultural and regional requirements, making a 
contribution to the general objective of sustainable development, is fully justified 
also in cases where the animals belonging to the threatened species leave their 
natural habitat. A strict interpretation of the directive could lead to the conclusion 
that there is no obligation on the State in so far as the specimens belonging to the 
threatened species have left their natural habitat, which would be contrary to the 
objective laid down in that provision.  
29. In view of the potential contraventions of the law set out above and the dynamic 
development of EU law, the court considers it necessary to submit a request for a 
preliminary ruling in order to remove any possible appearance of infringement of 
EU law by the Romanian State. 
ALIANȚA PENTRU COMBATEREA ABUZURILOR 
 
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30. Furthermore, the court considers that this kind of situation — the capture or 
killing of animals which leave their natural habitat — could occur frequently in 
Romania.  
[Or. 9] 
31. A teleological interpretation of the directive helps avoid potential negative effects 
which could occur in the surrounding environment.  
32. Therefore, the court considers that there is no impediment to extending the 
applicability of the directive’s effects to cases in which animals belonging to 
protected species are outside their natural habitat.  
[...] 
Zărnești, 18.01.2019