Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on
12 December 2024 (1)
Case C‑629/23
Eesti Suurkiskjad
(Request for a preliminary ruling from the Riigikohus (Supreme Court, Estonia))
( Request for a preliminary ruling – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Wolf (Canis lupus) – Taking in
the wild and exploitation of specimens of species of wild fauna
listed in Annex V(a) – Wolf hunting plan – Assessment of the conservation status of populations of the species concerned )
I.      Introduction
1.        The objective of the Habitats Directive (2) is to ensure bio-diversity through the conservation of natural habitats and of wild flora and fauna. Detriment or risk to the conservation status of species can
preclude activities or give rise to obligations to act. But how is the conservation status determined? (3)
2.        This question is raised in the present case in connection with the protection afforded to individual specimens of wolf (Canis lupus), a species of Community interest. In most Member States, it is still (4) subject to strict protection under Article 12 of the Habitats Directive, which has frequently been the subject of case-law of the Court. (5) Accordingly, in particular the deliberate killing of wolves, and thus hunting too, is prohibited in principle and derogations from
that
prohibition are only possible within very narrow limits.
3.        However, certain Member States, such as Estonia, were able to agree in the negotiations on the directive or on accession to the European Union that in their territory or parts thereof only the weaker protection under Article 14 of the Habitats Directive applies to wolves. Accordingly, hunting is permitted in principle, but the Member States must take protective measures if the maintenance of a favourable conservation status is at risk. The Court had to address that
protection scheme in greater detail for the first time in its recent judgment in ASCEL. (6) In that judgment, it emphasised the relevance of the conservation status to the application of Article 14, but did not comment in depth on the examination thereof.
4.        The present request for a preliminary ruling from Estonia now presents the Court with questions relating to that examination. An examination is necessary of the extent to which the wolf populations outside Estonia must be taken into account when assessing the
conservation status of the species, the relevance attached to
the assessment of that status on the basis of the criteria of the International Union for Conservation of Nature and Natural Resources (IUCN) and whether account may be taken of economic, social and cultural requirements and regional and local characteristics.
II.    Legal framework
A.      Bern Convention
5.        In terms of international law, the Bern Convention on the Conservation of European Wildlife and Natural Habitats (7) is of particular relevance. The European Economic Community ratified that convention in 1982. (8) The Convention entered into force in Estonia on 1 December 1992. (9)
6.        Article 6 of the Bern Convention contains provisions on the protection of specific species:
‘Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the special protection of the wild fauna species specified in Appendix II. The following will in particular be prohibited for these species:
a.      all forms of deliberate capture and keeping and deliberate killing;
…’.
7.        Article 7 of the Bern Convention provides for a reduced protection scheme for certain other species, which is essentially the same as that provided for in Article 14 of the Habitats Directive.
8.        Article 9 of the Bern Convention contains exceptions from the protective provisions contained in Articles 6 and 7, which are essentially the same as the derogations contained in Article 16(1) of the Habitats Directive.
9.        The wolf is listed as a strictly
protected fauna species in Appendix
II to the Bern Convention. However, according to information on the Council of Europe website, 12 contracting states, such as Spain, have made reservations,
so that there only the protection afforded under Article 7 applies to wolves. However, that is not the case with the European Union or Estonia. (10)
B.      Habitats Directive
10.      The fifteenth recital of the Habitats Directive concerns the protection of species:
‘Whereas a general system of protection is required for certain species of flora and fauna to complement [the Birds Directive] (11); whereas provision should be made for management measures for certain species, if their conservation status so warrants, including the prohibition of certain means of capture or killing, whilst providing for the possibility of derogations on certain conditions.’
11.      Article 1(g) and (i) of the Habitats Directive defines various terms:
‘…
(g)      species of Community interest means species which, within the territory referred to in Article 2, are:
(i)      endangered, except those species whose natural range is marginal in that territory and which are not endangered or vulnerable in the western palearctic region; or
(ii)      vulnerable, i.e. believed likely to move into the endangered category in the near future if the causal factors continue operating; or
(iii)      rare, i.e. with small populations that are not at present endangered or vulnerable, but are at risk. The species are located within restricted geographical areas or are thinly scattered over a more extensive range; or
(iv)      endemic and requiring particular attention by reason of the specific nature of their habitat and/or the potential impact of their exploitation on their habitat and/or the potential impact of their exploitation on their conservation status.
Such species are listed or may be listed in Annex II and/or Annex IV or V;
(h)      …
(i)      conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article 2;
The conservation status will be taken as “favourable” when:
–        population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and
–        the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and
–        there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis;
(j)      …’.
12.      Article 2 of the Habitats Directive describes the aim it pursues:
‘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.
3.      Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics.’
13.      Under Article 3(1) of the Habitats Directive, ‘a
coherent European ecological network of special areas of conservation shall be set up under the title Natura
2000. This network …
shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.’
Article 4 of the Habitats Directive governs how the sites protected under that directive are selected and refers to the surveillance provided for in Article 11 for the purposes of the adaptation of those sites.
14.      Article 12 of the Habitats Directive requires the establishment of a system of strict protection for certain animal species, which prohibits, inter alia, the deliberate killing thereof.
15.      Article 14 of the Habitats Directive contains rules on the taking of certain animal species in
the wild:
‘1.      If, in the light of the surveillance provided for in Article 11, Member States deem it necessary, they shall take measures to ensure that the taking in the wild of specimens of species of wild fauna and flora listed in Annex V as well as their exploitation is compatible with their being maintained at a favourable conservation status.
2.      …’.
