Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union, in the thirty-eighth meeting of the Standing Committee of the Convention on the conservation of European wildlife and natural habitats, with regards to amendments to Appendices II and III
Date: 2018-10-31
Institutions: Directorate-General for Environment, European Commission
Subjects: European convention, European cooperation, biotope, bird, protected species, protection of animal life, revision of an agreement, standing committee (EU), wolf

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   EUROPEAN COMMISSION  Brussels, 31.10.2018  COM(2018) 731 final 2018/0379 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union, in the thirty-eighth meeting of the Standing Committee of the Convention on the conservation of European wildlife and natural habitats, with regards to amendments to Appendices II and III  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

The present proposal concerns the decision establishing the position to be adopted on behalf 
of  the  Union  in  view  of  the  thirty-eighth  annual  meeting  of  the  Standing  Committee  of  the 
Convention on the conservation of European wildlife and natural habitats, Strasbourg, France, 
27-30  November,  2018,  in  connection  with  the  envisaged  adoption  by  the  Standing 
Committee of a decision concerning two amendments of Appendix II and Appendix III to the 
Convention.   

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on the conservation of migratory species of wild animals 

The  1979  Convention  on  the  conservation  of  European  wildlife  and  natural  habitats  (Bern 
Convention)  ("the  Agreement")  aims  to  conserve  European  wild  flora  and  fauna  and  their 
natural  habitats,  especially  those  whose  conservation  requires  the  co-operation  of  several 
States. It is an intergovernmental treaty, concluded under the aegis of the Council of Europe. 
The Agreement entered into force on 1 June 1982. The European Community is a Contracting 
Party to this Agreement since 1 September, 19821. At present, there are 51 Contracting Parties 
to the Agreement, including all EU Member States.  

2.2. 

The Standing Committee 

The  Standing  Committee  is  the  decision-making  organ  of  the  Convention  having  powers  to 
assess the conservation status of species and, subsequently, to review the listing of them in the 
Appendices  to  the  Convention.  Its  functions  are  enumerated  in  Articles  13-15  of  the 
Agreement.  It  meets  at  least  every  two  years  and  whenever  a  majority  of  the  Contracting 
Parties so request. It has become customary for the Standing Committee to meet every year.   

The Union’s position concerning amendments of the appendices is established by a decision 
of the Council based on a proposal from the Commission.. 

2.3. 

The envisaged act of the Standing Committee 

On 27-30 November, 2018, the thirty-eighth annual meeting of the Standing Committee of the 
Agreement, in Strasbourg, France, is expected to adopt a decision regarding two amendments 
of Appendix II and Appendix III to the Agreement (‘the envisaged act’). 

In  accordance  with  Article  17  of  the  Agreement,  an  amendment  to  the  Appendices  shall  be 
adopted by two-thirds majority of the Contracting parties.  It enters into force  for  all Parties 
three month after the adoption by the Standing Committee unless one-third of the Contracting 
Parties  have  notified  objections.  Any  amendment  enters  into  force  for  those  Contracting 
Parties which have not notified objections. 

The purpose of the envisaged act is to amend Appendix II and Appendix III to the Agreement, 
as provided for in Article 17 of the Agreement.   

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The following two amendments of the appendices of the Agreement have been proposed. 

1 

Council Decision 82/72/EEC of 3 December 1981 on the conclusion on behalf of the Community of the 
Convention on the Conservation of European Wildlife and Natural Habitats, OJ L 38, 10.2.1982, p. 1. 

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1)  Switzerland  has  proposed  to  lower  the  level  of  protection  for  the  Wolf  (Canis  lupus)  by 
moving it from Appendix II (strictly protected fauna species) to Appendix III (protected fauna 
species – regulation is possible).  

The justification by Switzerland for the proposal is that the number of Wolves in Europe has 
increased  substantially  since  the  Convention  entered  into  force  and  therefore  no  longer 
requires a strict level of protection. This amendment would allow the management and control 
of Wolves (also through hunting) without the need to issue exceptions under Article 9 of the 
Convention.  The  level  of  protection  would  thus  be  lower  for  all  the  populations  of  Wolves 
across the territory covered by the parties to the Convention, irrespective of their conservation 
status  and the trends  in  their populations.  The Swiss  proposal  would effectively lead to  this 
lowest  common  denominator  for  the  conservation  of  wolf  populations  across  Europe  and  is 
not in line with the current legal protection status of the Wolf under the Habitats Directive. 
According to  a recent study2, out of the nine mainly trans-boundary wolf populations in the 
Union  and  its  neighbouring  countries,  only  three  are  of  'least  concern'  while  six  are 
'vulnerable' or 'near threatened'. The Western-Central Alps population covering Switzerland is 
'vulnerable' in the IUCN Red List Assessment.  