16.      Article 16(1) of the Habitats Directive contains derogations from Articles 12 and 14.
17.      Annex II(a) of the Habitats Directive lists, inter alia, the wolf as a priority species for which areas of conservation must be established, but does not include the populations in Estonia, Latvia and Lithuania. The wolf is also listed in Annex IV(a) as a species in need of strict protection in accordance with Article 12, but here, too, the populations in, inter alia, Estonia, Latvia, Lithuania are not included; the same applies for Poland. Those wolf populations are listed in Annex V(a) instead.
III. Facts and request for a preliminary ruling
18.      On 4 October 2012, the Keskkonnaminister (Minister for the Environment, Estonia) adopted the ‘Action plan for the protection and management of large carnivores (wolf Canis lupus, lynx
Lynx lynx, brown bear Ursus arctos) for the 2012 to 2021 period’. According to the plan, the status of all large carnivore populations could be described as good. The plan set the long-term objective for the next 30 years
of maintaining the favourable status of the wolf population, having regard to ecological, economic and social aspects. A more specific objective for the 2012 to 2021 period was to maintain 15 to 25 wolf packs with pups annually (overall population size of around 150 to 250 specimens) before the start of the hunting season (in autumn). Within that range, annual targets were to be set according to the results of monitoring, and the population was to be maintained within those ranges by means of hunting.
19.      The Keskkonnaamet (Environment Board, Estonia) set the wolf hunting quota for the 2020 to 2021 hunting year in the territory of the Republic of Estonia by order of 29 October 2020 at 140 specimens. Under the order, the Environment Board is entitled to change the wolf hunting quota after the Keskkonnaagentuur (Environment Agency, Estonia) has made proposals in that regard. The main management objective was to have an average of 20 wolf litters on the Estonian mainland by 2021, with the population distributed as evenly as possible across suitable habitats.
20.      The MTÜ Eesti Suurkiskjad (non-profit-making organisation Estonian Large Carnivores (MTÜ stands for Mittetulundusühing)) brought an action for annulment of the order. After the Tallinna Halduskohus (Administrative Court, Tallinn, Estonia) dismissed the action, Eesti Suurkiskjad lodged an appeal, which was unsuccessful.
21.      The Tallinna Ringkonnakohus (Court of Appeal, Tallinn, Estonia) found, inter alia, that the case-law of the Court of Justice does not prohibit taking account of migratory movements and influences
between Member States on the conservation status of the population of a species. There is no evidence that the conditions laid down in Article 1(i) of the Habitats Directive for the long-term maintenance of the conservation status would not be met without taking account of the Russian population. It is therefore not prohibited
to take account of the conservation measures taken by Poland, Lithuania and Latvia, even if this does not take place in the context of cooperation between the competent authorities.
22.      The appellate court took as a basis the report ‘Key actions for Large Carnivore Populations in Europe’ (2015) commissioned by the Commission. According to that report, the Baltic wolf population in the Member States of the European Union (excluding the parts outside the European Union) comprises approximately 900 to 1 400 specimens (20% of which are in Estonia), with the status of the population being stable and corresponding to the LC (least concern) category of the IUCN Red List, that is to say, not classified as endangered (p. 47). It is therefore inappropriate to draw parallels with the wolf populations in Karelia (around 150 specimens in Finland) and Scandinavia (250 to 300 specimens in Sweden and Norway together), which are EN (endangered) according to the report.
23.      Eesti Suurkiskjad lodged an appeal on a point of law with the Riigikohus (Supreme Court, Estonia), which, in its request for a preliminary ruling, asked the Court of Justice to answer the following questions:
‘(1)      Must Article 14(1) of the Habitats Directive be interpreted as requiring that favourable conservation status within the meaning of Article 1(i) be ensured in respect of a regional population of a species in a particular Member State where the measures referred to in that provision are adopted, or can the conservation status of the overall population in the territory of the Member States of the European Union be taken into account?
(2)      If account can be taken of the conservation status of the overall population in the territory of the Member States of the European Union, must the Habitats Directive be interpreted as requiring formal cooperation between the Member States to which the range of the population extends in order to conserve that population, or is it sufficient for the Member State adopting the measures referred to in Article 14 of the Habitats Directive to assess the situation of the population of the species in the other Member States concerned or lay down the conditions for doing so in a national management plan?
(3)      Can Article 1(i) of the Habitats Directive be interpreted as meaning that a regional population of a species classified in the ‘vulnerable’ (VU) category in accordance with the criteria of the IUCN Red List can have a favourable conservation status within the meaning of the Habitats Directive?
(4)      Can Article 1(i) of the Habitats Directive, in conjunction with Article 2(3) thereof, be interpreted as meaning that, when assessing the favourable conservation status of a species, account can also be taken of economic, social and cultural requirements and regional and local particularities?’
24.      MTÜ Eesti Suurkiskjad, the Republic of Estonia, the Kingdom of Denmark, the Republic of Austria and the European Commission submitted written observations on these questions. Eesti Suurkiskjad, Estonia and the Commission also answered written questions put by the Court and attended the hearing on 6 November 2024.
IV.    Legal analysis
25.      The request for a preliminary ruling is intended to clarify various issues relating to the assessment of the conservation status of a species when applying
Article 14(1) of the Habitats Directive. According to that provision, Member States are to take the measures necessary to ensure that the taking in the wild of specimens of species of wild fauna and flora listed in Annex V as well as their exploitation is compatible with their being maintained at a favourable conservation status.