Whilst acknowledging the challenges of coexistence between wolves and people arising from 
their  recovery  in  numbers  and  range,  the  current  proposal  of  Switzerland  to  lower  the 
protection status of the Wolf across Europe is not justified from a scientific and conservation 
point of view.  

Any proposal to change the legal protection status of the Wolf in Europe should be based on a 
full  assessment  of  its  implication  for  the  conservation  status  of  the  Wolf  across  Europe. 
Available information shows that in most EU Member States, particularly in those where it is 
strictly protected, the species is still in unfavourable conservation status.   

Moreover, in 2019 the EU Member States will provide up-to-date reports on the conservation 
status of the Wolf, as required by Article 17 of the Habitats Directive. Therefore, the Union 
should    defer  to  establish  a  position  concerning  this  amendment  proposal  until  such 
information becomes available. 

2)  Norway  submitted  a  proposal  to  move  the  Barnacle  Goose  (Branta  leucopsis)  from 
Appendix  II  (strictly  protected  fauna  species)  to  Appendix  III  (protected  fauna  species  – 
regulation is possible).  The justification in support of the proposal is that the total population 
size of the Barnacle Goose has multiplied over ten times from the 1980 to 2010 (from 110,000 
to  1,319.000),  among  others  as  a  result  of  the  intensification  of  agriculture  that  has  made 
available  large  quantities  of  feed.  Therefore,  the  species  is  no  longer  in  need  of  strict 
protection throughout its range. 

This proposal is not in line with the current legal protection status of Barnacle Goose under 
the Birds Directive as it is not listed in its Annex II (huntable species). The species is listed in 
Annex I of the Birds Directive (i.e. requiring designation of Special Protection Areas). 

A draft Single Species Management Plan for the Barnacle Goose is being prepared under the 
auspices  of  the  African-Eurasian  Waterbird  Agreement  (AEWA)  to  address  the  very  rapid 
population  increase,  particularly  the  resulting  problems  caused  by  the  species  (agricultural 
damage  and  risks  to  air  safety).  The  Plan  would  provide  a  framework  for  assisting  the 
decision-making process in range states concerning the application of derogations, including a 
regular  assessment  of  the  cumulative  impact  of  derogations,  monitoring  of  the  status  of  the 

2 

http://www.europarl.europa.eu/cmsdata/152040/AGRI%20NEWS%20Issue10_2018_29%20August.pdf 

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population  as  well  as  the  evolution  of  agricultural  damage  or  risks  to  air  safety.  It  would 
facilitate the sharing of information and potentially the co-ordination of derogation measures 
among range states to increase their efficiency and avoid unintended effects at flyway level.  
The Plan is to be adopted at the Seventh Meeting of the Parties of the Agreement in December 
2018. 

The  Union  should  support  the  Norwegian  amendment  proposal  to  address  the  very  rapid 
population increase of this species, particularly the resulting problems caused by the species 
(agricultural damage and risks to air safety), so that the non-EU parties to the Convention can 
apply  population  management  measures,  including  hunting  of  this  species  as  needed. 
However, since an amendment of the Annexes of the Birds Directive is currently not foreseen 
or possible within the short time frame required by the Convention (90 days), the Union will 
have to indicate that, for the time being, it will apply stricter protection measures, as provided 
for in Article 12 of the Convention. 

It is therefore necessary for the Council to take a decision for the purpose of establishing the 
positions to be adopted on behalf of the Union with a view to the thirty-eighth meeting of the 
Standing Committee with regard to the above proposals for amendments. 

The subject matter of the envisaged decision of the Standing Committee concerns an area of 
EU exclusive external competence pursuant to Article 3(2) TFEU since it falls within an area 
already largely covered by internal common rules (i.e. the Habitats and the Birds Directives)." 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’3. 

4.1.2.  Application to the present case 

The Standing Committee is a body set up by the Agreement.    

The act which the Standing Committee is called upon to adopt constitutes an act having legal 
effects. The envisaged act will be binding under international law in accordance with Article 6 
of  the  Agreement.  The  envisaged  act  does  not  supplement  or  amend  the  institutional 
framework of the agreement. 