26.      Where such an animal species has an unfavourable conservation status, the Member State concerned must therefore take measures within the meaning of Article 14 of the Habitats Directive in order to improve the conservation status of the species concerned in such a way that, in future, its populations are sustainably maintained at a favourable status. (12) Article 14 therefore precludes, in particular, permission to hunt the wolf if the Member State concerned has classified its conservation status as ‘unfavourable – poor’. (13)
27.      The first question seeks to ascertain whether
the population of the species in the Member State concerned is the sole decisive factor in assessing the conservation status or whether populations in other Member States may
also be taken into account. That question must be answered together with the second question as to whether a formal agreement is necessary in order for populations in other Member States to be taken into account (see A). By its fourth question, the referring court seeks to ascertain whether the assessment of the conservation status may also take account of economic, social and cultural requirements and regional and local characteristics
(see B). The third question concerns the relevance of the classification of a Member State population as ‘vulnerable’ (VU) by the IUCN (see C). Lastly, I will briefly address the relevance of the Bern Convention to the protection of the wolf in Estonia (see D).
A.      First and second questions – Relevant population for the assessment of conservation status
28.      The first question seeks clarification as to whether the measures required under Article 14(1) of the Habitats Directive depend
solely on whether the conservation status of the population in the Member State concerned is favourable or whether the conservation status of the population in the European Union as a whole may
be taken into account.
29.      The background to that question is the fact that the Estonian population of wolves is part of a larger Baltic population, a so-called meta-population, which includes further
populations in Latvia, Lithuania and Poland as well as Russia, Belarus and Ukraine. While the conservation status of the Estonian population is disputed, which is the subject of the third question in particular, the favourable conservation status of the Baltic wolf population as a whole is not, according to the request for a preliminary ruling.
30.      In the event that the conservation status in other Member States is relevant, the second question seeks clarification as to whether taking that into account requires formal cooperation between the Member States concerned on the protection of the species. According to the information available, there have so far only been beginnings of cooperation between Estonia and other States in the Baltic meta-population. In essence, Estonia has therefore assessed the situation in the other Member States concerned and, in the light of that information, laid down the conditions for the conservation of the species in a national management plan.
31.      Those two questions are closely related and therefore I will answer them together. In that regard, I will first discuss the responsibility of Member States as regards the conservation status of a species in their own territory (see 1), then consider the method for assessing conservation status (see 2), present the possible mutual influence of populations of different Member States (see 3) and lastly
analyse the prognostic assessment of conservation status, addressing the relevance of formal cooperation and protection
schemes in the States concerned (see 4).
1.      The responsibility of Member States as regards the conservation status of a species in their own territory
32.      It must be clarified first of all whether
the conservation status of the species in the European Union as a whole or in the territory of the Member State concerned is relevant for the application of Article 14 of the Habitats Directive.
33.      In settled case-law, the Court deduces from Article 1(i) and Article 2(1) of the Habitats Directive that the (favourable) conservation status of a species must be assessed in relation to the entire European territory of the Member States to which the Treaty applies. (14) The first sentence of Article 1(i) defines the conservation status for the territory
referred to in Article 2. That is, the European territory of the Member States to which the Treaty applies and in which the directive is to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora,
in accordance with Article 2(1).
34.      That objective of the Habitats Directive to ensure biodiversity throughout the European Union corresponds to the European Union’s responsibility vis-à-vis all Member States, in which it is to endeavour to achieve a high level of environmental protection pursuant to the second sentence of Article 3(3) TEU, the first sentence of Article 191(2) TFEU and Article 37 of the Charter of Fundamental Rights of the European Union.
35.      In that regard, the Court has described in the abovementioned case-law (15) the task of the Commission in establishing a European network of protected areas within the framework of Natura 2000.
Under Articles 3(1) and 4(2) of the Habitats Directive, the Commission
must assess in respect of the entire European Union which sites are to be protected in order to enable the natural habitat types and the habitats of species
concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.
36.      However, measures under Article 14 of the Habitats Directive are adopted
not by the Commission, but by the Member States. They can take measures when
applying the Habitats Directive solely
in respect of
their own national territory or parts thereof. They can therefore only guarantee their own national territory’s contribution
to ensuring biodiversity.
37.      Furthermore, the Habitats Directive does not seek to conserve the protected species only somewhere
in the European Union. Rather, according to the first indent of the second sentence of Article 1(i) of the Habitats Directive, each species should form a viable component
of its natural habitats. In that natural habitat, the species has an ecological function.
38.      As regards the wolf as a large carnivore, that function lies in particular in controlling the populations of its prey. If the wolf is absent from its natural habitat, the populations of those other species can increase excessively and cause damage. That applies to deer species, for example, which can cause considerable damage to forests if their populations are not controlled by predators such as the wolf. (16) Direct control of such species by humans is merely a makeshift solution, which is often less effective for various reasons. (17)
39.      If the conservation status of a species is not favourable in a Member State, it cannot fulfil its ecological function there, or at least not to its full extent, even if the Member State population is part of a meta-population with
a favourable conservation status.
40.      Nevertheless, it should also be clarified that the obligations under Article 14 of the Habitats Directive can only apply to Member States in so far as the natural range of the species concerned extends, at least potentially, to the territory of the Member State. Unlike in Articles 12 and 16, that condition is not explicitly mentioned in Article 14; however, it would not make sense to oblige Member States to take measures to ensure the favourable conservation status of species which cannot occur in its territory, for example because no suitable habitats can exist on account of geographical or climatic conditions. Therefore, the definition of favourable conservation status in the second sentence of Article 1(i) of the Habitats Directive refers to the occurrence in the natural habitat of the species (first indent) and to its natural range (second indent).
41.      It must therefore be concluded that the territorial frame of reference for the application of Article 14 of the Habitats Directive by a Member State, and in particular for the necessary examination of the conservation status of the species concerned, is the territory of the Member State concerned.
42.      The unfavourable conservation status which triggers a Member State’s obligations to act under Article 14 of the Habitats Directive (18) therefore does not relate to the European Union as a whole, but to the populations of the species within its territory. That conservation status must therefore necessarily exist and be assessed at local and national level, so that an unfavourable conservation status on the territory of a Member State or a part thereof is not hidden by the effect of an assessment carried out solely at a cross-border level. (19) A compensatory effect through a favourable conservation status in another State is therefore not provided for in the directive.
2.      Method for examining the conservation status
43.      However, does it therefore follow that the populations of the species outside the Member State are of no relevance to the conservation status in the Member State concerned? To answer this question, I will examine Article 1(i) of the Habitats Directive, which first defines the conservation status of a species and then the conditions for its assessment as ‘favourable’.
44.      Under the
first sentence of Article 1(i) of the Habitats Directive, conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the European territory of the Member States.
45.      Under the
second sentence of Article 1(i) of the Habitats Directive, the conservation status is favourable if three conditions are met.
First, population dynamics data on the species concerned must indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats (first indent of the provision). Second, the natural range of the species may neither be in the process of being reduced nor be likely to be reduced for the foreseeable future (second indent). Third, there must be, and probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis (third indent).
46.      The assessment of the conservation status of a species therefore requires two steps. First, the sum of the influences that may affect the long-term distribution and abundance of the populations of the species concerned in the Member State concerned must be determined. Then, on the basis of those influences, a prognosis must be made as to the future development of those populations.
3.      Relationships between populations
47.      In the light of that assessment procedure, the relevance of the wolf populations outside Estonia to the conservation status of the populations within Estonia, which is the decisive factor as regards the obligations of that Member State under Article 14 of the Habitats Directive, must be considered.
48.      Under the first sentence of Article 1(i) of the Habitats Directive, populations in other Member States are relevant to the conservation status of the population of a species within a Member State if they may
affect the long-term distribution and abundance of the
national population.
49.      Such an influence exists if there is an exchange between those populations.
50.      This is illustrated by comparing a hypothetical isolated island population of a particular species with a population of the same species which regularly incorporates specimens from, or passes specimens to, other populations and whose specimens regularly come into contact with specimens from other populations. In the isolated population, losses of specimens can only be compensated for by the reproduction of the remaining specimens, whereas an exchange with other populations also allows losses to be compensated for by immigration. In addition, temporarily favourable conditions in an isolated population can lead to excessive growth with a subsequent sharp decline in the population, which could be mitigated by the permanent or temporary emigration of specimens in an exchange with other populations and habitats. Lastly, isolated populations often exhibit less genetic variation than populations whose genetic variation is enhanced by the exchange with other populations.
51.      An isolated population is therefore naturally less resilient to adverse effects than a population which
has a regular exchange with other populations. The Scandinavian meta-population of wolves in the centre and south of Sweden and Norway is an example of this as it is largely isolated from other populations. In particular, it displays low genetic variation because it is based on a small number of specimens. (20) A recent report for the Standing Committee to the Bern Convention therefore categorises that meta-population as ‘vulnerable’ (VU). (21)
52.      By contrast, according to the information available, there are no comparable risks to the Estonian wolf population since it has exchanges with other populations of the Baltic meta-population. Moreover, that meta-population is also likely to exchange specimens with other populations, for example with other populations in Russia and also
with the large Carpathian meta-population and the meta-population in Central Europe. The Baltic meta-population as a whole is thus assessed as being of ‘least concern’ in the abovementioned report. (22)
53.      Furthermore, the exchange with other populations of a meta-population may be an essential prerequisite for the conservation of a species precisely for smaller Member States if their national territory or the natural habitat which can be used by the species there is too small for a viable population. In that case, the species can only have a permanent presence in the Member State if its – non-viable if isolated – population is in continuous exchange with populations in neighbouring Member States. However, having regard to that exchange, it may still be possible to establish that that population meets the three conditions for favourable conservation status.
54.      The Court has already recognised this idea in principle in emphasising that cross-border surveillance of a species must be undertaken with particular care if it is subject to the stricter protection requirements laid down in
Articles 6 and 12 of the Habitats Directive in certain regions and only Article 14 is applicable in neighbouring regions. (23) If those different protection standards are justified, it can be assumed that the latter populations have a better conservation status and can make positive contributions to the conservation status of the other, more strictly protected populations. (24)
55.      It must therefore be concluded that Member States must take into account the relationships between their populations of a species and populations in other Member States
or the absence of such relationships as part of the influences
that may affect the long-term distribution and abundance
of the populations of the species concerned in their territory within the meaning of the first sentence of Article 1(i) of the Habitats Directive.
4.      Prognostic assessment of future conservation status
56.      The assessment of the conservation status of a population as favourable or unfavourable includes the prognoses listed in the second sentence of Article 1(i) of the Habitats Directive as to whether
population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats (first indent of the provision), whether its natural range is neither being reduced nor is likely to be reduced for the foreseeable future (second indent), and whether there is, and will also
probably continue to be in future, a sufficiently large habitat to maintain populations of that species on a long-term basis (third indent).
57.      The starting point must be the current situation, as is demonstrated, for example, by the reference to data on population dynamics in the first indent of the second sentence of
Article 1(i) of the Habitats Directive. The abundance of the population, the range and the available habitat and also the development of those factors in the past must therefore be determined. In that regard, the best available scientific data and methods must be used. (25)
58.      The current situation of the Estonian wolf population includes the relationships which can be ascertained
today with the other sub-populations of the Baltic meta-population.
59.      However, it cannot automatically be assumed that the current situation will continue in the future. Rather, foreseeable and probable changes must be taken into account.
60.      One example of this is the erection of border fences on the European Union’s eastern border, as mentioned in the request for a preliminary ruling. (26) That could reduce the connections between the Member State sub-populations of the Baltic meta-population and the sub-populations in Russia and Belarus in the future. Nevertheless, the Estonian Government stated at the hearing that wolves could continue to migrate between Russia and Estonia, at least in winter, across frozen border waters.