The procedural legal basis for the proposed decision, therefore, is Article 218(9) TFEU. 

3 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to environment.   

Therefore, the substantive legal basis of the proposed decision is 192(1).  

4.3. 

Conclusion 

The legal basis of the proposed decision should be 192(1) in conjunction with Article 218(9) 
TFEU. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

As the act of the Standing Committee will amend Appendices II and III of the Agreement, it 
is appropriate to publish it in the Official Journal of the European Union after its adoption. 

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2018/0379 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union, in the thirty-eighth meeting 
of the Standing Committee of the Convention on the conservation of European wildlife 
and natural habitats, with regards to amendments to Appendices II and III 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192(1), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

The  Convention  on  the conservation  of  European  wildlife  and  natural  habitats  (Bern 
Convention)  ('the  Agreement')  was  concluded  by  the  Union  by  Council  Decision 
82/72/EEC4 and entered into force on 1 September 1982. 

Pursuant  to  Article  17  of  the  Agreement,  the  Standing  Committee  may  adopt  a 
decision to amend the appendices to the Agreement. 

The Standing Committee, during its thirty-eighth meeting on 27-30 November, 2018, 
is to adopt a decision on amending Appendix II and Appendix III to the Agreement. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Standing Committee, as the decision will be binding on the Union. 

Norway  submitted  a  proposal  to  move  the  Barnacle  Goose  (Branta  leucopis)  from 
Appendix II on “Strictly protected fauna species” to Appendix III on “Protected fauna 
species” of the Agreement. 

The most recent available scientific information on the size, distribution and threats of 
the barnacle goose populations shows that its total population has grown over 10 times 
from the 1980s to 2010 and are now in secure conservation status.   

The  Union  should  support  this  proposal  so  to  address  the  very  rapid  population 
increase of this species across its range. However, the proposal is not in line with the 
current protection status of Barnacle Goose under Directive 2009/147 of the European 
Parliament and of the Council of 30 November 2009 on the conservation of wild birds. 
As an amendment of the Annexes of this Directive is currently not foreseen or possible 
within the short time frame required by the Convention (90 days), the Union will for 
the time being apply stricter protection measures, as provided for in Article 12 of the 
Agreement. 

(8) 

 Switzerland submitted a proposal to move the Wolf (Canis lupus) from Appendix II 
on “Strictly protected fauna species” to Appendix III on “Protected fauna species” of 
the Agreement. 

4 

OJ L 38, 10.2.1982, p. 1. 

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(9) 

Lowering  the  protection  status  of  the  wolf  populations  to  the  lowest  common 
denominator is not justified from a scientific and conservation point of view. The most 
recent  available  scientific  information  on  the  size,  distribution  and  threats  to  the 
European  wolf  populations  shows  that,  out  of  the  nine  mainly  trans-boundary  wolf 
populations  in  the  Union  and  its  neighbouring  countries,  only  three  are  of  'least 
concern'  while  six  are  'vulnerable'  or  'near  threatened'.  The  Western-Central  Alps 
population covering Switzerland is 'vulnerable' in the IUCN Red List Assessment.  

(10)  Up-to-date  information  on  the  conservation  status  of  the  Wolf  in  the  Union  will 
become  available  in  2019  from  the  Article  17  reports  under  the  Habitats  Directive. 
Therefore,  the  Union  should  seek  to  defer  a  vote  of  the  Standing  Committee  on  the 
Swiss proposal until such information is available. 

(11) 

HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  in  the  thirty-eighth  meeting  of  the  Standing 
Committee  of  the  Convention  on  the  conservation  European  wildlife  and  natural  habitats, 
shall be the following: 

 

 

to  support  the  proposal  to  move  the  Barnacle  Goose  (Branta  leucopsis)  from 
Appendix  II  on  “Strictly  protected  fauna  species”  to  Appendix  III  on 
“Protected  fauna  species”  thereto.    The  Union  will,  for  the  time  being,  apply 
stricter protection measures for this species, as provided for in Article 12 of the 
Agreement. 

to seek the support of the other contracting parties to the  Convention to defer 
voting on the proposal to move the Wolf  (Canis lupus) from Appendix II on 
“Strictly protected fauna species” to Appendix III on “Protected fauna species” 
until up-to-date information on the conservation status of the Wolf in the Union 
becomes available. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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