61.      However, the formal cooperation between Member States referred to
in the second question and the applicable protection schemes are also factors which Member States must take into account when making a prognosis of the development of relationships between populations in different States. The better those relationships are safeguarded for the future, the greater the
weight attached to them.
62.      The legal protection of other populations is an important factor in that regard. In the absence of such protection, there is a concern that those other populations and thus the exchange with the population of the Member State will be impaired in the future.
63.      That problem may concern the Finnish population of wolves as part of the Karelian meta-population since that species appears to be heavily hunted now in the Russian areas of that meta-population. Those Russian practices are certainly also related to the fact that Russia has not ratified the Bern Convention. (27) In any event, the abovementioned report categorises that meta-population as ‘near threatened’
despite its connection with other Russian populations. (28) Similar problems could concern the relationship between the Estonian wolf population and Russian populations and also populations in Belarus, which denounced the Bern Convention on 1 April 2024. (29)
64.      The Court may, for this reason, have initially found that populations in third countries do not have to be taken into consideration when assessing the conservation status in the context of the derogation laid down in Article 16 of the Habitats Directive in a Finnish case (30) and later restricted that consideration in an Austrian case to States subject to the comparable protective provisions of the Bern Convention. (31)
65.      By contrast, a comparable, legally guaranteed level of protection for different populations of a species allows great weight to be attached to the exchange between those populations in the assessment and evaluation of the conservation status of one of those populations.
66.      Those relationships would be even more important if there were an even higher level of protection, such as if the more stringent
Article 12 of the Habitats Directive were applicable to the other population. However, the other populations of the Baltic meta-population within the European Union are subject to the same protection as in Estonia, namely protection under Article 14. Nevertheless, in Poland there is also protection in 60 special areas of conservation under the Habitats Directive, (32) which was excluded
in the Baltic States. Furthermore, wolves in all Member States will in future benefit from the obligations to restore and to protect habitats pursuant to Article 4 of the Nature Restoration Regulation. (33)
67.      Even greater weight must be attached to the relationships with the populations in other States
where the States
concerned not only apply comparable protective rules, but also formally cooperate on protection of that species. That is because they can then coordinate their protective measures in such a way as to optimise that exchange.
68.      However, even in the absence of formal cooperation, the principle of sincere cooperation, enshrined in the first subparagraph of Article 4(3) TEU, which provides that the European Union and the Member States are, in full mutual respect, to assist each other in carrying out tasks which flow from the Treaties, applies between the Member States. (34) That may include, in particular, the sharing of available information on populations of protected species in their own territory.
5.      Interim conclusion
69.      The answer to the first and second questions is therefore that each Member State is required, when applying Article 14 of the Habitats Directive, to ensure a favourable conservation status in its territory of the species listed in Annex V whose natural range extends to that territory. However, when assessing the conservation status of those species, the Member State must take account of the exchange between its population and populations in other States. The weight attached to those exchanges in the prognostic assessment of the conservation status depends, inter alia, on the extent to which those other populations are protected and the extent to which the Member State and the State in which another population is located cooperate on protection of the species.
B.      Fourth question – economic, social and cultural requirements and regional and local characteristics
70.      The fourth question seeks to ascertain whether economic, social and cultural requirements and regional and local characteristics can also be taken into account when classifying the conservation status as favourable. It is clearly
inspired by Article 2(3) of the Habitats Directive, under which measures taken pursuant to the directive are to take account of those requirements and characteristics.
71.      In the main proceedings, the objection was raised on that basis that an increase in the number of wolves would lead to major social and economic conflicts in Estonian society. That argument is, in essence, that the social acceptance of a species should be the decisive factor in determining the extent to which the taking of specimens in
the wild should be permitted.
72.      However, Article 14(1) of the Habitats Directive provides that Member States are to take the necessary measures to ensure that the taking is compatible with the maintenance of a favourable conservation status. The extent of permissible taking is therefore not directly dependent on social acceptance, but on the maintenance of a favourable conservation status.
73.      As has been stated, (35) under the first sentence of Article 1(i) of the Habitats Directive, conservation status of a species means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the European territory of the Member States.
74.      Those influences include economic, social and cultural requirements and regional and local characteristics.
75.      Finland, for example, takes the view that the strict protection of wolves pursuant to Article 12 of the Habitats Directive is incompatible with reindeer management, which is of great cultural and economic importance, particularly to the Sami minority in the north of the country. Annex IV and V of the Habitats Directive therefore provide that Article 14, not Article 12, applies to wolves in the Finnish reindeer management area. It appears that that is why virtually no wolf population can become established in that area,
since
the Finnish application of Article 14 allows specimens that disperse there to be killed before being able to reproduce. (36) Irrespective of whether that Finnish practice is compatible with Article 14, the economic, social and cultural requirements and regional and local characteristics in the Finnish reindeer management area clearly
influence the conservation status of the wolf.
76.      However, it is also conceivable that economic, social and cultural requirements and regional and local characteristics have a positive impact on the conservation status of certain species, for example by creating the conditions for the presence of a species. In Central Europe, for example, the European (or common) hamster (Cricetus cricetus) can almost only use land which is used for agriculture
in a certain way. (37) The conservation of that species therefore means that the requirements and characteristics mentioned above must be realised in terms of appropriate management of the necessary land.
77.      Consequently, economic, social and cultural requirements and regional and local characteristics must be taken into account when assessing the conservation status of species, in
so
far as those requirements and characteristics influence that conservation status.
78.      That must be distinguished from the question whether those factors can be included in the prognostic assessment of the conservation status pursuant to the second sentence of
Article 1(i) of the Habitats Directive in such a way that it must be regarded as favourable because a larger population would not be accepted socially.
79.      As has been stated, in order to assess the relevant conditions under the second sentence of Article 1(i) of the Habitats Directive, the current status of the Member State population of the species concerned must
be determined and a prognosis of its future development must be made. (38) The population dynamics, range and habitat of a species are part of the local characteristics and may be linked to economic, social and cultural requirements.
However, conflicts with those requirements and characteristics
can also contribute at least in part to the current status to the extent set out by way of example above (39) and will also influence the prognosis.
80.      However, the second sentence of Article 1(i) of the Habitats Directive contains no indication that the conservation status of a population can be considered favourable merely because additional protective measures for the species or a larger population could give rise to conflicts with regional or local characteristics or economic, social and cultural requirements. If Member States were allowed to make the assessment of the conservation status of a species dependent on economic, social and cultural requirements and regional and local characteristics, they could instead jeopardise the objective of conserving the species. (40)
81.      As I have already explained in connection with wolf hunting in the Autonomous Community of Castile and Leon (Spain), the measures required specifically under Article 14 of the Habitats Directive depend on the factors which adversely affect
the conservation status. (41) If economic, social and cultural requirements and regional and local characteristics
call into question or even prevent a favourable conservation status, measures may therefore be necessary which are contrary to those requirements or act against those characteristics.
82.      If those requirements and special characteristics are nevertheless to be enforced, that cannot be done pursuant
to Article 14 of the Habitats Directive, but at most through a
derogation
under
Article 16. However, even that provision requires that the species remain at
a favourable conservation status despite the derogation or that an unfavourable conservation status is at least not further worsened
by the derogation and the restoration at
a favourable conservation status is not prevented. (42)
83.      The answer to the fourth question is therefore that economic, social and cultural requirements and regional and local characteristics are influences that may affect the long-term distribution and abundance of populations of protected species for the purpose of assessing the conservation status of species under the first sentence of Article 1(i) of the Habitats Directive. However, the second sentence of Article 1(i) precludes the conservation status of a species from being considered favourable on the basis of those requirements and characteristics as long as the conditions referred to in that provision cannot be established as being satisfied.
C.      Third question – Vulnerable status of the wolf according to the IUCN criteria
84.      By its third question, the Riigikohus (Supreme Court)
seeks to ascertain whether the regional population of a species can have a favourable conservation status under
Article 1(i) of the Habitats Directive if that population has been classified in the ‘vulnerable’ (VU) category in accordance with the criteria of the IUCN Red List.
85.      The Habitats Directive and, in particular, the definition of a favourable conservation status in the second sentence of Article 1(i) of the Habitats Directive do not expressly provide that an assessment based on the IUCN
threatened categories is to be the decisive factor in the assessment of the conservation status of a species.
86.      However, the best available scientific data and methods must be used in that assessment. (43) Thus, if the assessment of a population on the basis of the IUCN criteria is among those data or is based on them, it must be taken into account in the assessment of conservation status. (44)
87.      Moreover, one might expect that the determination of those threatened categories and the assessment of conservation status should pursue similar objectives and therefore lead to similar results. For example, the abovementioned assessments of the Baltic meta-population of wolves, (45) which Tallinna Ringkonnakohus (Court of Appeal, Tallinn) used for a positive assessment of the conservation status of the Estonian population, are based on the
IUCN criteria.
88.      From that point of view, the classification of a population as ‘vulnerable’ (VU) appears to preclude the assumption of a favourable conservation status. According to the IUCN definition, that
threatened category means that there is a high risk of extinction of the species in the wild. (46) In the face of such a risk, it is doubtful whether the species would maintain itself on a long-term basis as a viable component of its natural habitats within the meaning of the first indent of the second sentence of Article 1(i) of the Habitats Directive. Instead, its natural range would likely be reduced (second indent).
89.      However, it is possible to refute such an assessment on the basis of better scientific knowledge, (47) for example on the basis of more recent or complete data or
on the basis of conceptual problems. For instance, the IUCN criteria for attribution of a threatened category were developed for the global assessment of species. (48) As Estonia states, certain thresholds cannot therefore be readily
applied to individual countries which contain only sub-populations of the species. The Commission states, on the other hand, that the IUCN has published guidelines for the application of its criteria at regional and national levels, (49) which should enable that conceptual problem to be dealt with appropriately.
90.      Furthermore, the obligation to use the best available scientific data and methods does not go so far as to require Member States to adopt assessments based on purely hypothetical assumptions. (50) One could conceive of that in the present case
because, according to the request for a preliminary ruling, the assessment of the Estonian wolf population as ‘vulnerable’ (VU) is based, inter alia, on the concern that Estonia could decide to reduce the number of wolves in the future for political reasons. By contrast, in so far as the assessment is based on the erection of border fences, that is an objective fact whose relevance to the relationships with the populations in Russia and Belarus has already been addressed. (51)
91.      The answer to the third question is thus that Member States must include an assessment of the population of a species in their territory as ‘vulnerable’ (VU) according to the IUCN criteria as part of the best available scientific data and methods when assessing conservation status under Article 14 of the Habitats Directive. However, they can refute the results with better scientific findings
or on the basis of conceptual problems and are not obliged to adopt purely hypothetical assumptions.
D.      Concluding remark on the Bern Convention
92.      Lastly, I would like to
recall, alongside the Court in its judgment in
WWF Österreich, that the classification of wolves has
so far been maintained in the list of species referred to in Appendix II to the Bern Convention, which are strictly protected under that Convention, to which the European Union is a party and which is binding on it under international law. (52)
93.      Under Article 6(a) of the Convention, the Contracting States must prohibit all forms of deliberate killing of wolves, thus in particular hunting. Article 9 of the Convention allows exceptions to that prohibition
only for certain, exhaustively listed reasons if there is no other satisfactory solution and the exception will not be detrimental to the survival of the population concerned. That standard of protection is largely the same as the strict protection afforded under Articles 12 and 16 of the Habitats Directive.
94.      Article 14 of the Habitats Directive, on the other hand, implements Article 7 of the Convention, to which various Contracting States
have had recourse in respect of the wolf on the basis of reservations.
95.      Estonia acceded to the Convention in 1992, that is to say, before acceding to the European Union, and unlike Spain, (53) for example, made no reservation in relation to the protection of the wolf.
96.      As the Convention is binding on the Member States as an element of EU law under Article 216(2) TFEU, (54) Estonia is thus obliged under both international and EU law to afford the wolf strict protection.
97.      The rules of the Habitats Directive, which in Estonia provide only for
comparably weaker protection of the wolf under
Article 14, do not change anything in that regard. In particular, they do not take precedence over the requirements of the Convention as lex specialis or lex posterior. First, there is no contradiction between Article 6 of the Convention and Article 14 of the Habitats Directive. Estonia can easily fulfil one obligation without infringing the other. With regard to their protective purpose of ensuring a favourable conservation status of the species, the obligations even complement each other. Second, it cannot be assumed that the European Union or Estonia intended to use the Habitats Directive to infringe their international obligations under the Convention.
98.      The foregoing remarks on the interpretation of Article 14 of the Habitats Directive are therefore limited exclusively to that provision. They do not, however, justify deviating from the stringent
protective provisions of the Bern Convention. Nevertheless, those protective provisions will be weakened when the amendment of the protected status of the wolf
under the Convention proposed by the European Union (55) takes effect.
V.      Conclusion
99.      I therefore propose that the Court give the following answer to the request for a preliminary ruling:
(1)      The answer to the first and second questions is that each Member State is required, when applying Article 14 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, to ensure a favourable conservation status in its territory of the species listed in Annex V whose natural range extends to that territory. However, when assessing the conservation status of those species, the Member State must take account of the exchange between its population and populations in other States. The weight attached to those exchanges in the prognostic assessment of the conservation status depends, inter alia, on the extent to which those other populations are protected and the extent to which the Member State and the State in which another population is located cooperate on protection of the species.
(2)      The answer to the third question is that Member States must include an assessment of the population of a species in their territory as ‘vulnerable’ (VU) according to the
International Union for Conservation of Nature and Natural Resources criteria as part of the best available scientific data and methods when assessing conservation status under Article 14 of Directive 92/43. However, they can refute the results with better scientific evidence or on the basis of conceptual problems and are not obliged to adopt purely hypothetical assumptions.
(3)      The answer to the fourth question is that economic, social and cultural requirements and regional and local characteristics are influences that may affect the long-term distribution and abundance of protected species for the purpose of assessing the conservation status of species under the first sentence of Article 1(i) of Directive 92/43. However, the second sentence of Article 1(i) precludes the conservation status of a species from being considered favourable on the basis of those requirements and characteristics as long as the conditions referred to in that provision cannot be established as being satisfied.
1      Original language: German.
2      Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (‘Habitats Directive’).
3      According to Council Document 9705/24 of 8 May 2024, paragraph 12, the Commission commissioned work on a better methodology for assessing the conservation status of large carnivores.
4      With regard to the discussion of the level of protection for wolves, see my Opinion in ASCEL (C‑436/22, EU:C:2024:83, point 1 with further references), Council document 9705/24 of 8 May 2024 on the state of discussions on the level of protection for wolves, the Council press release of 26 September 2024 ‘Bern Convention: EU will propose changing the conservation status of wolves’
,
the EU corresponding letter of 27 September 2024 to the Secretariat of the Bern Convention, T-PVS/Inf(2024)15, and Section 4.2. of the Draft List of Decisions and Adopted Texts for the 44th
meeting of the Standing Committee to the Bern Convention, T‑PVS(2024)MISC of 6 December 2024, on the adoption of the amendment.
5      See, for example, judgments of 30 January 2002, Commission v Greece (Caretta caretta) (C‑103/00, EU:C:2002:60);
of
10 October 2019, Luonnonsuojeluyhdistys Tapiola (C‑674/17, EU:C:2019:851); or more recently of
11 July 2024, Umweltverband WWF Österreich and Others (C‑601/22, EU:C:2024:595).
6      Judgment of 29 July 2024, ASCEL (C‑436/22, EU:C:2024:656).
7      CETS No 104.
8      Council Decision 82/72/EEC of 3 December 1981 (OJ 1982 L 38, p. 1).
9      According to https://www.coe.int/en/web/conventions.
10      https://www.coe.int/en/web/conventions/cets-number-/-abridged-title-known?module=signatures-by-treaty&treatynum=104 and https://www.coe.int/en/web/conventions/cets-number-/-abridged-title-known?module=declarations-by-treaty&numSte=104&codeNature=0.
11      Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7).
12      Judgment of 29 July 2024, ASCEL (C‑436/22, EU:C:2024:656,
paragraph 69).
13      Judgment of 29 July 2024, ASCEL (C‑436/22, EU:C:2024:656, paragraph 78).
14      Judgments of 7 November 2000, First Corporate Shipping (C‑371/98, EU:C:2000:600, paragraph 23); of 19 October 2017, Vereniging Hoekschewaards Landschap (C‑281/16, EU:C:2017:774, paragraph 32); and of
18 October 2018, Commission v United Kingdom (C‑669/16, EU:C:2018:844, paragraph 63).
15      See the references in footnote 14.
16      See Ripple, W.J., Estes, J.A., Beschta, R.L., Wilmers, C.C., Ritchie, E.G., Hebblewhite, M., and Wirsing, A.J., ‘Status and ecological effects of the world’s largest carnivores’, Science, Vol. 343, Issue 6167, 2014, 1241484-3; and Kuijper, D.P.J., ‘Lack of natural control mechanisms increases wildlife–forestry conflict in managed temperate European forest systems’, European Journal of Forest Research, Vol. 130, 2011, pp. 895 to 909.
17      See Kuijper (cited in footnote 16, pp. 900
and 901).
18      Judgment of 29 July 2024, ASCEL (C‑436/22, EU:C:2024:656, paragraph 69).
19      See judgment of 11 July 2024, Umweltverband WWF Österreich and Others (C‑601/22, EU:C:2024:595, paragraph 57), and Opinion of Advocate General Ćapeta in that case (EU:C:2024:62, points 73 and 74), on Article 16 of the Habitats Directive. See also my Opinion in ASCEL (C‑436/22, EU:C:2024:83, point 101) on Article 14.
20      Large Carnivore Initiative for Europe (Boitani et al.), ‘Assessment of the conservation status of the Wolf (Canis lupus) in Europe’ (Document for the 42nd meeting of the Standing Committee to the Bern Convention from 28 November
to
2 December 2022, T-PVS/Inf(2022)45, p. 19).
21      Cited in footnote 20, pp. 19
and 22.
22      Cited in footnote 20, pp. 18, 19
and 21.
23      Judgment of 29 July 2024, ASCEL (C‑436/22, EU:C:2024:656, paragraphs 63 and 66); see also judgment of 11 July 2024, Umweltverband WWF Österreich and Others (C‑601/22, EU:C:2024:595, paragraph 58).
24      See my Opinion in
ASCEL
(C‑436/22, EU:C:2024:83, point 77).
25      Judgment of 29 July 2024, ASCEL (C‑436/22, EU:C:2024:656, paragraph 65).
26      See also the report cited in footnote 20, pp. 18
and 19.
27      Chart of signatures and ratifications of the Bern Convention (https://www.coe.int/en/web/conventions/cets-number-/-abridged-title-known?module=signatures-by-treaty&treatynum=104).
28      Cited in footnote 20, p. 19.
29      Chart of signatures and ratifications of the Bern Convention (https://www.coe.int/en/web/conventions/cets-number-/-abridged-title-known?module=signatures-by-treaty&treatynum=104).
30      Judgment of 10 October 2019, Luonnonsuojeluyhdistys Tapiola (C‑674/17, EU:C:2019:851, paragraph 60).
31      Judgment of 11 July 2024, Umweltverband WWF Österreich and Others
(C‑601/22, EU:C:2024:595, paragraph 63).
32      Biodiversity.europa.eu/species/1367.
33      Regulation (EU) 2024/1991 of the European Parliament and of the Council of 24 June 2024 on nature restoration and amending Regulation (EU) 2022/869 (OJ L 2024/1991).
34      See judgments of 17 December 2020, Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (C‑398/19, EU:C:2020:1032, paragraph 48), and of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 131 and 132).
35      See point 44 above.
36      See Kojola, I., Aspi, J., Hakala, A., Heikkinen, S., Ilmoni, C., and Ronkainen, S.,
‘Dispersal in an expanding wolf population in Finland’, Journal of Mammalogy, Vol. 87, Issue 2, 2006, pp. 281 to 286.
37      See my Opinion in
Commission v France (Cricetus cricetus) (C‑383/09, EU:C:2011:23, point 62).
38      See point 57 above.
39      See point 75 above.
40      See, to that effect, judgment of 7 November 2000, First Corporate Shipping (C‑371/98, EU:C:2000:600, paragraph 23).
41      My Opinion in
ASCEL (C‑436/22, EU:C:2024:83, points 99
and 100).
42      Judgments of 14 June 2007, Commission v Finland (Wolf hunting) (C‑342/05, EU:C:2007:341, paragraph 29), and of
10 October 2019, Luonnonsuojeluyhdistys Tapiola (C‑674/17, EU:C:2019:851, paragraph 68).
43      Judgment of 29 July
2024, ASCEL
(C‑436/22, EU:C:2024:656, paragraph 65).
44      See judgment of 23 April 2020, Commission v Finland (Spring hunting of male common eiders) (C‑217/19, EU:C:2020:291, paragraphs 71, 72 and 82).
45      See points 22 and 52 above.
46      IUCN Red List Categories and Criteria: Version 3.1., Second edition, Gland, Switzerland, and Cambridge, United Kingdom,
IUCN,
2012, p. 15.
47      See, to that effect, judgment of 28 June 2007, Commission v Spain (C‑235/04, EU:C:2007:386, paragraphs 26
to 28, 35 and 39).
48      Guidelines for Using the IUCN Red List Categories and Criteria, Version 16, IUCN Standards and Petitions Committee, March 2024, p. 7.
49      Guidelines for Application of IUCN Red List Criteria at Regional and National Levels, Version 4.0, IUCN Species Survival Commission, January 2010.
50      See, to that effect, judgments of 9 September 2003, Monsanto Agricoltura Italia and Others (C‑236/01, EU:C:2003:431, paragraph 106); of 28 January 2010, Commission v France (C‑333/08, EU:C:2010:44, paragraph 91); and of 19 January 2017, Queisser Pharma (C‑282/15, EU:C:2017:26, paragraph 60).
51      See point 60 above.
52      Judgment of 11 July 2024, Umweltverband WWF Österreich and Others (C‑601/22, EU:C:2024:595, paragraph 43).
53      See my Opinion in
ASCEL (C‑436/22, EU:C:2024:83, point 46).
54      See judgment of 15 July 2004, Pêcheurs de l’étang de Berre (C‑213/03, EU:C:2004:464, paragraph 39).
55      See the decision of the Standing Committee to the Bern Convention cited in footnote 4.